They decided to not actually go through with it, but another federal judge WAS arrested after finding Lincoln’s suspension of habeas corpus was unconstitutional. This is a link to the original court documents detailing the events. They are astounding.
Judge Matthew Merrick, a sitting federal judge, granted a writ of habeas corpus and ordered the chief marshal in Washington to produce the body of an American citizen in military custody in his courtroom. The lawyer who tried to serve the writ was arrested, and Judge Merrick was placed under house arrest.
The other DC circuit justices then took up the case, and tried to find the marshal in contempt, under the same process courts still use today. The marshal ignored the order to appear, at the direction of the President.
And this is the part that sends chills through my spine. The judiciary branch effectively surrenders to Lincoln, simply admitting that he’s got the guns and the court has no ability to enforce its orders. At that point, separation of powers ceased to exist in this country.
The federal court system is largely unchanged since the 1860’s, and reading these documents makes me shudder as I imagine it happening in modern times. Swap out the names and dates, and the documents would look the same. Lincoln’s exalted seat at the end of the National Mall is not undeserved, but from the standpoint of the Constitution and the separation of powers, he makes George W. Bush look like the head of the ACLU.
