'A Great Crime' or a Fabrication?
by Charles Adams
Frederick S. Calhoun, the Chief Historian for the United States Marshal’s Service, at the Department of Justice, recently wrote a 200 year history of Federal Marshals, entitled, The Lawmen: United States Marshals and their Deputies, 1789–1989 (Smithsonian Institute, Washington, D.C. 1989). This historical study gives a detailed account of an arrest warrant, signed by President Abraham Lincoln, in the early days of his administration. The warrant was to arrest the Chief Justice of the United States, Roger B. Taney, following his opinion in the case of Ex parte Merryman (May, 1861). The account is found in the chapter entitled, "Arrest of Traitors and Suspension of Habeas Corpus." It was taken from the private papers of the Federal Marshall, Ward Hill Laman, at the Huntington Library in Pasadena:
Taney’s opinion seriously embarrassed Lincoln and his advisers. Southern sympathizers and Northern opponents of the war praised Taney as a partisan of civil liberties standing alone against military tyranny. Taney’s opinion exacerbated the delicate situation in Maryland, a border state yet undecided in its commitment to the Union. According to Marshal Lamon, "After due consideration the administration determined upon the arrest of the Chief Justice." Lincoln issued a presidential arrest warrant for Taney, but then arose the question of service. "Who should make the arrest and should Taney be imprisoned?"
It was finally determined to place the order of arrest in the hands of the United States Marshal for the District of Columbia. Laman then recalls that "Lincoln gave the warrant to him, instructing Lamon to "use his own discretion about making the arrest unless he should receive further orders."
The account of the warrant to arrest the Chief Justice cannot be found in any of the innumerable Lincoln biographies or accounts of the early days of the Civil War. Since it only recently surfaced, Lincoln historians and biographers have never mentioned the story, probably because it has been outside the main stream of historical information, and hence has not been known. Once it surfaced, Lincoln apologists and Civil War gatekeepers, have been quick to attack the account as a fabrication, because Lincoln would never have done such a thing; and, it would have set off "a political firestorm," so they say; and hence, it is just too preposterous to be true.
It does seem too preposterous to be true, probably because of all the grave errors and wrongs allegedly committed by Lincoln’s administration, this would rank at the top of the list. It would have 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.
But as outrageous as this may appear, during those chaotic first months of the Civil War, it would not have been so unthinkable to arrest and silence Taney. The military arrested people in all walks of life. Charles W. Smith, a biographer of Taney (1973), gives this account of the scope of the arrests of civilians:
Without the sanction of law the federal government arrested men by the thousands and confined them in military prisons. The number of such executive arrests was certainly over 13,000, and it has been estimated to have been as high as 38,000 (Columbia Law Review, XXI, 527–28, 1921). This policy was bitterly criticized in some quarters, but it is generally assumed that the people as a whole supported the arrest policy.
Taney’s Ex parte Merryman decision, if followed by the executive branch of the government, would have given comfort to the enemy, so it was claimed, by letting an accused traitor go free. His decision was condemned, "steeped in the crown of treason," wrote one editor. The New York Times wrote that he used "the powers of his office to serve the cause of traitors." The editor of The Missouri Democrat, went so far as to suggest that getting rid of Taney "will be a good riddance for the country." Northern editors for weeks after the decision enflamed their readers with hate for Chief Justice Taney. But this attack was just plain nonsense. All the Merryman decision did, was to require the government to follow the ancient rule of English liberty – which was set forth in the Constitution – that only the Congress could take away the right of habeas corpus. That would have required Lincoln to call Congress into session, and ask Congress to suspend the right to habeas corpus. How was that so bad?
Thus Merryman decision, it was erroneously claimed, loomed as a serious obstacle to the government’s policy of stamping out secessionists and secessionist sympathizers. If Lincoln obeyed the Court’s order thousands of those arrested illegally would have been freed. Lincoln and most Northerners, during the war, accepted the Machiavellian doctrine that the end justified the means, when the end was to preserve the Union, and was to be achieved regardless of the Constitution and rulings of the Supreme Court. Lincoln expressed that policy to a Chicago clergyman:
"As commander in chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy."
Taney continued to irritate the Lincoln administration after his Ex parte Merryman decision. When Lincoln was ignoring the Supreme Court’s ruling, Taney sent copies of his opinion to other judges, urging them to issue writs of habeas corpus, and many of them did, even enforcing writs against military arrests of civilians. In his circuit in Maryland, Taney delayed a number of treason trials, as it was his right to do controlling the docket, because with the passion of the times, he doubted a fair trial could be had.
No doubt Taney’s obstructionism reached the ears of the President. And it was then that the plan was hatched to arrest and silence old Justice, who just wouldn’t shut up. Lincoln sent a letter to Taney following his decision in the Merriman case, but the letter has never been found. (New York Herald, June 2, 1861). But that could explain why Taney told others, "The government had considered the possibility of arresting him." Someway, he got the word.
The near-arrest of the Chief Justice is not just found in the history of the United States Marshal’s Service. Until recent research, there was a second account supposedly corroborating the story of the Federal Marshal Laman. This second account was in a footnote in Professor Harold Hyman’s A More Perfect Union (1973), p. 86, n. 15, citing the private papers of Frances Lieber, also at the Huntington Library. Lieber wrote the Lieber Code which became the Laws of War for Northern armies. That should have been enough proof, with two independent sources. Unfortunately, the Curator at the Huntington Library reports that the Lieber papers contain no reference to Lincoln’s warrant to arrest the Chief Justice. That left only the papers of Ward Hill Laman. When this became known, Laman’s character was attacked by the gatekeepers, to support the theory that the whole story was a fabrication. It seems he was a heavy drinker. Lincoln’s apologist could relax and maintain the whole account was a fabrication by the Federal Marshal.
Unfortunately, for Lincoln’s apologists, research recently unearthed two other solid sources to corroborate the account set forth in the private papers of the Federal Marshal, Laman.
In 1887, George W. Brown, the mayor of Baltimore, later a Supreme Court judge for Baltimore, wrote in his book, Baltimore and the Nineteenth of April, 1861: A Study of War, (John Hopkins University, 1887) p. 90, of a conversation he had with Taney following the Merryman decision:
"Mr. Brown, I am an old man, a very old man, (he had completed his 84th year) but perhaps I was preserved for this occasion." I replied, "Sir, I thank God that you were."
He then told me that he knew his own imprisonment had been a matter of consultation, but the danger had passed, and he warned me from information he had received, that my time would come.
Eight years before in 1879, The Memoirs of Benjamin Robbin Curtis’s were published. Justice Curtis was one of the most prominent lawyers in that period. He represented President Johnson in his trial before the Senate following his impeachment. Most important, he served as a Justice on the Supreme Court. He wrote the dissenting opinion in Dred Scott, which Lincoln carried in his pocket while debating with Stephen A. Douglas. He resigned from the Court after a dispute with Taney over that case. Yet he admired the Chief Justice for his Merryman decision, and makes reference to the plan to arrest Taney, calling it a "great crime."
If he had never done anything else that was high, heroic, and important, his noble vindication of the writ of habeas corpus and the dignity and authority of his office against the rash minister of State who, in the pride of a fancied executive power, came near to the commission of a great crime, will command the admiration and gratitude of every lover of constitutional liberty so long as our institutions endure. Vol. 1, p. 240.
Commenting on this, Mayor Brown wrote 8 years later:
"The crime referred to was the intended imprisonment of the Chief Justice. Although this crime was not committed, a criminal precedent had been set and was ruthlessly followed."
Brown then cites the oft quoted remark by Secretary Seward to Lord Lyons (British ambassador to the United States), boasting of his power to imprison just about anyone.
Finally, it was Secretary of State, William Seward, who signed the executive orders suspending the right of habeas corpus throughout the war, when it should normally have been the President. Curtis’s account refers to "the rash minister of State," who could be none other than William Seward. History shows that it was Seward who urged the President to embark on a policy of unrestrained arrests of private citizens by the military. Most likely it was Seward who urged the President to sign the warrant to arrest Taney, and most likely on second thought, Lincoln did not permit the arrest to take place. Chief Justice Taney and Seward were bitter enemies. So much so that Taney said, if Seward were elected President, he would not administer the oath of office to him. So arresting and imprisoning Taney would have been Seward’s final triumph over the Chief Justice.
And so the case stands, the Presidential warrant to arrest the Chief Justice is on solid ground. It represents just one more tough nut the apologists and gate keepers have to live with; it cannot be swept under the rug, so to speak, as a fabrication.
Copyright © 2004 by LewRockwell.com