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 ]
After perusing your post, I hope you are wearing your Depends, as you have probably blown a sphincter.
A proper spanking has been applied ;o)