South Carolina Ping
Posted on 08/17/2005 11:45:31 AM PDT by Between the Lines
"Possession is 9/10ths of the law" is a homely old aphorism, not a legal principle.
Contra: adverse possession (squatters' rights) do not inhere against government. If somebody camps out in your backyard for 21 years and a day in most states (statutes fiddle with the time periods), the squatter can acquire title by adverse possession.
But if somebody camped out in a national or state forest in 1889, and that plot of land has been continuously lived on by the same family for the succeeding 7 generations, it still belongs to the government, and they don't even have to go to court to evict the squatter. They can send out park rangers or the cops to do it. You never get possession of government property wrongfully taken, no matter how long you sit on it.
Statutes of limitations apply to violations of certain criminal laws, and they limit times for filing lawsuits. So, if these documents were indeed STOLEN from South Carolina's government archives 100 years ago, nobody can be prosecuted for that today. However, legal title does not pass. They still belong to South Carolina, forever. Adverse possession NEVER attaches against the government.
Likewise, the government may voluntarily impose a limit upon itself, such as the 6 year lookback for serious errors on income tax forms. However, there is NO statute of limitations on tax FRAUD. If you intentionally cheated the government out of its money 75 years ago, and the government can prove it, they can make you pay up, with interest and penalties, and put you in jail. (I've always thought that a really clever judicial activist out to "get" the Kennedy's could invent the novel opinion that DEATH does not extinguish the LIABILITY for tax fraud, even though it eliminates the ability to criminally punish the individuals. In that case, the courts could reach back through the probate of the Kennedy Estate and take from Joe Kennedy's heirs the unpaid taxes, plus penalty and interest, for all of that unpaid rumrunning money. Such a ruling would be rightly criticized as judicial activism gone wild. Still, without their money, the Kennedys would be nothing.
Chains of evidence are certainly important once property passes into the possession of the authorities, which was not the case here. Plain old evidence would have to be produced proving that these letters were purloined from the state: proof of ownership.
It seems to me that the proper standard here is that ownership of an heirloom is obvious: presumptively this property belongs to the people who have held it forever. But that presumption can be overturned by demonstrating that, in fact, these documents were part of a state archive and were wrongfully removed therefrom. It would seem to me that the burden of proof would be on the state.
Let me put it this way, why do web sites talk about Confederate states being "readmitted" to the Union if they never left?
Me too
Apparently the government might have a legal right to the papers but emotionally it's hard not to sympathize with the person who had possession. The government's claim does look something like the assertion of eminent domain by the state, even if it's actually not the same.
You might argue that South Carolina in 1865 or Siberia in 1919 was in something approaching the state of nature -- so finders keepers -- but it wouldn't fly in court. You could also assert that a rebel government or government in rebellion can't lay claim to such papers, but of course the state isn't in rebellion now.
The details are complicated, and the state may be the rightful owners, but the case might remind people that "state's rights" don't necessarily mean freedom. The state government isn't "the people" any more than the federal government is. Freed from obligations to respect human rights, state governments aren't always the best friends of individual liberty.
"As this page points out, there were certainly some "irregularities" in the involvement of the Southern States and their governments in their passage. For example, the 13th Amendment passed through 2/3rds of the Congress without representation from the Southern states."
Nothing irregular about it, really, other than the irregularity of their having been a secession and a civil war. By seceding, the Southern states did not legally, or logically, impair the ability of the legitimate federal government to function. They left. That was a fact. That did not, and logically COULD not, result in the paralysis of Congress until they came back. That sort of utterly absurd result would have destroyed the Union forever the instant the South seceded, by rendering the Congress incapable of functioning.
Nobody argued that, or thought it, and if someone had, or did, or does, it is absurd. Sort of like saying that if half of the voting population of a town refuses to come to the polls, the election is cancelled. It doesn't work that way.
The South voluntarily chose to absent itself from Congress. Congress continued to exist, and to debate bills and pass laws. And one of the bills that it debated, according to its quorum, and passed, according to its procedures, was the 13th Amendment to the Constitution. Had the Southern states not voluntarily absented themselves, they would have been there to block it. But just like today, if the Massachussetts delegation absents itself in a huff, and the Senate passes a bill without their votes, the bill is still passed, and if signed into law it is still a law binding on Massachussetts whether the Massachussetts delegation was there or not.
In other words, there is no state veto of Congressional action by the simple expedient of having the state's delegation absent itself.
So, Congress debated and passed the 13th Amendment.
It was proposed to the states.
And the requisite number of states adopted it, including most of the Southern States. Now, it is true that during Reconstruction, many Southern men who had participated in the rebellion were barred from voting. Today, felons are barred from voting as well. That does not prevent the existing government from enacting laws today, and it didn't prevent it then.
I don't intend to be arguing against a straw man. It's just that things happened a certain way, according to the laws of the land, and the post-Civil War amendments are as much a part of the Constitution as are the First and Second.
"The details are complicated, and the state may be the rightful owners, but the case might remind people that "state's rights" don't necessarily mean freedom. The state government isn't "the people" any more than the federal government is. Freed from obligations to respect human rights, state governments aren't always the best friends of individual liberty."
Quite so.
In American history, the greatest violators of fundamental human rights have been the states, through the aggressive, and indeed obsessive, enactment and enforcement of extremely oppressive race legislation against blacks, and the reduction of Indians to vassal status. It was the federal government that set the Blacks free (and then had to do it again a century later), and shored up the treaty rights of Indians. So, in the sphere of personal civil liberties, "States Rights" have meant racial oppression, while Federal intervention has meant the end of that oppression.
But the other side of the coin is that when it comes to economic liberties, the Federal government has been as intrusive and controlling as the states, but on a grander and more terrifying scale.
I think what Americans chiefly longed for back when they rebelled against the British was to be LEFT ALONE. The American Revolution was not over state's rights. That is absurd. The colonies were weak little things, and so were the new states. The Revolution was about individual rights to be left alone against a central government that sought to fundamentally change the bargain. The British failed, and the Americans got their political liberty.
Or rather, most, but not all, Americans got their political liberties. The problem of the slaves remained.
The states grew up after the Revolution, and became the champions of slavery in some parts, resulting...well, we all know the US history.
What Americans still crave is what the American Revolutionaries wanted: to be left alone. They want to be free and equal, and they want to be able to enjoy their property and live their lives without undue interference from EITHER the federal or state or local governments. They don't want to replace one tyrant with another. They want to be left alone...for the most part.
Unfortunately, coupled with that desire to be left alone, in many people, is an atrocious desire to control the neighbors' business. And that's where the trouble starts.
Imagine if the Founders had been able to say: All men are created equal, and mean it, and abolish slavery. The whole "states rights" argument in its most virulent form never would have grown to fruit anyway.
But alternate history didn't happen, and we're still stuck today with the aftermath of our national birth defects, along with some added wounds added along the way.
Is McMaster on crack cocaine or something? How does taking property a family has owned for almost 150 years preserving our "proud heritage"? I've always been proud of SC for not pulling "blue state" tactics on its citizens. This is truely disappointing. Anybody know where we might could donate to help fund the appeal?
Yes, it does sound like it, doesn't it. It's a damn shame that the courts can take away a person's personal property - no matter what it is.
If these were official government documents, then they were official CONFEDERACY documents and not subject to the court that ruled. Such court had no jusrisdiction over the government in question.
Gee, last time I looked if something had my name on it, was addressed to me and was in my possession, it's MINE!!!
Also I might add is that the state is of the people and by the people and not of the land unto itself.
Here is another view. The general in question was not part of a state militia but part of the confederate army which was an illegal army and not controlled by the state but buy the confederacy itself.
I'm sure the courts were seeing this not as a case of Confederate documents but SC state documents. Since the State was never 'allowed' to leave the Union, there was, therefore, no such thing as a Confederate government.
The Emancipation Proclamation doesn't make any judgements except to reference the particular states as 'those being in rebellion..". They were still considered part of the Union. The war, was to make them understand that.
This is correspondence between generals conducting affairs for the State, not between a government agency and a private citizen. Just like when a CIA agent files an intel report - it is not his property, it is the government's property.
From what I've read, Lincoln specifically limited the Emancipation Proclamation to the states in rebellion because it would have violated the 5th Amendment (with respect to the taking of property without compensation) had he applied it to those states not in rebellion. That may not be accurate but why, then, did Lincoln limit the scope only to the confederate states?
All is politics. Lincoln needed to hang on to the Abolitionists in the administration. It's pretty clear that the document wasn't worth the paper it was printed on as to any actual effect on slavery. How can you enforce this measure in states that you have no control over?
And also, as to the 5th, Lincoln was pretty adept at ignoring those portions of the Constitution that were 'inconvenient' to a war-time President, e.g., habeus corpus
Carolina should compensate the guy handsomely.
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