If you were to ask the typical American about President Abraham Lincoln’s greatest enemy, he or she would most likely answer with Jefferson Davis, the President of the Confederate States of America. But recent scholarship suggests that Lincoln faced a far more hated enemy much closer to home…Judge Roger Taney, the Chief Justice of the United States Supreme Court. In 1861, Lincoln’s hatred of Taney nearly exploded into a Constitutional crisis of epic proportions.
Judge Roger Taney versus President Lincoln?
On May 25, 1861, a Confederate sympathizer named John Merryman was arrested and charged with treason. He petitioned the U.S. Supreme Court for a writ of habeas corpus, a judicial order forcing the Union Army to appear before a judge and justify his imprisonment. Judge Roger Taney granted the writ.
But General George Cadwalader refused, stating that he was under no obligation to do so since President Lincoln had ordered the suspension of habeas corpus. This led to the famous Ex parte Merryman ruling, in which Judge Taney stated that only Congress had the power to suspend habeas corpus.
“And if the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown–a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.” ~ Judge Taney, Ex parte Merryman
President Lincoln orders Roger Taney’s Arrest?
The judgment was an embarrassing repudiation to President Lincoln and Confederate sympathizers seized upon it as an example of Lincoln’s tyranny. In either May or June 1861, President Lincoln’s anger inspired him to call for the arrest of Judge Roger Taney.
“After due consideration the administration determined upon the arrest of the Chief Justice. A warrant or order was issued for his arrest. Then arose the question of service. Who should make the arrest and where should the imprisonment be? This was done by the President with instructions to use his own discretion about making the arrest unless he should receive further orders from him.” ~ Ward Hill Lamon
According to his own words, Ward Hill Lamon, who was a friend and bodyguard to President Lincoln as well as a United States Marshall, was given the warrant and ordered to arrest Roger Taney. Strangely though, the warrant was never served.
Guerrilla Explorer’s Analysis
Nobody knows for sure why Lamon never followed through with the arrest. President Lincoln certainly wasn’t above arresting his political opponents, as the cases of Clement Vallandigham and Judge Merrick have shown. But we do know that the two men continued their bitter feud over Lincoln’s efforts to curtail civil liberties for several additional years.
I should point out that Lamon is the sole primary source for this story. Interestingly enough, most current Lincoln scholars consider it ridiculous. They dismiss Lamon as an alcoholic and point to the fact that he didn’t include the story in any of his published books (which, by the way, are highly treasured by these same scholars). Still, there is some corroborating evidence. Records indicate that Roger Taney himself as well as a colleague named Judge Curtis were aware of the near-imprisonment.
We may never know for certain how close President Lincoln came to arresting Judge Roger Taney. But we can all be thankful that he didn’t follow through on it. The ramifications might have been disastrous.
“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.” ~ Charles Adams