G - "Now that's a new one. Perhaps you've summarized in one sentence what Whiskeypapa tried in vain to accomplish in so many years: That the power to wage war implies unlimited power to do anything."
There is nothing new about it. Refer to Henry Wheaton, Elements of International Law, 6th Edition, 1855"
"[A] belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms.... From the moment one State is at war with another, it has, on general principles, a right to seize on all the enemy's property, of whatsoever kind and whatsoever found, and to appropriate the property thus taken to its own use, or to that of the captors."
Farber adds that "[p]rivate property on land was not normally seized (except for "military contributions levied upon inhabitants of the hostile territory"). But this limitation arose out of "the same original principle of natural law, which authorizes us to use against an enemy such degree of violence, and only such, as may be necessary to secure the object of hostilities." The ultimate question was necessity. "The same general rule, which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If it be necessary, in order to accomplish the just ends of war, it may be lawfully done, but not otherwise." The lawlessness of seizing enemy property is confirmed by the U.S. Constitution, which empowers Congress to "make Rules concerning Captures on Land and Water."
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."
Ooo Ooo... let me try:
In short, El Capitan just said that Lincoln did an inadequate job, because our parents and grandparents aren't all dead.
And I thought it was just California Liberals that were insane!
The US Supreme Court had already ruled prior to the war that the uncompensated taking of enemy property was illegal.
WHAT??????????????????????????????? You advocate the genocide and ethnic cleansing of the South? You desire the mass murder of ever single Southern man, woman and child? You advocate the position that people who fought for the right to govern themselves, and innocents guilty of nothing more than desiring to be free, should have been slaughtered?
And you wonder why we're incensed to this day???? How dare you sir, to assume that my ancestors are deserving of death, simply because they despised sanctimonious people like you.
Oh, here we go again.
Fuehrerprinzip is not only not codified in American law, it's illegal.
And we wouldn't keep bringing up these references to the Third Reich if you didn't sound quite so much like you were interviewing for Reinhard Heydrich's old job.
Wanton violence is wrong. Then why would your boy Sherman pillage, loot and destroy the South to the extent that, by his own acknowledgement, 75% of the destruction was wasteful and resulted in no significant military advantage.
Wanton looting and destruction was the order of the day in Sherman's army.
Perhaps you have done an inadequate job of interpreting the Constitution.
they cared NOTHING for HONOR or the simplest concepts of DECENCY.
free dixie,sw
Curious "logic." Does that also mean whatever Booth felt was necessary to snuff out the Lincoln was proper and justified?
Bottom line: There is precious little if anything that is more UNAMERICAN than oppressing a citizenry against its will and denying that citizenry the fundamental right of seeking recourse in the civil authority under the written rule of law.
[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.