Introductory Material
This introductory information on wars and non-war times of conflict will be the opening lecture of the unit. Students will gain an overview of the context in which we will study the play through this.
The Civil War
The teacher will begin the lecture with the introduction of England's Habeas Corpus Act of 1671. The English law stated that a prisoner could only be detained through a special order by the King or the Privy Council. If such an order could not be shown in court, the prisoner was to be released. This basis for America's law substitutes the President and Congress for the British authorities. Abraham Lincoln's executive order suspending the writ of habeas corpus in the spring of 1861 demonstrates how war can cause a disruption in the civil liberties of a nation's citizens based on fear. Lincoln claimed that executive suspension of the writ should be enough to justify detention in any court.
Abraham Lincoln first suspended the writ of habeas corpus on April 27, 1861. Patterned after England's law, the main idea of this law is that it guarantees that a citizen cannot be held without arrest for more than a specified amount of time before being brought before an officer of the court. Due to the fear of treasonous activity, Lincoln was advised by Attorney General Edward Bates to suspend the writ of habeas corpus. Lincoln's reluctance to accept such a grave responsibility was overcome when states began seceding from the union and the question of Maryland's neutrality became central to the union's survival.
Gore Vidal's novel, Lincoln, is historical fiction, and although it is not the last word in factual information, it does pose some interesting possibilities. In a letter to General Scott, Lincoln authorized the commanding general of the U.S. Army to suspend the writ of habeas corpus, if necessary, in the line of duty (Vidal, 2000, p. 25).
Then John Merryman, a civilian, was arrested on constitutional suspicion of treason. The case of Ex Parte Merryman became the first test of Lincoln's authority as the President of the United States to legally suspend the writ of habeas corpus. Chief Justice Taney, unpopular with Lincoln due to his decision in the Dred Scott case, heard the case and decreed that the President of the United States had no authority to suspend the writ of habeas corpus, nor could he authorize any military personnel to do so. Taney later wrote that this authority lay in Congress and that the President alone was not authorized to order it (Vidal, 2000, p. 34).
Taney also ruled that any military officer who arrested a person was obligated to deliver him to a civil authority. This latter action caused great debate and unrest over the legality and feasibility of remanding military arrests to civil courts. The difference between the functioning of the civil courts and the military courts made this decision controversial. In speaking to a special session of the Congress on July 4th, Lincoln pointed out that the Constitution did not specify which part of the government had the authority to suspend the writ. In the meantime, Merryman continued his confinement at Fort Henry, was finally indicted and granted bail, and his case was never brought to trial (Vidal, 2000, p. 39). (ditto)
World War I
World War I, known until the Second World War as the Great War, tested the American public and its laws and government a second time. Fear motivated discrimination against German nationals as well as naturalized citizens of the United States. Even before the United States entered the war there was widespread fear that anti-war sentiment could threaten the authority of the government. Added to this were fears about the radical labor movement and the hint of communism emanating from Europe. This led to massive civil liberty violations in the name of keeping the country safe for democracy (Linfield, 1990, pp. 56-57).
As a result of this turmoil, citizens started vigilante groups to combat any person who did not seem patriotic enough. The rise of labor organizations resulted in martial law enactment to quell riots and uprisings. It seems as though everyone was jumpy, expecting to be attacked by an enemy at any time. While the government was supposedly investigating and controlling anti-American activities, it was also working to suppress labor unions and the feminist movement.
Several laws were passed at this time including the Espionage and Sedition Acts and the Trading with the Enemy Act (1917-18). Many other civil liberties were abused. Attorney General A. Mitchell Palmer, assisted by J. Edgar Hoover mounted a massive arrest of Russians, deporting them. These Palmer Raids began on December 21, 1919 and continued through May of the following year. The justification of these raids was "to protect U.S. citizens from dangerous radicals. . ." (Rehnquist, 1998, p. 57). Jail conditions were inhuman in many cases. For instance, a hundred prisoners were confined in a cell with only one square yard of space for each. Freedom of the Press was severely curtailed and Freedom of Speech was suppressed. Even the U.S. Postal system was compromised when workers were ordered not to deliver mail with subversive messages. It took ten years after the end of the Great War for "patriot fever" to die down.
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