I1919: Abraham ALVIS (1781

Notes

Pre-War Profession: Graduated West Point 1827, frontier duty, Black Hawk War, Mexican war, explorer, observer in the Crimean War.
War Service: November 1861 Brig. Gen. in Regular Army, served in Washington defences, commanded a cavalry division in Peninsula campaign, Seven Days, court martial duty, commanded Dist. of Baton Rouge, recruiting duty.
Post War Career: Army service, author.
Note: Father of Confederate Gen. J R Cooke and father-in-law of Jeb Stuart.

The Twentieth Century Biographical Dictionary of Notable Americans: Volume II:
"COOKE, Philip St. George, soldier, was born at Leesburgh, Va., June 13, 1809; son of Dr. Stephen and Catherine (Esten) Cooke. He was graduated at the U.S. military academy in 1827 and was commissioned lieutenant in the 6th U.S. infantry, joining his regiment at Jefferson barracks, Mo., in November, 1827. He took part in the Black Hawk war, participating in the battle of Bad Axe, and was promoted first lieutenant, March 4, 1833, and captain in May, 1835. He served in Texas, Arkansas, and New Mexico; defended a caravan of Santa Fé traders from the "army of Texas," and received for the exploit the thanks of President Santa Anna and the official thanks of the commander-in-chief of the U.S. army and of Colonel Kearny commanding the department. In 1845 he accompanied Colonel Kearny through South Pass, Rocky Mountains, and thence to Fort Leavenworth via the headwaters of the Arkansas river, a march of twenty-two hundred miles, in ninety-nine days. He was promoted lieutenant-colonel in October, 1846, and with an infantry battalion (six companies) of volunteers was ordered to California with a wagon train, exploring and making a practical wagon road en route. The battalion reached San Diego mission Jan. 29, 1847 after suffering great privations while marching eight hundred miles through an enemy's country. Here Colonel Cooke was able to suppress a threatened deadlock between the army and navy authorities and to support the commanding army official in carrying out the orders of the President, practically acquiring for the government 250,000 square miles of territory and pointing out a feasible railroad route between the Gulf and the Pacific. Captain Cooke was commissioned major of second dragoons, Feb. 16, 1847, and resigned his volunteer commission on May 1 to rejoin his regiment in the City of Mexico. He was brevetted lieutenant-colonel for meritorious services in California; superintended the cavalry barracks at Carlisle, Pa., 1848-52; was in command of the 2nd dragoons in Texas in 1853 and conducted a campaign against the Lipan Indians and drove them beyond the Rio Grande. This exploit gained for him promotion to the rank of lieutenant-colonel, and while in command of Fort Union, N. M., in 1854, he relieved the 1st dragoons, beleaguered in Fort Burgwin, organized a company of "spies and guides" from the Pueblo Indians, and pursued the Jicarilla Apachee Indians across the Rio Grande and one hundred and fifty miles beyond, where, on April 8, he surprised them in camp, captured their baggage and supplies and caused them to sue for peace. This service, entirely unauthorized and voluntary, was approved by the department commander, and in general orders No. 9, war department, June 21, 1854, he received "special praise and the marked approbation of the President and this department." In 1855 he defeated the Sioux Indians at Blue Water. He was stationed in Kansas, 1856-57; made a winter march to Utah, 1857-58, and was promoted colonel of the 2nd dragoons, June, 1858.

In 1860 he visited Europe to observe the war between Italy and France and Austria. He was in command of the department of Utah in 1861. In October of that year he evacuated his department and with his troops marched to Washington, D. C., arriving there Oct. 19, 1861. He was appointed brigadier-general in the regular army and commanded a cavalry division in the Army of the Potomac at the siege of Yorktown, battles of Gaines's Mill, Frayser's Farm, and the other battles on the peninsula. At Harrison's Landing he was relieved and was on court-martial duty at St. Louis, Mo., in the winter of 1862-63. He commanded the Baton Rouge district, department of the. Gulf, from October, 1863, to May, 1864, and on March 13, 1865, was brevetted major-general U.S.A., "for gallant and meritorious service during the war." He commanded the department of the Platte, 1866-67; the department of the Cumberland, 1869-70; and the department of the Lakes, 1870-73, when he was retired from active service. He wrote Scenes and Adventures in the Army (1856); and The Conquest of New Mexico and California (1878). He died in Detroit, Mich., March 20, 1895."

Major General Philip St. George Cooke, U. S. A. was born near Leesburg, Virginia. He graduated from West Point in 1827 and served in the Army until he retired in 1873. In the 1850s, he was called "father of the cavalry".

As did other officers he took his son on expeditions with him--his son, John Rogers Cooke accompanied troops on a march down the Santa Fe Trail--the son who later became Confederate Brigadier General John Rogers Cooke. He was father-in-law of Confederate cavalry commander, Jeb Stuart, and uncle of author John Esten Cooke, who served in the Confederate Army throughout the Civil War. Stuart wrote of him, "He will regret his decision to remain with the Union but once, and that will be continuously."

An Enduring Legacy: Volume Six
Historic Western Trails
The Santa Fe Trail Santa Fe
"Philip St. George Cooke was born near Leesburg in Loudoun County, Virginia, June 13, 1809, and entered the United States Military Academy in 1823 when he was fourteen years of age, being the youngest member of the class. Graduating from West Point in 1827, he received a commission as brevet second lieutenant of infantry. Two years later, under Major Bennet Riley, he made the first of many trips on the Santa Fe Trail and later received an assignment to guard the caravans along the trail. He spent most of his service on the frontier, establishing a reputation as one of the army's foremost Indian campaigners after taking an active role in numerous expeditions and battles against the redskins.25
Footnote
25 Hamilton Gardner, "The Command of the Mormon Battalion in the Mexican War," Utah State Historical Quarterly, vol. 20, p. 336, 337.
…Cooke was the brother of John Rogers Cooke, the Constitutional lawyer, and of Dr. John Esten Cooke, the celebrated antagonist of Dr. Drake at the Louisville Medical Institute. He was an uncle of Philip Pendleton Cooke, the ill-starred romantic poet, John Esten Cooke, the novelist, and, by marriage, John Pendleton Kennedy. He fathered one Confederate general, John R. Cooke, and his daughter married Jeb Stuart. Yet Cooke was to stay in the Union when the time came. Something of the family's poetic impulse had accompanied him through years of chasing Indians on the frontier .…26
Footnote
26 DeVoto, The Year of Decision, p. 233.
An Enduring Legacy: Volume Six
Historic Western Trails
The Mormon Battalion Trail

But little was known about the Southwest. Cooke's only knowledge of the region was learned from two maps: Tanner's American Atlas and Mitchell's map of Texas, Oregon and California. Once again the Indian, and also the Spanish trails would have to be depended on to get them to San Diego, California, eleven hundred miles distant.

Following a wagon road over barren, mountainous terrain, the Battalion made its way to the Rio Grande River. Although the marching was strenuous (twenty-four miles on October 21), upon reaching the river, grass and water were plentiful. The journals agree that the valley was beautiful, with wild geese abounding and Indian farms and villages dotting the horizon. Reaching the outskirts of Albuquerque, the Colonel ordered a halt and camp was made.

Before proceeding with the story, we wish to mention three members of the Battalion who were to prove indispensable to the historic journey—the guides. The first, considered the principal guide, was a man by the name of Pauline Weaver, who had trapped for the Hudson's Bay Company, and who had migrated to the Southwest where he became familiar with the customs, habits and language of the Apache Indians as well as the geographical area in which they lived.

Another was Antoine Leroux, who was acquainted with the Gila Valley, through part of which the Battalion would pass and whose name would later be borne by a spring near Flagstaff, Arizona, and a wash near Holbrook. On October 24, in the ranches outside Albuquerque, another guide joined the company. Col. Cooke noted in his journal,

…I met here Charbonneau, one of the guides left for me, who reports that he had examined a route different in part and farther than that taken by the general (Kearny), viz., to descend the river farther and fall into a road from El Paso to the Coppermines. The report is favorable; but they did not make a thorough examination by any means; and the practicability of the route from the copper mines to the Gila is still a problem.1
Footnote
1 Lieutenant-Colonel Philip St. George Cooke, "Official Journal of the March," p. 7.

So once again we shall travel with Sacajawea's son. His capabilities were recognized, so Baptiste (Pomp) Charbonneau was hired to help the Mormon Battalion build a road across some of the most treacherous desert in North America."

Notes

Roger Taney was born in Calvert County, Maryland, into a tobacco plantation family. He received his education at Dickinson College. In 1799, Taney was admitted to the bar and was elected to the Maryland legislature. Taney emerged as a leader of the Federalists, although he broke with some of his colleagues when he supported the War of 1812. Following the conflict, he served multiple terms in the state senate while building a successful law practice.

In 1824, Taney switched his political allegiance to support the candidacy of Andrew Jackson. In 1831, he was appointed U.S. attorney general, then he received a recess appointment as secretary of the treasury when two of Jackson’s appointees refused to cooperate with the President’s plan to withdraw funds from the Bank of the United States. Taney complied with Jackson’s wishes, but was punished by the Senate, which refused to ratify his nomination at Treasury and later as an associate justice of the Supreme Court.

Following the death of John Marshall, Taney managed to win confirmation as Chief Justice of the Supreme Court in 1836. Major decisions during his lengthy tenure included Charles River Bridge Company v Warren Bridge (1837), the Dred Scott decision (1857) and Merryman, ex parte (1861).

Ex parte Merryman and Abraham Lincoln’s Suspension of Habeas Corpus by Andrew Young on Lew Rockwell.com http://www.lewrockwell.com/orig5/young-andrew7.html

"After the outbreak of the American Civil War, President Abraham Lincoln, claiming emergency powers, suspended habeas corpus, a person’s right to have a judge determine the legality of his imprisonment. Lincoln authorized the military to arrest and indefinitely detain anyone suspected of aiding the rebels. This decision outraged many of Lincoln’s contemporaries, and has been a subject of debate for constitutional scholars ever since. Roger Taney, the Chief Justice of the Supreme Court during Lincoln’s presidency, voiced particular outrage in his Ex parte Merryman opinion. The following essay will summarize Taney’s arguments against Lincoln’s claim of executive power, arguing that Taney’s interpretation of the Constitution is superior to Lincoln’s.

According to historians David Donald and James Randall, Lincoln relied on arbitrary arrests for political expediency. If Lincoln had exclusively utilized the courts to judge cases of suspected treason, he would have convicted few, since the Constitution sets strict requirements for a treason conviction. Moreover, those who were convicted might become martyrs and incite more resistance. Therefore, Lincoln suspended habeas corpus and allowed the military to conduct arbitrary arrests. [i]

Lincoln gave several more diplomatic justifications for suspending habeas corpus. First, he formulated a “doctrine of necessity.” Since the president takes an oath to preserve, protect, and defend the Constitution, he must violate it during emergencies to preserve the government. Sometimes we amputate limbs to preserve life; similarly, presidents must occasionally violate the Constitution to save it. Second, Lincoln offered two constitutional justifications for his actions. He cited the president’s duty to make sure that the nation’s laws are faithfully executed; since disloyal Northerners could prevent Lincoln from “faithfully executing” law, he could suspend their right to habeas corpus. [ii] He then cited the commander-in-chief clause of the Constitution, claiming that, as commander-in-chief in wartime, he had “a right to take any measure which may best subdue the enemy.” [iii]

Before considering Ex parte Merryman, we should discuss the events that led Taney to write the opinion. In May 1861, Union General George Cadwalader ordered John Merryman’s arrest for being “an active secessionist sympathizer.” Under Cadwalader’s order, Merryman was held in a military prison at Fort McHenry. When Taney, who was on circuit duty, demanded that Cadwalader allow him to judge the legality of Merryman’s detainment, Cadwalader refused, citing Lincoln’s orders. Taney then attempted to hold Cadwalader in contempt, but Union soldiers refused to admit the marshal who tried to serve him Taney’s writ. Thereafter, a frustrated Taney wrote his Merryman opinion. [iv]

In his Ex parte Merryman opinion, Chief Justice Roger Taney addresses Lincoln’s claims of sweeping executive power. He directly challenges Lincoln’s claim that his duty to faithfully execute the nation’s laws justifies the suspension of habeas corpus. The clause that requires the president to “faithfully execute” the laws, Taney says, does not permit him to “execute them himself, or through agents or officers, civil or military.” [v] Instead, the president’s duty is to assure that no outside force interferes with the government’s execution of the laws. Therefore, he must help the judicial branch if some outside force threatens the judiciary’s power; he does not have the right to utilize the military to usurp judicial authority.

Taney also challenges Lincoln’s assertion that emergencies require the executive to usurp congressional and judicial authority. Near the end of the opinion, he says that, if the executive branch can, in any situation, overstep other branches, then “the people of the United States are no longer living under a government of laws.” In Taney’s view, the Constitution is not a mere suggestion of how government should operate under ideal circumstances. Instead, it is a concrete document to which the executive must adhere at all times, including times of emergency. If presidents can abandon the Constitution “upon any pretext or under any circumstances,” the Constitution means nothing. [vi]

Perhaps most importantly, Taney says the framers never intended for the executive to suspend habeas corpus. He offers mounds of evidence to support this contention. First, he cites a major crisis during Thomas Jefferson’s presidency. Aaron Burr, Jefferson’s vice president, led a conspiracy to seize territory around New Orleans to form a new country. During this time, Jefferson actually wanted to suspend the writ, but wrote that he lacked the authority. Instead, he suggested that Congress exercise its power to suspend habeas corpus. [vii]

Second, he writes that the framers, fearing a liberal interpretation of the “necessary and proper” clause, which gives Congress the right to pass any law deemed “necessary and proper” for carrying out its duties, listed several fundamental rights that cannot be violated. It is not a coincidence, Taney says, that the first right listed is the writ of habeas corpus, which may only be suspended in times of invasion or rebellion. [viii]

Third, Taney argues that it defies common sense to believe the framers would have trusted the executive with the right to suspend habeas corpus. They had just broken away from a powerful, despotic English monarch. Therefore, they distrusted a powerful executive, especially one who could arrest citizens and hold them indefinitely without trial. As evidence, Taney cites the strict limits Article 2 places on the executive, such as the requirement for congressional approval of treaties with foreign nations and his short term of office. [ix]

Taney persuasively argues that the Constitution expressly denies the executive the right to suspend habeas corpus, even going so far as to say “I had supposed it to be one of those points of constitutional law upon which there was do difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of Congress.” [x] To support this contention, Taney cites Article 1, Section 9 of the Constitution, which gives Congress alone the power to suspend Habeas Corpus. He also cites the fact that Article 1 “is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.” [xi] To further support his case, Taney discusses Article 2 of the Constitution, which deals with the executive branch. Taney writes that “if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article.” [xii] However, Article 2 never gives the president this power.

Taney quotes his predecessors on the Supreme Court to bolster his arguments. Justice Joseph Story, for example, once wrote that “It would seem, as the power is given to Congress to suspend the writ of habeas corpus…that the right to judge whether the exigency had arisen must exclusively belong to that body.” [xiii] Moreover, he refers to an opinion written by Chief Justice John Marshall. Marshall’s opinion says that, if suspending the writ is necessary for public safety, only Congress may do so. Until Congress suspends the writ, the courts must maintain habeas corpus. To capitalize on the high esteem most Americans give Marshall, Taney says “I can add nothing to these clear and emphatic words of my great predecessor.” [xiv]

The influence of English common law on America’s legal system, Taney argues, supports his position. For centuries, the English dealt with monarchs who arbitrarily imprisoned their own citizens. Therefore, they, like the framers, denied executives the authority to suspend habeas corpus. Taney quotes English judge William Blackstone at length, who once wrote that “But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient.” [xv] Though Taney concedes that the English and American systems differ greatly, he reminds readers that “upon this subject they (English judges) are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice.” [xvi]

Even if Congress had suspended habeas corpus, Taney argues, Merryman should still be released. Cadwalader did not have probable cause to detain Merryman. Taney correctly points out that Cadwalader never produced any witnesses to support his accusations, nor did he bother to specify “the acts which, in the judgment of the military officer, constituted these crimes.” [xvii] Furthermore, even if the suspension of habeas corpus were legal, the military could not refuse to cooperate with the judicial branch. Though the military can arrest private citizens, it must immediately transfer them to civil authorities.

On the question of the framers’ original intent, Taney’s view is clearly the correct one. The framers would never have wanted the executive to have the power to suspend habeas corpus under any circumstances; they repeatedly criticized their previous ruler, the English king, for similar behavior. For example, in the “Declaration of Independence,” Thomas Jefferson attacks King George because he “has affected to render the military independent of and superior to civil power.” [xviii] Lincoln, by allowing the military to arbitrarily arrest private citizens and sidestep judicial authority, differed little from George III. Moreover, as Taney points out, during Thomas Jefferson’s presidency, when most of the framers were still in government, no one, even during a time of crisis (the Burr conspiracy), believed the president could suspend habeas corpus. Nor did President James Madison, the “father of the Constitution,” claim sweeping executive powers during the War of 1812, as Tom DiLorenzo has written. [xix]

Even if we do not consider the framers’ original intent, Taney’s interpretation is clearly superior; as Taney writes, this should be “one of those points of constitutional law upon which there was no difference of opinion.” Article 1, Section 9 of the Constitution gives Congress, not the president, the power to suspend habeas corpus. If the president had the power to suspend habeas corpus, it would be found in Article 2, which deals with the executive branch; it is not.

Many of Lincoln’s defenders concede the unconstitutionality of his suspension of habeas corpus, but argue that, although the suspension was dictatorial, Lincoln was a “good dictator.” James G. Randall even called Lincoln a “benevolent dictator,” a phrase many would consider an oxymoron. However, it is easy for those who never suffered the effects of Lincoln’s “benevolent” dictatorship to defend him. John Merryman, who was arrested in his home without probable cause, would disagree with Randall’s analysis. So would Francis Key Howard, who spent two years in military prison at Fort McHenry and wrote a book about his experience there called The American Bastille. [xx] Moreover, what is the Constitution worth if one man (the president), under a pretext of his choosing, can decide to ignore it?

After Taney issued his Merryman opinion, which President Lincoln ignored, the Lincoln administration increased its usurpation of judicial and congressional powers. Lincoln, incensed by Taney’s defense of civil liberties, issued a warrant for his arrest. Several sources corroborate this controversial warrant. First, the private papers of Lincoln’s former law partner, Ward Hill Laman (who was a Federal Marshal at the time) contain a reference to the warrant, saying “After due consideration the administration decided upon the arrest of the chief justice.” Second, Taney warned friends that he may be arrested, including George Brown, the future mayor of Baltimore. Fortunately, no one could find a marshal who was willing to arrest an 84-year-old judge. [xxi]

Lincoln’s attempt to arrest Taney helps prove Taney’s accusation that Lincoln was willing to usurp judicial authority and endanger American liberty. Lincoln not only ignored an order from the Chief Justice of the Supreme Court; he even tried to have the judge arrested. If Lincoln had succeeded in arresting Taney, he would have virtually destroyed the separation of powers upon which this nation was founded. How can the judiciary maintain its independence if the president can have the Chief Justice arrested for merely issuing an opinion with which he disagrees?

Donald and Randall’s analysis also supports Taney’s opinion. If Lincoln decided to suspend habeas corpus simply because he feared that he could gain few treason convictions, he viewed the Constitution as an obstacle to be sidestepped, not a foundation for preserving liberty. Furthermore, his belief that he would attain few convictions supports Taney’s claims. After declaring that the military lacked probable cause in the Merryman case, Taney concluded that the government probably lacked evidence for many of its other arrests and encouraged other judges to demand writs of habeas corpus. [xxii] Lincoln’s cynicism helps show that Taney was correct.

President Lincoln’s suspension of habeas corpus lacked both moral and constitutional justification. It confined thousands in military prisons for opposing war and voided years of jurisprudence. The Constitution never gives the president the right to suspend habeas corpus, nor can that right be inferred from the commander-in-chief clause or the president’s duty to faithfully execute the laws. Lincoln’s suspension was not only illegal; it was also dangerous, threatening the separation of powers that prevents any one branch of government from becoming too powerful. Moreover, his actions inspired future presidents to ignore the Constitution during times of crisis. Especially today, with the post-9/11 crackdown on civil liberties, Americans would be wise to reread Ex parte Merryman.

Sources:
[i] James G. Randall and David Donald, The Civil War and Reconstruction, 2nd Ed. (Boston: D.C. Heath and Company, 1961), 300.
[ii] Michael Genovese, The Power of the American Presidency (New York: Oxford University Press, 2001), 81.
[iii] Genovese, 84.
[iv] Randall, 301–302.
[v] Roger Taney, “Ex Parte Merryman,” n.d. (28 Mar. 2005).

Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney
'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.

It did.

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.

January 5, 2004

Charles Adams (send him mail) is the author of When in the Course of Human Events: Arguing the Case for Southern Secession, Those Dirty Rotten Taxes: The Tax Revolts That Built America, and For Good and Evil: The Impact of Taxes on the Course of Civilization.

Roger Brooke Taney was born March 17, 1777 on the Taney Plantation along the Patuxent River, in Maryland's Calvert County. The Taney family had come to the colony as indentured servants in the mid-seventeenth century but, after serving out their term of servitude, they later established themselves as prosperous tobacco farmers in the rich agrarian economy of southern Maryland. Taney grew up as a Maryland Roger Brooke Taney (1777-1864)Roman Catholic with rural gentry privilege, was educated privately and then entered Dickinson College in 1792.

While at Dickinson, Taney came under the tutelage of Dr. Charles Nisbet, arguably one of the greatest educators of his day. If the correspondence between Nisbet and Taney’s father throughout 1792-1795 are any indication, the Principal became almost a surrogate father to the young and talented student. Taney was a leading member of the Belles Lettres Society and graduated as valedictorian of the twenty-four students in the class of 1795. This honor he always valued since the students themselves at the time were responsible for such selection.

Taney studied law under Judge Jeremiah Townley Chase in Annapolis before being admitted to the Maryland bar on June 19, 1799. After a brief time as a Federalist state representative, he began his legal career in earnest in Frederick, Maryland. There he also met and married Anne Phoebe Charlton Key, the sister of Francis Scott Key, in January, 1806. The couple would have six daughters.

Taney was elected to the Maryland State Senate in 1816 and came to dominate the state's Federalists. By 1820 he had also established himself as one of the leading attorneys in Maryland and in September, 1827 accepted the position of State Attorney General. As the Federalist Party faded away, Taney looked for other political outlets. He had always been an avid supporter and admirer of General Andrew Jackson, acting as chairman of the Jackson Central Committee of Maryland in the 1828 election. His longtime support was recognized in 1831 when President Jackson appointed him to the first of what were to be several posts in his cabinet. He initially served as both Attorney-General and acting Secretary of War. In a cabinet shuffle in 1833, Jackson appointed Taney as Secretary of the Treasury. The national controversy over the role of the Bank of the United States dictated that this was a highly sensitive post, but one for which Taney’s long experience in banking law qualified him well. Taney would serve from September 23, 1833 until his Senate confirmation was rejected and he resigned on June 24, 1834. Jackson then sought to have him appointed to the Supreme Court as an associate justice but this nomination was also blocked in the Senate. Jackson persisted, however, and on December 28, 1835, he nominated Taney to fill the vacancy on the Court left by the death of the legendary Chief Justice John Marshall. This time, despite the usual Whig opposition, he was confirmed and he took the oath of office on March 28, 1836.

Taney’s actions in his first decades largely calmed initial Whig fears that his appointment would politicize the Court and he settled into a careful career marked by strict construction of, not only the Constitution where it supported state sovereignty, but also of contract, as in Charles River Bridge vs. Warren Bridge. However, one case in particular has been the hallmark of Taney's tenure as Chief Justice. In 1856, a seemingly unnecessary supporting case for the 1820 Missouri Compromise, Dred Scott vs Sandford, was allowed before the Court. Taney wrote the majority opinion in the Scott case, confirming slaves as property by ruling against Negro citizenship and then declaring that the Compromise itself was unconstitutional because Congress had no right, under the constitutional protection of private property, to bar slavery from new territories.

As a child of Southern gentry, Taney immediately came under extreme Republican attack for this decision. He was personally opposed to slavery, having freed his own slaves, but his southern sensibilities and his own intimate knowledge of the institution led to his belief in the common southern anti-slavery solution of repatriation, as opposed to abolition. The case dogged the rest of his nine years as Chief Justice, even though he displayed a certain judicial brilliance in his later decisions with long and thoughtful opinions on the role of the states and national government in fugitive slave cases, in Ableman v. Booth just before the Civil War, and on the rights of civilians in wartime in Ex Parte Merryman during the conflict itself.

Plagued all of his life with ill health and never a rich man, Chief Justice Roger Brooke Taney died on October 12, 1864, unmourned by most Northern supporters of a war against rebellion he believed privately the Union had no legal right to wage. He was 87 years old.
http://chronicles.dickinson.edu/encyclo/t/ed_taneyR.htm
For more information please follow the links below:
Roger Brooke Taney legal papers, 1770-1834

My Southern Family

Abraham ALVIS

1781 - 1854

ID Number: I1919

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Ambrose BOOTEN

1740 - ____

ID Number: I99150

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Gen. Philip St. George COOKE

10 Jun 1809 - 20 Mar 1895

ID Number: I41595

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Rosa FORTENBERRY

ABT 1890 - ____

ID Number: I35309

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George W. GATEWOOD Jr.

ABT 1822 - AFT 1850

ID Number: I37679

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William LANGHORNE

1783 - 1858

ID Number: I62000

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Donald Wayne MERRILL Jr.

John Simpson MILLER

ABT 1840 - ____

ID Number: I47850

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Susan Rodgers RUCKER

Hon. Roger Brooke TANEY Chief Justice

17 Mar 1777 - 12 Oct 1864

ID Number: I104928

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Lucretia WACTOR

1819 - ____

ID Number: I80291

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John WELSH "the Immigrant"

ABT 1622 - ABT 1683

ID Number: I85658

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