- Joined
- Aug 7, 2010
- Location
- under the bridge
This originates from oldpete63's post "The Sunset That Never Ends" in CWT photo contest forum.
I was going to post this over there but seeing this is Gettysburg related....
Report of Executive Committee of the Gettysburg Battlefield Mem. Association on the 72nd Penn'a Regiment Case,August 25th 1891.
To the Directors of the Gettysburg Battle-field Memorial Association:
GENTLEMEN: The principal incident of the year, since the last annual meeting of the Board, was the close of the controversy which related to the location of the monument of the 72d Pennsylvania Regiment. In view of the great importance of the questions involved, and the expenditures caused by the litigation, the Executive Committee feel it a duty to make a special statement on the subject.
The first monument of the 72d was erected by funds raised by private subscription, and was located, by choice of the Regiment, immediately on the line of Hancock Avenue. This spot is a little in advance of the position of the left of the Regiment, as then claimed by the survivors. This slightly advanced position was because of the peculiar conformation of the ground, and the advantage of a substantial rock foundation. The dedicatory ceremonies took place about ten years ago. There were present on the occasion Gen. Alex. S. Webb, their Brigade Commander, Col. C. H. Banes, the Adjutant General, and all the then surviving officers, who, by their participation in the ceremonies, gave their endorsement to the site then selected.
The second monument, which was erected under State authority, has been placed 166 feet in advance of the other, about 20 feet from the Stone Wall, which during the third day's fight was covered by Cushing's Battery. Either one location or the other is incorrect. The Regiment absurdly insists that both are correct.
The subject first came before the Association at its annual meeting, July 3, 1888, when the Regiment asked authority to place its monument on the first line of battle, where it now is. The Association having heard a statement of the case, directed that the monument be placed on the line of battle occupied by it on the east side of the Avenue, in compliance with the rules of the Association, and that it be authorized to place a marker at the advanced position attained by it, with a proper inscription, subject to the approval of the Committee on location and legends.
This was not satisfactory to the Regiment, who had previously sought the authority of the State Monument Commission. That Commission, when it met the Committee of survivors on the field, located the monument as indicated by the Association, and a stake was driven to mark the location; but at a subsequent meeting, at Harrisburg, it passed another resolution, the precise terms of which are unknown, as either the record of this action was never made, or it was mislaid or lost. It appears, however, to have been to the effect that the monument might be located twenty feet behind the front line, if such position should prove to be consistent with the rules of the Gettysburg Battlefield Memorial Association. No notice of this action was given to the Association or any of its officers or members.
In December, of 1888, representatives of the 72d Regiment came upon the battle-field, and, under this authority, began to erect a foundation on the last mentioned spot. As no one connected with the Association, then knew of this last action of the Commission, the act of the representatives of the 72d was regarded as a trespass, and they were arrested and enjoined from proceeding further.
Thereupon, on the 7th of January, 1889, the Committee of the 72d filed a bill in the Adams County Court, praying that they be permitted to erect their monument on the spot last indicated by the Commission. The Association demurred to this bill. The Court sustained the demurrer, and dismissed the bill. On appeal to the Supreme Court this judgment was reversed, the bill was reinstated, and further proceedings ordered in accordance with the rules in equity proceedings.
In this opinion, the Supreme Court construed the appropriating act of 1887, making, as we believe, by inadvertence, a very serious error. The act defined the jurisdiction and duties of the Commission over locations. The words used are: "To mark the position of each of the Commands of Pennsylvania Volunteers engaged in the battle of Gettysburg." This act was drawn by a member of our Association, who, in this important clause, used phraseology in precise harmony with the rules theretofore applied by the Association to all other States which had located monuments, and which, if properly interpreted, would have secured absolute uniformity of marking for all the States. The words used are precise, and have a technical meaning. The duty of the Commission was to locate the monuments so as to mark "the position" of each Pennsylvania Command engaged in the battle. The Regiment cannot be regarded as having any "position" other than that held by it as part of its Brigade organization, except when on detached duty for which the rules of the Association otherwise provide. No other spot accidentally occupied by it during the progress of a battle can be regarded as its "position," which would necessarily locate it at the side of its comrades with whom it was arrayed in line of battle. This is so manifestly true and wise that the inadvertence of the Supreme Court in overlooking it is extraordinary, and can hardly be explained except on the theory that not one of its members had had army service or had ever seen the field, or realized the importance of this principle to its honest and accurate marking. More remarkable still, the Supreme Court overlooked entirely this exact phraseology when it came to construe the law, and actually imported into the Act vital words which are not in it. The Court says that the "people of this Commonwealth intended by this Act to appropriate money to designate and by suitable monuments mark spots of 'special interest,' conspicuously occupied by their Regiments while engaged in battle." But, as a matter of fact, the Legislature did not so say. The language used by the Supreme Court is not in the Act of 1887, nor is any language akin to it. On the other hand, the language used in the Act is wholly inconsistent with the thought expressed by the Court. The monuments were to be so placed as to mark "the position" of each Pennsylvania Command engaged in the battle of Gettysburg. It was not to mark any and every spot on which each Command may have been engaged in the battle, but to mark "the position" of each Command which participated in the battle of Gettysburg. This was the clear intention of the Act; and not otherwise could an accurate, scientific, impartial, or honest marking of the field be executed. In point of fact, the words, "spots of special interest," used by the Court as a part of the Act of 1887, are to be found only in the charter of the Association, passed twenty-seven years ago, or in 1864. The Supreme Court ruled the Association out of the case, as without power over the location of these monuments. But it ruled into the case from the Association's charter of 1864 pregnant words which exclusively refer to its duties and applied them as though they were a part of the Act of 1887, to the material enlargement of the Commission's powers over the location of these monuments. This extraordinary act is incapable of rational explanation. It must have been due to confusion or to accident. If intentional, it was judicial jugglery. But whether accidentally or otherwise, the violence thereby done to the truthfulness of the field was the same; for this decision, thus erroneously based, became the cover behind which the other mischiefs were executed.
The case, having been thus returned to the Adams County Court, followed the usual order of equity proceedings. An Examiner and Master was appointed to take testimony. He reported in December, 1890. His findings were all against the Association.
1st. It was found that the Commission had definitely located the monument where it now is, because the condition annexed, (viz: consistency with the rule of the Association applied to all other monuments) was an illegal condition, as, under the Act of 1887 the Association had nothing to do with the location of monuments. The second location, as made by the Commission, was, therefore, held to be final and unconditional.
2d. It was found that "official notice" of this selection and location had been given to the Association, when made. No falser finding was ever made since Courts began. This finding was essential to the case of the 72d, as, in equity, a failure to notify would, if found, have been a defect fatal to their case. As examination of the record will show that the finding of the Master was not in proof, but that it was a bold and baseless inference.
3d It was found that the spot designated for the monument was "that position in which the 72d Regiment did a part of their best fighting." Here is an attempt to reconcile the fact with the law; but, as we have seen, no such meaning can be attached to the word "position," as a temporary or accidental occupancy of a special spot during the progress of a battle. Such a spot is appropriately indicated by a marker, as something not to be forgotten; but it is wholly misleading when marked as a Brigade position, according to which the troops were organized.
These findings of the Master were resisted by the counsel of the Association before the Adams County Court, which, however, wholly and in every part, sustained the Master. This, in view of the manifest unfairness and weakness of the Master's findings, was a surprise to many. It was perhaps unfortunate for our Association that the Master, in the case, would have been the son of the Presiding Judge. The opinion of the Court seems to give evidence of the resentment felt at the sharp criticism of counsel on the Master because of his unfair and illogical findings.
The Association took an appeal to the Supreme Court, without much hope of reversal, by reason of the rule of that Court not to review the findings of a Master and a lower Court when in harmony, except under extraordinary circumstances. The Court heard the case in June last, at the close of the legal year when they were wearied and the heat was great. The case was argued on Monday and decided on Wednesday. As the printed record covered 450 pages it is manifest that the Court declined to break its rule, though the gravest interest of other States, and the highest honor of our own were directly involved. The appeal was summarily dismissed, the decree of the lower Court was affirmed and the case definitely closed.
Within a few weeks the Regiment dedicated its monument with peculiar ceremonies: a leading feature of which was an assault upon the Association for its effort to apply to that Regiment the rule which had been applied to every other Regiment from Pennsylvania and every other State. In these exercises the Master gave the sanction of his participation, and the Presiding Judge honored the occasion with his presence-a circumstance we record with regret, as it disturbs the serenity with which we might otherwise acquiesce in the judgment reached.
This mislocation of the 72d monument is the only break in the harmony of the entire field. It is the only act done for which we feel that an apology is required to be made to any one. In so locating it, law was misunderstood and misinterpreted; facts were misunderstood, and inferences were unjustifiably drawn. The Association sought by every means in its power to save our Commonwealth from an error which puts it in a false position before the entire Army of the Potomac and therefore before the whole country. It failed, and those who are responsible for the wrong must bear the odium which will unquestionably attach to the act of discriminating between soldier comrades, to the advantage of one regiment and to the disadvantage of every other.
This paper would be incomplete without a reference to the State Monument Commission who united with the Association in the proceedings before the Courts, and against whom as well as ourselves the decree of the Court was directed. They have stated to us, in their interview at our morning session, that in finally conceding the location made they yielded to the superior power of the Court, but that they are of opinion that the location is unhistorical, incongruous and improper. It thus appears that this location was made without the actual concurrence of either the Commission or of the Association, and was effected as the result of the series of errors herein recited. The question therefore arises whether the Association ought not, in suitable form, to place upon the face of the field itself a proper marker to indicate that they have no responsibility for the location of the monument as now placed. Action to that effect is recommended.
C.H. Buehler,
Chairman, Exec. Comm.
The 72nd Pennsylvania Monument Controversy
http://www.morningsidebooks.com/40 - Neu.pdf
I was going to post this over there but seeing this is Gettysburg related....
Report of Executive Committee of the Gettysburg Battlefield Mem. Association on the 72nd Penn'a Regiment Case,August 25th 1891.
To the Directors of the Gettysburg Battle-field Memorial Association:
GENTLEMEN: The principal incident of the year, since the last annual meeting of the Board, was the close of the controversy which related to the location of the monument of the 72d Pennsylvania Regiment. In view of the great importance of the questions involved, and the expenditures caused by the litigation, the Executive Committee feel it a duty to make a special statement on the subject.
The first monument of the 72d was erected by funds raised by private subscription, and was located, by choice of the Regiment, immediately on the line of Hancock Avenue. This spot is a little in advance of the position of the left of the Regiment, as then claimed by the survivors. This slightly advanced position was because of the peculiar conformation of the ground, and the advantage of a substantial rock foundation. The dedicatory ceremonies took place about ten years ago. There were present on the occasion Gen. Alex. S. Webb, their Brigade Commander, Col. C. H. Banes, the Adjutant General, and all the then surviving officers, who, by their participation in the ceremonies, gave their endorsement to the site then selected.
The second monument, which was erected under State authority, has been placed 166 feet in advance of the other, about 20 feet from the Stone Wall, which during the third day's fight was covered by Cushing's Battery. Either one location or the other is incorrect. The Regiment absurdly insists that both are correct.
The subject first came before the Association at its annual meeting, July 3, 1888, when the Regiment asked authority to place its monument on the first line of battle, where it now is. The Association having heard a statement of the case, directed that the monument be placed on the line of battle occupied by it on the east side of the Avenue, in compliance with the rules of the Association, and that it be authorized to place a marker at the advanced position attained by it, with a proper inscription, subject to the approval of the Committee on location and legends.
This was not satisfactory to the Regiment, who had previously sought the authority of the State Monument Commission. That Commission, when it met the Committee of survivors on the field, located the monument as indicated by the Association, and a stake was driven to mark the location; but at a subsequent meeting, at Harrisburg, it passed another resolution, the precise terms of which are unknown, as either the record of this action was never made, or it was mislaid or lost. It appears, however, to have been to the effect that the monument might be located twenty feet behind the front line, if such position should prove to be consistent with the rules of the Gettysburg Battlefield Memorial Association. No notice of this action was given to the Association or any of its officers or members.
In December, of 1888, representatives of the 72d Regiment came upon the battle-field, and, under this authority, began to erect a foundation on the last mentioned spot. As no one connected with the Association, then knew of this last action of the Commission, the act of the representatives of the 72d was regarded as a trespass, and they were arrested and enjoined from proceeding further.
Thereupon, on the 7th of January, 1889, the Committee of the 72d filed a bill in the Adams County Court, praying that they be permitted to erect their monument on the spot last indicated by the Commission. The Association demurred to this bill. The Court sustained the demurrer, and dismissed the bill. On appeal to the Supreme Court this judgment was reversed, the bill was reinstated, and further proceedings ordered in accordance with the rules in equity proceedings.
In this opinion, the Supreme Court construed the appropriating act of 1887, making, as we believe, by inadvertence, a very serious error. The act defined the jurisdiction and duties of the Commission over locations. The words used are: "To mark the position of each of the Commands of Pennsylvania Volunteers engaged in the battle of Gettysburg." This act was drawn by a member of our Association, who, in this important clause, used phraseology in precise harmony with the rules theretofore applied by the Association to all other States which had located monuments, and which, if properly interpreted, would have secured absolute uniformity of marking for all the States. The words used are precise, and have a technical meaning. The duty of the Commission was to locate the monuments so as to mark "the position" of each Pennsylvania Command engaged in the battle. The Regiment cannot be regarded as having any "position" other than that held by it as part of its Brigade organization, except when on detached duty for which the rules of the Association otherwise provide. No other spot accidentally occupied by it during the progress of a battle can be regarded as its "position," which would necessarily locate it at the side of its comrades with whom it was arrayed in line of battle. This is so manifestly true and wise that the inadvertence of the Supreme Court in overlooking it is extraordinary, and can hardly be explained except on the theory that not one of its members had had army service or had ever seen the field, or realized the importance of this principle to its honest and accurate marking. More remarkable still, the Supreme Court overlooked entirely this exact phraseology when it came to construe the law, and actually imported into the Act vital words which are not in it. The Court says that the "people of this Commonwealth intended by this Act to appropriate money to designate and by suitable monuments mark spots of 'special interest,' conspicuously occupied by their Regiments while engaged in battle." But, as a matter of fact, the Legislature did not so say. The language used by the Supreme Court is not in the Act of 1887, nor is any language akin to it. On the other hand, the language used in the Act is wholly inconsistent with the thought expressed by the Court. The monuments were to be so placed as to mark "the position" of each Pennsylvania Command engaged in the battle of Gettysburg. It was not to mark any and every spot on which each Command may have been engaged in the battle, but to mark "the position" of each Command which participated in the battle of Gettysburg. This was the clear intention of the Act; and not otherwise could an accurate, scientific, impartial, or honest marking of the field be executed. In point of fact, the words, "spots of special interest," used by the Court as a part of the Act of 1887, are to be found only in the charter of the Association, passed twenty-seven years ago, or in 1864. The Supreme Court ruled the Association out of the case, as without power over the location of these monuments. But it ruled into the case from the Association's charter of 1864 pregnant words which exclusively refer to its duties and applied them as though they were a part of the Act of 1887, to the material enlargement of the Commission's powers over the location of these monuments. This extraordinary act is incapable of rational explanation. It must have been due to confusion or to accident. If intentional, it was judicial jugglery. But whether accidentally or otherwise, the violence thereby done to the truthfulness of the field was the same; for this decision, thus erroneously based, became the cover behind which the other mischiefs were executed.
The case, having been thus returned to the Adams County Court, followed the usual order of equity proceedings. An Examiner and Master was appointed to take testimony. He reported in December, 1890. His findings were all against the Association.
1st. It was found that the Commission had definitely located the monument where it now is, because the condition annexed, (viz: consistency with the rule of the Association applied to all other monuments) was an illegal condition, as, under the Act of 1887 the Association had nothing to do with the location of monuments. The second location, as made by the Commission, was, therefore, held to be final and unconditional.
2d. It was found that "official notice" of this selection and location had been given to the Association, when made. No falser finding was ever made since Courts began. This finding was essential to the case of the 72d, as, in equity, a failure to notify would, if found, have been a defect fatal to their case. As examination of the record will show that the finding of the Master was not in proof, but that it was a bold and baseless inference.
3d It was found that the spot designated for the monument was "that position in which the 72d Regiment did a part of their best fighting." Here is an attempt to reconcile the fact with the law; but, as we have seen, no such meaning can be attached to the word "position," as a temporary or accidental occupancy of a special spot during the progress of a battle. Such a spot is appropriately indicated by a marker, as something not to be forgotten; but it is wholly misleading when marked as a Brigade position, according to which the troops were organized.
These findings of the Master were resisted by the counsel of the Association before the Adams County Court, which, however, wholly and in every part, sustained the Master. This, in view of the manifest unfairness and weakness of the Master's findings, was a surprise to many. It was perhaps unfortunate for our Association that the Master, in the case, would have been the son of the Presiding Judge. The opinion of the Court seems to give evidence of the resentment felt at the sharp criticism of counsel on the Master because of his unfair and illogical findings.
The Association took an appeal to the Supreme Court, without much hope of reversal, by reason of the rule of that Court not to review the findings of a Master and a lower Court when in harmony, except under extraordinary circumstances. The Court heard the case in June last, at the close of the legal year when they were wearied and the heat was great. The case was argued on Monday and decided on Wednesday. As the printed record covered 450 pages it is manifest that the Court declined to break its rule, though the gravest interest of other States, and the highest honor of our own were directly involved. The appeal was summarily dismissed, the decree of the lower Court was affirmed and the case definitely closed.
Within a few weeks the Regiment dedicated its monument with peculiar ceremonies: a leading feature of which was an assault upon the Association for its effort to apply to that Regiment the rule which had been applied to every other Regiment from Pennsylvania and every other State. In these exercises the Master gave the sanction of his participation, and the Presiding Judge honored the occasion with his presence-a circumstance we record with regret, as it disturbs the serenity with which we might otherwise acquiesce in the judgment reached.
This mislocation of the 72d monument is the only break in the harmony of the entire field. It is the only act done for which we feel that an apology is required to be made to any one. In so locating it, law was misunderstood and misinterpreted; facts were misunderstood, and inferences were unjustifiably drawn. The Association sought by every means in its power to save our Commonwealth from an error which puts it in a false position before the entire Army of the Potomac and therefore before the whole country. It failed, and those who are responsible for the wrong must bear the odium which will unquestionably attach to the act of discriminating between soldier comrades, to the advantage of one regiment and to the disadvantage of every other.
This paper would be incomplete without a reference to the State Monument Commission who united with the Association in the proceedings before the Courts, and against whom as well as ourselves the decree of the Court was directed. They have stated to us, in their interview at our morning session, that in finally conceding the location made they yielded to the superior power of the Court, but that they are of opinion that the location is unhistorical, incongruous and improper. It thus appears that this location was made without the actual concurrence of either the Commission or of the Association, and was effected as the result of the series of errors herein recited. The question therefore arises whether the Association ought not, in suitable form, to place upon the face of the field itself a proper marker to indicate that they have no responsibility for the location of the monument as now placed. Action to that effect is recommended.
C.H. Buehler,
Chairman, Exec. Comm.
The 72nd Pennsylvania Monument Controversy
http://www.morningsidebooks.com/40 - Neu.pdf