Mother: Elizabeth KNOLLING |
_George ALVIS (ALVES) _+ | (1656 - 1734) _David ALVIS (OLVIS) I_| | (1714 - 1787) m 1739 | | |_Mary CRENSHAW? _______+ | (1700 - 1732) _Ashley ALVIS Sr.____| | (1751 - 1811) m 1771| | | _Thomas STANLEY III____+ | | | (1689 - 1754) m 1715 | |_Elizabeth STANLEY? ___| | (1718 - 1789) m 1739 | | |_Elizabeth MADDOX _____ | (1693 - 1724) m 1715 | |--Abraham ALVIS | (1781 - 1854) | _______________________ | | | _______________________| | | | | | |_______________________ | | |_Elizabeth KNOLLING _| (1750 - 1789) m 1771| | _______________________ | | |_______________________| | |_______________________
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Mother: Catherine ESTEN |
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."
__ | _Nathan COOKE ____________| | (1720 - ....) | | |__ | _Stephen COOKE ______| | (1751 - 1816) | | | __ | | | | |__________________________| | | | |__ | | |--Philip St. George COOKE | (1809 - 1895) | __ | | | _John ESTEN Chief Justice_| | | (1720 - ....) | | | |__ | | |_Catherine ESTEN ____| (1760 - ....) | | __ | | |__________________________| | |__
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Mother: Nannie J. ELLZEY |
_________________________ | _________________________________| | | | |_________________________ | _J. Webster FORTENBERRY _| | (1860 - ....) | | | _________________________ | | | | |_________________________________| | | | |_________________________ | | |--Rosa FORTENBERRY | (1890 - ....) | _John Shaffer ELLZEY Sr._+ | | (1796 - 1880) m 1823 | _Benjamin Franklin ELLZEY C.S.A._| | | (1826 - 1904) | | | |_Elizabeth CONEY ________+ | | (1808 - 1858) m 1823 |_Nannie J. ELLZEY _______| (1864 - ....) | | _Benjamin HOLMES ________+ | | (1801 - 1865) m 1825 |_Emily HOLMES ___________________| (1836 - 1906) | |_Nancy SUMRALL __________+ (1805 - ....) m 1825
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Mother: Lucy S. GATEWOOD |
_John GATEWOOD III________+ | (1700 - 1762) m 1730 _John GATEWOOD IV________| | (1735 - 1814) m 1771 | | |_Frances COX _____________+ | (1711 - 1776) m 1730 _George W. GATEWOOD Sr._| | (1790 - 1859) m 1812 | | | _(RESEARCH QUERY) DUDLEY _ | | | | |_Ann Nancy DUDLEY? ______| | (1745 - ....) m 1771 | | |__________________________ | | |--George W. GATEWOOD Jr. | (1822 - 1850) | _Isaac GATEWOOD __________+ | | (1710 - 1765) m 1735 | _William Faver GATEWOOD _| | | (1749 - 1809) m 1785 | | | |_Mary FAVER? FAVOR? ______ | | (1715 - 1798) m 1735 |_Lucy S. GATEWOOD ______| (1794 - 1859) m 1812 | | __________________________ | | |_Sarah "Sally" HINSHAW __| (1765 - 1849) m 1785 | |__________________________
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Mother: Elizabeth LANGHORN |
_John LANGHORNE of "Gambell"_+ | (1695 - 1767) m 1719 _William LANGHORN of "Gambell"_| | (1721 - 1797) | | |_Mary BEVERLEY ______________ | (1700 - ....) m 1719 _John Scarsbrook LANGHORNE of "Gambell"_| | (1760 - 1797) m 1782 | | | _____________________________ | | | | |_Elizabeth Cary SCARSBROOK ____| | (1720 - ....) | | |_____________________________ | | |--William LANGHORNE | (1783 - 1858) | _John LANGHORNE of "Gambell"_+ | | (1695 - 1767) m 1719 | _Maurice LANGHORNE Gent._______| | | (1719 - 1791) | | | |_Mary BEVERLEY ______________ | | (1700 - ....) m 1719 |_Elizabeth LANGHORN ____________________| (1758 - ....) m 1782 | | _____________________________ | | |_Elizabeth TROTTER ____________| (1730 - ....) | |_____________________________
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__ | __| | | | |__ | _(RESEARCH QUERY) MILLER _| | | | | __ | | | | |__| | | | |__ | | |--John Simpson MILLER | (1840 - ....) | __ | | | __| | | | | | |__ | | |__________________________| | | __ | | |__| | |__
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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.
Copyright © 2004 by LewRockwell.com
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
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