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Silent enim leges inter arma… Cicero

In times of war the laws are silent. Murray has written an excellent and even-handed book EXCEPT he gives the impression of a working court system.

As Chief Justice, Roger Taney, who had not only emancipated his own slaves but had given pensions to those too old to work, administered the oath of office to Lincoln on the 4th of March 1861. Lincoln hated him for the judicial restraint he had exercised in Scott v. Sandford and he continued to vex Lincoln during the three years he remained Chief Justice after the beginning of the war. After Lincoln suspended habeas corpus  Taney ruled Ex parte Merryman that only Congress had this power. Lincoln made an aborted attempt to arrest Taney in response to his habeas corpus decision but finally satisfied himself with ignoring Taney’s order and continuing to have arrests made without the privilege of the writ. Merryman was eventually released without charges – as were most so detained in an effort to prevent their cases from inconveniently encumbering the executive with too scrupulous an observation of constitutional – or human – rights.

Long before Earl Warren’s flirtations with social engineering through judicial activism Lincoln’s abolitionist radical republicans allies in Congress considered initiating impeachment charges against Taney. They to were dissuaded by Lincoln in order that there would be no public debate on the topics. It was far easier to treat Taney as a “non-person” long before the phrase came into popular usage, to declare martial law and to use the provost-marshal rather than duly elected or appointed officials to exercise all of the functions of government. Cases may have been brought to the courts during the war and they may have been given hearings with all of the trapping of the majesty of the law – but no inconvenient decision was allowed to get in the way of Lincoln or his henchmen.

Hon. Roger B. Taney (1777-1864) painted by Miner Kilbourne Kellogg (1814 – 1889), Oil on canvas, 1849. Taney served as Chief Justice, U.S. Supreme Court, 1836-1864. Most illustrations of Taney are taken from late in life and he appears either care worn or may be deliberately distorted to satisfy the artists political bent but this is an earlier portrait that we hope does him better justice. He was a paragon of judicial clarity and judicial restraint and deserves better of history.

Legal cases of the Civil War    Mechanicsburg, PA : Stackpole Books, c 2003  Robert Bruce Murray United States History Civil War, 1861-1865 Law and legislation Hardcover. 1st. ed. and printing. xii, 324 p. : ill., ports. ; 24 cm. Includes bibliographical references (p. 315) and index. Clean, tight and strong binding with clean dust jacket. No highlighting, underlining or marginalia in text. VG/VG

The Civil War was fought not only on land and at sea, but also in the courts of law of the nation. From all walks of life, men and women, blacks and whites, pri­vate citizens and corporate entities aired their grievances against one another in court, adding to the tension that already gripped the nation.

Murray examines a number of these judi­cial altercations heard by the Supreme Court of the United States from 1861-65, reflecting the concerns of the average citi­zen and the enlisted man alike.

Throughout Legal Cases of the Civil War, many remarkable characters’ stories are told, including the sailors who sued for prize money; the man who made a loan in gold and silver and refused to accept the new greenbacks as payment; the politician’s who were arrested for unduly criticizing the war; the company who refused to pay income tax under the very first legislation of the subject; the plantation owners who sued the army to regain the value of their confiscated cotton; and the lowly private who took the Federal government to court in order to receive his hard-earned bonus.

The thousands of cases filed were part of the war in a very real sense, and many of them were appealed all the way to the U.S. Supreme Court. Murray not only presents these cases, but also incorporates the argu­ments by the counsel and summations of the opinions of the justices of the court. A list of Civil War-era Supreme Court cases is also included, as well as a biography of each of the justices who served during the Civil War.

Salmon P. Chase – Lincoln’s final revenge on the Republic was his nomination of this career political hack as Chief Justice to succeed Taney

Samuel P. Chase, the man who never went to law school, but had hung onto the fringes of power since Van Buren’s administration as the originator of the “free soil and free labor” movement, had been Lincoln’s challenger for the Republican nomination in 1860. Rewarded with the treasury he issued the first U.S. federal currency, the greenback demand note, printed in 1861-1862 and forming the basis for today’s paper currency. Chase was responsible for their design and in order to further his ambitions modestly placed his face appeared on most of the paper currency, starting with the $1 bill so that the people would recognize him.

In June 1864, had secured renomination and there was no challenge to the treasury printing paper by the to so Lincoln surprised Chase by accepting his third offer of resignation since no longer needed him. Unwilling to jettison  the radical wing of the party, Lincoln mentioned Chase as a potential Supreme Court nominee and when Chief Justice Roger B. Taney died in October, Lincoln named Chase to replace him.  

Drifting around the court, presiding over the impeachment trial of Johnson and finally still attempting to secure a nomination for president as late as 1872 [talk about judicial activism] he may have finally repented of all the damage to the nation he participated in when he wrote to August Belmont, “Congress was right in not limiting, by its reconstruction acts, the right of suffrage to whites; but wrong in the exclusion from suffrage of certain classes of citizens [former Confederates] unable to take its prescribed retrospective oath, and wrong also in the establishment of despotic military governments for the States and in authorizing military commissions for the trial of civilians in time of peace. There should have been as little military government as possible; no military commissions; no classes excluded from suffrage; and no oath…”

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