Phillip W. MagnessInstitute for Humane StudiesGeorge 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. 95-982 Samuel Tyler, ed. Memoir of Roger Brooke Taney, LL.D. (John Murphy & Co., 1872), p. 427

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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

was no opinion in it, nor anything said, that you could have any reason for wishing to conceal.”5 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. 905 Tyler (1872), p. 431

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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.

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 6 Taney to Pierce, June 12, 1861, “Some Papers of Franklin Pierce, 1852–1862,” American Historical Review, 10 (January 1905): 3687 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.

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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

delivery of the Merryman ruling.13 But when Lincoln pled his case on the suspension power to

9 “The Traitor Taney,” Cleveland Daily Herald, May 31, 186110 Quoted in “From Baltimore” Nashville Union and American, June 6, 186111 “The War for the Union” The Jeffersonian, June 13, 1861.12 “Judge Taney Subsided,” New York Times, June 4, 186113 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)

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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

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 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

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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

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 15 “Habeas Corpus,” LN 2422, Ward Hill Lamon Papers, Huntington Library, San Marino, California16 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.

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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

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 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, 19-1 (Winter 1998)19 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.

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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

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

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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-

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

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. 3921 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

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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

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

22 Research note to LN 2422, Huntington Library23 Don E. Fehrenbacher, The Dred Scott Case, (Oxford University Press, 1978) p. 716, note 20.24 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.

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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

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 once-

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. 101-10326 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. 15427 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.

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obscure 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,”

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 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 Anti-Lincoln Tradition,” Journal of the Abraham Lincoln Association, 4-1 (1982).29 Joseph Sobran, “The Right to Secede,” Sobran’s: The Real News of the Month. September 30, 1999

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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

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

30 Charles Adams, When in the Course of Human Events, (Rowman and Littlefield, 2001), pp. 48-4931 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.

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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

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

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.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.

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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

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

36 Brian McGinty, Lincoln and the Court (Harvard University Press, 2009), pp. 76-7737 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. 124-131.39 Brag Bowling, “President Lincoln and the Writ of Habeas Corpus,” A House Divided Blog, Washington Post, May 31, 2011

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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

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.

40 Brian McGinty, The Body of John Merryman (Harvard University Press, 2012), pp. 152-3

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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

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 May-

June 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

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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

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

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.42 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.

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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

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

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. 68-7944 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, 186145 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 Beginning of the Civil War. (Mariner Books, 2002), p. 222-3; and Maury Klein, Days of Defiance (Knopf-Doubleday, 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.

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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

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 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. 17-1850 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.

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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

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 53 Teillard, ed. Recollections of Abraham Lincoln, p. 28054 Calhoun (1989), pp. 104-10755 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

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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

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

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, 414.57 “Important Arrests,” New York Herald, June 1, 1861

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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 –

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

58 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. 79059 Ibid., p. 80560 United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia, 2 Hay. & Haz. 395 (1861)

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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

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

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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

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

61 Ward Hill Lamon, “Chapter 6: Habeas Corpus,” Unfinished manuscript, Huntington Library

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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

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.

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.

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