Phillip W. Magness
Institute for Humane Studies
George Mason University
Between Evidence, Rumor, and Popular Perception:
Marshal Lamon and the “Plot” to Arrest Chief Justice Taney
(DRAFT: Please contact author at pmagness@ihs.gmu.edu before citing)
A disquieting tension lingered over the streets of Baltimore on the morning of May 28,
1861. The city was barely a month removed from the Pratt Street riots that had claimed the lives
of 4 soldiers and 12 civilians. Though the mob had since calmed, secessionist sympathies were
found in no shortage. The military answered by training the guns of Fort McHenry on the city
and, armed with presidential authorization, had taken to arresting persons suspected of
insurrectionary activities without recourse to the civil courts. A legal chess game played out over
the previous three days in one such courtroom as attorneys for John Merryman, a southern
sympathizer under military arrest, petitioned for a writ of habeas corpus.1
When Roger B. Taney departed the home of his son-in-law for the courtroom that
morning he “remarked that it was likely he should be imprisoned in Fort McHenry before night;
but that he was going to Court to do his duty.”2 The elderly Chief Justice of the United States,
reviled across the North for his Dred Scott decision and suspected of Confederate sympathy in
1
Despite the prominence of his case, there is much confusion in the historical literature about the actions of John
Merryman and the circumstances of his detention. He was arrested at his home in Baltimore County for his
connection to a militia company maneuver almost a month prior, during which he participated in the destruction of
railroad bridges into the city of Baltimore. While a southern sympathizer himself, Merryman was probably acting
under an order to the state militia issued by Baltimore Mayor George W. Brown and almost certainly sanctioned by
Maryland Governor Thomas Hicks, both Unionists. By severing the railroad bridges, Hicks and Brown were
attempting to temporarily force all trains carrying troops to divert around the city thus buying time to reign in the
riotous mobs. For a full account of the Merryman case see Jonathan W. White. Abraham Lincoln and Treason in the
Civil War. (Louisiana State University Press, 2012), and particularly the discussion of Merryman’s motives on pp.
95-98
2
Samuel Tyler, ed. Memoir of Roger Brooke Taney, LL.D. (John Murphy & Co., 1872), p. 427
1
his own right, was fulfilling his circuit court duties in Baltimore when Merryman’s petition was
filed. He likely traveled to Baltimore expecting just such a case and knowing his rank might lend
credence to an opinion upholding habeas corpus, whereas lower courts had encountered
roadblocks.3 In short order Taney would announce his finding in Ex Parte Merryman, a
sweeping condemnation of President Lincoln’s assertion of executive power wherein the Chief
Justice declared the suspension of the writ of habeas corpus unconstitutional.
Taney had moved with intentional boldness, first in quickly reaching a decision and next
by taking the unusual step of forwarding his opinion directly to the president, even as it
technically applied to General George Cadwalader, the officer responsible for Merryman’s
detention. Yet the apprehension he alluded to that morning still troubled him. Turning to
Baltimore Mayor George W. Brown, the Chief Justice once again intimated “that his own
imprisonment had been a matter of consultation” by the government. He believed “that the
danger had passed” for the moment, though he also warned Brown “from information he had
received, that my time would come.”4
Even with the case concluded, Taney continued to hold a pressing suspicion that he was
being monitored by the Lincoln administration. “I looked at the envelope of your letter
carefully,” he wrote to former Congressman George W. Hughes of Maryland a few days after the
Merryman case. “I think it had not been opened. And indeed if it had been read, there certainly
3
The first notable habeas corpus case was not the Merryman case, but a significantly more routine proceeding
before U.S. District Court Judge William F. Giles on May 2, only a few days after Lincoln’s suspension order. Giles
had issued a writ of habeas corpus as a procedural means to secure the release of a minor who had enlisted in the
army without the required approval of his parents. Its delivery at Fort McHenry was blocked by Major W.W.
Morris, who cited the riots as justification for the suspension and implied presidential authorization to refuse the
writ. With no means to enforce the service of the writ Judge Giles’ options were exhausted and the proceedings
halted. Taney traveled to Baltimore under these circumstances, likely anticipating that another habeas case would
arise in which case he could lend his prestige to the court’s authority. See Carl Brent Swisher, Roger B. Taney.
(Macmillan, 1935) pp. 548-50.
4
George W. Brown. Baltimore and the Nineteenth of April, 1861. (Johns Hopkins University Press, 2001) p. 90
2
was no opinion in it, nor anything said, that you could have any reason for wishing to conceal.”5
Addressing former president Franklin Pierce on June 12, some two weeks after the case, Taney
made yet another guarded yet certain reference to a threat of personal detention. “But my duty
was plain,” he answered Pierce’s own praises of the case, “and that duty required me to meet the
question directly and firmly, without evasion – whatever might be the consequences to myself”
(emphasis added).6
An additional repetition of the rumored arrest plot came from an improbable source: the
1880 biography of Taney’s former Supreme Court colleague Benjamin R. Curtis by his brother
and frequent legal collaborator George Ticknor Curtis. Justice Curtis famously resigned from the
court in protest against Taney’s notorious Dred Scott decision, a case in which his brother
George had provided his own legal services to plaintiff Scott’s arguments. Despite their falling
out with Taney, the Curtis brothers both weighed in heavily against the constitutionality of
Lincoln’s unilateral suspension of habeas corpus, even going so far as to characterize Merryman
as something of a redemptive act for the Chief Justice’s errors in Scott.7 In George T. Curtis’s
retelling of the Merryman case he reprimands Lincoln, a “rash minister of State,” for actions
which “came near to the commission of a great crime,” a veiled reference to the contemplated
arrest of Taney.8
The harsh judgment of public opinion may have contributed to Taney’s lingering anxiety.
5
Tyler (1872), p. 431
Taney to Pierce, June 12, 1861, “Some Papers of Franklin Pierce, 1852–1862,” American Historical Review, 10
(January 1905): 368
7
George T. Curtis began formulating a constitutional critique of Lincoln’s suspension order almost immediately
after the Merryman case. See G.T.C., “Has the President of the United States Any Lawful Authority to Suspend the
Writ of Habeas Corpus?” Boston Daily Courier, July 12, 1861. He revisited the subject throughout his career, most
notably during the 1864 presidential election in which he raised the issue repeatedly while campaigning on behalf of
McClellan. Curtis was also working on a chapter covering the suspension of habeas corpus to append to his
Constitutional History of the United States at the time of his death. His brother Benjamin Robbins Curtis contributed
to the wartime habeas corpus debate with the publication of Executive Power, (Little & Brown, 1862).
8
Benjamin R. Curtis, Jr. and George T. Curtis, ed. A Memoir of Benjamin Robbins Curtis. (Clark, NJ: The Lawbook
Exchange, 2002). p. 240.
6
3
Newspapers across the north denounced him as a “traitor” and “rebel sympathizer,” with some
going so far as to affirm their concurrence in his stated fear of being arrested. As the Cleveland
Daily Herald openly suggested, “a vacancy ought to be made on the Supreme bench, by placing
the Chief Justice in the predicament of the traitor he is so anxious to relieve from military
duress.”9 The deceivingly-named St. Louis Democrat similarly weighed in against Taney and
another local judge who had affirmed the writ. “Judge Treat here and Chief Justice Taney of
Baltimore…have made themselves amenable to the most serious prosecutions” declared the
radical Republican organ. “If the Government will follow up its suspension of the writ of habeas
corpus with the suspension of two such worthies as Taney and Treat, it will be a good riddance
for the country.”10 A Pennsylvania paper echoed that it “would be well for the old man however
to keep cool…or perhaps he may be dealt with as Judge Hall was by General Jackson in New
Orleans.”11 Even the New York Times offered a lightly concealed call for the Chief Justice’s
forcible ouster, suggesting “he will certainly be impeached” if he persists in challenging the
president, “but if he is content to be a law abiding citizen, he will be permitted to totter into the
grave without being officially branded a traitor.”12
In the end neither the rumor of an arrest plot nor public opinion to countenance it bore
fruit. While Taney feared an imminent clash with the executive, Abraham Lincoln settled upon
the different and noticeably muted response of essentially ignoring the Chief Justice. He did ask
Attorney General Edward Bates to prepare a formal legal argument defending the suspension,
which engaged Taney’s opinion briefly. Former Attorney General and Maryland lawyer Reverdy
Johnson, who assisted Bates in the preparation of his response, had earlier acknowledged the
“The Traitor Taney,” Cleveland Daily Herald, May 31, 1861
Quoted in “From Baltimore” Nashville Union and American, June 6, 1861
11
“The War for the Union” The Jeffersonian, June 13, 1861.
12
“Judge Taney Subsided,” New York Times, June 4, 1861
9
10
4
delivery of the Merryman ruling.13 But when Lincoln pled his case on the suspension power to
Congress in July he consciously omitted any direct challenge to his judicial interlocutor. 14 Nor
did the administration ever abide by Taney’s ruling or appeal it to a higher court, though the case
against John Merryman was eventually dropped. Rather than answer Merryman in its own setting
and on its own terms, Lincoln’s formal answer was to effectively sidestep the judiciary. For all of
Taney’s trepidations, the rumored arrest plot seemed to be just that – a rumor, unverifiable from
the scant material that Taney revealed about it and seemingly unfounded, as it was never acted
upon.
An unexpected corroboration:
Though it sat virtually unknown until the late 20th century, an additional piece of
surviving evidence appears to corroborate Taney’s ruminations about his own arrest. Its text is
relatively straightforward, and substantially more detailed than any clues left by Taney. More
remarkable is the fact that it originates from a relatively well known associate of the president.
Writing some two decades after the war, Abraham Lincoln’s close friend Ward Hill Lamon
penned his own recollections of the events in Baltimore:
This decision of the Chief Justice at this time was most embarrassing to the war powers
then being exercised the legal operations of the civil authorities had not been suspended
by a declaration of martial law, and apprehended conflicts of authority would greatly
embarrass the military operations of the government; and at no point was a greater field
13
Bates to Lincoln, July 5, 1861 and Johnson to Lincoln, June 17, 1861, Abraham Lincoln Papers, Library of
Congress, Washington, D.C. (Hereafter cited as AL-LOC)
14
Lincoln’s original handwritten draft of his message to Congress contained a direct reference to Taney, to wit. “I
have been reminded from a high quarter.” Lincoln struck this line from the final version, opting for a more
ambiguous description of the events surrounding the Merryman case. See “Handwritten Draft, Message to
Congress,” July 4, 1861 in AL-LOC
5
for such obstruction than at Baltimore in Maryland. 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 his imprisonment should be? It was finally determined to place the order of arrest
in the hands of the United States Marshal for the District of Columbia. This was done by
the president, with instructions to him to use his own discretion about making the arrest
unless he should receive further orders from him. This writ was never executed, and the
marshal never regretted the discretionary power delegated to him in the exercise of this
official duty.15
This account appears on a short memorandum in Lamon’s papers at the Huntington Library,
though its exact origin is somewhat obscured. Entitled simply “habeas corpus,” it appears to date
from sometime between 1886 and 1889, is in secretarial hand, and refers to Lamon – the U.S.
Marshal in the story – in the third person. Its authorship is nonetheless confirmed because the
document actually forms part of a longer chapter on the Merryman case in an unfinished book
manuscript containing Lamon’s recollections of the Lincoln presidency. Curiously, the
handwritten memorandum may even postdate the matching typewritten manuscript as that
document is believed to date from around 1886, though it too is not the original. Its likely
composition date is therefore sometime in the early to mid 1880’s. Despite being intended for
publication in Lamon’s lifetime, both surviving versions sat largely out of the public eye until
some 90 years after their composition, explaining why this seemingly telling story never came to
light before the modern era.16
“Habeas Corpus,” LN 2422, Ward Hill Lamon Papers, Huntington Library, San Marino, California
Previously accessible only to researchers at the Huntington Library, Lamon’s unfinished book manuscript was
edited and published in 2011. See Bob O’Connor, ed. Ward Hill Lamon. The Life of Abraham Lincoln as President.
(Mont Clair Press, 2011), p. 341.
15
16
6
A large and physically imposing fellow, Lamon was a personal friend of the president
from Illinois – some might say crony – who received a sinecure appointment in 1861 as the U.S.
Marshal for the District of Columbia. As an officer of the court he was deemed ill-mannered by
Washington society, with his loud, profane, impulsive, and occasionally bumbling personality
spawning frequent confrontations with Congress and other members of the administration. Yet
Lincoln enjoyed Lamon’s companionship on a deeply personal level, and the Marshal’s
appointment kept him nearby and ready to take on a variety of political and personal tasks for the
president. Jesse Weik described Lamon as Lincoln’s “closest and most confidential friend” from
their days on the Illinois circuit. This intimacy, he notes, “began early and continued without
interruption” until Lincoln’s death and survived intense public criticism of Lamon by the
president’s political enemies. “Lincoln closed his eyes to the man’s imperfections and clung
tenaciously to him.”17 Perhaps most famously, the feisty and frequently well-armed Lamon
served as something of an informal bodyguard to the president and, in a stroke of unfortunate
timing, was in Richmond on a political assignment the night Booth’s bullet struck its mark in
Ford’s Theater.
Lamon’s near-continuous proximity to the president has made him a source of many
cherished anecdotes in Lincoln lore, albeit a problematic one who has not fared well in historical
estimation.18 In life, Lamon’s knack for storytelling endeared him to the president. Unfortunately
the same habits that made him a skilled raconteur also introduced a level of exaggeration to
Lamon’s later reminiscences of his former friend and patron. He further provoked the ire of the
late president’s son Robert in 1872 by lending his name to a ghostwritten biography of Lincoln
17
Jesse W. Weik, Michael Burlingame, ed. The Real Lincoln: A Portrait. (University of Nebraska Press, 2002), pp.
217-18.
18
Rodney O. Davis, “Lincoln’s Particular Friend and Biography,” Journal of the Abraham Lincoln Association, 191 (Winter 1998)
7
that, while generally factual and based on William Herndon’s famous collection of interviews,
lacked discretion and tact.19 As a result of these factors, Lamon’s reputation as an intimate friend
of Lincoln suffered greatly in his own lifetime and continues to pose a challenge to historians
wishing to separate the truthful elements of his stories from the flourishes added through their
publication.
As noted, the habeas corpus chapter was intended for a second volume to the 1872
biography, this one starting where the previous left off by covering Lincoln’s election and
presidency until his death in 1865. Unlike the 1872 volume, Lamon actually composed the
majority of its text and released several paraphrased excerpts and summaries as newspaper
columns beginning in 1884. He approached something of a single working manuscript by 1886,
though it suffered from severe disorganization and several lengthy droning passages of military
minutiae, unrelated to its primary biographical purpose.
When Lamon died in 1893 his book was still incomplete and without a publisher, though
its author had not quite abandoned the project and left behind dozens of accompanying notes in
the text indicating his planned edits. Two years later, his daughter Dorothy Lamon Teillard used
the unfinished manuscript along with Lamon’s newspaper articles and other writings to complete
and publish a book of her father’s stories about Lincoln. While much of the original material in
Teillard’s Recollections of Abraham Lincoln came directly from this manuscript, she omitted the
habeas corpus chapter and with it Lamon’s potentially significant revelation about Justice Taney.
The exclusion was probably little more than a matter of editorial discretion. Teillard organized
The core of the book was actually written by Lamon’s then-law partner Chauncey Black, a Democrat who held an
unflattering view of Lincoln. It is nonetheless an important early account of Lincoln’s pre-presidential life, having
been based on the Herndon materials which Lamon essentially purchased in preparation for the book. The biography
was widely criticized, however, for revealing personal and sometimes unflattering details about Lincoln’s
upbringing, early relationships, and marriage. As with Herndon’s own later biography, it also strongly suggested
Lincoln was a religious skeptic. The resulting product was seen in some quarters as offensive to Victorian
sensibilities, including those of Robert Todd Lincoln who never forgave Lamon for sanctioning the project.
19
8
her father’s writings thematically and tended to favor anecdotes attesting to the personal
attributes of Lincoln rather than a chronological narrative of his presidency.
Though its existence was known from the time of Teillard’s book and even occasionally
sought by other Lincoln biographers, Lamon’s unpublished manuscript saw little further
attention until the late 20th century. Part of the reason was Teillard herself. “I think she would not
only deny you the privilege, but all who might ask her,” wrote Gilbert A. Tracy to Jesse Weik,
the coauthor of William Herndon’s Life of Lincoln, in 1914. Tracy had been permitted to peruse
the original manuscript – a set of partially bound sheets – while visiting the Teillard home,
though he hesitated to divulge its contents. “I do not know but I committed a breach of
confidence in mentioning it, consequentially I am a little delicate about the matter myself,” he
continued.20 True to his word, Tracy shared no specific details of the document, and its existence
fell into archival obscurity.
The rediscovery of the Lamon memorandum:
The Lamon memorandum first came to light in 1973, though its subsequent assessment
has largely defied conventional practices of historical scholarship and the document has yet to
receive a full exposition in an academic venue. Harold Hyman revealed its existence in a
footnote to his book A More Perfect Union, citing it as corroboration of Taney’s already well-
20
Tracy to Weik, March 14, 1914, in appendix to Weik, The Real Lincoln, p. 376. It may be of some note that the
copy Tracy examined was not the currently known typewritten manuscript residing in the Huntington Library today,
but apparently a handwritten original draft retained by Teillard. Tracy’s letter mentions that he viewed this copy
shortly after the sale of the typewritten version to George D. Smith, who in turn sold them to Henry E. Huntington in
1914. Its present whereabouts – if it even survived – are unknown, as with most of the Lamon papers retained by
Teillard after the set presently in the Huntington Library was sold to Smith. Teillard, who knew Lincoln as a child
through her father, died at age 96 in 1953. See “H.E. Huntington buys Lincoln Treasures,” New York Sun, March 24,
1914, and James V. Hutton, Jr. Miss Dolly: The Remarkable Daughter of Ward Hill Lamon, Friend and Bodyguard
of Abraham Lincoln, (James V. Hutton, Jr. & Winchester Historical Society, 2003) p. 39
9
known comments from the courtroom in 1861.21 Hyman treated the matter as a small point of
historical clarification in a broader assessment of the Civil War’s constitutional implications. He
also mistakenly attributed the source to the German-born polymath Francis Lieber in his capacity
as a legal advisor to Lincoln on executive war powers. The reference to Lamon in the third
person, combined with the location of Lieber’s papers at the Huntington Library, likely explain
the error.
Don E. Fehrenbacher next found the document in Lamon’s papers in 1976, apparently
independently of Hyman, and left a more skeptical assessment. He identified it as “an unfinished
ms. by Lamon” and a reminiscence “probably written many years after 1863,” referring to a
mistaken notation on the document. His research notes also identified the handwriting as
somebody other than Lamon and openly questioned what happened to the original, though he
apparently did not make the connection between the memorandum and the unfinished book
manuscript.22 Fehrenbacher cited the discovery in his 1978 assessment of the Dred Scott case,
while also casting doubt upon its accuracy. “The story is difficult to believe, for it seems unlikely
that Lincoln would have left such a critical decision to a minor official.”23
The Lamon memorandum next appeared in 1987, though its occasion strayed from
academic historical writing. It is mentioned in a fictional rendering of John Hay’s diary for June
1861 by William Safire, referenced to and accepting of Hyman’s evidence. “Hill Lamon, my
cousin from Illinois who has appointed himself the Prsdt’s bodyguard, has been walking around
for the past month with what some say is permission in his pocket to arrest the Chief Justice,”
reads the imagined albeit probably representative expression of the presidential secretary’s
Hyman suggests that Taney “may have heard rumors of the decision, leading to his perturbation” though he also
notes that the arrest, “if it was ever intended or considered,” was not allowed by Lincoln. See Harold Hyman, A
More Perfect Union, (Houghton Mifflin, 1973) p. 84
22
Research note to LN 2422, Huntington Library
23
Don E. Fehrenbacher, The Dred Scott Case, (Oxford University Press, 1978) p. 716, note 20.
21
10
opinion. “I would love to see the old recreant sitting in a military prison cell, issuing meaningless
writs of habeas corpus for himself, but no such drastic remedy as arrest seems necessary.”24
Frederick Calhoun provided the next, and for the time most extensive, discussion of
Lamon’s account in his 1989 history of the U.S. Marshal Service. Working from the
memorandum and not the full manuscript, Calhoun accepted the story’s authenticity where
Fehrenbacher had suggested doubt. He linked it to the administration’s known frustrations with
the Merryman case and correctly attributed its authorship to Lamon rather than Lieber, though of
equal significance he observed that the arrest of suspected secessionists was a commonplace task
for the U.S. Marshals during the war.25 In 1996 Jeffrey Rogers Hummel offered the final “early”
scholarly assessment of the story in his book Emancipating Slaves, Enslaving Free Men. Citing
the work of both Hyman and Calhoun, he accepted the story’s accuracy though he also did so
premised upon the belief that a second document by Lieber corroborated the Lamon
memorandum.26
Lamon, Taney and the Public Debate over Lincoln’s Legacy:
While existent, the slim body of scholarly literature that followed the rediscovery of
Lamon’s account also suffers from the lack of a synthesizing assessment specifically addressing
William Safire, Freedom. (Doubleday & Company, 1987) pp. 26, 981. Hay’s known opinion of Taney appears in
an August entry of his actual diary, written after a three month drought of entries covering the crucial period of the
case. The authentic Hay note intimates Taney had become a frustration and expresses a desire to see his successor
named by Lincoln: “Ben Wade says I prayed with earnestness for the life of Taney to be prolonged through
Buchanan’s Administration, and by God Im a little afraid I have overdone the matter.” Michael Burlingame and
John R. Ettlinger, eds., Inside Lincoln's White House: The Complete Civil War Diary of John Hay (Carbondale:
Southern Illinois University Press, 1999), pp. 76-77.
25
Contra Fehrenbacher’s description of Lamon as too minor of an official to affect the arrest, Calhoun notes that the
arrest of “traitors and Confederate sympathizers” was one of “two main duties” of the U.S. Marshal’s office in
relation to the war. See Frederick Calhoun, The Lawmen. (Smithsonian Institution Press, 1989) pp. 101-103
26
Hummel’s discussion appears in a bibliographic addendum where he notes the relative neglect of the story relative
to the broader habeas corpus issue. Hummel acknowledges that he had “personally examined neither collection,”
deferring to the citations of Calhoun and Hyman. See Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free
Men. (Open Court Publishing, 1996), p. 154
24
11
the alleged arrest plot. This much is evident in both the repetition of Hyman’s erroneous Lieber
citation, and general unfamiliarity with the connection between the Lamon memorandum and the
corresponding chapter of his unfinished book manuscript – a link that was not uncovered until
2004.27
In the years following Calhoun and Hummel, the discussion surrounding the onceobscure Lamon memorandum sharply detoured from the academy and into the public sphere,
inviting a barrage of commentary both supportive and critical, though also almost exclusively
from amateur and popular sources. Significantly, beginning in the late 1990’s the increasingly
public discussion of the arrest plot story morphed into a debate about the broader legacy of
Lincoln, much of it conducted online or as political commentary about the 16th president. To
Lincoln detractors, Lamon’s account became a primary piece of evidence attesting to the
president’s alleged authoritarian tendencies and running contempt for the rule of law. This in
turn provoked a number of commentators to rally to Lincoln’s defense, rebutting a perceived
slander by attempting to discredit the entire arrest plot story itself.
This debate, which persists into the present, is closely linked with the modern resurgence
of what some scholars have dubbed the “anti-Lincoln tradition” in American political
discourse.28 While in some respects Hummel used the story to lodge a similar point of criticism
against Lincoln on civil libertarian grounds albeit in a scholarly interpretive work, the
politicization and popularization of the Lamon arrest memorandum seems to trace to a 1999
opinion article by conservative political columnist Joseph Sobran. Entitled “the Right to Secede,”
Olga Tsapina, a manuscripts curator at the Huntington Library, first linked the memorandum to Lamon’s
unpublished book manuscript in a research note affixed to the document. See research note to LN 2422, Huntington
Library.
28
The most comprehensive review of this topic may be found in John M. Barr, “The Anti-Lincoln Tradition in
American Life,” Doctoral Dissertation, University of Houston (2011). See also Don E. Fehrenbacher, “The AntiLincoln Tradition,” Journal of the Abraham Lincoln Association, 4-1 (1982).
27
12
Sobran’s column referenced the story as a matter of fact in a long litany of alleged wartime
abuses and tyranny by the Lincoln administration. Its style is heavy on editorial, if not outright
bombastic in its criticisms of Lincoln, though the apparent effect was to introduce the arrest plot
story to a broader audience of modern Lincoln detractors.29
The arrest plot next appeared in Charles Adams’ When in the Course of Human Events,
published in 2000. This book length argument for secession is something of a sin qua non of the
modern anti-Lincoln genre, and specifically enlisted the Lamon memorandum to make its case
for disunionist legitimacy. Adams added little new to the story, though he quoted its known
details at length (including the Lieber error) from two of the earlier academic works, Hyman and
Hummel. His main contribution was therefore to bring these works to wider public attention
while also retaining and expanding upon Sobran’s anti-Lincoln editorial point.30
Excepting Fehrenbacher’s brief and footnoted moment of skepticism in 1978, the first
challenges to the Lamon memorandum were really responses to these two prominent Lincoln
detractors, Sobran and Adams. As with the political commentators who brought Lamon’s
account to a wider audience, this new strain of “discrediting” responses crossed between the
realms of academic history and popular commentary. Between 1999 and 2001 a self-described
independent researcher posted several lengthy “rebuttals” of the Lamon memorandum on a
variety of Civil War-themed internet message boards, notably bringing to light the erroneous
Lieber citation but also framing the beginnings of a challenge to Lamon’s own credibility, now
stripped of this corroboration. Indicating that he had been contacted about the Lieber error by the
author of several of these posts, Sobran backpedalled somewhat from his original endorsement of
the memorandum in a subsequent column while also maintaining his general if now uncertain
29
30
Joseph Sobran, “The Right to Secede,” Sobran’s: The Real News of the Month. September 30, 1999
Charles Adams, When in the Course of Human Events, (Rowman and Littlefield, 2001), pp. 48-49
13
belief in the arrest plot story.31 Adams, by contrast, doubled down on his argument in favor.
After reporting “the Curator at the Huntington Library reports that the Lieber papers contain no
reference to Lincoln’s warrant to arrest the Chief Justice” in an opinion column of his own, he
cited Mayor Brown’s 19th century recollection of his conversation with Taney as “recently
unearthed” evidence in favor, apparently unaware of its prior acknowledgement in Merryman
lore.32
On at least two occasions the debate spilled onto the popular H-Net website, an academic
email list service based at Michigan State University that primarily caters to university
announcements and research queries in the humanities. In both cases an academic historian
posted a question about the Taney arrest plot story, seeking to ascertain information about its
source and the state of scholarly opinion on its reliability. While these solicitations received brief
and generally measured responses from other academic users of the service pointing to the
previous literature, they also attracted an atypical flood of lengthy, historically uninformed, and
predominantly amateur attacks on the memorandum’s credibility. Word of the H-Net thread had
apparently reached multiple frequenters of the aforementioned Civil War-themed message
boards that brought about Sobran’s revision to his argument.33
The debate has since fluctuated between internet and print sources, though also with little
additional elaboration on the basic discussion. Despite its seemingly natural fit, the arrest plot
Joseph Sobran, “Whose Idea Was It?” Sobran’s: The Real News of the Month, June 14, 2001. Sobran attributed
his change of heart to a “Mr. Joseph Eros of New York City.” In early 2001 a poster by the same name offered a
lengthy critique of the Lamon memorandum on the popular alt.war.civil.usa internet message board, explicitly
casting it as a rebuttal to the recent wave of anti-Lincoln criticisms premised upon the arrest plot story. Eros credited
an email exchange with Huntington Library manuscripts curator John Rhodehamel that led to the discovery of the
erroneous Lieber citation. See alt.war.civil.usa, thread of May 22-23, 2001, Retrieved April 4, 2012.
32
Charles Adams, “Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney,” January 5, 2004,
Available online: http://www.lewrockwell.com/orig2/adams3.html Retrieved April 4, 2012.
33
See H-Net queries “Arrest of Chief Justice Taney” (September 7, 2001) and “Lincoln and Taney” (November 29,
2005), Retrieved April 4, 2012. Constitutional historian Richard Bernstein and Civil War scholar Brian Dirck each
weighed in. Bernstein referenced Hyman and Sobran as the source. Dirck expressed an inconclusive but skeptical
opinion of the story. The majority of responses, however, came from amateur contributors to the alt.war.civil.usa
group, most of them repeating arguments they had previously posted on this site.
31
14
story and its subsequent debate did not appear in James F. Simon’s otherwise thorough
comparative biography, Lincoln and Chief Justice Taney (2006).34 The same year, well-known
Lincoln critic Thomas DiLorenzo weighed in on the arrest plot debate, citing Lamon by way of
Calhoun as well as Brown’s record of Taney’s comments in 1861.35 Legal historian Brian
McGinty addressed the story next in his 2009 historical work on the Supreme Court under
Lincoln. While recounting the details of the Lamon memorandum he expressed doubt based
upon the secondary literature, noting it has “never [been] confirmed by Lincoln’s principle
biographers.”36
These brief recent references have been dwarfed by the story’s proliferation online. It
presently appears on thousands of blogs, message boards, and personal websites of varying
though usually dubious quality.37 Much of this material unfortunately consists of polemics
masquerading as historical analysis – a trait that is by no means limited to Lincoln detractors. In
2009 Civil War writer Daniel W. Brandt examined the Lamon memorandum in a self-published
e-book about alleged “slanders” against Lincoln, yet this analysis of the document is wholly
subordinate to a heated running feud with the 16th president’s detractors. The result is an
argument against the memorandum driven not by a measured historical examination, but a
rhetorically charged and at times caustic “refutation” of Charles Adams’ commentary as well as
what Brandt dubs the “DiLorenzonian” school at large.38
34
James F. Simon, Lincoln and Chief Justice Taney, (Simon & Schuster, 2006). When informed of the Lamon
memorandum, Simon indicated he had heard “reports that Lincoln authorized Taney’s arrest…but found no
documentation to back it up” at the time he wrote his book. See Bob O’Connor, “Lamon’s Life of Lincoln
Uncovered,” The Lincoln Forum Bulletin, Issue 29, (Spring 2011)
35
Thomas DiLorenzo, Lincoln Unmasked, (Crown Forum, 2006), pp. 93-94.
36
Brian McGinty, Lincoln and the Court (Harvard University Press, 2009), pp. 76-77
37
A Google search for the terms “Lincoln,” “Taney,” “Lamon,” and “Arrest” produces over 19,000 hits as of April
4, 2012. For comparison, the review of scholarly and popular literature on the subject contained within the body of
this article reveals under a dozen sources, and is believed to be comprehensive.
38
Dennis W. Brandt, Shattering the Truth: the Slandering of Abraham Lincoln. (BookSurge Publishing, 2009) pp.
124-131.
15
The story also came to prominence on the other side of the Lincoln debate with the 150th
anniversary of the Merryman decision in May 2011. Brag Bowling, a spokesman for the Sons of
Confederate Veterans and vocal Lincoln detractor, enlisted the Lamon memorandum in an
invited entry for the Washington Post’s “House Divided” blog amidst a litany of indictments
upon the Union war effort. This group forum features competing perspectives of both popular
writers and academic historians on the 150th anniversary of the Civil War, hence the heavy
editorializing.39 Yet Bowling added nothing to what was known a decade prior and sidestepped
any uncertainty about the story’s accuracy, focusing instead upon its use to censure Lincoln’s
handling of the habeas issue. Yet again the need to properly evaluate and reconcile the evidence
of Lamon’s account with the events of 1861, if indeed they may be treated as accurate, was lost
to the entire discussion.
The Taney Arrest Plot – Assessing the Evidence:
As structured by the flurry of Lincoln critics who have seized upon it as evidence in the
last decade, the Lamon memorandum is self-evident corroboration of Taney’s previously
documented statements about his impending arrest, although the primary object of this assertion
is not elucidation of the Merryman case but rather a knock against Lincoln’s legacy. In similar
fashion, the defense of Lincoln has played the central motivating role in the formulation of most
arguments against the Lamon memorandum. These claims and counterclaims nonetheless merit
attention, as they provide a starting point for assessment.
The public and web-based nature of the recent debate precludes any single definitive case
against the memorandum, though in the academic literature McGinty comes closest to
Brag Bowling, “President Lincoln and the Writ of Habeas Corpus,” A House Divided Blog, Washington Post,
May 31, 2011
39
16
aggregating and summarizing the main criticisms. 40 The line between scholarly and popular
commentary on this subject is also substantially blurred by its highly underdeveloped state, thus
detailed but predominantly polemical critiques such as Brandt’s response to Adams are
representative of the current discussion. At present the main arguments against the Lamon
memorandum, and with it the existence of an arrest plot, may be summarized as follows:
I.
No copy of the alleged warrant has ever been found and, absent the mistaken Lieber
reference, the only other evidence of a plot is rumor, most of it emanating from Taney
and sources sympathetic to him.
II.
Had Lincoln issued an arrest warrant for the Chief Justice he would have entrusted it to
an official of higher importance and rank than Lamon, and certainly not as a discretionary
matter.
III.
The alleged arrest plot is discounted on account of its own reputedly self-evident severity.
The constitutional outrage implicit in arresting the Chief Justice, it is said, is sufficiently
rash and extreme as to render it unthinkable.
IV.
Lamon is regarded as an untrustworthy witness. This assessment is made on account of
his known propensity for exaggerated storytelling, his sometimes drunken and bumbling
nature, and the general suffering his reputation has endured following the ghostwritten
biography and its subsequent denunciation by Robert Todd Lincoln.
As Hyman demonstrated by linking the Lamon memorandum to Taney’s courtroom statements,
the paucity of evidence surrounding the alleged arrest plot predates its rediscovery and is in fact
the reason the memorandum’s claims are both significant and hotly contested. Lamon’s account
of an otherwise sparsely documented though much-rumored event is by far the most detailed and
explicit documentary evidence, thus the existence of additional corroboration would undoubtedly
40
Brian McGinty, The Body of John Merryman (Harvard University Press, 2012), pp. 152-3
17
strengthen it. But in any careful historical analysis, a word of caution advises against confusing
the absence of additional evidence for evidence of absence in its own right.
If one briefly grants Lamon’s account the benefit of the doubt, other counterarguments
notwithstanding, it becomes immediately apparent that the chances of an unissued arrest
warrant’s survival are slim for several reasons wholly unrelated to the case. The period of MayJune 1861 is well known for its dearth of intimate information about the upper levels of the
Lincoln administration. The principle diarists on Lincoln’s cabinet – Gideon Welles, Edward
Bates, and Salmon Chase – as well as Lincoln’s personal secretary John Hay were all silent or
inactive during these crucial early weeks of the war.
Even Lincoln’s personal papers are sparse where the subject of Merryman is concerned.
Taking the window of time between Taney’s ruling and Lincoln’s message to Congress, they
consist of (1) a single letter from Reverdy Johnson about his work on the administration’s
counterargument, (2) a letter by Worthington Snethen, a Republican newspaper correspondent in
Baltimore, implicating Taney for “treason,” (3) Lincoln’s edits to his speech, mostly written over
a month after the case, and (4) Bates’ habeas corpus opinion, mentioned in a May 30 directive
from Lincoln and delivered on July 5. The copy of Merryman that Taney personally sent to the
White House did not survive in Lincoln’s papers. The National Archives also holds no records
from Lamon’s tenure as U.S. Marshal for the District of Columbia in this period, and other
period judicial records from the District of Columbia are similarly slim.41
Contrary to the second argument, Lamon’s suitability to administer the writ is relatively
41
See Snethen to Lincoln, June 29, 1861; Bates to Lincoln, July 5, 1861; and Johnson to Lincoln, June 17, 1861 in
AL-LOC. The U.S. Marshal’s Office Records (National Archives and Records Administration, Record Group 527)
contain no entries for the District of Columbia in the Civil War era, and rarely predate 1880 for any district. The
U.S. Attorney’s criminal docket book for the District of Columbia only dates to 1863 (NARA, Record Group
118.10). Records of the U.S. District Court for the District of Columbia (NARA, Record Group 21.10.02) do survive
during Lamon’s tenure and include a handful of his administrative papers before the court, but would not contain a
warrant that was never executed. As previously noted, Lamon’s personal papers at the Huntington Library represent
only the portion his daughter sold to George D. Smith in 1912, the remainder having been lost.
18
easy to establish, both as jurisdiction and upon the fact that Lincoln made frequent use of him for
sensitive political tasks throughout the war, even if not always prudently.42 In the most
prominent example of the latter, Lincoln dispatched Lamon and his fellow Illinois associate
Stephen A. Hurlbut to Charleston in March 1861 to report on secessionist sentiments and the
condition of Fort Sumter in the crucial moments before the outbreak of hostilities. Over the
course of two days Lamon succeeded in gaining an audience with South Carolina Governor
Frances Pickens and Major Robert Anderson, whereas Hurlbut quietly visited an old friend to
gauge the strength of the secession movement.43
Lamon’s exact role in the mission has long been a source of controversy, largely because
he intimated to Anderson and Pickens alike that the fort would soon be abandoned.44 This
puzzling and indeed never fully understood piece of misinformation has earned Lamon the ire of
generations of historians, both for want of an explanation and for its apparent contradiction of
Lincoln’s generally acknowledged policy of holding and resupplying the fort.45 It is nonetheless
Clint Clay Tilton, Lamon’s sole biographer to date, suggests that Lincoln strategically employed his Illinois
friends as an informal buffer between himself and the Washington political class by employing them for personal
tasks of a sensitive nature. Lamon and Leonard Swett saw recurring use in this capacity. See Tilton, Lincoln and
Lamon: Partners and Friends. (Illinois State Historical Society, 1931), p. 34.
43
Hurlbut wrote an extensive report of the visit to Lincoln, indicating that Lamon “presented his card to Gov.
Pickens on Monday morning and was kindly & respectfully received,” though the two men parted ways at this time
until they met again on the return train. See Hurlbut to Lincoln, March 27, 1861 AL-LOC. Lamon filed no written
report of the trip but verbally communicated his findings to the president. Lamon authored an account of the trip
many years later, though it exhibits his characteristic tendencies for exaggeration and a storyteller’s flourish. See
Ward Hill Lamon, Dorothy Lamon Teillard, ed. Recollections of Abraham Lincoln, (University of Nebraska Press,
1994) pp. 68-79
44
Pickens penned a letter about his meeting after the assault on Fort Sumter in which he noted that Lamon had
repeatedly “professed a desire to evacuate Fort Sumter” to him, as well as Anderson, and accused Lincoln of
deception on account of subsequent events. See Frances Pickens, “Evacuation of Fort Sumter – Secret History”
published in the Charleston Mercury, August 6, 1861
45
Most historians who have examined the Lamon-Hurlbut mission have adopted a highly critical approach to
Lamon. Assessments of Lamon’s role range from dismissive to openly contemptuous, though without a sound
explanation for his actions. “No conclusive explanation has ever been offered, either for the sending of Lamon to
Charleston, or for his conduct after he got there,” notes David M. Potter, who then speculates he might have been a
bodyguard for Hurlbut, although this neither finds support in Hurlbut’s account nor explains why the two men
separated for most of their stay in Charleston. See David Potter, Lincoln and His Party in the Secession Crisis, (Yale
University Press, 1942), p. 340. Similarly dismissive assessments of Lamon’s Charleston trip appear in Allan
Nevins, The War for the Union (Scribner, 1950), p. 54; David Detzer, Allegiance: Fort Sumter, Charleston, and the
42
19
difficult to completely rule out an unrealized political stratagem, perhaps from Lincoln or
through William H. Seward’s influence, in Lamon’s actions. Neither would this have been the
only instance where Lincoln considered abandoning the fort as a way to prevent war.46
For all the mystery associated with his visit, Lamon suffered no known reprimand as one
might expect of a botched endeavor. To the contrary, Lincoln promoted Lamon to U.S. marshal
only days after his return.47 While the president’s directions will likely never be known, the
Charleston mission, if anything, established Lincoln’s closely guarded confidence in Lamon – a
point that was not lost upon their contemporaries. Gideon Welles, Lincoln’s usually reliable
Secretary of the Navy, described Lamon in 1870 as a “special and trusty messenger to Major
Anderson” and implied that his assessment of the conditions at the fort provided valuable
information for the president’s later decisions.48 Lincoln’s Illinois friend David Davis attributed
similar significance to Lamon’s mission in 1861, anxiously querying him for intelligence about
the unfolding events in Charleston.49 Secretary of War Simon Cameron also acknowledged the
high level of trust Lamon enjoyed with Lincoln while critically questioning John Nicolay about
Beginning of the Civil War. (Mariner Books, 2002), p. 222-3; and Maury Klein, Days of Defiance (KnopfDoubleday, 1999), pp. 343-44. Detzer suggests that Lamon’s presence mission have been a conscious ploy to
confuse the secessionists and buy time. Michael Burlingame hints that circumstantial evidence points to Lamon
acting on behalf of Seward, who intimated the impending evacuation of Sumter to several southern unionists. See
Michael Burlingame, Abraham Lincoln: A Life (Johns Hopkins University Press, 2008), Chapter 22.
46
Though Lincoln is generally regarded as having held firm on favoring the resupply of Sumter, on at least one
documented occasion he intimated a willingness to abandon the fort in a bid to forestall Virginia’s secession. In
1863 George Plumer Smith recounted an interview two years prior where Lincoln reportedly mentioned this offer.
When Smith requested verification of the conversation from the president, John Hay responded “He directs me to
say that your statement is substantially correct, but that for the present he still prefers that you withhold it from the
public.” Hay to Smith, January 10, 1863 in Michael Burlingame, ed. At Lincoln’s Side: John Hay’s Civil War
Correspondence and Selected Writings, (Southern Illinois University Press, 2000), p. 30. Burlingame extensively
corroborates the conversation in Chapter 22 of Abraham Lincoln: A Life.
47
Lincoln to Bates, April 6, 1861, in Roy P. Basler, ed. Collected Works of Abraham Lincoln, Vol. 4, p. 323
(hereafter cited as CW)
48
Welles also quotes a letter from former Supreme Court Justice John A. Campbell referencing Lamon’s indication
to Pickens that the forts would be abandoned, though he places the source of this intimation with William H.
Seward. See Gideon Welles, “Fort Sumter.” The Galaxy, Vol. 10, No. 5 (November 1870), p. 619, 623.
49
Davis to Lamon, March 30, 1861, in Teillard, ed. Recollections of Abraham Lincoln, p. 317. Alexander McClure
described Lamon, along with Davis, Leonard Swett, and William Herndon, as the circle of “the closest men to
Abraham Lincoln, both before and after his election to the Presidency…men who knew Mr. Lincoln better than all
others.” Alexander K. McClure, Abraham Lincoln and Men of War Times, (Bison Books, 1996) pp. 17-18
20
its origin in 1875. “How came the President to have so much faith in Lamon? Sent him to Va. &
then to Charleston.”50
Though controversy often followed him around the political circles of Washington,
Lamon consistently remained in Lincoln’s good graces.51 Along with Leonard Swett, Lincoln
often utilized Lamon as something of a personal political operative.52 He played a role as
Lincoln’s eyes and ears on the ground at the 1860 and 1864 Republican conventions, both times
finding himself in the middle of that all-too-murky and undocumented world of backroom
politicking that first secured and then retained Lincoln as the nominee. He personally
accompanied the president on his 1862 tour of the Antietam battlefield where a misreported
instance of song on their return journey led Lincoln’s political opponents to charge the men with
disrespect for the somber occasion. Lincoln again stood by his friend through the controversy. A
year later Lamon introduced the president’s well-known remarks at the dedication of the
Gettysburg national cemetery. His services to the president persisted until the end of the war, and
three days before his assassination in 1865, Lincoln dispatched Lamon to Richmond to monitor
some “complications” that had emerged around the restoration of the Virginia state government
following the collapse of the Confederacy.53
More importantly and contrary to the second argument against the memorandum,
Lamon’s office was in fact a likely choice for the administration of a warrant in Taney’s case, if
indeed such a warrant was ever issued. Taney was a resident of Washington, having returned
there shortly after the case, and Lamon the primary officer of its federal courts and administrator
Michael Burlingame, ed. An Oral History of Abraham Lincoln: John G. Nicolay’s Interviews and Essays.
(Southern Illinois University Press, 1996) p. 42.
51
An endorsement written for Lamon by Lincoln on June 5, 1861 – only a week after the timeframe of the purported
arrest warrant - described him as “entirely reliable, and trustworthy.” See “Testimonial for Ward H. Lamon” in CW,
Vol. 4, p. 395.
52
Lamon’s political reports and telegraphs bearing populate the collection of Lincoln’s papers at the Library of
Congress. See, e.g. Lamon to Lincoln, May 27, July 4, August 17, August 23, and October 21, 1861 in AL-LOC.
53
Teillard, ed. Recollections of Abraham Lincoln, p. 280
50
21
of the district’s jail. While military authorities conducted many of the arrests associated with
disloyalty, Calhoun amply documents a widespread and often simultaneous role for the marshals
throughout the war.54 Indeed two days before Lamon’s own appointment, the D.C. marshal’s
office in was involved in another high-profile arrest and subsequent release of former U.S.
Senator William Gwin, a suspected southern sympathizer from California.55 If it was ever
contemplated, there is little reason to doubt that an arrest warrant on Taney would have fallen
well within the Lamon’s jurisdiction.56
What then of the third argument, implying the implausibility of an outrage upon the
Supreme Court by the arrest of its Chief Justice? Had a warrant been executed it undoubtedly
would have infuriated the president’s adversaries. Its rumor alone prompted George T. Curtis to
designate the suggestion a “great crime.” Such sentiments were far from universal in 1861
though, as attested though the reaction of northern newspapers to the Merryman ruling. As noted,
many in the Republican press accused the already-disliked Taney of treason, impugned his
motive in the Merryman case as an extension of Dred Scott, and openly called for his
imprisonment in the days following the decision. Such was the political climate that existed in
those uncertain early months of the war when Maryland’s loyalty was under question, the threat
54
Calhoun (1989), pp. 104-107
Gwin’s case is unusual and little-discussed in the existing literature. A southern born physician-turned-politician
and frequently implicated schemer in efforts to enlist California to the southern cause, his term in office expired with
the close of the 36th Congress in the spring of 1861. While still in Washington he was first taken into custody by the
U.S. marshal’s office on April 9 in a strange court proceeding allegedly stemming from an outstanding debt, though
also possibly relating to his southern sympathies. He was released on a court order the next day due to unexpired
senatorial immunity, then departed southward en route to California via the Confederacy. He was arrested again
later in the war for suspected complicity with the secessionists and fled to Europe upon his second release. See
documents pertaining to the arrest of William Gwin, April 9, 1861, Habeas Corpus Case Records of the U.S. Circuit
Court for the District of Columbia, Record Group 21.10.1, NARA
56
Of related note, Lamon’s claim to have been given discretion over the execution of the warrant was not
uncharacteristic of Lincoln’s approach to habeas corpus in the early months of the war. Lincoln extended similar
discretion to Winfield Scott, first in permitting him to arrest members of the Maryland legislature should they act to
secede and then by suspending habeas corpus in Baltimore. Another contemporary order, issued shortly after the
Merryman case, actually directed that Scott “or any officer you may designate will, in your discretion, suspend the
writ of habeas corpus” for a former U.S. Army officer who joined the Confederate ranks in Florida. See Lincoln to
Scott, April 25, April 27, and June 20, 1861 in CW, Vol. 4, pp. 344, 347, 414.
55
22
of an opposing army loomed over Washington, and political arrests of suspected secessionists
were commonplace.
One need not look far to find multiple examples of high-profile political figures who
were detained in the early months of the war, both innocents and genuine Confederate
sympathizers. Just three days after Taney’s ruling, former Maryland Governor Thomas Pratt was
arrested in Annapolis for suspicions of disloyalty and transferred to Fort Monroe.57 Incumbent
U.S. Representative Henry May was arrested on September 11 along with several Baltimore
newspaper editors and elected officials, though most were eventually released. Mayor Brown of
Baltimore was imprisoned in Fort McHenry, much as Taney predicted, and held without cause
until his term in office expired in 1862, though scant evidence of his disloyalty was ever
produced.58 On September 17 former Governor Charles Morehead of Kentucky was arrested on
similar suspicions. Although he obtained a writ of habeas corpus ordering his release, the War
Department whisked him away to Fort Lafayette in New York to place him beyond the reach of
the federal district court in Louisville.59
In October, the Lincoln administration physically interfered with the judiciary itself to
halt additional habeas corpus proceedings. Following another routine “underage soldier” habeas
case, the government placed armed sentries outside the house of Washington D.C. Circuit Court
Judge William M. Merrick, suspended his salary, and detained the attorney who attempted to
serve the writ. Merrick’s bench sat vacant for several weeks until the guards were removed.
Echoing Taney, the other justices on the court admonished the president’s actions – to no avail –
“Important Arrests,” New York Herald, June 1, 1861
The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies,
(Government Printing Office, 1900), Series II, Vol. II, p. 790
59
Ibid., p. 805
57
58
23
and issued a formal protest against the harassment of their judicial colleague.60 In light of these
known and documented examples, the contemplated detention of Taney, while certain to attract
controversy as most high profile political arrests did, can hardly be dismissed as implausible.
The fourth argument against the Lamon memorandum is easily the strongest, though it
necessarily delves into speculative analysis surrounding whether one accepts it as a source. Even
after setting aside the personal animosity he provoked from Robert Todd Lincoln and his
subsequent sparring with John Nicolay and John Hay over the biographical domain of their
mutual friend, Lamon remains a troublesome witness simply on account of his propensity to
embellish his recollections. Yet Lamon is also a primary source of widely repeated and famous
anecdotes about Lincoln’s children Willie and Tad, his personal grief and depression over the
war’s bloody toll, his trip to Gettysburg in 1863 and secretive entry through Baltimore before his
inauguration, his sense of humor, and his self-perception. Whether one accepts his word on the
Taney arrest plot accordingly requires an assessment of its credibility.
Though hardly a basis for conclusive judgment, the text of the Lamon memorandum may
yield a clue through its exclusion from Teillard’s edited Recollections. As with many of the
omitted segments of the manuscript, the “habeas corpus” chapter is exceedingly dry. It contains a
simple, straightforward, and generally accurate recounting of events surrounding Merryman,
much of it drawn from excerpted military orders and government documents. The chapter lacks
Lamon’s characteristic flourishes and storyteller’s voice, replacing it instead with rote recitation
of dates and events in sequential order. The “arrest warrant” passage is a brief and inconspicuous
component of this plodding and unemotional retelling of events, sitting between an excerpt of
Taney’s ruling and an excerpt of Horace Binney’s well-known defense of Lincoln and the
60
United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia, 2 Hay. & Haz. 395
(1861)
24
suspension order.
Whatever the purpose of its inclusion may be, the “arrest warrant” passage was plainly
not written to provoke outrage or elucidate upon the inner complexities of Abraham Lincoln’s
legal mind. Nor does it show any telltale characteristics of a self-serving insertion wherein
Lamon stakes an embellished personal claim to the events around him. It is a concise, passive
third person reference, stated as if it were a matter of factual record and context to the
surrounding passages.
The story is not offered as in disparagement of Lincoln, even though others have used it
to this end. Lamon quotes Binney approvingly, followed by a lengthier and equally supportive
excerpt of Lincoln’s own defense of the suspension from 1863, written in response to the arrest
of former U.S. Representative Clement L. Vallandigham. He then closes the chapter in praise of
Lincoln’s actions, justified by “the higher law of necessity in the face of danger to life and
country,” and concludes in contempt for those who “clamored” about the Constitution while
refusing to fight for the Union. Lamon’s final judgment on Lincoln, which appears in the full
chapter but not the incomplete memorandum, is entirely approving: “Neither the decision of the
Chief Justice of the United States, the remonstrance and deprecation of the New York
Convention, the threats of the Ohio Democracy, nor the formidable army of the South had the
effect of deterring Mr. Lincoln from his settled and determined duty.”61
It is difficult to render a final verdict on the reported Taney arrest plot, short of making
conjectural assumptions around the limited yet existent evidence. Some aspects of the story are
beyond doubt. The chatter surrounding the courtroom is more than sufficient to establish that the
Chief Justice genuinely feared his own arrest was imminent. Taney’s comments, shared with
other leading figures of the Baltimore political class and even intimated to a former president of
61
Ward Hill Lamon, “Chapter 6: Habeas Corpus,” Unfinished manuscript, Huntington Library
25
the United States, merit more attention than casual dismissal; though neither do they establish the
existence of a plot with any degree of certainty. The discussion therefore turns to the Lamon
memorandum as a corroborating document. Did the events of May 1861 occur as Lamon
indicated some decades later, and did Taney catch wind of a confidential discussion at the White
House about his own loyalty? Rumors certainly abounded in the opening days of the Civil War,
though if accurate the Lamon memorandum would seem to point to an underlying source.
Lamon’s account unfortunately comes from an imperfect witness to a period that was
sparsely documented irrespective of the reported plot. But the historical discussion of how to
interpret his account has become grossly distorted into a running public feud about broader
legacy of Lincoln’s record on civil liberties. There is much thunder to the “controversy” about
the rumored arrest plot yet, ironically, little in the way of outcome as the fact that Taney was not
arrested illustrates. Often lost in the present internet-fueled debate is the fact that Lincoln
ultimately opted for the different strategy of ignoring Taney, and by extension other courts
hostile to his habeas corpus policy, so long as it could afford to do so without consequence.62
If Lamon’s account is accepted, the event was not an arrest itself but rather a discussion
that seems to have been rather routine for a time when many other high-ranking public officials
were suspected of disloyalty and their arrests were openly called for in the partisan presses and
halls of Congress. This may be the subtler lesson of the affair, as it may simply reflect the
Lincoln administration’s complex approach to what it saw as the “problem of disloyalty,” with
no single strategy prevailing for all instances of early political opposition to its wartime policies.
Lamon’s own purpose seems little more than to contextualize this issue in a particular instance of
62
In several other instances Lincoln simply ignored a habeas corpus proceeding in the civil judiciary, exhausting the
court’s options enforce a writ. See Ex parte Benedict, 3 F.Cas. 159 (1862) N.D. NY; In re Winder, 30 F.Cas. 288
(1862) U.S. App. MA; Ex Parte McQuillon, 16 F. Cas. 347; 3 W.L. Monthly 440. By contrast, the aforementioned
case of Judge Merrick illustrates an instance where the Lincoln administration took steps to impede a judicial
proceeding hostile to the suspension of habeas corpus.
26
its discussion. The Lamon memorandum may therefore carry less gravity than the external
debate has assigned it, but neither is there presently a compelling reason to dismiss it out of
hand.
27