[cr #1251] In short, whatever Lincoln felt was necessary to snuff out the insurrection was proper and justified. "Wanton" violence was improper, but ultimately, the judge of the degree of violence necessary can only be the belligerent. The fact that we have latter-day neo-rebs (or unreconstructed rebels by birth!) on this forum suggests to me that Lincoln and the Armies of the North and West did an inadequate job "to secure the object of the hostilities."
Henry Wheaton (1785–1848).
A decision of the U.S. Supreme Court trumps Wheaton.
See Mitchell v. Harmony, 13 How. 115 (U.S. Supreme Court) 1851
See also U.S. v. U.S. District Court, 407 U.S. 297 (1972)
U.S. Supreme Court
UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)
JUSTICE DOUGLAS CONCURRING OPINION [407 U.S. 297, 332]
When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. [13] As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377 : "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty." Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258, 264 : "[T]his concept of `national defense' cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term `national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile."
[13] E. g., New York Times Co. v. United States, 403 U.S. 713 ; Powell v. McCormack, 395 U.S. 486 ; United States v. Robel, 389 U.S. 258, 264 ; Aptheker v. Secretary of State, 378 U.S. 500 ; Baggett v. Bullitt, 377 U.S. 360 ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ; Duncan v. Kahanamoku, 327 U.S. 304 ; White v. Steer, 327 U.S. 304 ; De Jonge v. Oregon, 299 U.S. 353, 365 ; Ex parte Milligan, 4 Wall. 2; Mitchell v. Harmony, 13 How. 115. Note, The "National Security Wiretap": Presidential Prerogative or Judicial Responsibility, 45 S. Cal. L. Rev. 888, 907-912 (1972).
Executive Power, Benjamin Robbins Curtis, 1862, p.22
But 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.
I would agree that the decison of the Supreme Court trumps any commentary. However, the decision must be applicable.
Bump. Amzing what gets trotted out, Wheaton, Farber, Fehrenbacher, etc. I'm waiting to see if he trots out Don King or his grandmother. He's already made it perfectly clear that Lincoln shold have lined up ALL Southerners - men, women and children - on the sides of ditches and slaughtered them. Either that, or run them through the "showers". Amazing mentality - I wonder where I've seen it's ilk before?
free dixie,sw