Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
It's funny how you'll accept any account of a yankee atrocity at face value and trumpet it far and wide, but anything that casts the south in an other-than-perfect light--like Lawrence, Andersonville, or Ft. Pillow, or the extent of slavery--is all yankee lies.
Well, in large part they are. What often gets portrayed as a clear cut atrocity at all three of those oft-trumpeted locations is either premised upon substantial myth and a complete neglect of the whole story.
Take Lawrence for example. The "popular" version portrays a raid of merciless cavalry renegades on a bunch of innocent civilians. History, however, tells us it was a retaliatory hit on persons living in Lawrence at that time who had been responsible for a number of raids and injustices against the families of those in Quantrill's band, most notably the yankee imprisonment of their wives and sisters in a decrepit old building that collapsed killing several about a week prior.
Andersonville? Yes. By all measures it was a pretty rotten place to be. Almost as bad as Point Lookout for that matter. But if you look at the medical reports kept by the doctors on site who actually tended to the prisoners you will find that a solid majority of the deaths there were caused by stomach dysentaries and other bugs that induced vomiting and diarhea, thus making the afflicted unable to take in food or water and eventually killing him - not some willful scheme of starvation in an area already blighted by shortages of supplies and medicine (which, BTW, Point Lookout had plenty of).
Fort Pillow? It's arguably the most widely propagandized and fabricated incident of the north. What really happened there we may never know. Sift through all the hype and inflated stories by persons who were not even there and you get a general picture though: The confederates arrived on site and surround the fort with vastly superior numbers and more or less expected a surrender. Initial skirmishing takes place in which the fort's commander and several officers are killed unbeknownst to the confederates. Field talks ensue during the gaps. The highest ranking officer to survive lies to the confederates about his commander's death, purporting himself to be relaying his messages while Forrest states his demand for a surrender. The yankees refuse so, as promised, the confederates storm the fort. Barely a minute into the battle the entire yankee command collapses, largely because their officers were dead and the one guy still in charge was exceedingly inept. Conflicting simultaneous orders to hold the ground and to retreat to the river are given by low level yankee officers and mass chaos ensues. Some stay and fight. Some flee. Some flee while fighting. Some surrender. Some surrender, see others still fighting, "unsurrender," and resume the fight. And nobody on the yankee side gives any clear or coherent message of command of any form. Such is naturally a prescription for a bloodbath, which is what happens. The brutality is virtually all committed in the heat of battle and within a few minutes before the confederate officers arrive on the scene and tame their men down.
The problem with all of these is that we don't really know what happened. Partisans for both sides make the other sound bad and absolve themselves of all blame. I fully acknowledge that the Union soldiers did bad things in conquering and occupying the south. But I can't accept the Lost Causers' refusal to acknowledge that the boys in gray ever did a single bad thing during the war.
They are far fewer than you may think. Take Fort Pillow for example. The majority of the most far fetched stories of torture, brutality, etc. came from people who were not even within 100 miles of the battle. The eyewitness versions on both sides generally don't contain that stuff. They note that it was a brutal and bloody battle. They note that killing was indiscriminate. And they also note that the yankee command was virtually non-existant with all sorts of contradictory disorganized orders being issued. But that's where the reliable witnesses stop.
At Lawrence, the tales aren't all of clean executions of the Jayhawker leadership. The stories are of 17 year old store clerks being ordered to open safes, then being shot.
I don't doubt that there were, however as I noted previously, Lawrence was not a wholly innocent town in the matter. There are always people who get caught in the crossfire and innocents who get killed in the heat of a battle like that.
At Andersonville, the stories aren't about disease and starvation, but about guards tossing a bit of food over the dead line, then happily shooting the starving prisoner who went for it.
Don't recall ever reading that one, though I do know of several witnesses at Point Lookout, reporters among them, who wrote about a game the guards played - fire some indiscriminate shots over the fence then accumulate points based on who had the most "hits." What I do know of Andersonville though is that the medical reports confirm stomach disorders were by far the largest cause of death.
As for Ft. Pillow, here's an except from a letter written home by one confederate soldier: "The slaughter was awful. Words cannot describe the scene. The poor, deluded negroes would run up to our men, fall upon their knees and with uplifted hands scream for mercy but they were ordered to their feet and then shot down. The white men fared but little better.... I with several others tried to stop the butchery and at one time had partially succeeded but Gen. Forrest ordered them shot down like dogs and the carnage continued."
That's the supposed version of a soldier named Achilles Clark, which has never been considered reputable. It's material and authenticity has been disputed since the 19th century not long after it was first published. Virtually every other source on the battle, including some northern ones, say that Forrest arrived on the scene and almost immediately reigned in any brutality. One of them is Charles Fitch, the yankee garrison's surgeon, who stated that the confederate officers arrived on the scene, quickly called down any men who were engaged in brutality, and placed a guard around the medical area to ensure that his attempts to treat the wounded were not interfered with.
The problem with all of these is that we don't really know what happened.
Indeed we don't, but we can cipher through the credible stories and the non-credible ones to get a general idea. When you do that you will find that stories that portray Fort Pillow as anything more than an extremely violent route of the fort in which some brutalities occured, but seldom if any time beyond the heat of the battle itself.
I almost had to wipe the tears from my eyes. Why not post the document? How is anyone to know if the "civilians" were not spies or saboteurs, partisans or common criminals, under military occupation? If these supposed documents date from Milroy's duty in 1864 in Tennessee, the he was most probably reporting to Union General George H. Thomas, a loyalist from Virginia, and one of the finest commanders in the War.
"They note which houses have furniture that can be pillaged, which persons on it were hunters and therefore had firearms that could be confiscated in violation of the 2nd amendment, which farms had animals that could be stolen, and directions in virtually every case to torch the place after it was stripped bare of valuables. Remember that this was in the dead of winter - January - and they burned these people out of their homes."
Sounds like prudent intelligence. The area in question, although you are rather vague, was undoubtedly under marshal law. Tennessee had purported to secede and much of the state, at least, could be considered hostile territory. In these border states and re-occupied areas sabotage and guerrilla warfare were common. Farber notes that the Supreme Court "has never repudiated the view that martial law is an appropriate measure in contested or occupied territory."
In the Supreme Court case, Dow v Johnson (1879), Farber writes, "the Civil War, 'though not between independent nations (note: yet another authoritative denial of southern independence!), but between different portions of the same nation, was accompanied by the general incidents of an international war.' Therefore, when "our armies marched into the country which acknowledged the authority of the Confederate government,' they were governed only by military law. Although an invading army generally chooses to allow local laws to remain in force to regulate relationships between private citizens, these laws continue only on sufferance, 'unless suspended or superseded by the conqueror.' 'What is the law which governs an army invading an enemy's country?' the Court asked. 'It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law - the law of war - and its supremacy for the protection of the officers and soldiers of the army, when in the service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.'"
It is not a good thing to be on the losing side in a civil war.
Cited posts are linked and quoted from below.
cr #1279, of 9/16/2004 at 11:39pm CDT shows, in reference to Mitchell vs. Harmony, "I saw the case referenced several times, but I have not taken time to look it up yet...."
cr #1335, of 9/17/2004 at 11:30am CDT shows the dismissal of Mitchell with the comment "you cite a pre-war case about the Mexican-American War, which isn't at all analogous."
nolu chan #1273 of 9/16/2004 at 6:50pm CDT shows a quote from Executive Power, the 1862 pamphlet by former Supreme Court Justice Benjamin Robbins Curtis showing that Mitchell vs. Harmony was directly on point. That is a Supreme Court Justice, who, unlike capitan_refugio, presumably actually read the court decision, quoting Mitchell regarding the authority of what generals in the field may do. It is a direct comment on the limits of the powers of President Lincoln as Commander-in-Chief of the Armed Forces.
nolu chan #1277 stated "See Mitchell vs. Harmony, 13 How. 115 (1851) "The 2d and 3d objections will be considered together, ..."
nolu chan #1299 shows that cr #1279 (in response to nc #1277) provided a quote from Hamdi which had absolutely nothing to do with the comments in Mitchell regarding the 2nd and 3rd objections. This erroneous response resulted from capitan_refugio once again demonstrating his expertise about a court decision he had not read.
This can be added to the list of court decision horrors perpetrated by capitan_refugio as documented in nolu chan #1071. nc #1071 documents:
(a) three cr quotes purporting to relate to Scott v. Sandford but actually relating to the earlier Missouri case, Scott v. Emerson.
(b) a recitation about what the Taney court did with the Lemmon case, a case that never reached the U.S. Supreme Court.
(c) a purported quote from the opinion of the court in The Prize Cases, and a recitation of the purported findings of the court which turned out to be a quote of the court's recitation of the argument of one of the attorneys, and the purported "findings" were all incorrect.
capitan_refugio #1335
To: 4ConservativeJusticesCR - "Those who are in armed insurrection and rebellion, who have organized a government (of sorts) in opposition to the constitutional government of the country ..."
4CJ - "A later decision, unanimously decided by the Supreme Court, holds that your argument is so much bovine scatology."
4CJ - "Mitchell v Harmony. Previously posted."
You seem to be having temporal problems today. I was talking about the ACW. You responded by "citing" a "later decision" and then you cite a pre-war case about the Mexican-American War, which isn't at all analogous.
1,335 posted on 09/17/2004 11:30:11 AM CDT by capitan_refugio
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capitan_refugio #1279
To: nolu chanFrom the Hamdi v Rumsfeld decision, comes this short review of Mitchell. I saw the case referenced several times, but I have not taken time to look it up yet, so I will limit my comments.
"The Fourth Circuit’s ruling also is entirely inconsistent with this Court’s long experience with the review of Executive branch seizures. In Mitchell v. Harmony, this Court reviewed and rejected the military’s seizure of a citizen’s property in Mexico during the Mexican-American war. 54 U.S. (13 How.) at 128-29. The plaintiff, a naturalized American businessman, filed an action against a U.S. colonel to recover the value of his property seized by the military. The government responded that the businessman had a “design” to trade with the enemy, and that the decision of the military commander to seize the property “must be entitled to some respect.” Id. at 118, 120.
"Rejecting these arguments, Chief Justice Taney’s opinion for the Court found the government’s defense to be based on “rumors which reached the commanding officer.” Id. at 133. “Mere suspicions of an illegal intention,” the Court stated, “will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.” Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen’s property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself."
It seems that Mitchell is not applicable to the situation of the South in the ACW. By their insurrection, the southern rebels forsook their claim to United States citizenship. I do not see how they could assert legal protections, if those protections were even applicable, from the document and country they renounced.
1,279 posted on 09/16/2004 11:39:32 PM CDT by capitan_refugio [ Post Reply | Private Reply | To 1277 | View Replies | Report Abuse ]
nolu chan #1273
Executive Power, Benjamin Robbins Curtis, 1862, p.22But the military power of the President is derived solely from the constitution; and it is as sufficiently defined there as his purely civil power. These are its words: "The President shall be the Commander-in-chief of the army and navy of the United States, and the militia of the several States, when called into the actual sevice of the United States."
This is his military power. He is the general-in-chief; and as such, in prosecuting war, may do what generals in the field are allowed to do within the sphere of their actual operations, in subordination to the laws of their country, from which alone they derive their authority.*
* The case of Mitchel vs. Harmony (13 How. 115), presented for the decision of the Supreme Court of the United States, the quesiton of the extent of the right of a commanding general in the field to appropriate private property to the public service, and it was decided that such an appropriation might be made, in case it should be rendered necessary by an immediate and pressing danger or urgent necessity existing at the time, and not admitting of delay, but not otherwise.
In delivering the opinion of the court, The Chief Justice said: -- "Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is: whether the law permits it to be taken, to insure the success of any enterprise against a public enemy, which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it. The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn vs. Fabrigas (1 Cowp. 180), illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet is was an invasion of the rights of private property and without the authority of law; and the officer who executed the order was held liable to an action; and the sutlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of property are guarded by the laws of England; and they are certainly not less valued, nor less securely guarded, under the Constitution and laws of the United States."
It may safely be said that neither of the very eminent counsel by whom that case was argued, and that no judge before whom it came, had then advanced to the conception that a commanding general may lawfully take any measure which may best subdue the enemy. The wagons, mules, and packages seized by General Donophon, in that case, were of essential service in his brilliant and successful attack on the lines of Chihuahua. But this did not save him from being liable to their owner as mere wrongdoer, under the Constitution and laws of the United States.
1,273 posted on 09/16/2004 6:50:52 PM CDT by nolu chan ("Why make such a fuss....?" Lincoln, CW 3:495)
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nolu chan #1299
To: capitan_refugio; GOPcapitalist; 4ConservativeJustices[nc #1277] See Mitchell vs. Harmony, 13 How. 115 (1851) "The 2d and 3d objections will be considered together, ..."
My #1277 concerns the 2d and 3d objections and does not address the court's comments on the 1st objection.
[cr #1279 quoting from Hamdi] "Rejecting these arguments, Chief Justice Taney’s opinion for the Court found the government’s defense to be based on “rumors which reached the commanding officer.” Id. at 133. “Mere suspicions of an illegal intention,” the Court stated, “will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.” Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen’s property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself."
[cr #1279] It seems that Mitchell is not applicable to the situation of the South in the ACW. By their insurrection, the southern rebels forsook their claim to United States citizenship. I do not see how they could assert legal protections, if those protections were even applicable, from the document and country they renounced.
Mitchell was an officer of the army, and was sued in an action of trespass by Harmony for seizing his property in the Mexican State of Chihuahua. On appeal (Mitchell vs. Harmony) it is the loser in the lower court bringing an action to reverse the lower court ruling. The Government was not a party to the action.
The comment from Hamdi is taken from the section of the court decision commenting only upon the 1st objection. It has nothing whatever to do with objections 2 thru 5 and is not relevant to what I posted.
He justified the seizure on several grounds.1. That the plaintiff was engaged in trading with the enemy. 2. That he was compelled to remain with the American forces, and to move with them, to prevent the property from falling into the hands of the enemy. 3. That the property was taken for public use. 4. That if the defendant was liable for the original taking, he was released from damages for its subsequent loss, by the act of the plaintiff, who had resumed the possession and control of it before the loss happened. 5. That the defendant acted in obedience to the order of his commanding officer, and therefore is not liable.
The first objection was overruled by the court, and we think correctly. There is no dispute about the facts which relate to this part of the case, nor any contradiction in the testimony. The plaintiff entered the hostile country openly for the purpose of trading, in company with other traders, and under the protection of the American flag. The inhabitants with whom he traded had submitted to the American arms, and the country was in possession of the military authorities of the United States. The trade in which he was engaged was not only sanctioned by the commander of the American troops, but, as appears by the record, was permitted by the Executive Department of the government, whose policy it was to conciliate, by kindness and commercial intercourse, the Mexican provinces bordering on the United States, and by that means weaken the power of the hostile government of Mexico, with which we were at war. It was one of the means resorted to to bring the war to a successful conclusion.
It is certainly true, as a general rule, that no citizen can lawfully trade with a public enemy; and if found to be engaged in such illicit traffic his goods are liable to seizure and confiscation. But the rule has no application to a case of this kind; nor can an officer of the United States seize the property of an American citizen, for an act which the constituted authorities, acting within the scope of their lawful powers, have authorized to be done.
Indeed this ground of justification has not been pressed in the argument. The defence has been placed, rather on rumors which reached the commanding officer and suspicions which he appears to have entertained of a secret design in the plaintiff to leave the American forces and carry on an illicit trade with the enemy, injurious to the interests of the United States. And if such a design had been shown, and that he was preparing to leave the American troops for that purpose, the seizure and detention of his property, to prevent its execution, would have been fully justified. But there is no evidence in the record tending to show that these rumors and suspicions had any foundation. And certainly mere suspicions of an illegal intention will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.
The 2d and 3d objections will be considered together....
The rules of seizure of property are not dependent on U.S. citizenship. The citizenship of Harmony permitted him to file the action directly on his own behalf is New York. Your argument has nothing to do with reality. Perhaps going to FINDLAW and reading Mitchell vs. Harmony might help.
* * *
1,299 posted on 09/17/2004 4:17:20 AM CDT by nolu chan ("Why make such a fuss....?" Lincoln, CW 3:495) [ Post Reply | Private Reply | To 1279 | View Replies | Report Abuse ]
nolu chan #1071
To: capitan_refugio[cr #1059] A Taney-like pique. How droll.
Such a collection of mangled legal opinions. No explanation. How pathetic. It is important to document that you are misstating the law and sources, and inventing cases, so that nobody will come along and take you seriously. You are either woefully incompetent, or deliberately using false quotes and citations.
[ cr #1049 ] Read Fehrenbacher's The Dred Scott Decision: Its Significance in American Law and Politics and get back to me.
I suggest you read that book yourself, and also the decision of the Supreme Court in Scott v. Sandford. I recommend you also read the decision in The Prize Cases. I would also recommend you review the Supreme Court decision you told us all about in the Lemmon case, but there is no such decision as the case never went to the Supreme Court.
In cr #384 you purported three quotes to be about Scott v. Sandford which were about the case of Scott v. Emerson. Two of the quotes were from Chapter 10 "Versus Emerson." See nc #389.
When speaking about Lemmon v. The People, at cr #386 you regaled us with this mush: "Lemmon v the People was a case which foreshadowed Dred Scott. The Taney Court overturned a New York State statute which immediately freed slaves brought into the state. The decision guaranteed "sojourn and transit" and transit rights to slave-owners through free states. It did not address, to my knowledge, the issue of residence.
See nc #390. The Lemmon case never went to the Supreme Court. Fehrenbacher makes that point clear at page 445. Regarding Lemmon, the Supreme Court did not overturn anything. The actual decision, which ended in the highest court of New York, held that the slaves were free and they remained free. They were in New York when the matter was brought to court in New York, and New York law was applied. Every point you made was false.
In cr #649 you purported to quote from the Opinion of the Supreme Court in The Prize Cases. You continued, in your words, "The Supreme Court finds: (1) The rebellion is an insurrection and not a war betwenn countries, (2) The "so-called blockade" was not a blockade under international law, and (3) Closing the ports was a valid exercise of executive authority."
In this case you quoted from the recap of the argument of one of the lawyers, Mr. Carlisle, and presented it as the opinion of the court. All of your purported "findings" of the court were the reverse of the actual findings of the court.
See 4CJ #652 and nc #810.
With such a record regarding your comprehension of court cases, you should not be assigning reading lessons to others until you demonstrate some effort on your own part.
1,071 posted on 09/12/2004 5:58:34 AM CDT by nolu chan [ Post Reply | Private Reply | To 1059 | View Replies | Report Abuse ]
"Which part of this don't you understand?"
I know that atrocities occur in all wars and are committed by all parties involved. many times atrocities occur in the form of reprisals for earlier atrocities. With that said, I also know that the losers often cry "foul!" It is psychological and a way to deal with the devastating effects of defeat, as well as a way of rationalizing their own culpability.
Pardon me if I don't just take your word of it.
Possibly you would like to read this new book:
Black Flag over Dixie: Racial Atrocities and Reprisals in the Civil War
Gregory J. W. Urwin, editor
Black Flag over Dixie: Racial Atrocities and Reprisals in the Civil War highlights the central role that race played in the Civil War by examining some of the ugliest incidents that played out on its battlefields. Challenging the American public’s perception of the Civil War as a chivalrous family quarrel, twelve rising and prominent historians show the conflict to be a wrenching social revolution whose bloody excesses were exacerbated by racial hatred.
Edited by Gregory J. W. Urwin, this compelling volume focuses on the tendency of Confederate troops to murder black Union soldiers and runaway slaves and divulges the details of black retaliation and the resulting cycle of fear and violence that poisoned race relations during Reconstruction. In a powerful introduction to the collection, Urwin reminds readers that the Civil War was both a social and a racial revolution. As the heirs and defenders of a slave society’s ideology, Confederates considered African Americans to be savages who were incapable of waging war in a civilized fashion. Ironically, this conviction caused white Southerners to behave savagely themselves. Under the threat of Union retaliation, the Confederate government backed away from failing to treat the white officers and black enlisted men of the United States Colored Troops as legitimate combatants. Nevertheless, many rebel commands adopted a no-prisoners policy in the field. When the Union’s black defenders responded in kind, the Civil War descended to a level of inhumanity that most Americans prefer to forget.
In addition to covering the war’s most notorious massacres at Olustee, Fort Pillow, Poison Spring, and the Crater, Black Flag over Dixie examines the responses of Union soldiers and politicians to these disturbing and unpleasant events, as well as the military, legal, and moral considerations that sometimes deterred Confederates from killing all black Federals who fell into their hands. Twenty photographs and a map of massacre and reprisal sites accompany the volume.
The contributors are Gregory J. W. Urwin, Anne J. Bailey, Howard C. Westwood, James G. Hollandsworth Jr., David J. Coles, Albert Castel, Derek W. Frisby, Weymouth T. Jordan Jr., Gerald W. Thomas, Bryce A. Suderow, Chad L. Williams, and Mark Grimsley.
"dead line"
After perusing your post, I hope you are wearing your Depends, as you have probably blown a sphincter.
Well, for starters i'd have to scan in about 20 pages of photocopies. The cite # for it is National Archives, Union Provost Marshall, Microfilm Collection 416, Roll 46
How is anyone to know if the "civilians" were not spies or saboteurs, partisans or common criminals, under military occupation?
For one, they were virtually all common farmers with known and fixed addresses making it unlikely that any were military agents, which tended to be mobile.
Second, we know they were not what you describe because Milroy stated his "grievances" against them in the death lists. Put another way, these people were executed for such crimes as owning guns, speaking unfavorable things about the north, being the mother of a confederate soldier, permitting confederates to take food from them prior to and after the nearby Battle of Franklin, and giving soldiers on dispatch a bed for the night.
Third, even if they were guilty of all the things you allege, it would take a courtroom of some sort to convict them and assign a punishment. Milroy gave them no such courtroom nor even a military tribunal and tended to assign "punishments" that were cruel and unusual by medieval standards let alone today - things like hanging people by slip knots in doorways and staging "accidental" shootings of a guy's wife. There was even one case where Milroy ordered his men to take a couple civilians prisoner, transfer them to a town up the road, and give them into the custody of a man named Moses Pittman, who was then permitted to do with them as he pleased (i.e. torture them) and dispose of them as he saw fit. Pittman was a union sympathizer who had been providing aid to Milroy and this was his "reward" from the general!
If these supposed documents date from Milroy's duty in 1864 in Tennessee, the he was most probably reporting to Union General George H. Thomas, a loyalist from Virginia, and one of the finest commanders in the War.
I don't recall who he was directly under at the time. He had just been assigned there after being relieved elsewhere for incompetancy (Milroy was another of those politically connected generals). His duty was on Sherman's supply line so ultimately he was under Sherman. There may have been somebody in between - possibly Thomas - but I don't recall at the moment or without doing further research.
Sounds like prudent intelligence.
Burning families out of their homes in the middle of winter is "prudent intelligence," capitan? Your Stalinist qualities are showing again.
The area in question, although you are rather vague
Milroy was assigned in the Tullahoma District so his activies were all over middle Tennessee. There was a lot going on in the area in late 1864 when he arrived, notably the Battle of Franklin.
was undoubtedly under marshal law.
Whether it was or not, executing civilians without any formal procedure and in a manner that is bizarrely cruel and unusual simply isn't justified or justifiable.
Prediction re. my #1371 to capitan: In noting the surrounding events of a matter I was describing from Tennessee in late 1864-early 1865, I made mention of the nearby Battle of Franklin. I'll predict right now that rather than address those issues or anything else even remotely related to the material I posted, he will respond with some needlessly snide, childish, and irrelevant comment about John Bell Hood's army falling apart. Just watch and see...
I'm not quite sure what brought that on, but these Californy types sure are oddballs. Every time they talk it always leads to something involving rectal functions. Wierd.
Don't see any entries for that in my dictionary. I do see "carpetbagger" though, and we all know which region gave us that.
Martial law is a wartime necessity in areas where the civil administration has broken down. It displaces what ever civil law might have existed, prior to the area becoming a war zone. The resident civilians, as explained in Dow answer not to "the civil law of the invaded country ... not the civil law of the conquering country ... [but to] military law - the law of war."
If General Milroy told them to turn in their guns, shut up, and to cease giving aid to the enemy, and they violated that order, it is pretty much in the hands of the General to decide how to respond. His word was law. No lesser civil court had jurisdiction, and the USSC was not about to get involved in a martial law issue (ref. Luther v. Borden).
I don't know what Mr. Moses Pittman's history was, but his actions may have amounted to reprisal for prior abuse. Who knows? You have not presented sufficient information.
"Burning families out of their homes in the middle of winter is "prudent intelligence," capitan? Your Stalinist qualities are showing again."
Allegations made with providing any background. the prudent intelligence" comment referred to identifying potential guerrillas. But burning partisan's homes, if that is what they were, certainly tends to suppress dissent.
"Whether it was or not, executing civilians without any formal procedure and in a manner that is bizarrely cruel and unusual simply isn't justified or justifiable."
It is called "summary execution." If the so-called civilians were partisans, guerrillas, or spies, summary execution was appropriate. You have not provided enough information to affirm or deny their status.
My favorite Fort Pillow witness statement would be the purported statement of illiterate Corporal William A. Dickey who allegedly said,
LINK to Official Records"I also certify that I saw the rebels shoot down 10 men, white soldiers, within 10 paces of me while they had their hands up supplicating quarter."
That is less credible than the Silver Star with Combat "V" on the Kerry DD-214. I'm not even sure Dan Rather would believe an illiterate said, "they had their hands up supplicating quarter."
[Inclosure Numbers 10.]Statement of Corpl. William A. Dickey, Company B, Thirteenth Tennessee Cavalry:
I do hereby certify that I was at Fort Pillow, Tenn., on the 12th day of April A. D. 1864, when that place was attacked by the rebel General Forrest. I went into the fort at the commencement of the action. We kept up a continual fire upon both sides until about 1 p. m., when a flag of truce was sent in by the rebels, and while it was being considered the firing was ordered to cease. I also certify that while this was going on I plainly saw the enemy consolidating their forces and gaining positions they had been endeavoring to gain without success. At the same time their men were plundering our deserted camp, and stealing goods from the quartermaster's depot, and from the stores of the merchants of the post. They also at the same time put their sharpshooters into our deserted barracks, whence they view and were in fair range of our little garrison. The firing recommenced after the flag of truce had retired. About one hour thereafter the rebels stormed our works. they had no sooner obtained the top of our walls when the negroes ran, and the whites, obtaining no quarter, ran after them. The rebels followed closely, shooting down all who cam in the way, white and black. I also certify that I was myself shot by a rebel soldier after I had surrendered, and while I had my hands up begging for mercy. I also certify that I saw the rebels shoot down 10 men, white soldiers, within 10 paces of me while they had their hands up supplicating quarter. I also certify that I saw 12 negro solders killed long after they had surrendered. I also certify that I saw the rebels throw several negroes into the river while they were begging for life. One rebel came t me and took my percussion caps, saying he had been killing negroes so fast that his own had been exhausted; he added that he was going to shoot some more. I also certify that I saw negroes thrown into the river by rebels, and shot afterward, while struggling for life.
Mound City, April 23,, A. D. 1864.
WM. A. (his x mark) DICKEY.
Witness:
WILLIAM CLEARY,
Second Lieutenant Co. B., Thirteenth Tenn. Vol. Cavalry.Sworn and subscribed to before me this 25th day of April, 1864, at Mound City, Ill.
WM. STANLEY,
Lieutenant and Assistant Provost-Marshall.
Mound City Hospital, Illinois, April 22, 1864.
George Shaw, (colored,) private, company B, 6th United States heavy artillery, sworn and examined.
By Mr. Gooch:Question. Where were you raised?
Answer. In Tennessee.
Question. Where did you enlist?
Answer. At Fort Pillow.
Question. Were you there at the fight?
Answer. Yes, sir.
Question. When were you shot?
Answer. About four o'clock in the evening.
Question. After you had surrendered?
Answer. Yes, sir.
================
The above is typical of statements taken in Illinois regarding Fort Pillow. One-third of the purported witnesses claimed to be at Fort Pillow as a member of the 6th United States (colored) heavy artillery. However, at the time of the Fort Pillow incident, and at the time the alleged statement was taken, there was no 6th U.S. Heavy Artillery. It did not exist until April 26, 1864, and then it was not at Fort Pillow.
LINK6th Regiment, United States Colored Heavy Artillery
Organized from 2nd Mississippi Heavy Artillery (African Descent). Designated 5th Heavy Artillery March 11, 1864, and 6th Heavy Artillery April 26, 1864. Attached to Post of Natchez, Miss., District of Vicksburg, Miss., Dept. of Tennessee, and Dept. of Mississippi to February, 1865. Post of Natchez, Dept. of Mississippi, to April, 1865. Dept. of the Gulf to May, 1866.
SERVICE.-Duty at Natchez, Miss., and Vidalia, La., till May, 1866. Skirmish near Vidalia, La., July 22, 1864. Attack on Steamer "Clara Bell" July 24, 1864 (4 Cos.). Expedition from Natchez to Gillespie's Plantation, La., August 4-6, 1864. Concordia Bayou August 5. Expedition from Natchez to Buck's Ferry and skirmish September 19-22, 1864. Expedition from Natchez to Waterproof and Sicily Island September 26-30, 1864. Expedition from Natchez to Homichitto River October 5-8, 1864. Expedition from Vidalla to York Plantation, La., October 26-27, 1864. Skirmish at Black River October 31 and November 1, 1864. Mustered out May 18, 1866.
MISSISSIPPI VOLUNTEERS
2nd REGIMENT HEAVY ARTILLERY (AFRICAN DESCENT)
Organized at Natchez, Miss., September 12, 1863. Attached to post of Natchez, Miss., District of Northeast Louisiana, to January, 1864. Post of Vicksburg, District of Vicksburg, Miss., to March, 1864. District of Natchez, Miss., to April, 1864.SERVICE.-Garrison duty at Natchez and Vicksburg, Miss., till April, 1864. Skirmish at Vidalia February 7, 1864. Designation changed to 5th U. S. Colored Heavy Artillery March 11, 1864, and to 6th U. S. Colored Heavy Artillery, April 26, 1864 (which see).
Most of the statements are signed with an "x". That numerous statements were ghost-written by the "investigators" is readily shown:
"I do hereby [certify] that was at Fort Pillow, Tenn., on the 12th of the present month, when it was attacked by the rebels under General Forrest."
-- The illiterate John F. Ray
"I do hereby certify that I was at Fort Pillow, Tenn., on the 12th day of the present month, when it was attacked by the rebels under Forrest."
-- The illiterate Daniel Stamps
"I do hereby certify that I was at Fort Pillow, Tenn., on the 12th day of April A. D. 1864, when that place was attacked by the rebel General Forrest."
-- The illiterate William A. Dickey
"I do hereby certify that I am a member of Company B, Sixth U. S. Heavy Artillery, and that I was in the battle of Fort Pillow on the 12th day of April, A.D. 1864, and that I was severely wounded during the progress of the engagement."
-- The illiterate Ransom Anderson.
"I do hereby certify that I was in the engagement at Fort Pillow, Tenn., on the 12th day of April, A. D. 1864, and that I was wounded during the battle and then taken prisoner."
-- The illiterate Hardin Cason
"I do hereby certify that I was wounded during the engagement at Fort Pillow, Tenn., on the 12th day of April, A. D. 1864."
-- The illiterate Eli Cothel
"I do hereby certify that I was in the battle of Fort Pillow on the 12th day of April, A. D. 1864, and that I was taken prisoner by the rebels and wounded while I was a prisoner."
-- The illiterate Elias Falls
"I do hereby certify that I was in the battle fought at Fort Pillow. Tenn., on the 12th day of April, A. D. 1864, and that I was wounded during the engagement."
-- The illiterate Emanuel Nichols
"I was in Fort Pillow on Tuesday, the 12th of April, 1864, and was engaged in the fight there on that day."
-- The illiterate Daniel H. Rankin
You're making excuses for criminals, tyrants, and murderers, capitan. What Milroy did is indefensible. As to the free reign you ascribe to martial law, the Supreme Court has said very clearly otherwise while also denouncing your goofy and contrived renderings about this so-called doctrine of necessity:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. (Ex Parte Milligan)
If General Milroy told them to turn in their guns, shut up, and to cease giving aid to the enemy, and they violated that order, it is pretty much in the hands of the General to decide how to respond.
Bullsh*t. The court says the Constitution's protections apply "AT ALL TIMES AND UNDER ALL CIRCUMSTANCES." Exactly what do you not understand about that, capitan?
His word was law.
Contrived Stalinist bullsh*t.
I don't know what Mr. Moses Pittman's history was, but his actions may have amounted to reprisal for prior abuse.
So you think it's okay to reward a crony by giving him a bunch of prisoners and essentially saying "they're yours to torture as you please. Have fun!" As I said, contrived Stalinist bullsh*t and you are full of it tonight.
Who knows?
As if it somehow matters whether he was wronged by somebody else? MILROY GAVE HIM TWO OTHER HUMAN BEINGS AND TOLD HIM TO DISPOSE OF THEM BY TORTURE AS HE PLEASED. Do you not see the inherent and inescapable wrong in that act, capitan? Do you view human life as some disposable convenience like that abortionist senator of yours? Did your mother forget to teach you that taking the lives of other people is wrong?
You have not presented sufficient information.
Bullsh^t. I gave you a full citation of where to find the thing in the national archives and a detailed summary of what it contains.
But burning partisan's homes, if that is what they were, certainly tends to suppress dissent.
It sure does, Stalin boy, and that is precisely what is so fundamentally UNAMERICAN about it!
It is called "summary execution."
No capitan. It's called a crime against humanity. It's called Stalinism. And it is simply indefensible no matter the circumstances, time, or place. Hanging an unconvicted innocent from a door frame with a slip knot is pure evil. Staging an execution scene against an unconvicted innocent to look like an accident is pure evil. Handing unconvicted prisoners over to a crony so that they can be tortured to death and mutilated is pure evil. If you cannot comprehend that simple fact then you have no right or basis to pass any moral judgment whatsoever upon the south, upon the victims of Robert Milroy's abuses, upon the confederacy, or upon any member of this forum. As far as I'm concerned you can rot in hell with Generals Milroy, Sherman, and the false god of Lincoln to which you practice your idolatrous and blasphemous religion of tyranny.
The operative passage from the decision is this: "But it is said that the jurisdiction is complete under the 'laws and usages of war.' It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed."
Plainly, in areas that did not uphold the authority of the federal government, were in a war zone, and had no operating civil courts, such as Tennessee and those areas that purported to secede; the "laws and usages of war" do apply.
quod erat demonstrandum
Head Quarters Dept. N.&C. B.R.SOURCE: National Archives of the United States, Union Provost Marshall Records, Microfilm group 416, Roll 46
Tullahoma, Tenn
Sir:
You will proceed to the residences of the persons herein named and deal with them in accordance with the following instructions:
In all cases where the residences of the persons are ordered to be destroyed, you will observe the following previous to setting them on fire:
You will first search their houses and premises to see if they have any articles belonging to the U.S Gov. or that are contraband of War, which you will bring away in
case any are found; also all or any of the folllowing articles that may be found belonging to the aforesaid Persons.
First: All Hosres, Hogs, Sheep, Cattle, and any other animals or articles of whatever description that may be valuable to the U.S. Gov. especially those that are
valuable to the Quartermaster, Comisary, and Hospital Departments.
Second: All stoves and stove pipes of whatever description and all Kitchen utensils, Queens ware, beds, bedding, knives, forks etc; also chairs, sofas, sociables,
lounges, and everything of the charecter of househotel furniture.
Third: All window sash and glass, looking glasses, carpets etc.
Fourth: Every article of househotel furniture which you do not bring with you must be destroyed or burned with the house.
Fifth: All barns, stables, smoke houses, or any other out houses of any description whatsoever or any buildings or articles that could probably be of use or benefit as
comfort to Rebels or Bushwhackers, their friends or any person siding abetting or sympathising with Rebels Bushwackers etc or which could be used for subsistance
for man or beast will be destroyed or burned.
Sixth: All animals, forage or other articles of value brought in by you will be turned over to Lieut. J. W. Raymond A.A.L.M this stuff to be subject to the order of
Major Genl. Milroy to be disposed of as he may think proper; taking a receipt therefor from Lieut Raymond.
Seventh: The Train acompanying will be subject to your orders together with all the persons connected with it whether soldiers or citizens and you will cause any of
them, who may be guilty of committing depredations upon legal citizens or their Protperty to be arrested and you will not yourself or suffer those under your
command to commit any trespass or do any damage to persons or property except those specified in this order.
Eighth: You will burn the houses of the following named persons, take any of the articles named above that they may have, together with all forage and grains
belonging to them that you can bring away which may be useful to the U.S. Gov. for military purposes or otherwise and will give no receipts of any kind whatever.
Names Dist Residences
1. Joseph How 1/2 mile South of Hillsboro one mile west of the Hillsboro and Winchester road.
2. Shadrack McBride 11 On the Pelham & Hillsboro road.
3. Thomas L. Gunn 11 2 miles South of Hillsboro on Bean's Creek
4. Washington Riley Hillsboro
5. Pleasant Nevill 12 On the Pelham & Tullahoma road on Bean's Creek; (crossed out: Some neighborhood as the above named)
6. L. B. Austell 12 Same neighborhood as the above named.
7. John W. Jones 3 miles South West of Hillsboro and one mile West of the Hillsboro and Winchester road.
Ninth: The following persons will be shot in addition to suffering in the manner prescribed in Paragraph Eighth.
Names Dist Residences
Coffee Co.
1. Leroy Moore At Heffers mill on Bradley Creek
Franklin Co.
2. Thomas Sanders 8 On Elk River
3. William Sanders 8 Same neighborhood as the above. (search this house for arms before shooting him)
4. Louis Anderson 8 Same neighborhood as the above
By Command of Maj. Genl. Milroy
Thos. Worthington
Lieut. 106 O of I & A.D.C
Exactly what don't you understand about "at all times and under all circumstances," capitan? There is no qualifier there of any form. No "war zone" exception. No "doctrine of necessity" exception. Nothing. The Constitution is SUPREME over all other authorities, civil or military, and none has the right to shun so much as one word of its text on the whims of convenience.
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