Lincolns Great Crime: The Arrest Warrant for the Chief Justice by Thomas J. DiLorenzo August 19, 2004 – with footnotes included Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator. An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taneys opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in the public interest to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative. As Charles Adams wrote in his article, Lincolns Presidential Warrant to Arrest Chief Justice Roger B. Taney, there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below). All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of saving the Constitution. The first source of the story is a history of the U.S. Marshals Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789—1989. [ 1 ] Calhoun recounts the words of Lincolns former law partner Ward Hill Laman, who also worked in the Lincoln administration. Upon hearing of Lamans history of Lincolns suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln scholars.) But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887) [ 2 ]. In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him. Yet another source is A Memoir of Benjamin Robbins Curtis, [ 3 ] a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincolns suspension of habeas corpus. He refers to Lincolns arrest warrant as a great crime. I recently discovered yet additional corroboration of Lincolns great crime. Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861). [ 4 ] The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter: After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight oclock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five oclock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end. Exactly right. Thomas J. DiLorenzo ] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Countrys History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004). Footnotes: [ 1 ] The history of the U.S. Marshals Service, the civilian enforcement arm of the federal government since 1789, is, in essence, the story of constitutional government in our country. In the early days, U.S. Marshals were the only national civilian police power; they have been on the scene in nearly every major event, from the Whiskey Rebellion to the second battle of Wounded Knee. Marshals fought in the moonshine wars, protected the U.S.-Mexican border, escorted black students at Southern universities to enforce desegregation. Even with the addition of specialized federal enforcement agencies, the Marshals retain their authority. This volume by Service historian Calhoun ( Power and Principle: Armed Intervention in Wilsonian Foreign Policy ) will be of special interest to students of government and the judiciary. Illustrations . Copyright 1990 Reed Business Information, Inc. [ 2 ] George William Brown was the mayor of Baltimore during one of the most dramatic and violent incidents in the citys history. On April 19, 1861, the sixth Massachusetts Volunteer Infantry and Pennsylvania troops -- about 1,700 soldiers answering President Lincolns call to defend the federal capital -- arrived at Baltimores President Street station east of the harbor on their way to Washington, D.C. As they made their way across Pratt Street to board the southbound train at Camden Yards, the soldiers were attacked by a mob of nearly 5,000. When the fighting was over, 21 soldiers and citizens were dead and more than 100 were injured -- the first blood spilled in the Civil War. First published by Johns Hopkins in 1887, Baltimore and the Nineteenth of April, 1861 is Browns thoughtful, very personal memoir of those eventful days. Along with his dramatic account of the Pratt Street riot, he describes Lincolns suspicious secret passage through the city on the way to his inauguration earlier that same year. He tells of rumors, plots, and increasing tensions and divisions after Southern secessionists fired on Fort Sumter. Brown also explains his attempts to quell the April riot, protect the federal troops, and prevent further violence (even justifying his order to burn the railroad bridges north of the city to halt the arrival of additional troops in Baltimore). A fascinating, eyewitness account of a bloody incident that fueled passions both North and South, this historic volume returns with a new introduction by Kevin Conley Ruffner. The fight which occurred in the streets of Baltimore on the 19th of April, 1861, between the 6th Regiment of Massachusetts Volunteers and a mob of citizens, was... memorable because then was shed the first blood in a conflict between North and South; then a step was taken which made compromise or retreat almost impossible; then passions on both sides were aroused which could not be controlled. -- from Baltimore and the Nineteenth of April, 1861 [ 3 ] Originally published: Boston: Little Brown, and Company, 1879. Two volumes. Illustrated. Edited by his son of the same name [1855-1891], the first volume being a memoir by his brother, the author George Ticknor Curtis [1812-1894], the second volume consists of reprints of his articles and a selection of his addresses and judicial statements. Benjamin Robbins Curtis [1809-1874], an eminent Massachusetts jurist, was appointed to the United States Supreme Court in 1851 where he achieved his greatest fame in 1857 by his dissenting opinion in the Dred Scott case. Curtis argued in a lengthy opinion that residence of a slave with his owner in free territory conferred freedom that the slave could vindicate on his return to slave territory. He claimed also that the Court could not try the case because a slave was not considered a citizen. After resigning his seat after a series of acrimonious disputes about the case with Chief Justice Taney, he achieved eminence as an attorney, one who was esteemed for his dignity, coolness, and clear, logical mind. Indeed, he was considered one of the leaders of the American Bar, arguing fifty-four cases before the Supreme Court and eighty before the supreme court of Massachusetts. The impeachment trial of Andrew Johnson, in which he served as the presidents leading counsel, was perhaps his finest hour. Many considered his opening statement for the defense to be his greatest forensic effort. [ 4 ] United States ex rel. Murphy v. Porter was a case decided by the United States Circuit Court for the District of Columbia in October 1861. The case arose when John Murphy asked the court to issue a writ of habeas corpus to release his son from service in the United States Army during the Civil War on the grounds that he was underage. The case was decided at a time when habeas corpus had been suspended in the District of Columbia. General Andrew Porter, to whom the writ was directed, arrested Murphys lawyer when he attempted to serve Porter with the writ and had Judge William Matthew Merrick placed under house arrest in order to prevent him from proceeding in the case. Merricks fellow judges then took up the case and ordered Gen. Porter to appear before them and explain himself, but President Abraham Lincoln then prevented the marshal from delivering the courts order. The court objected that this disruption of the its process was unconstitutional as the president had not declared martial law (while acknowledging that he did have the power to do so), but noted that it was powerless to enforce its prerogatives.
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