Restricted Largest Confederate Monument In The South Is Coming Down

Stone in the wall

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Asst. Regtl. Quartermaster Antietam 2021
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Blue Ridge Mountains, Jefferson County WV
So, help me to understand this. This is from the article: In 1868, the fate of Jefferson Davis's neck swung on Andrew Johnson's impeachment

The treason trial of Confederate President Jefferson Davis was supposed to be the "Greatest Trial of the Age" in 1868. But that title was claimed instead by the Senate impeachment trial of President Andrew Johnson... The two trials became so intertwined that Davis's prosecution was delayed for months. While "the man they denounce as a traitor goes free," the Louisville Courier noted, Johnson "is upon his trial for high crimes and misdemeanors." Moreover, Johnson's fate could have determined whether Davis would be hanged...​
The impeachment trial had ominous implications for Davis. If Johnson were removed from office, there was no vice president to succeed him. The speaker of the House was not made second in the line of succession until 1947, so the next in line for the presidency was the Senate president pro tempore, Sen. Benjamin Wade of Ohio, a leader of the Radical Republicans.​
"Davis has been a sort of a white elephant to Johnson and the Chief Justice Chase. They have no desire to keep him, they have been puzzled how and where to try him, and they have been afraid to let him go," said the Springfield Register, a Massachusetts newspaper. "But President Wade will not stand upon technicalities or trifles. His first great card, in order to strike terror among the unreconstructed rebels in the South … will be the hanging of Jeff Davis."​
Johnson escaped conviction by one vote. Because the impeachment trial dragged on into May, the Davis trial had to be delayed again. The Davis lawyers then moved to quash his indictment, citing the recently passed 14th Amendment, which included a provision barring participants in the rebellion from holding public office. Thus, they argued, Davis had already been punished. In December, Chief Justice Chase voted to quash the indictment, but Judge Underwood disagreed. So the case was sent to the full U.S. Supreme Court.​
On Christmas 1868, lame-duck President Johnson made the case moot by issuing a general pardon for all participants in the rebellion, including Davis.​

And as noted from this source:

The court finally heard preliminary motions in December 1868, when the defense asked for a dismissal claiming that the Fourteenth Amendment to the U.S. Constitution already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the double jeopardy restriction of the Fifth Amendment. The court divided in its official opinion and certified the question to the United States Supreme Court. Fearing the court would rule in favor of Davis, Johnson released an amnesty proclamation on December 25, 1868, issuing a pardon to all persons who had participated in the rebellion.​

So, if Davis was out to prove that secession was unconstitutional, then why did he file that his case should be dropped because he had already been punished, and punished enough? I think there is this myth that the Davis defense was all about secession and the Constitution; in fact, it looks like Davis was trying to get off on a technicality. Notably, this technicality was something of a creation of US government officials, but that's long story we can bypass for now.

The key thing is, Davis was not out to prove that once Mississippi seceded he was no longer a U.S. citizen. Simply put, the Davis defense was looking for the best way out. Davis didn't have to use that technicality. He could have litigated the case based on constitutional issues, and chose not to do so. The bottom line was to get Davis off... with a secession defense, if it could work... with a technicality, if that could work. And that explains the legal strategy they actually pursued. The defense was about the practical and mundane, not the ideological or quixotic.

I asked previously: is it possible that, after the government dropped its case, Davis could have filed a challenge to the pardon, thus forcing the pardon, and the legality of the treason charge, to be adjudicated? If that was an option, Davis did not pursue it. My guess is that with the Johnson pardon, Davis felt like he dodged a bullet. Or a hanging. And he was OK with that.

- Alan
Many people who were in favor of monument removals in Richmond claim Lee and Davis committed treason. Davis filed to have the charges dismissed in Dec 1868, and it was rejected.This tells us he didn't want to go to trial. Obviously the government didn't either, once they realized they had bitten off more than they could chew. On the 25th came the Christmas pardons. Feb the prosecution finally dropped the charges. If Davis challenged it how does he know that this time he will not face a Military trial with people like David Hunter on it? Or why just tempt fate?
They had almost 4 years to try Davis, yet they didn't. With in months after the war they they tried and hung Henry Wirz. Did Davis not have the right to a speedy trial, everybody in the north wanted his head in a noose? Treason is a crime of loyalty. But to commit it one must be a U.S. citizen. Davis's best defense.
Davis had a really slick NY lawyer named Charles O'Conner. Who is to prosecute Davis? L H Chandler who wrote up the treason charges? Not even a fair lawyer. He took Aaron Burr's treason charges and just changed the name to Davis. Rather than chance a military trial with a new president in the white house, Davis got out while the getting was good.
 
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Treason is a crime of loyalty. But to commit it one must be a U.S. citizen. Davis's best defense.
Davis served in the U.S. House, 1845-1846
U. S. Constitution Article I, Section 2:
"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States..."
Davis served as U. S. Secretary of War from 1853 - 1857
Davis served in the U. S. Senate from 1857 - 1861
U. S. Constitution Article I, Section 3:
"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States..."

For your consideration. My bold:

"The thing itself was a crime. Now it is an obvious principle, that an act of illegality can never be construed into an act of emigration, or expatriation. At that rate, treason and emigration, or treason and expatriation, would, in certain cases, be synonymous terms. The cause of removal must be lawful; otherwise the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member? As we have no statute of the United States, on the subject of emigration, I have taken up the doctrine respecting it, as it stands on the broad basis of the law of nations, and have argued accordingly. That law is in no wise applicable to the present case: for, Ballard, the time of his taking the command of the Ami de la Liberte, and of his capturing the Magdalena, was a citizen of the United States; he was domiciliated within the same, and not elsewhere; and, besides, his cause of departure, supposing it to have been a total departure from and abandonment of his country, was unwarrantable, as he went from the United States, in the character of an illegal cruizer. The act of the legislature of Virginia, does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia affects Ballard's citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States? Allegiance to a particular state, is one thing; allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the later? The sovereignties are different; the allegiance is different; the right to, may be different."

Excerpt from the Majority Opinion by Justice Paterson
August 22, 1795
Talbot v. Janson
3 U.S. 133


"Whether the Virginia act of expatriation be now in force, is a question so important, that I would not wish unnecessarily to decide it. If it be, I have no doubt that a citizen of that State, cannot expatriate himself in any other manner. It seems most probable (but I think not certain) from this record, that Talbot was a citizen of Virginia. We are, however, undoubtedly to consider him as a citizen of the United States. Admitting he had a right to expatriate himself, without any law prescribing the method of his doing so, we surely must have some evidence that he had done it. There is none, but that he went to the West Indies, and took an oath to the French Republic, and became a citizen there. I do not think that merely taking such an oath, and being admitted a citizen there, in itself, is evidence of a bona fide expatriation, or completely discharges the obligations he owes to his own country. Had there been any restrictions by our own law on his quitting this country, could any act of a foreign country, operate as a repeal of these? Certainly not. When he goes there, they know nothing of him, perhaps, but from his own representation. He becomes a citizen of the new country, at his peril. The act is complete, if he has legally quitted his own; if not, it is subordinate to the allegiance he originally owed. By allegiance, I mean, that tie by which a citizen of the United States is bound as a member of the society. Did any man suppose, when the rights of citizenship were so freely and honorably bestowed on the unfortunate Marquis de la Fayette, that it absolved him, as a subject or citizen of his country? It had only this effect, that whenever he came into this country, and chose to reside here, he was ipso facto to be deemed a citizen, without any thing farther."

Excerpt from Opinion of Justice Iredell
August 22, 1795
Talbot v. Janson
3 U.S. 133
 
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Stone in the wall

2nd Lieutenant
Asst. Regtl. Quartermaster Antietam 2021
Joined
Sep 19, 2017
Location
Blue Ridge Mountains, Jefferson County WV
Davis served in the U.S. House, 1845-1846
U. S. Constitution Article I, Section 2:
"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States..."
Davis served as U. S. Secretary of War from 1853 - 1857
Davis served in the U. S. Senate from 1857 - 1861
U. S. Constitution Article I, Section 3:
"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States..."

For your consideration. My bold:

"The thing itself was a crime. Now it is an obvious principle, that an act of illegality can never be construed into an act of emigration, or expatriation. At that rate, treason and emigration, or treason and expatriation, would, in certain cases, be synonymous terms. The cause of removal must be lawful; otherwise the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member? As we have no statute of the United States, on the subject of emigration, I have taken up the doctrine respecting it, as it stands on the broad basis of the law of nations, and have argued accordingly. That law is in no wise applicable to the present case: for, Ballard, the time of his taking the command of the Ami de la Liberte, and of his capturing the Magdalena, was a citizen of the United States; he was domiciliated within the same, and not elsewhere; and, besides, his cause of departure, supposing it to have been a total departure from and abandonment of his country, was unwarrantable, as he went from the United States, in the character of an illegal cruizer. The act of the legislature of Virginia, does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia affects Ballard's citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States? Allegiance to a particular state, is one thing; allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the later? The sovereignties are different; the allegiance is different; the right to, may be different."

Excerpt from the Majority Opinion by Justice Paterson
August 22, 1795
Talbot v. Janson
3 U.S. 133


"Whether the Virginia act of expatriation be now in force, is a question so important, that I would not wish unnecessarily to decide it. If it be, I have no doubt that a citizen of that State, cannot expatriate himself in any other manner. It seems most probable (but I think not certain) from this record, that Talbot was a citizen of Virginia. We are, however, undoubtedly to consider him as a citizen of the United States. Admitting he had a right to expatriate himself, without any law prescribing the method of his doing so, we surely must have some evidence that he had done it. There is none, but that he went to the West Indies, and took an oath to the French Republic, and became a citizen there. I do not think that merely taking such an oath, and being admitted a citizen there, in itself, is evidence of a bona fide expatriation, or completely discharges the obligations he owes to his own country. Had there been any restrictions by our own law on his quitting this country, could any act of a foreign country, operate as a repeal of these? Certainly not. When he goes there, they know nothing of him, perhaps, but from his own representation. He becomes a citizen of the new country, at his peril. The act is complete, if he has legally quitted his own; if not, it is subordinate to the allegiance he originally owed. By allegiance, I mean, that tie by which a citizen of the United States is bound as a member of the society. Did any man suppose, when the rights of citizenship were so freely and honorably bestowed on the unfortunate Marquis de la Fayette, that it absolved him, as a subject or citizen of his country? It had only this effect, that whenever he came into this country, and chose to reside here, he was ipso facto to be deemed a citizen, without any thing farther."

Excerpt from Opinion of Justice Iredell
August 22, 1795
Talbot v. Janson
3 U.S. 133
Moving it over to the new thread, see you there.
 
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jcaesar

Private
Joined
Aug 28, 2020
It will be interesting what the history books in a hundred and fifty years day of this era.
 
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19thGeorgia

1st Lieutenant
Joined
Apr 4, 2017
The plaintiffs are right but I doubt the court will acknowledge it.

If I sold or donated land for a specific purpose (building of a church, road, construction of a monument, etc) and that purpose is noted in the deed and then not used for that purpose - the land goes back to me.

"The state wants to keep the monument and land while disavowing promises made to obtain them."
https://apnews.com/article/richmond-virginia-8f9b535fadc4e5ece2e56c8597f39142

"The governor's decision to remove the Robert E. Lee statue from its plot in the middle of Monument Avenue may mean the land reverts to the heirs of the people who donated it to the state....
Although it sounds like an endless lawsuit from a Charles Dickens novel, such a recision has happened before in Richmond...."
https://www.styleweekly.com/richmon...s-down-who-owns-the-land/Content?oid=16125147
 
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19thGeorgia

1st Lieutenant
Joined
Apr 4, 2017
The plaintiffs are right but I doubt the court will acknowledge it.

If I sold or donated land for a specific purpose (building of a church, road, construction of a monument, etc) and that purpose is noted in the deed and then not used for that purpose - the land goes back to me.

"The state wants to keep the monument and land while disavowing promises made to obtain them."
https://apnews.com/article/richmond-virginia-8f9b535fadc4e5ece2e56c8597f39142

"The governor's decision to remove the Robert E. Lee statue from its plot in the middle of Monument Avenue may mean the land reverts to the heirs of the people who donated it to the state....
Although it sounds like an endless lawsuit from a Charles Dickens novel, such a recision has happened before in Richmond...."
https://www.styleweekly.com/richmon...s-down-who-owns-the-land/Content?oid=16125147
Fun scenario:
Court decides that the heirs own the monument and the land.
Heirs: "Now where do we want to put the monument? Hey, back on the same land!"
 
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Jantzen64

Corporal
Joined
Aug 10, 2019
The plaintiffs are right but I doubt the court will acknowledge it.

If I sold or donated land for a specific purpose (building of a church, road, construction of a monument, etc) and that purpose is noted in the deed and then not used for that purpose - the land goes back to me.
That's not the law. The law presumes that transferred land can be used as the new owner sees fit - even with general language about the parties' intent in the deed - unless the transfer deed uses specific language creating a binding covenant. That has been the established law for some time. The Gregory deed did not use the correct language, so the Virginia Supreme Court dismissed Gregory's complaint in pretty straightforward fashion. (And, Gregory did not ask for the land back). The Taylor complaint proceeded on a different legal theory, which required a more complex and involved analysis.
 

19thGeorgia

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That's not the law. The law presumes that transferred land can be used as the new owner sees fit - even with general language about the parties' intent in the deed - unless the transfer deed uses specific language creating a binding covenant. That has been the established law for some time. The Gregory deed did not use the correct language, so the Virginia Supreme Court dismissed Gregory's complaint in pretty straightforward fashion. (And, Gregory did not ask for the land back). The Taylor complaint proceeded on a different legal theory, which required a more complex and involved analysis.
The language was specific.
 

Jantzen64

Corporal
Joined
Aug 10, 2019
Easement in gross? That has nothing to do with it.
Yes it absolutely does. Read the Gregory decision from VASC. The entirety of it, though, not just the commonly quoted parts taken out of the context of the legal analysis. A restriction of the type Gregory was advocating for is an easement; and easements come in a number of different types with different rules for each.
 

19thGeorgia

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Joined
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Yes it absolutely does. Read the Gregory decision from VASC. The entirety of it, though, not just the commonly quoted parts taken out of the context of the legal analysis. A restriction of the type Gregory was advocating for is an easement; and easements come in a number of different types with different rules for each.
This is not about the Gregory case. He claimed he had a right to prevent the state from removing the monument. The current petition is about who now owns the land and monument. I don't think Gregory has anything to do with the new petition.
 

Jantzen64

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This is not about the Gregory case. He claimed he had a right to prevent the state from removing the monument. The current petition is about who now owns the land and monument. I don't think Gregory has anything to do with the new petition.
Are you referring to the petition in the Taylor case referenced in the link in post 566 ? https://apnews.com/article/richmond-virginia-8f9b535fadc4e5ece2e56c8597f39142 . That's what I thought you were referring to. That's just a petition for rehearing on the original argument and decision. Note that in the original decision, the VaSCT repeatedly states that it was only assuming that the language in question was an enforceable restrictive covenant for the purposes of the argument. It regularly refers to it as a "purported" restriction. I don't see the appellants as asking the Court to rescind the transaction on the basis of the "sacred" langauge, but if they do, the Court has already spoken in Gregory as to how best to characterize that language (which is why I was citing Gregory in my responsive posts) and any plaintiff/appellant will have to deal with that.
 

19thGeorgia

1st Lieutenant
Joined
Apr 4, 2017
Here's the ownership argument in the new petition-

The Commonwealth cannot repudiate an agreement and continue to enjoy its benefits
The opinion [VASC decision 2 Sept 2021] utterly ignored Appellants' contention that the Commonwealth cannot lawfully repudiate an agreement that it entered and yet continue to enjoy the benefits of that agreement. Such a result allows the Commonwealth to take property without compensation in violation of the Takings Clause in the Constitution of Virginia and the United States Constitution. If the restrictive covenants are void, the law requires that the parties be restored to the conditions that existed before the agreement was entered. Opening Br. at 46 ("It is attempting to retain ownership of the land and Monument while disavowing the promises it made to obtain them.").
https://www.wric.com/wp-content/upl...ortham-Final-Rehearing-Petition-9-29-2021.pdf
 

Jantzen64

Corporal
Joined
Aug 10, 2019
Here's the ownership argument in the new petition-

The Commonwealth cannot repudiate an agreement and continue to enjoy its benefits
The opinion [VASC decision 2 Sept 2021] utterly ignored Appellants' contention that the Commonwealth cannot lawfully repudiate an agreement that it entered and yet continue to enjoy the benefits of that agreement. Such a result allows the Commonwealth to take property without compensation in violation of the Takings Clause in the Constitution of Virginia and the United States Constitution. If the restrictive covenants are void, the law requires that the parties be restored to the conditions that existed before the agreement was entered. Opening Br. at 46 ("It is attempting to retain ownership of the land and Monument while disavowing the promises it made to obtain them.").
https://www.wric.com/wp-content/upl...ortham-Final-Rehearing-Petition-9-29-2021.pdf
That's not actually a request for rescission/restoration. It's an argument trying to force the VaSCT to confront what petitioners says are the consequences of their erroneous decision. At this point in the process, litigants can't change the scope of their request relief. And because the Taylor decision did not accept that the language was an restrictive covenant in the first instance, the VaSCT can just fall back on the Gregory rationale, since it's the same 1887 and 1890 Deeds being discussed:


Gregory alleges that the Commonwealth, and therefore Governor Northam and Director
Damico, have legal and contractual obligations to him personally because of the provision in the
1890 Deed. Specifically, he claims that as a descendant of the signatories to the 1887 Deed and
the 1890 Deed, he has a claim of action against Governor Northam and Director Damico because
of his alleged right to ensure the Commonwealth fulfills its duty to hold the Lee Monument
"perpetually sacred," pursuant to the terms of the 1890 Deed to the Commonwealth. The
property right Gregory attempts to assert can only be understood to be an easement in gross.
 

Quaama

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Location
Port Macquarie, Australia
Here's the ownership argument in the new petition-

The Commonwealth cannot repudiate an agreement and continue to enjoy its benefits
The opinion [VASC decision 2 Sept 2021] utterly ignored Appellants' contention that the Commonwealth cannot lawfully repudiate an agreement that it entered and yet continue to enjoy the benefits of that agreement. Such a result allows the Commonwealth to take property without compensation in violation of the Takings Clause in the Constitution of Virginia and the United States Constitution. If the restrictive covenants are void, the law requires that the parties be restored to the conditions that existed before the agreement was entered. Opening Br. at 46 ("It is attempting to retain ownership of the land and Monument while disavowing the promises it made to obtain them.").
https://www.wric.com/wp-content/upl...ortham-Final-Rehearing-Petition-9-29-2021.pdf

I was unaware that the matter was still to be contested, thank-you for that information. In addition to the part you quoted, there's a lot of interesting arguments made in that document. I especially like:
"The Commonwealth cannot repudiate an agreement and continue to enjoy its benefits The opinion utterly ignored Appellants' contention that the Commonwealth cannot lawfully repudiate an agreement that it entered and yet continue to enjoy the benefits of that agreement ..."; and
"The erroneous and unprecedented ruling on government speech has far-reaching implications The opinion creates an entirely novel legal doctrine -- that the government cannot make binding agreements that require it to continue or take any actions that can be construed as engaging in government speech ...".
 

DanSBHawk

Captain
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May 8, 2015
Location
Wisconsin
It will be interesting what the history books in a hundred and fifty years day of this era.
I seriously doubt that anyone will consider the removal of confederate monuments from public land to be very significant. It's a blip in our history that really isn't as important as the most emotional advocates make it out to be.
 
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