Posted by: Dahni | September 14, 2012

Election 2012 – In Times of War the Law is Silent

In Times of War the Law is Silent

By Dahni © 2012 all rights reserved

Besides the most obvious question which is, what do the words “In times of war the law is silent” mean, what war is this post referring to? Both are intelligent questions, both questions you should be asking and both will be answered here.

As a context, from today (9/14/12) there are only around 50 days left until Election Day, November 6th, 2012. Yes, I am about to get political here, but in the purest sense. The word politics, police, polls, poling and many other words and even the word polite have as its origin, an ancient Greek word, which is the word polis. A polis was simply a walled city designed to protect the people of the city from enemies not from within, but from without. Each inhabitant of the city would in essence be polls or people of the polis. Today, we are each a poll of a polis or a city. We are political and this post is of utmost importance to all of us collectively and individually. We are, WE the People, E pluribus unum (Latin: “out of many, one”).

This post is the beginning of a series of posts from today until November 6th. This post and others to follow are not intended to influence you to vote for a particular person, persons, platform, policy or party, but HOW to vote and why WE should.

Let us begin this journey together by understanding the meaning of the words: “In times of war the law is silent.” These words are translated from the Latin, “Inter arma enim silent leges.” The words are attributed to Marcus Tullius Cicerro,  January 3, 106 BC – December 7, 43 BC. Cicero was a Roman philosopher, statesman, lawyer, orator, political theorist, consul and constitutionalist.

[“Inter arma enim silent leges” is a Latin phrase meaning “For among [times of] arms, the laws fall mute,” although it is more popularly rendered as “In times of war, the law falls silent.” This maxim was likely first written in these words by Cicero in his published oration ‘Pro Milone,’ although Cicero’s actual wording was “Silent enim leges inter arma.” Given Cicero’s in depth knowledge of Greek political history, it can be argued that his notion on war and law was inspired by Thucydides’s opinion on the violent nature of war and the realist approach in international relations.

At the time when Cicero used this phrase, mob violence was common. Armed gangs led by thuggish partisan leaders controlled the streets of Rome. Such leaders were nevertheless elected to high offices.

In the United States, President Lincoln’s request for an opinion on the suspension of a basic right, to habeas corpus, during the Civil War resulted eventually in the decision, in Ex parte Merryman (1861), of Chief Justice Roger Taney, sitting as a judge of the United States Circuit Court for the District of Maryland, that: “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.” The Supreme Court explicitly referred to this maxim within its ruling on the case Ex parte Milligan, when it remarked 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 words “In times of war the law falls silent” was referred to again, after the conclusion of the military tribunal that convicted and sentenced to death, Mary Surrat, the mother of John Surrat. John Surrat had at least conspired with John Wilkes Booth to kidnap President Abraham Lincoln. John Surrat had fled the country about two weeks prior to the assassination of the President, leaving his mother and sister to be subject to guilt by association as both were in the home where John Wilkes Booth had been known to frequent, along with other conspirators.

At the last hour, the attorney for Mary Surrat secured an order for habeas corpus and presented this to the Secretary of War, an order by a judge that Mary Surrat was to be presented to his court for a new civil trial. The President, Andrew Johnson, suspended that order and Mary Surrat was ultimately executed (the first woman in the history of this country). Devastated by this decision, her attorney was told by the chief prosecutor for the state, “In times of War the law is silent.”

For reference see:

‘The Conspirator’, Directed by Robert Redford

It may be reasonably argued that the United States Constitution alludes to these ancient Latin words where the following words are contained: “extraordinary Occasions…,” and “if the public safety requires it…” Today, we are perhaps more familiar with the terms – “military necessity,” “state of emergency” and among others, even “Homeland Security.” It is logical to conclude that a family, a business, the military, and a country do not and would not act or react in the same manner during some crisis or emergency as each would ordinarily or normally as they do under ordinary occasions. Another way to understand these terms are with yet again, additional phrases from Latin. One is government “de jure” (“pure law” i.e. the Constitution) and government “de facto” (“in reality or presently”). When government de jure is interrupted or suspended due to some perceived or actual emergency, government de facto is in force and effect.

Now look at all of these terms again: “extraordinary Occasions,” “public safety requires it,” “military necessity,” “state of emergency,” “Homeland Security,” and, “In times of war the law is silent.” These all form the mathematical axiom, “things equal to the same thing are equal to each other.”

In 1863, President Abraham Lincoln signed the Lieber Code. This writ is the rules of engagement and occupation of one or more countries invading one or more countries or even places within its own country or countries. Its origin dates all the way back to ancient Roman law. The Lieber Code deals with international or inter-nation law, and is often associated with admiralty law or maritime law. In fact, the Lieber Code can be found on record, at the International Court of Law (International Criminal Court – ICC) and in the US War Department, ‘The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies.’ Clearly the imagery of all of this and of this post is war and specifically here, what we know as the Civil War between the Union and Confederate forces. But the Civil War was never technically called or a declarted war.

According to the U.S. Constitution, Article One, Section Eight,

“Congress shall have power to … declare War”.

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;…”

There have only been five times in the history of the United States that any so called declaration of war by Congress has ever occurred:

Ÿ The War of 1812, June 18, 1812

Ÿ The Mexican-American War, May 13, 1846

Ÿ The Spanish-American War, April 25, 1898

Ÿ World War I, April 6, 1917

Ÿ World War II, December 8, 1941

Is it a curious thing that the American Civil War is not included in the previous list? Technically, this was never a war. It was called a war, looked like a war, felt like war and for all practical purposes it was a war. But the Confederacy was never recognized as either a legitimate government or a sovereign nation. There were only, military surrenders.  There was no formal peace treaty ever signed between the Union and the Confederacy. Neither the president (Abraham Lincoln) nor any other president (‘Commander and Chief) since 1863 has ever rescinded the Lieber Code of 1863! No Congress since 1863 has ever cancelled the Lieber Code! No Supreme Court since 1863 has ever overturned the Lieber Code!

The U.S. Constitution as the law of the land was written of, by and for the people to protect our unalienable rights “that among these are, Life Liberty and the Pursuit of Happiness.” It is a legal document of limits; of checks and balances that is designed to limit the powers of government. As such an intended and limiting legal document, it was not and is not intended that “extraordinary Occasions,” “the public safety requires it,” that habeas corpus be suspended, that “military necessity,” a “state of emergency” that “in times of war the law is silent,” was or is perpetual!!!! But this is precisely how the government (de facto, in reality or as it is presently) has and is operating ever since the American Civil War!!!

The United States (are) entered the Civil War as several, independent and sovereign states. The United States (is) exited the Civil War as a sovereign nation. This was and is not the intention of the U.S. Constitution. This anomaly has another term. It is called, ‘Legal Fiction.’ It is legal because it proceeded from the Constitution, but it is fiction because it does not exist. Even the term Legal Fiction by its own definition was and is limited. It was and is not intended to be perpetual.

The election of 2012 is not about a person, persons, party, platform or policy. It is or should be about resetting the government of the People, by the People and for the People to ordinary occasions. It is or should be about the intended limitations of government and returning all other un-intended power back to the US, WE the People, the authors of the Constitution and the BOSS of the servants which are to serve US, WE the People!

“In times of War the Law is Silent,” does NOT apply to our current situation. We are NOT under threat of invasion. We are NOT being invaded. No such “state of emergency” exists. There is no such “military necessity.” There is no such military or otherwise, any need to occupy these several independent and sovereign states. This is all, “Legal Fiction,” and isn’t it time that WE the People know and understand what ‘Legal Fiction” is? Isn’t it time that WE the People return to ordinary occasions?

So what is this post really saying?

“In times of War the Law is Silent,” the American Civil War and the term ‘Legal Fiction,’ form another mathematical axiom – “things equal to the same things are equal to each other.” One way to understand the term ‘Legal Fiction’ is by the words “as if.” From the beginning of the American Civil War in 1860/1861 up to today, September 14, 2012, over a hundred and fifty years later, it is “as if” the Civil War never ended. This is precisely what has occurred and is presently occurring. But it is all, ‘Legal Fiction!”

Next time:  Election 2012 – Legal Fiction


Just I-Imagine,



  1. I likе this pօst, enjoyed this one thank you for putting up.

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