Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
This claim about these unlawful combatants has more than a few problems.
Who used the term "unlawful combatants"?
What am I missing? The Court said in Milligan that military courts should not operate where civilian courts -could- operate. Could civilian Courts NOT operate in New York and Florida in 1942?
Poor smucky Germans all got executed, but they had to know that was part of the deal. Had the 1942 Court followed the Milligan precedent, they might have had a few more months of prison food.
My point is that the government needs and takes actions that seem extreme --once the shooting stops.
Trying to blast President Lincoln based on the Milligan decision is just hindsight, and silly.
Walt
Hopefully the current Justices will keep this on a sticky note by their computer monitors.
Walt
Agreed. That was not the case in Ex Parte Milligan.
From Ex Parte Milligan:
"The controlling question in the case is this: Upon the facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence him?"
The court did not question the fact that under certain circumstances the writ could, and should, be suspended. But it did not take up the matter of who can suspend it. It mentions that the writ was suspended in September 1863 on order of President Lincoln under the authority granted him by Congress in March 1863.
"Washy," as he was called by the Washington's, admired the young Lee and even enlisted his help to build the new family tomb at Mount Vernon (the one where visitors go to pay final respects to General and Mrs. Washington). So, it is not out of the realm of possibility that he made provisions for Lee to have more legal control than was normally accorded to a son-in-law. Or, furthermore, how do you know that his wife did not give him permission (whether or not it was his idea) and he or his attorney simply carried out the necessary legal action at the courthouse? Given Lee's respect for law and authority I find it hard to accept your accusation without question.
Besides, in those days there was the law and then there was what was commonly practised. The law forbade slaves from being taught to read and write. However, that did not prevent Washington, Jefferson, and countless others from doing so because it was practical to have some slaves that could keep records of blacksmithing activities, supplies and provisions, etc.
Didn't union troops start burying their dead at the front steps of Arlington so that the Lee family could never occupy the property again?
the records of the "care packages" that LT & Mrs Lee received at Fortress Monroe still exist and are on public display there.
Lighthorse Harry Lee died BROKE and his widow & children lived either with family, friends or in rented houses until REL went to West Point. that is why there are so many houses in Alexandria & Fairfax County that can claim to be "Lee's Boyhood Home".
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HOW DOES THIS SYSTEM WORK?
The legislature issues a law and the Executive interprets the Constitution to say it is unconstitutional and ignores it.
The Supreme Court issues a ruling and the Executive disagrees with the interpretation and ignores it.
If the branches disagree, who is the arbiter? Do they flip a coin or what?
The Executive can just do as it pleases. Checks and balances have been removed.
Please explain how the legislature or judiciary could exert any power at all.
What about Marbury v. Madison, from 1803?
U.S. Supreme Court
MARBURY v. MADISON, 5 U.S. 137 (1803)
5 U.S. 137
* * *
The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'
* * *
The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
* * *
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
* * *
[Lincoln] I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court
ASSUMED? BY SOME? See again, Marbury v. Madison, 5 U.S. 137, 1803. It is emphatically the province and duty of the judicial department to say what the law is.
[Lincoln] nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.
HOW DOES THIS WORK?
A Supreme Court decision does NOT set precedent and is binding only upon the parties to a suit. Perhaps a million Jane Roe's would have to litigate through the court annually... on an emergency basis of course...
[Lincoln] And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
Did Lincoln repeal stare decisis?
[Lincoln] At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
The Supreme Court does, in fact, set precedent. Norma McCorvey is not the only woman affected by the decision in Roe v. Wade.
The sky has not fallen. The Judiciary cannot be as tyrannical as can the Executive. The Executive has an army.
Why would it be irrevocable? Is Roe v. Wade irrevocable? Is Plessy v. Ferguson irrevocable? Dred Scott?
Either the the Constitution can be amended, or the court can reverse itself.
Do you maintain that Roe v. Wade is only binding on Norma McCorvey and Henry Wade or a piece of Texas?
Agree with Roe or not, it still seems to be binding all over the nation.
[WhiskeyPapa] The government had every right to have Milligan tried. He was engaged in treasonous activity.
But they did not have the right to deny habeas corpus or to try him before a military tribunal, which is what they did.
When presented with the opportunity to try Milligan in a civil court, they did not. As you note, Milligan did sue and won nominal damages.
[WhiskeyPapa] Thing is also, Lincoln didn't have Milligan arrested, someone else did. And Milligan wouldn't have lived to collect his $5 in damages except for President Lincoln.
The Supreme Court saved Milligan. Lincoln was dead. Andrew Johnson signed the execution order.
Lincoln died April 14, 1865. Milligan was sentenced to be hanged on May 19, 1865. Milligan filed his petition on May 10, 1865. It was decided during the December term, 1866.
Except for unlawful actions taken while Lincoln was in charge, Milligan would not have faced a military tribunal in the first place.
[WhiskeyPapa] Thing is too, Milligan clarified an issue that heretofore had not been clear.
The powers not given to the Federal government are reserved to the States, or to the People.
In Ex Parte Merryman, in April 1861, Circuit Court, D. Maryland, CJ Taney wrote:
2. Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ. [Cited in Ex parte Field, Case No. 4,761; McCall v. McDowell, Id. 8,673.]
The issue is now clear. What Lincoln and his administration did was unlawful.
Note: Originally there were 13 District Courts, one for each state in the Union. These were divided into 3 geographical circuits, eastern, middle, and southern. The Circuit Courts consisted of two Supreme Court justices and one District judge who was primarily responsible for managing the court's workload.
Today's U.S. Courts of Appeal were created by the March 1891 Evarts Court Reform Bill. The Supreme Court justices considered their circuit-riding duties to be an unwanted burden.
Milligan was in Maryland, and that was in the circuit of CJ Taney of the U.S. Supreme Court.
[WhiskeyPapa] A reasonable person MIGHT have thought it within constitutional grounds to try people before military commissions. The Court said no, fine.
It was unlawful. The court held it was unlawful.
[WhiskeyPapa] Thing is three, that as President noted in one of his writings, the Constitution nowhere --says-- where martial law may be imposed, only that it -may- be imposed.
Article 1, Section 9, Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article 1 pertains to the Legislative branch, not the Executive.
The court obviously disagreed with Lincoln's unique and convenient interpretation. Lincoln exceeded the powers granted by the Constitution.
The public safety must actually require suspension of the writ. The military court cannot supplant the civilian court when the civilian court is open and operating.
The powers not given to the Federal government are reserved to the States, or to the People.
[WhiskeyPapa] And as the Constitution is silent, he felt he had the power. Reasonable men will agree with that, or at least that it was open to the sort of interpretation that the Court did in fact give it.
The powers not given to the Federal government are reserved to the States, or to the People.
Reasonable men will agree that the Constitution was at least open to the interpretation that the Court did in fact give it. What Lincoln and his administration did was unlawful. (Reasonable people can argue whether it was good, right, necessary or heroic, but that is another question.)
[WhiskeyPapa] PResident Lincoln never to my knwledge bucked adecision of the court, and the court, the Congress and the people pretty much approved of his actions.
Remember Merryman? Circuit Court, District of Maryland, 1861. Chief Justice Taney of the U.S. Supreme Court. Lincoln suspended the writ of habeas corpus WITHOUT congressional approval.
[WhiskeyPapa] President Lincoln's suspension of the Writ and use of military courts was not beyond the pale, it's not totally over the top ridiculous, like a claim of legal unilateral state secession, or anything like that.
I have only said it was unlawful.
Question: Was George Washington and company beyond the pale, totally over the top, ridiculous? The King probably thought so. What they did was seemingly unlawful, and had the revolution failed, they likely would all have been hung.
From Ex Parte Merryman, Circuit Court, D. Maryland, April Term, 1861:
-----
George Cadwalader, Brevet MajorGeneral, to CJ Taney:
'Headquarters, Department of Annapolis, Fort McHenry, May 26 1861. To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, Baltimore, Md.
* * *
He, therefore, respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States, when you shall hear further from him. I have the honor to be, with high respect, your obedient servant, George Cadwalader, Brevet MajorGeneral U. S. A. Commanding.'
-----
In Merryman, Taney wrote:
The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.
When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.
Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that, upon his own responsibility, and in the exercise of his own discretion, he refused obedience to the writ, I should have contented myself with referring to the clause in the constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended, under the orders, and by the authority of the president, and believing, as I do, that the president has exercised a power which he does not possess under the constitution, a proper respect for the high office he fills, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject.
The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing 'that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; 1 and at the conclusion of this specification, a clause is inserted giving congress 'the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.'
The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted, under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.
It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the libery of a citizen.
It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power.
The article begins by declaring that the executive power shall be vested in a president of the United States of America, to hold his office during the term of four years; and then proceeds to prescribe the mode of election, and to specify, in precise and plain words, the powers delegated to him, and the duties imposed upon him. The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehension of future danger which the framers of the constitution felt in relation to that department of the government, and how carefully they withheld from it many of the powers belonging to the executive branch of the English government which were considered as dangerous to the liberty of the subject; and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the government.
He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office; he is, from necessity, and the nature of his duties, the commander-in-chief of the army and navy, and of the militia, when called into actual service; but no appropriation for the support of the army can be made by congress for a longer term than two years, so that it is in the power of the succeeding house of representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the president used, or designed to use it for improper purposes. And although the militia, when in actual service, is under his command, yet the appointment of the officers is reserved to the states, as a security against the use of the military power for purposes dangerous to the liberties of the people, or the rights of the states.
So too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the senate, and cannot appoint even inferior officers, unless he is authorized by an act of congress to do so. He is not empowered to arrest any one charged with an offence agaisnt the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person 'shall be deprived of life, liberty or property, without due process of law'that is, judicial process.
Even if the privilege of the writ of habeas corpus were suspended by act of congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison, or brought to trial before a military tribunal, for the article in the amendments to the constitution immediately following the one above referred to (that is, the sixth article) provides, that 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.'
The only power, therefore, which the president possesses, where the 'life, liberty or property' of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires 'that he shall take care that the laws shall be faithfully executed.' He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. $With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.
Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for selfdefence in times of tumult and danger. The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.'
[WhiskeyPapa] Who used the term "unlawful combatants"?
[WhiskeyPapa] What am I missing? The Court said in Milligan that military courts should not operate where civilian courts -could- operate. Could civilian Courts NOT operate in New York and Florida in 1942?
You brought up the Germans. What you are missing is in Ex Parte Quirin.
Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
The Germans were held to be unlawful combatants and subject to trial by military tribunal.
Harry's wife did not go bust. She had a legacy in trust that Harry was unable to spend.
And the Robert E. Lee Memorial Association does, indeed, note that, Robert Lee's choice of a military career was dictated by financial necessity. There was no money left to send him to Harvard, where his older brother Charles Carter studied.
Robert E. Lee Memorial Association
http://www.stratfordhall.org/lighthorse.html?HISTORY
After the death of his idol [George Washington], Harry's fortunes began to decline rapidly. the support of a family of six, coupled with disastrous land speculation, reduced him to financial poverty, Then, on January 19, 1807, in the large upstairs room at Stratford where so many Lees had come into the world, Ann gave birth to their fifth son, Robert Edward, named after two of his mother's favorite brothers. As Robert was learning to walk, his father was carried off to debtor's prison in Montross.
With characteristic courage, in a 12-by-15 foot prison cell, Harry wrote his Memoirs of the War in the Southern Department of the United States, still the standard text on that portion of the Revolutionary War. When the book was finished in 1810, the family moved to Alexandria, where a new life on a modest scale was made possible by a legacy from Ann's father. Harry's eldest son, Henry IV, became master of Stratford.
/////
Robert E. Lee Memorial Association
http://www.stratfordhall.org/rel.html?HISTORY
Robert Lee's choice of a military career was dictated by financial necessity. There was no money left to send him to Harvard, where his older brother Charles Carter studied.
On June 30, 1831, while serving as Second Lieutenant of Engineers at Fort Monroe, Virginia, he married Mary Ann Randolph Custis of Arlington. Mary was the only daughter of George Washington Parke Custis, the grandson of Martha Washington and the adopted grandson of George Washington. Robert E. Lee shared his father's reverence for the memory of the General and that bond with the Father of our Country served as an inspiration throughout Lee's life.
The couple moved into Arlington, the Custis house across the Potomac from Washington, D.C., which would later become Arlington National Cemetery.
http://www.ku.edu/history/index/europe/ancient_rome/E/Gazetteer/People/Robert_E_Lee/FREREL/home.html
Douglas Southall Freeman:
R. E. Lee
biography, 2421 pages
in the public domain
Mr. Custis reluctantly gave his consent to a marriage his daughter was old enough to contract on her own account. The nuptials were set for June 30, and the place, of course, was to be Arlington, with bridesmaids and groomsmen in a number becoming so important an event. Robert was to get a furlough for as long a time as he could, and when the festivities were over and the furlough had expired, the two were to live at Fort Monroe — live on his pay, as other young couples did, without any help from Mr. Custis. Mary was determined on that.
* * *
When Lee married Mary Custis, he married Arlington as well, and that, too, was to have a profound influence upon him. The estate was to bring much harassment of spirit, but it was to deepen his reverence for the Washington tradition. Mr. Custis himself was, of course, the nearest link with the first President. Many of the Washington relics were at Arlington — the portraits, the lantern from the hall of Mount Vernon, the china presented by the Society of the Cincinnati, which probably had been ordered by Lee's own father, Washington's bookcase, his camp equipment, even some of the clothes he had worn, and the bed on which he had died. Mrs. Washington's Negro maid, Caroline Branham, who had been in the room on the December night when the great spirit of the nation's founder had passed, was among the servants at Arlington at the time of Mary Custis's wedding. To come into the atmosphere of Arlington was to Robert Lee almost like living in the presence of his foremost hero, his father's old commander. "This marriage," wrote a kinsman-biographer, "in the eyes of the world, made Robert Lee the representative of the family of the founder of American liberty."
* * *
http://www.ukans.edu/history/index/e urope/ancient_rome/E/Gazetteer/Peopl e/Robert_E_Lee/FREREL/1/22*.html
* * *
On November 11, 1857, Robert E. Lee reached Arlington on the saddest of all his ante-bellum home-comings. The shadow of Mr. Custis's death still hung over the plantation.
* * *
Lee soon found that Mr. Custis's will had put a heavy burden on him. He had been named one of the four executors, and as the others failed to qualify, he had to discharge all the duties of settling a troublesome estate under a complicated testament. Mr. Custis had drawn up the paper in 1855, apparently without consulting counsel. He left Mrs. Lee a life interest in Arlington and its contents and in adjacent properties. On her demise all this property except the minor plate was to pass in fee to Custis Lee, "he my eldest grandson taking my name and arms." His "White House" plantation of 4000 acres in New Kent County, Mr. Custis left to Rooney Lee, and the "Romancock" property of like acreage he bequeathed to his youngest grandson, Robert E. Lee, Jr. To Colonel Lee he left a lot in "Square 21" of Washington City. Each of Mr. Custis's granddaughters was to receive $10,000. One paragraph of the will provided that Smith's Island, off Northampton County, and sundry lands in Stafford, Richmond, and Westmoreland Counties, should be sold to provide these legacies. Another section said that these properties and "my estates of the White-House in the County of New Kent and Romancock in the County of King William" were to be "charged with the payment of the legacies to my granddaughters." The will then read: "Smith's Island and the aforesaid lands in Stafford, Richmond and Westmoreland only are to be sold, the lands of the White House and Romancock to be worked to raise the aforesaid legacies to my four granddaughters." This was confusing and contradictory enough, but a final tangle was added by a provision that when the legacies should have been paid, and the properties had been cleared of debt, all the Custis slaves were to be emancipated, "the said emancipation to be accomplished in not exceeding five years from the time of my decease."
* * *
As executor, Lee saw that if his daughters' legacies were to be paid, Arlington must be made self-supporting. If the house was to be saved from ruin, it had to be repaired. To do all this called for the expenditure of at least a part of his salary, and also for his presence on the ground.
* * *
The winter of 1858-59 and the spring of 1859, were in many ways the gloomiest Lee had experienced. The circuit court adjourned in November, 1858, without construing the Custis will, and the pressure on Lee's finances, for the improvement of the property, was so manifest that the always thoughtful Mrs. Fitzhugh was constrained to send him $1000 to be used as he saw fit. Lee had determined to keep the expenditures at Arlington within his means and he could not accept the check, which he acknowledged with warmest gratitude.
* * *
Was the term "unlawful combatant" is use before the SCOTUS slapped it on these Germans?
My point with the Germans is that the government may take actions in war time that look suspect in retrospect. That's too easy.
Walt
Do you maintain that Roe v. Wade is only binding on Norma McCorvey and Henry Wade or a piece of Texas?
No; I say again that the view during the ACW was different. It was then taken that judgements of the Supreme Court were only binding on the parties to the suit.
There was never filed in the Supreme Court any case that constrained the president in any thing that he did. That is, he never violated a Supreme Court ruling.
Walt
But they did not have the right to deny habeas corpus or to try him before a military tribunal, which is what they did.
That wasn't clear at the time. Had the Lincoln administration bucked the Milligan ruling (which I know came after the Lincoln administration; had Lincoln lived it might have come to that), then you'd have an argument. The Lincoln administration never bucked a ruling of the Supreme Court.
Walt
Lincoln died April 15.
Milligan was convicted and sentenced to death in 1863. A stay of execution by Lincoln was the only reason he lived to sue for damages later.
All this research and you missed that?
Walt
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