The "Lincoln Tried to Arrest Taney" story -- An examination of the primary source
Joseph Eros
neo-Confederate Web publications, you might have heard that Lincoln
authorized or ordered the arrest of Chief Justice Roger Taney. The
columnist Joseph Sobran has stated it as fact at least three times,
and Jerome Tuccille, the guide for civil liberties on About.com, has
also referred to it.
The story seems to stem from the following paragraph in Jeffrey Rogers
Hummel's 1996 book _Emancipating Slaves, Enslaving Free Men_ (p. 154):
"_Ex parte Merryman_ appears in Civil War histories from many angles.
. . But almost never brought up is Lincoln's warrant for the arrest of
Chief Justice Taney. I have seen this mentioned in only two
locations: Frederick S. Calhoun's official history, _The Lawmen:
United States Marshals and Their Deputies_, rev. edn. (New York:
Penguin Books, 1991), pp. 102-04; and Harold M. Hyman,_ A More Perfect
Union: The Impact of the Civil War and Reconstruction on the
Constitution_ (New York: Alfred A. Knopf, 1973), p. 84. Their sources
are two independent manuscript collections, which lends credence to
the claim's reliability, although I have personally examined neither
collection."
Curious about this claim, I consulted both sources. Hyman states that
"in an unpublished memorandum, Francis Lieber noted that Lincoln
contemplated Taney's arrest, and issued Ward Hill Lamon, marshal for
the District of Columbia, permission to arrest him"(p. 84). Calhoun
goes into a bit more detail, recounting Lamon's exact claims that
"after due consideration the administration determined upon the arrest
of the Chief Justice" and that "It was finally determined to place the
order of arrest in the hand of the United States Marshal for the
District of Columbia"(Lamon himself was Marshal of D.C.). However,
Lamon said, Lincoln had instructed his friend to "use his own
discretion about making the arrest unless he should receive further
orders(p. 103)". These further orders never came, and Lamon
(obviously) did not arrest Taney.
This is an odd story. Lincoln referred to Lamon as "my particular
friend" and clearly valued him as a companion. But there is no
record, as far as I can tell, that Lincoln ever consulted Lamon on a
decision of high political importance, much less that he entrusted
Lamon with such a decision. Also, it was not clear if these were in
fact two independent sources; Lieber could have been merely recounting
Lamon's claims about such a warrant, rather than vouching for them
independently. Still, Francis Lieber was a highly respected lawyer,
the principal compiler of the US military code, and his assertion
would carry some weight.
The manuscript sources listed are (by Hyman) "Lieber Papers no. 2422";
and (by Calhoun) "'Habeas Corpus', n.d., unpublished draft manuscript.
Both are stored at the Huntington Library, in San Marino, California.
Although I would have liked to visit the Huntington (I drove past it
on a recent trip to California; it is in a beautiful botanical
garden), time and budgetary constraints were in the way. So I wrote a
letter, reproducing the relevant quotations from all three books and
asking if I might be able to hire someone there to look into the
manuscript sources a bit.
I received a very interesting reply from John Rhodehamel, Norris
Foundation Curator of American Historical Manuscripts. He had checked
the records, and reported that there are not two sources, only one:
Lamon. Hyman's reference to the Lieber papers was in error,
apparently caused by a confusion of source numbers: Rhodehamel states
that "the corresponding document in the Lieber coll., (LI 2422), is
not relevant, nor does the Lieber coll. subject index for "Taney"
yield anything related to Lamon's story." However, the manuscript
"Habeas Corpus", referred to by Calhoun, is LN 2422. Therefore,
Rhodehamel concludes: "I think it's clear that Hyman was really
citing LN 2422 when he credited 'Lieber papers no. 2422'".
This leaves the whole matter resting on Lamon's manuscript. I ordered
a photocopy of it from the Huntington.
I have now examined it, and it's even less convincing than I would
have thought. The document takes up five handwritten pages; I'd
estimate it's about 1800 words long. There is, as Calhoun notes, no
date. The latest date in the document is in 1863, but (as pointed out
in an accompanying note written by Don Fehrenbacher in 1976), the
context indicates the document was composed well after the events
referred to. Also, according to Fehrenbacher, the document is _not_
in Lamon's handwriting. This does not mean it is spurious (most
authors or researchers in the 19th century had secretaries copying
their drafts), but neither does it inspire confidence.
"Habeas Corpus" appears (to me) to be the beginning of a projected
treatise on the Lincoln administration and the writ of habeas corpus.
It begins with a list of the suspensions of the writ, and long
quotations from relevant legal documents, especially Taney's opinion
in the Merryman case (although Lamon, or perhaps his copyist,
persistently spells it "Merriman"). After recounting Merryman's
arrest, his petition for a writ of habeas corpus, and that petition's
acceptance by Taney, Lamon gives his version of the Lincoln
administration's reaction (p.3):
"After due consideration the administration determined upon the arrest
of the Chief Justice. A warrant or order was issued for his arrest."
Lamon was given this document (whatever exactly it was) by Lincoln
himself, but told to use his own judgement about actually making the
arrest, unless Lincoln gave further instructions. Lamon goes on: "This
writ was never executed, and the Marshal never regretted the
discretionary power delegated to him in the exercise of this official
duty."
Lamon says no more about the supposed arrest order. The "Habeas
Corpus" document continues with more quotations from legal opinions
and military orders, as well as from Democratic party resolutions
opposing the Lincoln administration's policies. Then it ends suddenly,
with no conclusion. There is nothing about what ended up happening to
the original writ, warrant, or order.
After reading the full text, Lamon's story seems even odder than
before.
A Federal law enforcement officer, handed a legal document authorizing
the arrest of the Chief Justice, would be unlikely to refer to it as
vaguely and variously as Lamon does. The issuance of such an arrest
order would clearly be of major historic importance, and would tend to
make relevant details stick in the mind. Details like whether it was
a warrant, a writ, or an order; by whom and when it was issued; and
who was present when the document was handed over. Lamon quotes
multiple paragraphs from Taney's _Merryman_ opinion, a public
document, but passes over the alleged warrant (or whatever it was), a
historic matter of which he has sole knowledge, in only a couple of
sentences.
After I informed Jeffrey Rogers Hummel of Rhodehamel's findings,
Hummel emailed me stating that "If Ward Hill Lamon is the only source
reporting that Lincoln isued an arrest warrant for Taney, then the
report is certainly not credible."
(He gave me permission to quote him publicly). Seeing the exact words
of the report makes it even less credible.
I apologize for the brevity of my quotations from Lamon; I am seeking
permission from the Huntington library to include some more extensive
quotes from Lamon's manuscript, but I have not yet received it.
I am still researching a couple of aspects of this: I am looking for a
sample of Lamon's handwriting so I can confirm "Habeas Corpus" was not
handwritten by him, and I am looking for more biographical material on
Lamon.
Also, if anyone else has come across the "Lincoln tried to arrest
Taney" story in credible or quasi-credible publications or online
sources, I would be interested in hearing about it.
---
Joseph Eros
Al Holloway
Joseph Eros wrote:
On what charge was Taney be to arrested?
Al
Brooks Simpson
> On what charge was Taney be to arrested?
On failing to snip the thread to which he was replying. :)
Joseph Eros
>
[massive snip]
>
> On what charge was Taney be to arrested?
Lamon doesn't say, or even hint. It's another of the many relevant
details of the supposed "warrant" (or whatever it was) that he left out.
---
Joseph Eros
Bob Huddleston
Thanks for posting this information.
The biggest flaw in the entire story has always been that a Lamon
arrest of Taney would have been the *only* habeas corpus arrest that
was not done by the military.
Of course the second biggest was that Lamon is very untrustworthy as
an authority for Lincoln tales!
And it is odd that *none* of the other members of the Administration
(Welles, Seward, Blair, etc.) ever made mention of the orders to
arrest Taney. There was no reason for them to have secreted this
information.
We look at the Supreme Court through our modern perception but in
1860, because of the pro-slavery interpretations of the law by the
Court, the North held the Court in general and Taney in particular,
were in very low repute. Arresting Taney would have been greeted with
cheers, not cries for impeachment.
When the only source is one who is generally not reliable as a
reference, then the story is historically terribly suspect.
Take care,
Bob
Judy and Bob Huddleston
10643 Sperry Street
Northglenn, CO 80234-3612
303.451.6276 Ad...@FilmsToSee.Com
Denise Kirke
news:ba38f237.01060...@posting.google.com...
It doesn't matter. Taney was Chief Justice of the Supreme Court, and it
shows Lincoln's view of democracy that he even thought about it. It also
shows the fundamental character of the Supreme Court when the other
Justices let Taney stand alone.
Marvelous, isn't it?
Al
Pbwalther
>shows Lincoln's view of democracy that he even thought about it. It also
>shows the fundamental character of the Supreme Court when the other
>Justices let Taney stand alone.
>
>Marvelous, isn't it?
>
>Al
>
over. He was the only source of it. And from what I understand, he did tell a
number of verified "whoppers".
Lincoln whether you like him or not was not a vindictive man otherwise he
would have thrown Hooker, Chase, and McClellan into the slammer and thrown away
the key. Sure Taney was a pain in the posterior from Lincoln's point of view,
but Lincoln had already found that ignoring Taney's ruling was effective. Why
take a big political hit by arresting the man and making a martyr of him?
Lincoln was smart enough to see that it would be counterproductive.
I believe that Lamon's account is a complete fabrication by an old man who
wanted some attention in his declining years.
You can go ahead and believe the account if you want. I would think that
Lincoln with his knowledge of human nature would have understood.
William G. Davis
"Denise Kirke" <alki...@home.com> wrote in message
news:4%Ze7.98204$oh1.36...@news2.rdc2.tx.home.com...
Hate to burst your bubble, but it seems that it was someone else's idea,
and, while Lincoln may have thought about, he opted not to do so. And
Taney, while he was the CJ, was actually sitting on the bench of the (3rd??)
Circuit Court, not as CJ. Frankly, there are questions about what Taney
did.
--
W. G. Jeff Davis
je...@heNOSPAMhe.com
"When looking for a clue as
to why something goes wrong,
never rule out sheer stupidity."
--Groucho Marx
WalterM140
>shows Lincoln's view of democracy that >he even thought about it.
Thre's no credible evidence that Lincoln thought about it.
One Lincoln view of democracy:
"As I would not be a slave, so I would not be a master. This expresses my
idea of democracy. Whatever differs from this, to the extent of the
difference, is no democracy."
Marvelous, isn't it?
Walt
Brooks Simpson
> news:ba38f237.01060...@posting.google.com...
> > Al Holloway <al...@gte.net> wrote in message
> news:<3B1D53DA...@gte.net>...
> > > Joseph Eros wrote:
> > >
> [massive snip]
> > >
> > > On what charge was Taney be to arrested?
> >
> > Lamon doesn't say, or even hint. It's another of the many relevant
> > details of the supposed "warrant" (or whatever it was) that he left out.
>
> It doesn't matter. Taney was Chief Justice of the Supreme Court, and it
> shows Lincoln's view of democracy that he even thought about it.
My understanding is that the research involved in this thread shows
that Lincoln never even thought of it.