Lincolnís Presidential Warrant to Arrest Chief Justice Roger B.
'A Great Crime' or a Fabrication?
by Charles Adams
S. Calhoun, the Chief Historian for the United States Marshalís
Service, at the Department of Justice, recently wrote a 200 year
history of Federal Marshals, entitled, The
Lawmen: United States Marshals and their Deputies, 17891989
(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:
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.
Taneyís 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
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."
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.
does seem too preposterous to be true, probably because of
all the grave errors and wrongs allegedly committed by Lincolnís
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.
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:
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,
52728, 1921). This policy was bitterly criticized in some
quarters, but it is generally assumed that the people as a whole
supported the arrest policy.
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?
Merryman decision, it was erroneously claimed, loomed as
a serious obstacle to the governmentís policy of stamping out secessionists
and secessionist sympathizers. If Lincoln obeyed the Courtís 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:
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."
continued to irritate the Lincoln administration after his Ex
parte Merryman decision. When Lincoln was ignoring the
Supreme Courtís 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.
doubt Taneyís obstructionism reached the ears of the President.
And it was then that the plan was hatched to arrest and silence
old Justice, who just wouldnít 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.
near-arrest of the Chief Justice is not just found in the history
of the United States Marshalís 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 Hymanís 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 Lincolnís warrant
to arrest the Chief Justice. That left only the papers of Ward Hill
Laman. When this became known, Lamanís character was attacked by
the gatekeepers, to support the theory that the whole story was
a fabrication. It seems he was a heavy drinker. Lincolnís apologist
could relax and maintain the whole account was a fabrication by
the Federal Marshal.
for Lincolnís apologists, research recently unearthed two other
solid sources to corroborate the account set forth in the private
papers of the Federal Marshal, Laman.
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:
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.
years before in 1879, The Memoirs of Benjamin Robbin Curtisís 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."
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.
on this, Mayor Brown wrote 8 years later:
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."
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.
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. Curtisís 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 Sewardís final triumph over the Chief Justice.
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.
Adams (send him mail)
the author of When
in the Course of Human Events: Arguing the Case for Southern Secession,
Dirty Rotten Taxes: The Tax Revolts That Built America, and
Good and Evil: The Impact of Taxes on the Course of Civilization.
© 2004 by LewRockwell.com