After perusing your post, I hope you are wearing your Depends, as you have probably blown a sphincter.
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.
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
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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
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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)
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