Glorious?

Among certain of the upper crust in Great Britain, the day in August that marks the opening of Red Grouse season in Scotland is known as the Glorious Twelfth. We are informed that members of many of the exclusive gentlemens’ clubs (the term has a somewhat less salacious meaning across the pond than it has come to have here in the U. S.) in London, vie to be the first to bring a grouse he has shot to his club so it can be cooked and eaten by him and his mates. The current state of modern transportation technology makes for some rather extreme efforts. So far, they have fallen short of using ballistic missiles. Today, however, it is not possible to beam a grouse the length of the sceptered isle (or across the street, for that matter.) But you never know.  Hear that, Scotty?

The twelfth will be somewhat inglorious for the hunters this year; but not so for many a grouse. The date falls in a Sunday, the day of the week when bird hunting is forbidden in Britain. Monday the thirteenth will be the glory day. The grouse have a short reprieve.

A past August twelfth was much less happier for a law enforcement family in the U. S. A follow-up to that occurrence occurred at the end of a later August. Stay tuned.

-30-

 

Harry Truman: A war criminal? No way.

Today marks the 73th anniversary of the United States’ atomic bomb attack on the Japanese city Hiroshima. Three days later, a similar bomb was dropped on Nagasaki.

Shortly thereafter, Emperor Hirohito took the unprecedented of addressing his people by radio to inform them that the war was “not necessarily going in Japan’s favor.” (This may have lost something in the translation, but has been used as an example of Japanese understatement.)

Recent years have seen quite a bit of attempted historical revisionism and doubts, particularly by the left, of the morality of President Truman’s decision to use those weapons. Many have gone so far to brand Truman as a war criminal. General Dwight Eisenhower, no less, is reputed to have voiced such concerns a the time, though he later repudiated that sentiment.

World War II was a total war, at least for the primary belligerents. If total war does not end in total victory for one side, and total defeat for the other, it does not end—a cessation of hostilities is merely a truce and the fighting will inevitably resume.
The 1914-1918 conflict was a total war for the European adversaries, but not for the United States.  Active fighting ceased with Germany agreeing to an armistice. At the time of the armistice, German troops were still on French and Belgian soil. None of its adversaries occupied any part of German territory except its overseas colonies. Per the terms of the peace, the German army withdrew across the Rhine and disbanded, essentially unmolested in the process. The manner of what was essentially a conditional surrender made the Nazis’ claims of a “stab in the back” of a victorious army by politicians and bankers plausible. Little more than two decades later, the world was plunged into and even greater and more destructive war in involving the same belligerents.

Not so after 1945. The western allied powers had learned their lesson. They demanded unconditional surrender from both the Germans and Japanese. In May, after its cities had been destroyed, in some cases utterly, by air raids, and British and American ground troops had penetrated deep its homeland, Germany unconditionally surrendered. Japan meanwhile fought on, even though its cities had suffered as much or even more destruction as Germany’s. Japan’s samurai culture held that there was dishonor in surrender. Defending its many Pacific island possessions, that army often fought literally to the last man.

A plan for invasion of the Japan islands was formed. Casualties were estimated to be in excess of 500, 000 American service men killed. That estimate of casualties has been disputed by revisionists. One estimate by some planners reduced that number to 193,000 killed, wounded, and missing. But did that matter. To paraphrase Air Marshal Arthur Harris, head of the British Bomber Command, were all the cities in Japan, who started the war, worth the life of a single United States Marine?

Fortunately for those soldiers, sailors, marines, and airmen, the bombs made a ground  invasion of Japan unnecessary. Many American lives doubtless were saved.

Bret Stephens of the New York Times (formerly with the Wall Street Journal) wrote on the occasion of the 60th anniversary of Hiroshima/Nagasaki:

“Historical judgments must be made in light not only of outcomes but also of options. Would we judge Harry Truman better today if he had eschewed his nuclear option in favor of 7,000 casualties a week; that is, if he had been more considerate of the lives of the enemy than of the lives of his men?
“And so the bombs were dropped, and Japan was defeated. Totally defeated. Modern Japan is a testament to the benefits of total defeat, to stripping a culture prone to violence of its martial pretenses.”

Stephens is correct. The result was the closest to a Carthaginian Peace as the world has seen since ancient Rome. That left Germany and Japan with no doubt they had been defeated. Both changed their warlike culture. Since 1945, neither one has troubled the world.

Note: When going through the periodicals I have saved over the years, I came across an article written by Robert James Maddox, a professor at Penn State, who is also the author of Weapons of War, Hiroshima Fifty Years Later (University of Missouri Press 1995). Here is a link to that article for those interested. Why Truman had to use it

To Find the Gates of Heaven

The Legal Fight Over the University of Texas McDonald Observatory Legacy

William Johnson McDonald was born in December of 1844 when Texas was still, just barely, an independent Republic. His father Henry was a physician, one of the few certified medical professionals on the frontier. Dr. McDonald settled in Lamar County where Paris was incorporated in February 1845. William was educated at the McKenzie Institute in nearby Clarksville, and later apprenticed to a law firm in Mount Pleasant, Titus County. He served briefly in a Texas regiment of the Confederate Army, but saw little or no action and never left the state. After the war he returned to Clarksville and opened a law practice. Income from the practice enabled him to make small loans and buy Red River county warrants at a fraction of their face value during the depression of the 1870s. Those warrants regained their value after the depression and nearly overnight made William McDonald wealthy. Sensing he was in the wrong business, he abandoned legal practice and moved to Paris to become a full time banker. With his brothers’ help, McDonald founded several banking institutions in Clarksville and Paris. The banks proved successful and made McDonald a very wealthy man. He lived most of his life in Paris, but traveled extensively. Other than his banking career, he had numerous side interests, including literature, botany, geography, and most important for this discussion, astronomy. McDonald never married and had no children.

On May 8, 1925, McDonald executed a will leaving specific pecuniary gifts of $15,000 each to eight relatives, who appeared to be heirs at law. The rest and residue of his estate he gave, in trust, to the University of Texas for the specific purpose of establishing an astronomical observatory. The will nominated Morris Fleming, cashier of the Paris bank, and the First National Bank of Clarksville as co-independent executors.

William McDonald died February 6, 1926, nine months after making the will, at the age of 81 years. His estate was valued at approximately $1.25 million.

The will was admitted to probate in the county court of Lamar County, and later, after a contest and appeal, in the District Court. Seven heirs contested the will, alleging that McDonald did not have testamentary capacity at the time of execution. They generally denied the application and specially pleaded as
follows:

“On the 8th day of May, 1925, the date of making said purported will, and prior thereto and up to and including the 8th day of February, 1926, the day of his death, W. J. McDonald, deceased, did not have testamentary capacity to make a will; was of unsound mind; and did not have mental capacity to know, understand, and appreciate the character, amount, and extent of his property or the objects of his bounty, or the real disposition he was making, or attempting to make, of his property by the instrument offered for probate.”

A jury was empaneled and, after presentation of evidence, the court submitted the case on a single special issue: “Did or did not W. J. McDonald have testamentary capacity on May 8, 1925, at the time he executed the will in controversy?”Accompanying the issue was an instruction defining testamentary capacity:

“To make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will. By testamentary capacity is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which he is engaged, the effect of his act in making the will, and the general nature and extent of his property. He must also be able to know his next of kin and the natural objects of his bounty. He must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.”

The contestants requested an additional instruction that

“If at the time of the execution of the will by [the testator] was under the influence of an insane delusion or delusions affecting the disposition of his property which he was making, then you are instructed that he did not as said time have testamentary capacity. An insane delusion is the belief of the existence of a state of supposed facts which no rational person would have believed.”

The district court refused the instruction and the jury answered that McDonald had testamentary capacity when he executed the will.

Upon appeal, the Texarkana Court of Civil Appeals affirmed. The issue in the Court of Civil Appeals was whether the court should have given the “insane delusion’ instruction to the jury.

The contestants made four contentions and referenced evidence allegedly supporting them that raised a fact issue as to McDonald’s “insane delusion” affecting his testamentary capacity:

• That McDonald was suffering with an insane delusion of poverty.

• That McDonald was suffering with an insane delusion that a certain relation in law had wrongfully deprived him of certain of his tablecloths, napkins, and books.

• That McDonald was suffering with an insane delusion that he had to protect himself against his nephew, one of the contestants, who, he thought, intended or desired to murder him in his home on Clarksville street.

• That McDonald was suffering with an insane delusion that some day astronomers would be able to see the gates of heaven, and when we got (to) that we would be able to see who was inside of heaven; that it was only a question of time when they did that, and then this would be the next great wonder of the world, and it needed only a little money.

The Court of Appeals affirmed the district court ruling that

“After a careful consideration of the record, we conclude that there is no sufficient evidence in respect to the objects of delusion, considered singly or all together, upon which to found a finding of fact of insane delusion or delusions affecting the testamentary capacity of the testator. We conclude the evidence is ample and greatly preponderates in support of the jury verdict, arrived at under proper and complete and duly approved instructions.”

Specifically addressing the insane delusion issue the Court discussed the testimony of Autrey Burnett, McDonald’s barber, to whom the testator said “some day or another astronomers would be able to see the gates of heaven, and when we got to that we would be able to see who was inside heaven.”

The Court opined that “[a]ll the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another’ of astronomy, with proper equipment and funds for observation. At most that was the force and effect of the spoken words of the mere chance conversation, even though couched in language extravagant or facetious.”

“. . . that it is plain that the will in suit, in its provisions as to the erecting and equipping of an astronomical observatory at the University of Texas, was not the result of any sudden impulse, but of a definite and deliberate purpose and testamentary intention formed and adhered to in former years by the testator while sufficient soundness of his mind and memory admittedly existed. The same specific bequest appeared in the first will in 1915 and was inserted in each of the five other wills made respectively during the ten years to 1925. The fact that the testator supervised his own large estate wisely and prudently during the times of these wills until the date of the will in suit opposes an inference that he was of an irrational mind to a degree to incapacitate him from making the will and disposing of his property as he did. It was long known to the testator’s most beloved and trusted brother that it was his purpose to make the specific bequest.”

Regarding McDonald’s alleged belief about astronomers some day seeing the “gates of heaven” and see in there, the Court said

“. . . testator was shown to be for years “very much interested in astronomy, plant life, and botany.” There is no pretense in the evidence of a sudden change or departure in the last will of testamentary intent indicated in the bequest to the regents of the University from ordinary habits of thinking and acting in that respect.
* * *
“And, as predicated by the testator according to the witness, ‘astronomers would be able,’ in figurative expression, ‘to see the gates of heaven,’ in the wide generalization of ‘some day or another,’ and “see who was inside heaven.’ In applying these considerations to the particular declaration it is most likely and natural that the words of the testator were ‘see the heavenly bodies’ rather than ‘see who was inside heaven.’ The very terms of the will, made two weeks afterwards, evidence the mind of the speaker at the time in ‘the study and promotion of the study of astronomical science.’ All the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another.’
* * *
“It is not capable of disproof that there may not be progress and perfectly established scientific theory, founded on the widest study of the celestial regions, of which at present we apparently know so little. The belief has prevailed among thinking man of telescopes being made with powers far exceeding our present ones to ‘see’ or observe ‘the heavens’ and ‘the heavenly bodies.’”

McDonald’s relatives were dissatisfied and pressed on to the Texas Supreme Court. From 1918 to 1945, the Supreme Court consisted of three Justices. It was assisted by a Commission of Appeals that comprised two sections each having three Commissioners. With the consent of the parties to a suit, the Court would assign some petitions for writs of error Section A or Section B of the Commission. The Court granted a writ of error and assigned hearing and consideration to Section B.

The Commission considered the contested question of whether the evidence presented raised the issue of insane delusions. If so, it opined, it was necessary to giving of the requested jury instruction the trial court declined to give. The Commission considered the testimony and concluded, and the Court concurred, that the evidence did raise the issue. Thus, the trial court and the Court of Civil Appeals erred in holding to the contrary. Commissioner Speer wrote an opinion reversing the Court of Civil Appeals.

The Commission recognized that

“[i]nsane delusions are not within themselves a ground of attack against the probating of a will, except as they show a want of testamentary capacity. In other words, the real defense is want of testamentary capacity, whether such want of capacity is produced by ordinary and complete insanity, or by temporary aberrations or insane delusions. The real vice, from a judicial standpoint, in either case that vitiates the instrument, is want of capacity. So that, where want of capacity is pleaded as ground of contest, though general in the form of its expression, nevertheless that mental defect may be proven in any of the ways recognized by the law of evidence.”

But the Commission found persuasive that

“a reproduction of the hypothetical question propounded by contestants to Dr. Guy F. Witt, a practicing physician, and a specialist in nervous and mental diseases, together with his answer, will show conclusively, we think, that the issue of want of mental capacity through insane delusions was raised by the testimony. The hypothetical question finds support in the statement of the evidence. . ..”

The hypothetical question and the answer addressed the four contentions that the Court of Civil Appeals considered.

The Commission concluded that “[w]e base our conclusion, not only upon the facts recited in the hypothetical question, which, as we have said, the evidence tends to show, but upon the affirmative answer of the expert witness that the testator was, on the 8th day of May, 1925, of unsound mind.”

The Court then approved the holding of the Commission on February 29, 1928, and reversed and remanded the judgments of the district court and the Court of Civil Appeals, and remanded the cause to the district court.

Re-trial of the case commenced in Paris in late October 1928. The evidence was more or less the same as in the previous trial, but there was more of it. Several witnesses testified that they heard McDonald talk about looking into heaven and there were arguments on whether he meant Heaven or the heavens. The barber who earlier testified that McDonald made a point of privately telling he believed some days astronomers would find the gates of heaven now said that McDonald was “off his caboose.”

The final argument to the jury lasted 6 ½ hours for each side. There are several appeals to the presumably fundamentalist religious beliefs of some jury members. One contestant lawyers went so far to argue that “if the University of Texas does not believe W. J. McDonald suffered from an insane delusion about the gates of heaven, that does not believe in the Bible and is no fit place to send Boys and Girls.” Apparently that worked for at least two—another demonstration that a trial lawyer must know his jury. It hung ten in favor of the will, and two against.

The University at this time had spent close to $80,000 (in 1928 dollars) on attorneys. The parties settled for distribution of $250,000 for the plaintiffs, and the balance of around $840,000 to the University. After solving several logistical problems, the McDonald Observatory, on a mountain near Fort Davis, Texas, became a reality.

Then they came for me. . .

Pastor Martin Niemöller’s famous observations concerning the perils of silence in the face of injustice because “it wouldn’t happen to me” has been frequently overused and sometimes abused. There is no doubt that it contains truth, as do most quotations and  clichés do. I hesitated briefly to paraphrase it, but have reconsidered because it illustrates something that is about to happen here in the good old USA.

With apologies to the pastor: First they came for the bump stocks, I did not own a bump stock or have any use for one; so I did not object. Then they came for the semiautomatic rifles, I did not own one or have any use for one; so I did not object. Then they came for the handguns, I did not own a handgun or have any use for one; so I did not object. Then they came for me, and there was no one left to object.

On Thursday, March 29, 2018, the Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a notice of proposed rulemaking. (See Federal Register, Volume 83, No. 61, pp. 13442 – 13457, (available on-line).) The sheer number of pages in the Federal Register, where administrative rules and proposed rules, among other bureaucratic missives are published, should give us pause. But no matter. The 15 pages contain proposed rules changing the classification of the so-called bump stock devices that are alleged to make the semiautomatic rifles fire rapidly, almost to the speed of machine guns. The effect of the classification would be to ban the manufacture, sale, transportation, and even mere possession of these devices.

This notice uses a lot of words explaining the rationale for the reclassification of these devices, which earlier had been considered and rejected by ATF. The mass shooting in Las Vegas, Nevada in October 2017 spurred the anti-gun crowd, and various politicians, to make political points by calling for a ban. Even President Trump, who had been considered a friend of the right to bear arms, joined the fray against bump stocks. The reason seems to be that they are an easy target for politicians because (1) there are not that many of them compared with the total population, and thus might not generate the volume of outrage banning more common items, and (2) politicians doubtless believe having ATF reclassify the devices would spare them having to vote in Congress for such a ban, which might expose them to trouble from those opposed to such control.

Machine guns have been severely restricted for some time. An Act of Congress in 1986 prohibited further manufacture, sale, or even possession of machine guns manufactured subsequent to that date for sale to private persons. That Act did not ban previously manufactured and lawfully possessed machine guns, but required permits and registration.

The current proposed regulation, the benefit of which is problematic, is troubling for reasons beyond the possible use of such a device by some deranged or fanatical person committing mass murder and mayhem. The notice estimates that there are around 500,000 bump stocks in private hands. Considering there may be well over 300 million firearms all told in private hands in the United States, that does not seem like many. In truth it is not, and those who own them might be considered a vulnerable minority. To understand this concern one has to be cognizant of statutory and rule-making procedures.

The only Constitutional method for enacting statutes is for both Houses of Congress to pass them, and the President to approve by signing. Congress often passes laws that are general, and delegates specific applications and definitions to various regulatory agencies. In the case of bump stocks, the statute (18 U.S.C. §922 (o)) bans possession by private individual of machine guns, but excepts lawful possession or transfer of a machine gun that was lawfully possessed before the date of the statute. A bump stock is an accessory, which has the effect of, but not the specific mechanism for, rapidly firing a rifle. Through a strained, and to a large degree sophistic analysis, ATF has proposed to rule that a bump stock when attached to a conventional, semiautomatic rifle, such as an AR 15 has the effect of converting that rifle into the machine gun, and thus fall under the statutory definition of a prohibited device. Whether that is true is not the point of this discussion.

The analysis contained in the notice does address Second Amendment concerns. It concludes, however, that the recent Second Amendment jurisprudence, contained in the Supreme Court’s Heller case, and other cases, permits regulation of arms in the hands of individuals, while prohibiting the outright ban of all types of firearms. That is not challenged here.

What is challenged is that the regulation, which the ATF fully admits, would require present owners of bump stocks to either surrender them to authorities for destruction, without compensation, or to destroy them themselves (again without compensation). In other words, the government would be, by administrative fiat, depriving persons of their property. This involves another Amendment contained in our Bill of Rights. The Fifth Amendment provides, among a number of other important rights, that no person shall be deprived of property without due process of law. It is hard to believe that the founders, in enacting that Amendment, contemplated that an unelected, administrative body of bureaucrats, proposing a regulation that would effectively deprive persons of their property, constitutes due process of law. That is what this proposed regulatory amendment would do. It would, upon adoption, convert citizens who possess bump stocks, the overwhelmingly the majority of whom are otherwise law-abiding and peaceful, into felons. That is, unless they relinquish their property, or destroy it.

The great American jurist Oliver Wendell Holmes, Jr., who served on the Massachusetts Supreme Judicial Court for 20 years, and then on the United States Supreme Court for another 30, wrote in one of his books that “the life of the law has not been logic.” Holmes goes on to explain that the “felt necessities of the time” — which obviously may be arbitrary— have more to do with making the rules by which we are governed. Thus, it probably will be possible that a regulation, that in this case, has the effect of taking people’s property away notwithstanding the Fifth Amendment to the Constitution, can be held Constitutional. But the question another Supreme Court Justice, Earl Warren, was known to ask: lawful or not, is it right?

The notice of the regulation made a detailed analysis of the cost of the regulation, including enforcement, and what economists call negative externalities. The ATF, however concludes that the economic impact on individuals who own or who manufacture and sell bump stocks is minimal. Whether that is true or not — the $100 or so that one spent to purchase a bump stock may not be minimal to an overpaid Washington bureaucrat — depriving a private person of any of their property, without due process, is not minimal. If the government can take away a little bit, they sure can take a lot.

This is a Republican/Democrat or left/right issue, but a question of the individual freedom which is the basic raison d’être for the existence of the United States of America. If possession of any lawfully acquired property can be retroactively banned and made felonious, at a minimum it should be accomplished by a majority of our elected representatives in Congress; not by bureaucrats. Even the criminalization of possession of illegal drugs, not to mention machine guns, was made retroactive. Many who believe that public safety requires the banning of bump stocks say Congress is to beholden to the gun lobby — that is, the National Rifle Association (NRA) and its allies — and consequently no meaningful legislation will ever be passed. Even if that is true, so what? If the people speaking through their elected representatives do not want it then it should not happen regardless of the supposed benefit.

I urge everyone, regardless of your political persuasion, to oppose this proposed regulation. This can be done by Internet, fax, or mail, by following the instructions below. If you do, please be logical, civil, and respectful. Vitriol and invective are counterproductive.

You may submit comments, identified by docket number ATF 2017R-22, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the directions for submitting comments.

• Fax: (202) 648-9741.

• Mail: Vivian Chu, Mailstop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. ATTN: 2017R-22.

Instructions: All submissions received must include the agency name and docket number for this notice of proposed rulemaking. All properly completed comments received will be posted without change to the Federal eRulemaking portal, http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” section of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory Affairs, Enforcement Programs Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington DC 20226; telephone: (202) 648-7070.

For a complete text of the Notice in the Federal Register, you may search online: Bump-Stock-Type Devices, 83 FR 13442-01.

The Good, Bad, & Ugly

The Good, the Bad, and the Ugly released some 50 years ago is one of the best Western movies ever made. It was the finale of a trilogy directed by Italy’s Sergio Leone, hence the appellation “Spaghetti Western.” These films, one can safely say, made Clint Eastwood’s subsequent career.

This essay is not a movie review or even a dissection of the plot, characters, or supposed “message” of the director or screen writers. For this writing, the title is intriguing.

Goodness, evil, and ugliness, have existed in all civilizations and cultures, and at all eras. The proportion of the elements of this trioka, however, have varied, sometimes within civilizations and at different places and times. Even Thomas Hobbes’s state of nature, where life was poor, solitary, nasty, brutish, and short, had beauty, and at least some savages were noble.

More to the point, the 18th Century Enlightenment that followed the pessimism of Hobbes, and whose principles the United States of America was founded upon, though overwhelmingly good, had its bad and ugly moments. It put into practice the notion that all individuals are created equal; that is, no one is born into a class or status, and that they have unalienable rights. It also produced the French Revolution’s Reign of Terror. The 18th Century was the time of the first industrial revolution, economic development, and scientific achievement. It was also a century of war, punctuated by brief period of peace. Charles Dickens summed it up: the best of times and the worst of times.

Today many from various positions on the political spectrum are lamenting the state of American society. There are certainly many problems to be concerned with, as there always have been. Most of these are not amenable to overnight solutions or actions using the coercive power of government. They are rather imbued within the culture as it has evolved.

The recent murders of seventeen high school students and teachers in Florida has brought about the usual hand wringing and pontificating. The principal issues touted by the media were mental illness and gun control (or lack thereof). Wall Street Journal columnist Peggy Noonan takes a broader view.

A way to look at the question is: What has happened the past 40 years or so to produce a society so ill at ease with itself, so prone to violence?

We know. We all say it privately, but it’s so obvious it’s hardly worth saying. We have been swept by social, technological and cultural revolution. The family blew up—divorce, unwed childbearing. Fatherless sons. Fatherless daughters, too. Poor children with no one to love them. The internet flourished. Porn proliferated. Drugs, legal and illegal. Violent videogames, in which nameless people are eliminated and spattered all over the screen. (The Columbine shooters loved and might have been addicted to “Doom.”) The abortion regime settled in, with its fierce, endless yet somehow casual talk about the right to end a life. An increasingly violent entertainment culture—low, hypersexualized, full of anomie and weirdness, allergic to meaning and depth. The old longing for integration gave way to a culture of accusation—you are a supremacist, a misogynist, you are guilty of privilege and defined by your color and class, we don’t let your sort speak here.

So much change, so much of it un-gentle. Throughout, was anyone looking to children and what they need? That wasn’t really a salient aim or feature of all the revolutions, was it? The adults were seeing to what they believed were their rights. Kids were a side thought.

There is nothing new here. Profound change is often violent. Consider that, in less that 200 years, we have come from where it was necessary for persons to be physically present to contemporaneously communicate with one another, to where we can instantly communicate with anyone anywhere. Passions abate with time. The wonder in this country in the past five decades or so, is why there hasn’t been more violence than there was and is.

Part of the reason may be because the American founders were looking out for their children. “For us and our posterity” is a continuing theme throughout the writings of the founders, even those who had no children of their own. The ideals of the Declaration of Independence and the measured and limited structure of government established by the Constitution have provided Americans with the freedom to innovate and improve life in ways not dreamed of. Though there have been false starts, hiccups, and altercations, the nation has made it through every crisis and emerged stronger. There is no reason it cannot do it again.

Today, March 24, many are participating in marches, rallies, and demonstrations calling for more firearms restrictions in the wake of the Florida school murders. That is their right and it is an example of the rights ensconced in the First Amendment to peaceably assemble and petition the government for redress of grievances, even though they have it wrong. As the title character in the classic film Shane put it: “A gun is a tool, Marian, no better or no worse than any other tool: an axe, a shovel or anything. A gun is as good or as bad as the man using it.” Last month a bad man shot and killed many high school students while a presumably good man with a gun did nothing. Last week, a good man with a gun, in a similar situation, killed the bad man before the bad could kill more than one. Between the two incidents, scores if not hundreds were killed using many different tools: from guns to knives to axes to automobiles. It’s not the tool; it’s the person.

So what do we do? Nothing? As uncomfortable as it sounds, probably so— at least at a collective level. In Shane, the character Marian’s retort was “We’d all be much better off if there wasn’t a single gun left in this valley… .” Perhaps so, if there were not predators already in the valley, or there was a way to keep them out. For the valley that is our nation, or for that matter, the globe, it’s impossible. On the other hand, individually we can teach our children, our posterity, pay attention to their curiosity and fears. Give them a moral compass, whether through faith, reason, tradition or some combination of these. Returning to where this essay began, as another of Clint Eastwood’s characters aptly observed, we have got to know our limitations.

//

Privies and Paroxysms

President Trump’s recent alleged statements about immigration from “[outdoor latrine] countries” caused quite a few paroxysms among his opponents, and dismay among some of his supporters.

Even telling like it is has limits. If there is such a country, however, Haiti certainly fits the description. that is not to say the people there are no count good-for-nothing. They have suffered under one corrupt dictator after another who have kept that nation in a shambles as a vehicle for their personal profit.

As far as the alleged comment about immigration from Norway, that sounds like a rhetorical question. People usually do not emigrate for countries with stable governments, rule of law, personal freedom, and the resulting prosperity. Norway certainly fits that description.

Why are some countries so different? Historians, anthropologists, sociologists, and related professionals have been trying to answer that question for a long time. And I won’t try to here, other than to note that Professors Ian Morris and Jared Diamond, in unrelated recent works, have some interesting ideas that may be on to something.

People emigrate for economic, political, religious, and other reasons, one of them is being on the lam. Many Americans hold some nostalgic affection for places whence their ancestors came (even if they’ve never been there). Most are probably glad those immigrants left. In the 1880s and 1890s, Russia probably qualified as an outhouse if one were Jewish. Millions of Jews got the hell out of Russia and came to America. They weren’t tired and poor wretched refuse, they were just tired of being poor, and didn’t want to be murdered by the periodic pogroms that occurred there. The later experience of the Soviet Union certainly made many of those emigrants’ descendants glad they did. Likewise, economists Walter Williams and Thomas Sowell both have acknowledged that they are better off that their ancestors were brought to America from Africa, even as slaves.

Donald Trump can be rude, crude, and often uses bad grammar (as anyone who tweets does). What he says often offends some leaders (often self-appointed) of various interest groups, but he is not a racist. No one has said he negatively characterized those who want to come here, but just the countries, many of which doubtless qualify for his epithet. The larger question is how many immigrants from those places can we absorb here?

See today’s column by Mary Anastasia O’Grady, who specializes in writing about Latin American issues. At https://www.wsj.com/articles/the-truth-in-trumps-vulgarity-1517175367

References: Ian Morris, Why the West Rules, For Now; Jared Diamond, Guns, Germs, and Steel.

Also, a while back, I thought I would try to improve on Emma Lazarus’ “The New Colossus” verse on the Statue of Liberty, and invited my brother Steve to give it a shot. I invite others to do so.

Lazarus version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

My version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “I welcome your stalwart, intrepid,
Tired of being poor and yearning to breathe free,
Scorned by kings for wanting more.
Send these, the ill-used and fed-up home to me,
I lift my lamp beside the golden door!”

Steve’s version:

Sentiment, the sweetly stuff of saps,
Requires that tears be shed for victim’d good
Yet nursing those whose souls have given up
Renders Liberty’s message misconstrued.
Charity is not the strength we claim in patrimony.
A torch, a book: no open purse.
Opportunity, no promise of success:

Give me your tired – who rested will bring forth
Energy to light my beacon torch.
Give me your poor – who they themselves will make
Rich through enterprise, recorded in my book
Agreed among us all to common good.
Ye huddling masses, give each other strength!
The air is fresh and clear: breathe it for yourself!
Wretched refuse? Prove you are not.
Homeless, build a home
Here, keep what is yours:
Nothing is Caesar’s, Nothing is God’s.
Helpless, stay away.

Two Birthdays

“Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.”

If John Harrington’s 17th-century aphorism is valid, the converse may also be correct. When political change — often called treason by those in power — does not prosper, all are free to call it treason.

January 15 is Martin Luther King, Jr.’s birthday. This year it falls on the Monday designated to observe it. Recognizing King’s accomplishments with a holiday is certainly appropriate and I do not mean to diminish its importance or even add another view. There are thousands who will acknowledge him this day, No question that King was a hero.

Little known outside the few states that recognize it, Robert E. Lee’s birthday, January 19 falls on the Friday of that week, and, in some places, it is observed on the same day as King’s. Lee, unlike King, has achieved pariah status in the national media (and with some in the professoriat) only after it was recently discovered— nearly a century and a half after his death —he could be used to advance a wedge issue in our national conversation. Many cities and other places have removed or propose removing statues of Lee and other Confederates, and changed names of streets, schools, and other locations. Here in Dallas, an equestrian statue of Lee was removed from its eponymous park— at great expense to the taxpayers— by a process that would have pleased Orwell’s Big Brother, Chicago’s late mayors Daley (père et fils), or (perhaps risking a modicum of overstatement) Chairman Mao.

One rhetorical device popular among some is denouncing Lee as a traitor. Treason, of course, historically has been regarded as the most odious offense. Dante, for example, opined that traitors were condemned to the lowest circle of hell, where Judas Iscariot and Marcus Brutus suffer for eternity. Treason was punished in Medieval and early modern Europe by the offender being hanged, drawn and quartered or broken on the wheel, if male, or burning at the stake, if female.

What actually constitutes treason has always been problematic. Historically, it was attempting, or even wishing, to kill one’s sovereign, almost always a monarch. At a time when sovereigns were considered God’s lieutenants on earth, such an act would be tantamount to deicide.

The common law put treason into two categories, petit treason, generally adultery (if committed by the wife); and high treason, committed against the monarch, the state. High treason could extend so far as to merely wish ill on the king, or even what we would consider legitimate dissent in this country. Indeed, accusations of treason were used to silence dissenters and reformers well into the modern era.

The Founders who drafted our Constitution were mindful of this abuse, and in Article III limited treason against the United States to “levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause does not define treason, but limits it to those acts. It leaves out an essential element of treason. As noted in Blackstone’s Commentaries and other authorities, the offender must have allegiance to the offended entity. Treason against any one of the several states is similarly limited by their constitutions and laws.

So, was Robert E. Lee guilty of treason; a traitor?

Neither Lee, nor any other Confederate leader, soldier, or citizen of a secessionist state was ever tried for treason. Jefferson Davis was indicted on that charge, but the case was ultimately dismissed. The Supreme Court has never ruled one way or the other in that case, or any other Civil War case.

But could they have been so charged and convicted under the Constitution and law?

That is unlikely. From the beginning and to this day, Americans, other than resident aliens, are citizens of two sovereigns: the United States and the state in which they reside. Until the 14th amendment was ratified, it was not clear which came first. Was a citizen of the United States thus because he was a citizen of a state, or vice versa?

The first inquiry is whether Robert E Lee levied war against the United States. The Constitution and the enabling statute used the plural form. If the seceding state remained in the union, as President Lincoln maintained, then the Confederate armies only waged war against some of the states. That appears to be one of the reasons Southerners referred to the “War Between the States”rather than the Civil War. It would be absurd to maintain that the Confederates levied war against their seceding states. So the war was against not all, but only the states remaining in, not those attempting to leave the Union.

The seceding states did actually leave the Union, which is what the reconstruction Congress held when it readmitted each of the former Confederate states during Reconstruction. The Confederacy was given the status of a belligerent under international law, although never recognized de jure or de facto. One of the belligerents was attempting to be independent of the other, analogous to War of Independence waged against Great Britain fourscore and several years before.

Regarding the element of allegiance, prior to ratification of the Constitution the several states were wholly sovereign. To be a citizen one had to be the citizen of a particular state. Did the Constitution change that? Until the 14th Amendment was ratified, it does not appear that it did. The Dred Scott case in 1857 held that a slave was not a citizen. While that decision may be morally repugnant by our contemporary standards, it was legally and Constitutionally sound at the time. Congress recognized the decision was so when it proposed the Amendment.

When Robert E. Lee commanded armies constituted under the Confederacy, of which his home state of Virginia was part, he was a citizen of Virginia. If Virginia left the Union he was no longer citizen of the United States. He owed allegiance to Virginia and the Confederacy his state was part of. Thus, Lee could not be a traitor to the United States of which Virginia was no longer a member. Many historians and other commentators have maintained that whether a state could secede was settled in the negative by the Union victory. Even if it was, it was ex post facto and never ensconced in positive law either by an appellate court decision, statute, or Constitutional Amendment. This controversy remains purely metaphysical.

Lee, and the other Confederate leaders were formally acknowledged by Congress to have lost their United States citizenship upon secession, and had to apply for its restoration under laws passed during Reconstruction. Lee did so apply, but he died before his application could be acted upon. Lee’s citizenship was finally, posthumously, restored in 1975 by a Congressional Joint Resolution during President Gerald Ford’s administration.

What about Lee’s oath of office as an officer in the United States Army? I recall one of the Yeoman Warders serving as a guide to the Tower of London remarked to me that George Washington was a traitor because he had been an officer in the British Army prior to the Revolutionary War. Lee, like Washington, had resigned his commission prior to taking their commands. Did resignation release him from his oath? This question may not be answerable by any legal authority. Common sense, however, suggests that resignation of an office or other position means one is no longer obligated to perform the duties under that office. Logically Lee was released from that oath.

Robert E Lee did not commit treason. The cause he served as a Confederate leader was, on a number of levels, a flawed one. But he, like many others at the time, both North, South, and West, believed his higher duty was to Virginia and its allied states. He served honorably, and, at the end, he knew that Virginia and the Confederacy had lost and acknowledged that fact. He resisted any exhortation to continue the war as a guerrilla. He became a civilian and spent the last five years of his life seeking reconciliation between the sections. Lee’s final words to his soldiers at the end of the war were “furl the flag, boys.”

Over the next 100 years, many did not, but we can take comfort that most by now have done so. For that, we can credit, among others, Martin Luther King, Jr.

Sources and Authorities:

Case of Davis, 7 F. Cas. 63, No. 3621A (Circuit Court D. Va. 1867)

Cramer v. U.S., 325 U.S. 1 (1945)

U.S. v. Cathcart, 25 F. Cas. 344, (Circuit Court D. Ohio) (1864)

Cynthia Nicolett, “Did Secession Really Die at Appomattox?: the Strange

Case of U.S. v. Jefferson Davis,” 41 University of Toledo Law Review 587 (2010)

Ian Mitchell, “The Trial of Jefferson Davis and the Treason Controversy,” 39 Northern Kentucky Law Review 757 (2012)

Willard Hurst, “Treason in the United States,” 58 Harvard Law Review 806 (1945)

IV Blackstone’s Commentaries, Ch.6

18 U.S. C. § 2381

Jay Winik, April 1865, (Harper Collins 2001)