Should We Interrupt the Rule of the Land During Times of War?

Poster of the motion picture “The Conspirator”, 2010, produced and directed by Robert Redford. Credit: Wikipedia Encyclopedia

Since Netflix arrived in our shores, several months ago, I’ve seen many movies in my free time as a retiree.  Some of these pictures have been spectacular, like “Lawrence of Arabia”, and others have been nothing but commercial junk.  But for $7.99 a month, you get what you pay for.

Three days ago, I streamed a movie which struck my moral chords.  I’ve been thinking about the dilemma of law and war and how this subject is related to the trial after the assassination of President Abraham Lincoln on April 15, 1865.

The name of the motion picture is The Conspirator, produced and directed by Robert Redford in 2010, based on an original screenplay by James D. Solomon.  The central theme of The Conspirator, is about the application of the law under very special circumstances.

It reminded me of another great motion picture entitled “The Amistad” (1997) directed by Steven Spielberg about the 1839 revolt aboard Spanish ship La Amistad and the uprising’s tragic aftermath and the trial that followed.

 “In The Conspirator, Robert Redford the director addresses a tragic and polemic episode in American history that’s left out of textbooks: the little-known story of Mary Surratt, an innocent woman caught up in the U.S. government witch hunt after the assassination of President Abraham Lincoln. It’s an exhaustively researched, brilliantly scripted, carefully made film that cautiously avoids preachy propaganda of yesteryear, while unavoidably reflecting the similar anxiety, tension and fear of a polarized nation today. “

“It took screenwriter James Solomon 16 years to polish his script to perfection, and the hard work shows. We all know Lincoln was shot and killed at Ford’s Theatre in April 1865 by a single bullet to the head from the gun of assassin John Wilkes Booth. The Conspirator graphically re-creates the incident, but uses it only as a starting point to delve deeper into the vengeance and political chicanery that infected the country in the dark aftermath of the Civil War, leaving a nation divided and angry only two years after the surrender of General Robert E. Lee, with everyone distrusting everybody else and politicians screaming for justice in the interests of power and self-promotion.”

There are two main characters in the movie; Frederick Aiken played by James McAvoy and Mary Surratt performed by actress Evan Rachel Wood.  They were flawless in their performance.   Aiken was the defense attorney and Mary Surratt was his client.  The film tells the story of Mary Surratt, the only female conspirator charged in the Abraham Lincoln assassination and the first woman to be executed by the United States federal government.

Shortly after ten o’clock on the night of April 14, 1865, President Lincoln was fatally shot at Ford’s Theatre while watching the play Our American Cousin. He was taken across the street to William Petersen’s boardinghouse where he died at 7:22 a.m. the next morning. An attempt was made on the life of Secretary of State William H. Seward at the same time. It was later revealed that Vice President Andrew Johnson and General Ulysses Grant were also candidates for assassination. After a trial by a military commission, conspirators George Atzerodt, Lewis Powell, David Herold and Mary Surratt were hanged on July 7, 1865.

Aiken’s valiant efforts to get her a fair trial are thwarted at every turn.  The end conclusion was foregone at the beginning.  The outcome, even her execution, which most of the tribunal was against, was orchestrated by the Secretary of War, Edwin M. Stanton.   He based his arguments on the principle of Marcus Tullius Cicero (106 BC-43 BC).  Over two thousand years ago, Marcus Tullius Cicero observed that “in times of war, the law falls silent” (Silent enim leges inter arma).

Today, political philosophers, policy makers, and political leaders argue over this same topic: What laws, if any, are applicable during war? More specifically, what laws, if any, apply to war itself? These questions presuppose a shifting ethical relationship between individuals, societies, and states during a time of war that do not exist in peacetime. But the important question is whether Cicero is necessarily correct—can there exist a time and place where the law is not silent in times of war?  This is the dilemma that bothered me as I opened this blog post.

On May 10, 1865, Mary Surratt and her fellow conspirators went on trial at the Old Washington Arsenal, in the District of Columbia. On June 30, the military commission found all eight defendants guilty and sentenced four of them, including Mary Surratt, to be hanged by the neck until dead.

On July 7, 1865, about 20 minutes after one o’clock, Mary Surratt was hanged. She was forty-two years old and had earned the unwanted distinction of being the first woman executed by the U.S. government.

Below are the word of Frederick A. Aiken’s argument in defense of Mary Surratt at the trial.  This piece of work is considered one of the most brilliant in the history of American law.

“Mr. President and Gentlemen of the Commission:

For the lawyer as well as the soldier, there is an equally pleasant duty—an equally imperative command. That duty is to shelter from injustice and wrong the innocent, to protect the weak from oppression, and to rally at all times and on all occasions, when necessity demands it, to the special defense of those whom nature, custom, or circumstance may have placed in dependence upon our strength, honor and cherishing regard. That command emanates and reaches each class from the same authoritative and omnipotent source. It comes from a Superior, whose right to command none dare question, and none dare to disobey. In this command there is nothing of that lex talionis which nearly two thousand years ago nailed to the cross its Divine Author.

‘Therefore, all things whatsoever ye would that men should do to you, do ye even so unto them; for this is the law and the prophets.’

God has not only given us life, but He has filled the world with everything to make life desirable; and when we sit down to determine the taking away of that which we did not give, and which, when once taken, we can not restore, we consider a subject the most solemn and momentous within the range of human thought and human action.

Profoundly impressed with the innocence of our client, we enter upon this last duty in her case with the heartfelt prayer that her honorable judges may enjoy the satisfaction of not having a single doubt left on their minds in granting her an acquittal, either as to the testimony affecting her, or by the surrounding circumstances of the case.”

Aiken, a Union hero, Union Captain, and Lawyer, is forced by his employer to defend Surratt, whom he originally believed was guilty.  It ruined his career, his social standing, and his relationship.  But, he survived, left the law, and became a newspaperman in Washington.  He eventually became the first editor of “The Washington Post”.

A year after Mary Surratt’s trial, the United States Supreme Court unanimously ruled citizens were entitled to a trial by jury, even in times of war.  Cicero was proven wrong after all these years.

After reading all the above, what do you think about Cicero’s argument?  Is the law silent in times of war?

Good Day

4 thoughts on “Should We Interrupt the Rule of the Land During Times of War?”

  1. It had better not be. On the other hand, some are beginning to worry that the law is silent even in times of peace. Patently illegal incidents are taking place regularly in the U.S., and they simply are being ignored, swept under the carpet, or minimized in other ways.

    The U.S. used to proclaim itself a society founded upon law, not men. Today, those who dislike certain laws simply ignore them without consequence. It’s really quite interesting to observe. On the one hand, we live in a time of incessant chatter. On the other, there’s a strange silence hovering over it all.

  2. Hi Linda:

    The same is happening in our country. Special interests are crushing the rule of law. When justice is eroded to a point of oblivion, what else do we have but confusion, darkness and chaos.

    Not stopping at a red light, not adhering to speed limits, flawed decisions at the Supreme court, are now part of our daily life. We have to go back to basics when traditional family values were held high.

    Accountability should return to our social institutions. We should bear this in mind when we cast our votes every four or five years.

    Thank you for your valuable daily comments.



  3. There’s a certain truth to Cicero’s statement. He had been categorical in his argument though that opens with “In times of war, …”
    Necessary? sometimes. Do we have to like it? No. We simply have to live with it. For all we know, Cicero might not have fully subscribed to his own contention. Just my two cents worth, Omar.

    This post also reminds me how much I look forward to the showing of “Lincoln.” The remarkable president is portrayed here by the distinguished actor Daniel Day Lewis. Steven Spielberg directs, I believe. I’m sure the movie is not going to disappoint us.

    You continue to provide us with highly informative and valuable post materials. We are so indebted to you, dear blogger.

  4. Hello Marj:

    Under the perspective of justice, Cicero was wrong in his assertion. That is why the United States Supreme reversed the interpretation of the law and banned military trials for civilians as they did with Mary Surratt.

    Having said that, in many countries with military dictatorships, the law is placed in the back burner, regardless if the country is at war or not. North Korea comes to my mind.

    Yes, I’m also interested in viewing Lincoln, the movie. It is in Panama’s theaters, even as we speak.

    I’m very satisfied that you are enjoying my blog posts. Your comments are always welcomed.

    Best Regards,


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