Lincoln's Unconstitutional Actions

[L Verge]

Angela - I have often used your argument with upper grade students at our museum, pointing out that things change in times of crisis. In the Mary Surratt movie, The Conspirator, I believe that it is Mary's respected lawyer who quoted the following: "In times of war, the law falls silent." This is derived from a Latin phrase, Inter arma enim silent lēgēs meaning "for among [times of] arms, the laws fall mute." It is credited to Cicero.

Abraham Lincoln's request for an opinion on the suspension of the right to habeas corpus during the American Civil War resulted eventually in the following decision, in Ex parte Merryman (1861), of Chief Justice Roger B. Taney, as a judge of the United States circuit court for the District of Maryland:

1. That the president... cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control.

Please note that Taney wrote the majority opinion; this was not his exclusive decision - even though modern folks seem to want to make Taney a "dictator" of sorts as far as the Supreme Court is concerned. He is actually considered one of the best jurists, especially in Constitutional matters, that our country has ever seen.

The United States' government explicitly referred to this maxim within its argument in the case Ex parte Milligan, when it remarked (with an additional reference to Cicero) that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law." The same principle was upheld during WWII in reference to "enemy belligerents."

I have told some members of this forum about my receiving a phone call in 2001 from the U.S. Department of Justice wanting to know where they could find complete transcripts of everything pertaining to the 1865 trial of the Lincoln conspirators. They were working with that term of "enemy belligerents" also as they were arresting the folks destined for Gitmo prisons. Abraham Lincoln is not the only leader who has had to face this issue.