I offer the following into evidence.
From thread
Evaluation of evidence re [url=https://studycivilwar.wordpress.com/2015/12/01/the-plight-of-african-americans-in-the-path-of-the-army-of-northern-virginia-in-the-gettysburg-campaign/]The taking of blacks by the ANV during the Pennsylvania campaign[/url] post
#125
jgoodguy said:
The taking of African Americans by the ANV was a human tragedy. War is a secession of human tragedies.
The following is unquoted for readability
Assume a government agent has the power of arrest. Can that agent be called a kidnapper in the performance of his duties?
This is the crux of the kidnapping issue.
Confederate General Order 25. March 6, 1863.
The Congress of the Confederate States of America do enact, That every person connected
with the army or navy of the Confederate States, arresting or coming into
possession of any slave, by capture from the enemy, or otherwise than by lawful
authority, shall immediately report the same to the commanding officer of the post
or brigade or station to which he may be attached.
The soldiers had the power of arrest and it proceeded in a chain of command from the CSA government through the commanding officer to the common officer and soldier.
On March 21, 1863 Lee sent out a circular to all his subordinate commanders ordering them to comply with General Orders No. 25. (National Archives citation:“W. H.
Taylor to General, 21 March 1863, Orders and Circulars Issued by the Army of the Potomac and the Army and Department of Northern Virginia, C.S.A., 1861-1865, NA Microfilm M921, reel I, frame 1391)
From the CSA Congress to the CSA Army Adjutant to General Lee and from HQ to the officers and men of the ANV.
Can said agent ever be said to kidnap in the performance of his duty?
An agent performing his duty under the laws of his country is not kidnapping.
The catching of slaves by slave catchers is not kidnapping in a slave republic or in its army of occupation.
But what about US law.
Does a Rebel Army marching into US territory have to obey US civil laws?
The US Supreme Court say no.
DOW v. JOHNSON. 100 U.S. 158 (, 25 L.Ed. 632)
This doctrine of non-liability to the tribunals of the invaded country for acts of warfare is
as applicable to members of the Confederate army, when in Pennsylvania, as to members of the National army when in the insurgent States.
The officers or soldiers of neither army could be called to account civilly or criminally in those tribunals for such acts, whether those acts resulted in the destruction of property or the destruction of life; nor could they be required by those tribunals to explain or justify their conduct upon any averment of the injured party that the acts complained of were unauthorized by the necessities of war. It follows that, in our judgment, the District Court of New Orleans was without jurisdiction to render the judgment in question, and the special pleas in this case constituted a perfect answer to the declaration. See Coleman v.
Tennessee, 97 U. S. 509; Ford v. Surget, id. 594; also LeCaux v. Eden, 2 Doug. 594; Lamar v. Browne, 92 U. S. 187; and Coolidge v. Guthrie, 2 Amer. Law Reg. N. S. 22.
In brief the assertion of
Military Necessity becomes almost universal free pass for all kind of things.
Justice in Blue and Gray: A Legal History of the Civil War By Stephen C. Neff P19
In a situation of belligerency, there could be no criminal prosecution of enemy soldiers for carrying out lawful orders of their sovereign . Enemies in short have to be defeated, but not punished.
Even in modern times, military necessity covers a lot of sins.
Military Necessity
Military necessity is a legal concept used in international humanitarian law (IHL) as part of
the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning.
The concept of military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL. -
In the 19th century
Military Necessity allowed that a number of Union and Confederate actions were legal: Grants Vicksburg Campaign, Sherman's March to the Sea and the ANV Pennsylvania Campaign. While technically legal it was tragic in human terms. War is tragic in its execution. Yes martial law proceeds out of the business ends of rifle muskets & bayonets and exists only where it can be enforced by force, it is nevertheless recognized as law.
Fugitive slaves that were free by virtue of the Emancipation Proclamation or by reaching Pennsylvania and free under US and Pennsylvania law were not free under the state of martial law that traveled with the ANV.
What about free blacks? From the evidence provided so far, some were freed upon notification of their status by soldiers and officers of the ANV. Others were freed upon arriving in VA. Neither case constitutions kidnapping. CSA governmental procedures were followed in a regular manner.
What about free blacks not freed immediately.
That would be
False Arrest.
That is a civil offense, not a crime and not actionable under martial law. It is speculative that some free blacks were enslaved by misadventure, but that would happen in the CSA and by parties unrelated to the ANV. Also tangible evidence rather than speculation that it happened to the Pennsylvania blacks arrested by the ANV would be essential.
What about taking African Americans into personal procession without the intent of following orders.
The individuals that do it are guilty of disobeying orders and committing fraud.
The order "
The captured contrabands had better be brought along with you for further disposition." Indicates that at the highest levels of the ANV orders were being issued to insure compliance with CSA law. Disobedience to orders is speculative requiting evidence that it happened, not that it was conspired or thought of as in the
letter of Col. William Steptoe Christian
In Summary.
I
1.
The ANV was acting as the agent of their Country in the arrest of African Americans.
2.
They are immune from civil criminal actions by marital law.
3. Kidnapping is a civil criminal action.
Therefore the ANV was not kidnapping.
II
1.
The ANV was acting as the agent of their Country in the arrest of African American property.
2.
The laws of the Commander of the ANV was supreme law AKA martial law.
3.
The commander ordered the collection of African American property belonging to Southern Slave Owners.
4. Said African American property was collected.
Therefore the ANV was not kidnapping.
III
1.
The ANV was acting as the agent of their Country in the arrest of African Americans.
2.
The laws of the Commander of the ANV was supreme law AKA martial law.
3.
The commander ordered the collection of African American property belonging to Southern Slave Owners.
4. Incidental non property African American's were collected and released at various times and places.
5. #4 Constitutes the civil tort of
False Arrest unrecognized under marital law.
Therefore the ANV was not kidnapping.