You mean the DEADLINE at Rock Island, Johnson's Island, Camp Douglas, etc., called their invention by a different name? What was it? The Line of Eternal Sleep?
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
Nice try, but that part of the case applies to the matter of military versus civil trials of the accused, NOT to whether the Constitution itself applies or not. The Constitution ALWAYS applies "at all times and under all circumstances" period.
I made no direct mention of Jefferson Davis or Alexander Stephens!
"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?"
Your particular neo-reb line of "reasoning" is thoroughly refuted. What you don't understand, like your compatriot 4CJ, is that your citation of Milligan DOES NOT APPLY. If what you say is the the proper interpretation, which is is not, then why did the Court a fews years later rule as in Dow? Their language there in unequivocal. And, because it came after Milligan, it must take precedence over Milligan.
Garbage. The Constitution ALWAYS applies. Your tortured rendering of Milligan is the real fault. It is also solid testament to the fact that you cannot so much as quote a simple and straight forward court ruling without completely bastardizing its meaning for the lone purpose of obfuscating its undesired implications upon your Stalinist ideology and your false god.
As always, a heavy doze of needless invective with your posts. You ought to get your gallbladder checked, capitan. I detect a bad case of biliary dyscrasia of the choleric form.
Secession and insurrection against an unoppressive government are UNAMERICAN. Oppressing an entire class of people because of the color of their skin is also UNAMERICAN.
"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."
You have demonstrated you know know nothing about the background of the Moses Pittman situation. You are getting hysterical.
"MILROY GAVE HIM TWO OTHER HUMAN BEINGS AND TOLD HIM TO DISPOSE OF THEM BY TORTURE AS HE PLEASED."
It could very well have been the oldest and basest form of justice known to man - "revenge is a dish best served cold."
"I gave you a full citation of where to find the thing in the national archives and a detailed summary of what it contains."
You gave an editorial. You sound like Dan Rather.
"Hanging an unconvicted innocent from a door frame with a slip knot is pure evil."
How do you know they were "innocents"? Slavery is pure evil. The Confederacy was premised on the right to enslave, and was therefore itself pure evil.
"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."
Game, set, and match.
I am making a point. The enslavers of the South could dish it out, but they couldn't take it. When reduced to the same lowly, humiliating position they put millions of black people into, they lost any pretense of nobility. Taney told the blacks, "You have no rights any white man needs to respect." The Union told the wayward and defeated confederacy, "You lost and you have no rights, period." It is a moral equivalency.
Tell it to the Germans. Tell it to the Japanese. MacArthur ruled Japan after the war as a virtual shogun. Constitutional principles apply to those who are party to it. The South had renounced the Constitution.
An unoppressive government would not issue an order as found in 1379, thus your premise is faulty.
Oppressing an entire class of people because of the color of their skin is also UNAMERICAN.
Nice try, but you forfeited your right to enter into moral judgment upon the sin of slavery the moment you gave condoning sanction to Robert Milroy's state-sanctioned torture.
You have demonstrated you know know nothing about the background of the Moses Pittman situation.
Garbage. It's detailed in the orders I fully cited for you. Milroy handed him two prisoners as a reward for his assistance and allowed him to torture them to death. There is absolutely no mitigating circumstance under which that action would be sanctioned by the laws of war or the Constitution.
You gave an editorial. You sound like Dan Rather.
In your pitiful mind, perhaps. I'd still take that any day over sounding like Stalin, which accurately describes you at the moment. How do you know they were "innocents"?
CAUSE THEY WERE NEVER CONVICTED OF ANYTHING IN ANY FORMAL SETTING OF ANY MANNER OR LEGAL SANCTION, MILITARY OR CIVIL. INNOCENT UNTIL PROVEN GUILTY - EVER HEARD OF IT?
Slavery is pure evil.
That it is, but you already forfeited your right to pass that judgment by indicating your open approval for other evils of the basest form so long as they serve your agenda and your false god.
You seem to have much more in common with their political systems these days than I ever have or could, so I'll leave that dubious honor to you.
"It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection."
What do you think they meant when they made these exceptions?
Do you walk on water?
Yes, it is a constitutional principle, and did not apply to insurrectionists who renounced the very concept.
That the military authority, at certain times, does supplant the civil one. The Constitution still governs them both though in any and all circumstances without exception.
Then the laws of war apply, in which case torture and cruel and unusual executions are illegal. Face it, Stalin boy. You are trying to defend the indefensible.
No, though you evidently think that of Saint Abe - so much to the point that you think the conventions of morality, constitutional law, and simple human decency do not handicap him from doing whatever he damn well pleased to whoever he damn well pleased in whatever horrendous, tyrannical, and downright evil manner he damn well pleased. Lincoln may have thought in his own lifetime that God's law did not apply to him, and you seem to think the same, but rest asured that Abe knows better now.
To: nolu chanI have not read Mitchell, but the description in the Hamdi footnote is that the plantiff was a US citizen. As such, it is not applicable to the southerners in the ACW.
After perusing your post, I hope you are wearing your Depends, as you have probably blown a sphincter.
1,370 posted on 09/18/2004 12:20:00 AM CDT by capitan_refugio
[ Post Reply | Private Reply | To 1366 | View Replies | Report Abuse ]
It is, of course, clear that you have not read the decision in Mitchell vs. Harmony, 13 How. 115 (1851). You prefer to speak from ignorance, it is easier than looking up the court decision and reading it. It is a demonstration of the ignorance of the court decisions you continue to spew nonsense about.
[capitan_refugio #1279] (emphasis added)
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 ]
Page 133 is the cited source of -ALL- of your snippet regarding the ruling of the Court. READING THE DECISION demonstrates clearly that the material referred to by you and Daniel Farber -ONLY- applies to the first objection, to wit: "1. That the plaintiff was engaged in trading with the enemy."
EVERYTHING relied upon by you and Daniel Farber ends before the Court moved on to consideration of THE REMAINING FOUR OBJECTIONS, to wit: "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."
Mitchel vs. Harmony (13 How. 115), Beginning on page 132, giving ALL OF PAGE 133, and excerpts from pages 134, 136, 137.QUOTE
[Beginning on page 132]
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,
[Begin page 133]
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, as they depend on the same principles. Upon these two grounds of defence the Circuit Court instructed the jury, that the defendant might lawfully take possession of the goods of the plaintiff, to prevent them from falling into the hands of the public enemy; but in order to justify the seizure the danger must be immediate and impending, and not remote or contingent. And that he might also take them for public use and impress them into the public service, in case of an immediate and pressing danger or urgent necessity existing at the time, but not otherwise.
[From page 134]
And where the owner has done nothing to forfeit his rights, every public officer is bound to respect them, whether he finds the property in a foreign or hostile country, or in his own.
There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.
But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.
[From page 136]
Referring to "The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn v. Fabrigas, 1 Cowp. 180." which "illustrates the principle of which we are speaking."
The motive was evidently a laudable one, and the act done for the public service. Yet it 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 private property are guarded by the laws in England; and they are certainly not less valued nor less securely guarded under the Constitution and laws of the United States. We think, therefore, that the instructions of the Circuit Court on the 2d and 3d points were right.
[From page 137]
The 5th point may be disposed of in a few words. If the power exercised by Colonel Doniphan had been within the limits of a discretion confided to him by law, his order would have justified the defendant even if the commander had abused his power, or acted from improper motives. But we have already said that the law did not confide to him a discretionary power over private property. Urgent necessity would alone give him the right; and the verdict finds that this necessity did not exist. Consequently the order given was an order to do an illegal act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was executed. The case of Captain Gambier, to which we have just referred, is directly in point upon this question. And upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify.
But in this case the defendant does not stand in the situation of an officer who merely obeys the command of his superior. For it appears that he advised the order, and volunteered to execute it, when, according to military usage, that duty more properly belonged to an officer of inferior grade.
[nc - emphasis added]
As quoted by former Supreme Court Justice Benjamin Robbins Curtis, the Court 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 legality of the taking of personal property is not determined by U.S. citizenship or lack thereof. The soldier is governed by the Laws of War which prohibit any taking of private property except as specifically authorized. The question is not an assertion of rights by a civilian owner but whether the circumstances authorize the taking by the military person pursuant to the Laws of War.
The Laws of War were officially promulgated by General Orders 100 (The Lieber Code) and 288. See Lieber Code § 38: "38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the Army or of the United States. If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity."
These Laws of War most frequently apply to situations between nations and the civilians in the invaded nation are rarely citizens of the invading nation.
OFFICIAL RECORDS: Series 3, vol 3, Part 1 (Union Letters, Orders, Reports)GENERAL ORDERS,
WAR DEPT., ADJT. GENERAL'S OFFICE, Numbers 100.
Washington, April 24, 1863.
The following "Instructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, LL. D., and revised by a board of officers, of which Major General E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned.
By order of the Secretary of War:
E. D. TOWNSEND,
Assistant Adjutant-General.
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD.
SECTION I.-Martial law-Military jurisdiction-Military necessity- Retaliation.
[Excerpted sections - complete at nc #1300]
25. In modern regular wars of the Europeans and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.
37. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.
38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the Army or of the United States.
If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity.
44. All wanton violence in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.
A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
Page 686OFFICIAL RECORDS: Series 3, vol 3, Part 1 (Union Letters, Orders, Reports)
GENERAL ORDERS,
WAR DEPT., ADJT. GENERAL'S OFFICE, Numbers 288.
Washington, August 18, 1863.
In every case of seizure of goods by officers acting under the authority of this Department, a true and perfect inventory thereof shall be taken in triplicate by the officer making the seizure, one copy of which shall be given to the person from whom the goods were taken, line copy retained by the officer, and the third copy will be forwarded with a report of the seizure, which will be immediately made to this Department. The officer making the seizure will be held accountable for the goods while they are under his charge, and until they are disposed of according to orders from this Department.
By order of the Secretary of War:
E. D. TOWNSEND,
Assistant Adjutant-General.
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)
[ Post Reply | Private Reply | To 1251 | View Replies | Report Abuse ]
And Lincoln asserted it -- or at least he pretended to. You don't -- you just threw it away. You just conceded the whole enchilada.
You sound like Slobodan Milosevich, with that appeal-to-force crap.
I'd say our friend has done a pretty good job of smoking you out. Constitution? What the hell. "Find me a way around the Fourth Amendment", said Bill Clinton. He didn't need a civil war to plead exigent circumstances -- he got right down to it. For you power junkies, the issues always boil down pretty fast, don't they?
Thanks for making our case -- that, when tested, Lincoln enthusiasts tend to have low standards for the rule of law -- when they aren't outright knuckle-walkers.
No trial is required. You are not operating under civil law - but rather, the laws of war.
"Art. 3.
Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority.
"Art. 4.
Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law: it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity - virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
Art. 5.
Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed - even in the commander's own country - when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations."
The commander is given a wide latitude to be as severe as necessary. He has the necessary authority to put someone to death (#12). There is another article (#17) that states it is okay to starve your enemy to end the war sooner. Furthermore, the Articles of War are designed for matters dealing with unarmed civilians or uniformed combatants. Spies, partisans, and guerrillas need not apply.
"Art. 17.
War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.
"Art. 21.
The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.
"Art. 27.
The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage
"Art. 28.
Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages."
I don't see anything not covers under the Articles of War. Sounds like they identified some of the guerrillas ("bushwackers").
Ah, yes. "Beast" Butler.
And I was just mentioning "knuckle-walkers".
You mean the DEADLINE at Rock Island, Johnson's Island, Camp Douglas, etc., called their invention by a different name? What was it? The Line of Eternal Sleep?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.