Lincoln's 'Great Crime'
Lincoln�s 'Great Crime': The Arrest Warrant for the
by Thomas J. DiLorenzo
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
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. 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
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
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 . . .
Assistant Judge of the Circuit Court of the District
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."
August 19, 2004
- The nation needed an overhaul, Lincoln was the right man for the
job. I don't think Lincoln "destroyed" any of the constitution,
except the rules concerning slaves. Yes, he was a technically a
dictator, but a nice dictator, as evidenced by his re-election in
1864. No, southern votes didn't count, and he wasn't very nice to
the south, but I'm glad the little matter of people being property
was resolved prior to the nuclear age.
Who is this DiLorenzo guy anyway? "All of this infuriates the
Lincoln Cult" - I'm in the Lincoln Cult, and I'm not infuriated.
Let's stop making pennies, they are more trouble than they're worth.
This infuriates the Church of Lincoln of Latter-Day Saint Lincoln,
but not the Lincoln cult.
There is but one Lincoln, and Lincoln is his prophet. - Abraham
- I'm not sure who DiLorenzo is except that he sometimes writes for a
newsletter I get, lewrockwell.com. They have a libertarian bent and
are often amusing.
I agree with you, Lincoln was the right man for the job. I just think
it's interesting he would order the Chief Justice arrested because the
guy disagreed with Lincoln on something. A bit of history you don't
hear mentioned much.
--- In firstname.lastname@example.org, "tonymaloley" <am7788zz@m...>
> The nation needed an overhaul, Lincoln was the right man for the
> job. I don't think Lincoln "destroyed" any of the constitution,
> except the rules concerning slaves. Yes, he was a technically a
> dictator, but a nice dictator, as evidenced by his re-election in
> 1864. No, southern votes didn't count, and he wasn't very nice to
> the south, but I'm glad the little matter of people being property
> was resolved prior to the nuclear age.
> Who is this DiLorenzo guy anyway? "All of this infuriates the
> Lincoln Cult" - I'm in the Lincoln Cult, and I'm not infuriated.
> Let's stop making pennies, they are more trouble than they're worth.
> This infuriates the Church of Lincoln of Latter-Day Saint Lincoln,
> but not the Lincoln cult.
> There is but one Lincoln, and Lincoln is his prophet. - Abraham