President Abraham Lincoln and the Chief Justice

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President Abraham Lincoln and the Chief Justice

Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

by Thomas J. DiLorenzo


In the first months of the Lincoln administration, President 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. Taney’s 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 LRC article, "Lincoln’s 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. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.


Upon hearing of Laman’s history of Lincoln’s 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). 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, 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 Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."


I recently discovered yet additional corroboration of Lincoln’s "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).


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 o’clock 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 o’clock. 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. See also What was the Main Cause of the Civil War? A Study of Slavery, States' Rights, Secession, State and Federal Governments, Constitution, Supreme Court, and President Abraham Lincoln

August 19, 2004


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 Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).


Copyright 2004

Recommended Reading: The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War. Description: It hardly seems possible that there is more to say about someone who has been subjected to such minute scrutiny in thousands of books and articles. Yet, Thomas J. DiLorenzo’s The Real Lincoln manages to raise fresh and morally probing questions, challenging the image of the martyred 16th president that has been fashioned carefully in marble and bronze, sentimentalism and myth. In doing so, DiLorenzo does not follow the lead of M. E. Bradford or other Southern agrarians. He writes primarily not as a defender of the Old South and its institutions, culture, and traditions, but as a libertarian enemy of the Leviathan state. Continued below...

DiLorenzo holds Lincoln and his war responsible for the triumph of "big government" and the birth of the ubiquitous, suffocating modern U.S. state. He seeks to replace the nation’s memory of Lincoln as the “Great Emancipator” with the record of Lincoln as the “Great Centralizer.”
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Recommended Reading: Lincoln Unmasked: What You're Not Supposed to Know About Dishonest Abe. Description: While many view our 16th president as the nation’s greatest president and hero, Tom Dilorenzo, through his scholarly research, exposes the many unconstitutional decisions of Abraham Lincoln. Lincoln Unmasked, a best-seller, reveals that ‘other side’ – the inglorious character – of the nation’s greatest tyrant and totalitarian. Continued below...

A book that is hailed by many and harshly criticized by others, Lincoln Unmasked, nevertheless, is a thought-provoking study and view of Lincoln that was not taught in our public school system. (Also available in hardcover: Lincoln Unmasked: What You're Not Supposed to Know About Dishonest Abe.)

Recommended Reading: Lincoln at Gettysburg: The Words that Remade America (Simon & Schuster Lincoln Library). Description: The power of words has rarely been given a more compelling demonstration than in the Gettysburg Address. Lincoln was asked to memorialize the gruesome battle. Instead he gave the whole nation "a new birth of freedom" in the space of a mere 272 words. His entire life and previous training and his deep political experience went into this, his revolutionary masterpiece. Continued below...

By examining both the address and Lincoln in their historical moment and cultural frame, Wills breathes new life into words we thought we knew, and reveals much about a president so mythologized but often misunderstood. Wills shows how Lincoln desired to change the world and…how his words had to and did complete the work of the guns, and how Lincoln wove a spell that has not yet been broken.


Recommended Reading: Tried by War: Abraham Lincoln as Commander in Chief (Hardcover). Description: Author James McPherson, Pulitzer Prize Winner and bestselling Civil War historian, illuminates how Lincoln worked with—and often against— his senior commanders to defeat the Confederacy and create the role of commander in chief as we know it. Though Abraham Lincoln arrived at the White House with no previous military experience (apart from a couple of months spent soldiering in 1832), he quickly established himself as the greatest commander in chief in American history. James McPherson illuminates this often misunderstood and profoundly influential aspect of Lincoln’s legacy. In essence, Lincoln invented the idea of commander in chief, as neither the Constitution nor existing legislation specified how the president ought to declare war or dictate strategy. In fact, by assuming the powers we associate with the role of commander in chief, Lincoln often overstepped the narrow band of rights granted the president. Good thing too, because his strategic insight and will to fight changed the course of the war and saved the Union. Continued below...

For most of the conflict, he constantly had to goad his reluctant generals toward battle, and he oversaw strategy and planning for major engagements with the enemy. Lincoln was a self-taught military strategist (as he was a self-taught lawyer), which makes his adroit conduct of the war seem almost miraculous. To be sure, the Union’s campaigns often went awry, sometimes horribly so, but McPherson makes clear how the missteps arose from the all-too-common moments when Lincoln could neither threaten nor cajole his commanders to follow his orders. Because Lincoln’s war took place within our borders, the relationship between the front lines and the home front was especially close—and volatile. Consequently, Lincoln faced enormous challenges in exemplary fashion. He was a masterly molder of public opinion, for instance, defining the war aims initially as preserving the Union and only later as ending slavery— when he sensed the public was at last ready to bear such a lofty burden. As we approach the bicentennial of Lincoln’s birth in 2009, this book will be that rarest gift—a genuinely novel, even timely, view of the most-written-about figure in our history. Tried by War offers a revelatory portrait of leadership during the greatest crisis our nation has ever endured. How Lincoln overcame feckless generals, fickle public opinion, and his own paralyzing fears is a story at once suspenseful and inspiring.


Recommended Reading: Team of Rivals: The Political Genius of Abraham Lincoln (944 pages) (Simon & Schuster). Description: The life and times of Abraham Lincoln have been analyzed and dissected in countless books. Do we need another Lincoln biography? In Team of Rivals, esteemed historian Doris Kearns Goodwin proves that we do. Though she can't help but cover some familiar territory, her perspective is focused enough to offer fresh insights into Lincoln's leadership style and his deep understanding of human behavior and motivation. Goodwin makes the case for Lincoln's political genius by examining his relationships with three men he selected for his cabinet, all of whom were opponents for the Republican nomination in 1860: William H. Seward, Salmon P. Chase, and Edward Bates. Continued below...

These men, all accomplished, nationally known, and presidential, originally disdained Lincoln for his backwoods upbringing and lack of experience, and were shocked and humiliated at losing to this relatively obscure Illinois lawyer. Yet Lincoln not only convinced them to join his administration--Seward as secretary of state, Chase as secretary of the treasury, and Bates as attorney general--he ultimately gained their admiration and respect as well. How he soothed egos, turned rivals into allies, and dealt with many challenges to his leadership, all for the sake of the greater good, is largely what Goodwin's fine book is about. Had he not possessed the wisdom and confidence to select and work with the best people, she argues, he could not have led the nation through one of its darkest periods. Ten years in the making, this engaging work reveals why "Lincoln's road to success was longer, more tortuous, and far less likely" than the other men, and why, when opportunity beckoned, Lincoln was "the best prepared to answer the call." This multiple biography further provides valuable background and insights into the contributions and talents of Seward, Chase, and Bates. Lincoln may have been "the indispensable ingredient of the Civil War," but these three men were invaluable to Lincoln and they played key roles in keeping the nation intact.

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