Mensch tracht, un Gott lacht

Thursday, May 30, 2024

“By Unlawful Means” and Jury Instructions

 


 

In State v. Purcell, 884 S.E.2d 181 (N.C. App. 2023) (Zachary, J.),[1] in a discussion about jury instructions, the North Carolina Court of Appeals explained:

 

Finally, Defendant maintains that the trial court erred in its conspiracy instruction because the “instruction allowed the jury to convict [Defendant] of conspiracy based on one of two different victims, in violation of the unanimity requirement” for jury verdicts. This argument is also inapt.

Our State Constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court[.]” N.C. Const. art. I, § 24. “To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged.” State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). A “disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.” State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991). However, “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Id. at 303, 412 S.E.2d at 312.

Here, the trial court’s instructions allowed the jury to find Defendant guilty of conspiracy to commit robbery with a dangerous weapon if it found that he conspired to rob either Mr. Locklear or Mr. Strong with a dangerous weapon. Because either of these alternative acts established the elements of a conspiracy—that is, “an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means[,]” Cox, 375 N.C. at 169, 846 S.E.2d at 485—the requirement of jury unanimity was satisfied, see Lyons, 330 N.C. at 303, 412 S.E.2d at 312. In that the jury was able to return a unanimous guilty verdict regarding “each and every essential element of the [conspiracy] charged[,]” Jordan, 305 N.C. at 279, 287 S.E.2d at 831, this argument is overruled.

 Id. (bold added) (italics in the original). 

Judge Merchan’s jury instructions are not consistent with the Purcell standard. Judge Merchan has permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. See Judge Merchan, Jury Instructions at 43, <https://tinyurl.com/3c923hsb>. Conviction under Section 17-152 requires a predicate violation: a violation of other law, that is, so-called “unlawful means.” Merchan’s jury instructions state:

 

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

 

Judge Merchan, Jury Instructions at 44. It seems: Merchan’s jury instructions do exactly what the North Carolina appellate court forbade. Here, the disjunctive elements are themselves individual legal violations, and so, each such alleged violation separately requires unanimity. 

Does anyone know any positive law or case law, controlling or persuasive, supporting Merchan’s jury instructions? See generally U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977); State v. Edwards, 10 Conn. App. 503, 512–13 (Conn. App. 1987) (“The defendant claims that this situation required the court specifically to instruct the jurors that they had to agree unanimously on which, if either, of the acts was committed by the defendant. . . . Such a charge is required if (1) a jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability, (2) the actions are conceptually different and (3) the state has presented evidence on each of the alternatives.” (citing Gipson, supra) (footnote omitted)).

 

Seth Barrett Tillman, ‘“By Unlawful Means” and Jury Instructions,’ New Reform Club (May 30, 2024, 6:02 AM), <https://reformclub.blogspot.com/2024/05/by-unlawful-means-and-jury-instructions.html>.

 



[1] See N.C. R.A.P Rule 30(e)(3).

Thursday, May 02, 2024

A Twitter Post from the Political and Communications Director of a Political Party in Ireland

 



Colette Browne: “In the latest evidence of this hellsite being a racist sewer, the vast majority of posts about Newtownmountkennedy [in Ireland] are coming from…. the United States.” What did that poet say: If someone tells you who they are ... believe them.

Colette Browne: <https://twitter.com/colettebrowne/status/1785976025978970182>.

Seth Barrett Tillman, ‘A Twitter Post from the Political and Communications Director of a Political Party in Ireland,’ New Reform Club (May 2, 2024, 10:13 AM), <https://reformclub.blogspot.com/2024/05/a-twitter-post-from-political-and.html>; 



Wednesday, March 27, 2024

Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790)

 

Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections on the Revolution in France (1790):


It is curious to observe that the administrative bodies are carefully exempted from the jurisdiction of these new [revolutionary] tribunals. That is, those persons are exempted from the power of the laws who ought to be the most entirely submitted to them. Those who execute public pecuniary trusts ought of all men to be the most strictly held to their duty. One would have thought that it must have been among your earliest cares, if you did not mean that those administrative bodies should be real, sovereign, independent states, to form an awful tribunal, like your late parliaments, or like our king’s bench, where all corporate officers might obtain protection in the legal exercise of their functions, and would find coercion if they trespassed against their legal duty. But the cause of the exemption is plain. These administrative bodies are the great instruments of the present leaders in their progress through democracy to oligarchy. They must, therefore, be put above the law. It will be said that the legal [revolutionary] tribunals which you have made are unfit to coerce them [that is, the administrative bodies]. They are, undoubtedly. They are unfit for any rational purpose. It will be said, too, that the administrative bodies will be accountable to the General Assembly. This I fear is talking without much consideration of the nature of that Assembly, or of these corporations. However, to be subject to the pleasure of that Assembly is not to be subject to law either for protection or for constraint.

Id. (emphasis added).

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Seth Barrett Tillman, ‘Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790),’ New Reform Club (Mar. 27, 2024, 2:57 PM), <https://reformclub.blogspot.com/2024/03/jurisdiction-stripping-in-revolutionary.html>;


[N/B: Outside the United States, jurisdiction-stripping provisions in statutes are known as ouster clauses or privative clauses.]

Was an Appeal Possible in Ex parte Merryman?

 

 

Professor Vladeck wrote: “But perhaps reflecting some doubt as to the legal arguments, Lincoln did not appeal Taney’s decision to the full Court.” See Steve Vladeck, 65. Lincoln, Taney, and Ex parte MerrymanOne First (Feb. 5, 2024), <https://stevevladeck.substack.com/p/65-lincoln-taney-and-ex-parte-merryman>.

 

There are any number of reasons explaining why Lincoln, the Executive Branch, the Army, and General Cadwalader (the actual named defendant) took no appeal. The primary reason is that no appeal, by them, was possible. Cadwalader was the prevailing party in Merryman, and under the aggrieved party rule, only the non-prevailing party (that is, John Merryman) may seek an appeal. See Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>; see also Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1 (2019), <https://ssrn.com/abstract=3213353>. See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13 Br. J. Am. Leg. Studies 43 (2024) (peer review), <http://ssrn.com/abstract=4157572>. 

In 2016, I wrote:

The third Merryman myth is that Lincoln could have (and should have) upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) United States Supreme Court. However, this was not feasible. In the context of a habeas action, if the decision had been in chambers, the prevailing view is that there was no route to appeal to the full Court. Moreover, even if the court which heard Merryman was the Circuit Court for the District of Maryland, or even if an appeal could be taken to the full Court from an otherwise jurisdictionally sound in-chambers habeas decision, Cadwalader, the government, and Lincoln could have taken no such appeal in Merryman. Why? Merryman had brought a habeas corpus proceeding seeking a judicial order compelling Cadwalader to release him. Taney never issued any such order against Cadwalader (or against anyone else). As such, Merryman was the nonprevailing party, and only he was entitled to take an appeal (assuming any such appeal was authorized by statute or otherwise permitted). Cadwalader—as odd as it sounds—was the prevailing party in Merryman, and in the American system of justice, absent special circumstances, only a nonprevailing party, i.e., only a party aggrieved by a judicial order (not by an opinion) may take an appeal.

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 506–08 (2016) (peer review) (footnotes omitted) (emphases in the original).

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Seth Barrett Tillman, ‘Was an Appeal Possible in Ex parte Merryman?,’ New Reform Club (Mar. 27, 2024,  8:41 AM), <https://reformclub.blogspot.com/2024/03/was-appeal-possible-in-ex-parte-merryman.html>;

Monday, March 18, 2024

Briefs, Other Filings, and Related Media in United States v. Trump, Case No. 9:23-CR-80101-AMC-BER (S.D. Fla. filed June 8, 2024) (Cannon, J.)



Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 410, 2024 WL 1214430, <https://ssrn.com/abstract=4755563>, <https://tinyurl.com/3kju33w4>; 

ECF No. 411 (issuing an order granting Tillman/Landmark’s motion to file an amicus brief, and also granting parties an opportunity to respond by Thursday, April 4, 2024), <https://tinyurl.com/3kju33w4>; 

Brief by Constitutional Lawyers, Former Government Officials, and State Democracy Defenders Action as Amici Curiae in Opposition to Defendant Donald J. Trump’s Motion to Dismiss the Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith [ECF NO. 326] at 2, 12, and 15, United States of America v. Donald J. Trump, Case No. 23-80101-CR-CANNON-REINHART (S.D. Fla. Apr. 3, 2024) (filed by Christina Alonso and Matthew Seligman) (citing Blackman/Tillman amicus brief), ECF No. 429, 2024 WL 1469802, <https://tinyurl.com/3bv3tszm>; 

Government’s Response to Professor Seth Barrett Tillman, et al., Amici Curiae Brief in Support of Donald J. Trump’s Motion to Dismiss Based on the Appointment of the Special Counsel at 1, 3, 5–7, United States of America v. Donald J. Trump, Case No. 23-80101-CR-CANNON(s) (S.D. Fla. Apr. 4, 2024) (filed by Special Counsel Jack Smith) (citing Blackman/Tillman amicus brief), ECF No. 432, 2024 WL 1490604, <https://tinyurl.com/3kju33w4>; 

Order Setting Second Set of Pre-Trial Deadlines/Hearings at 2 n.3, United States of America v. Donald J. Trump, Case No. 9:23-cr-80101-AMC (S.D. Fla. May 7, 2024) (Any amici wishing to present oral argument during this hearing must seek leave of Court to do so no later than June 3, 2024), ECF No. 530, <https://tinyurl.com/2z7eaaet>; 

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MEDIA

A.R. Hoffman, Jack Smith Is, in Constitutional Terms, “Too Big for His Britches,” Author of New Brief in Trump Case SaysNew York Sun (Mar. 29, 2024, 15:06:46 PM), <https://www.nysun.com/article/jack-smith-is-too-big-for-his-britches-and-not-entitled-to-prosecute-trump-a-new-brief-argues-to-judge-cannon> (citing Blackman/Tillman’s S.D. Fla. Amicus brief); 

Terrance Kible, Law Prof Challenges Validity of Special Counsel’s Appointment in Trump Classified Documents CaseLegal Insurrection (Apr. 7, 2024, 4:00 PM), <https://legalinsurrection.com/2024/04/law-prof-challenges-validity-of-special-counsels-appointment-in-trump-classified-documents-case/> (citing Blackman/Tillman amicus brief in S.D. Fla.);

Armin Rosen (interviewing Seth Barrett Tillman), The Outsider Legal Genius Who May Rescue Trump, Tablet Magazine (Mar. 22, 2024), <https://www.tabletmag.com/sections/news/articles/outsider-legal-genius-seth-tillman-trump>; 

Ursula Faw, Judge Luttig Slaps Back At Crackpot Attempt To Derail Docs CasePolitiZoom (Mar. 21, 2024), <https://politizoom.com/judge-luttig-slaps-back-at-crackpot-attempt-to-derail-docs-case/>; 

Kathleen Culliton, “Crackpot”: Pro-Trump lawyer wants to rehash Mueller argument in classified document caseRaw Story (Mar. 21, 2024 1:48 PM ET), <https://www.rawstory.com/josh-blackman-trump/>; 

Mark Joseph Stern (@mjs_DC) on Twitter, Josh Blackman is seeking permission to file an amicus brief (Mar. 21, 2024, 3:22 PM), <https://twitter.com/mjs_DC/status/1770833252971925833>;

Charlie Savage, A Legal Outsider, an Offbeat Theory and the Fate of the 2024 ElectionNew York Times (Feb. 7, 2024, 13:50 PM ET), <https://www.nytimes.com/2024/02/07/us/politics/tillman-constitution-trump-colorado-ballot.html?unlocked_article_code=1.Tk0.8VLD.lkfvuRDHWfs0>; 

Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, New York Times, Sept. 25, 2017, <https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=Undefined>; 


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Seth Barrett Tillman, ‘Briefs, Other Filings, and Related Media in United States v. Trump, Case No. 9:23-CR-80101-AMC-BER (S.D. Fla. filed June 8, 2024) (Cannon, J.),’ New Reform Club (Mar. 18, 2024, 12:13 PM), <https://reformclub.blogspot.com/2024/03/briefs-and-other-filings-in-united.html>; 




A Chinese Report of the Colorado Section 3 Case

 

Sun Chenghao, ‘The Supreme Court and Trump’s candidacy: controversy, trends and impact,’ American Observer #89 (Jan. 19, 2024), <https://ciss-tsinghua-edu-cn.translate.goog/info/wzjx_mggc/6870?_x_tr_sl=zh-CN&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc>, <https://ciss.tsinghua.edu.cn/info/wzjx_mggc/6870>; 

Dr Sun Chenghao is a Fellow at the Center for International Security and Strategy, Tsinghua University. He wrote: “[S]everal scholars argue that the President of the United States does not meet the definition of ‘public office’ in the context of the establishment of the Constitution, and therefore Trump cannot be the subject of the disqualification clause. This view is also held by a few hardline conservatives.” In support of this view, Dr Sun cited Blackman & Tillman’s ‘Response to Baude & Paulsen’ in Tex. Rev. L. & Pol. (forthcoming). 

I have only read a translation of Dr Suns post on American Observer <美国观察>. It strikes me the author (writing in Chinese) was well informed and made a good faith attempt at balance. Certainly, he was better informed and more even-handed than many in the English-speaking world who had reported on Colorados Section 3 case.

Seth Barrett Tillman, A Chinese Report of the Colorado Section 3 Case,New Reform Club (Mar. 18, 2024, 4:00 AM), <https://reformclub.blogspot.com/2024/03/a-chinese-report-of-colorado-section-3.html>; 




Tuesday, March 05, 2024

The Law of the Case: Trump v. Anderson

 


 

Anderson v. Griswold, Colo. Sec. of State and Intervenors Republican State Central Cmt., Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), slip. op. at 95–102 (holding that a president is not an “officer of the United States” for the purposes of Section 3 of the Fourteenth Amendment), rev’d Anderson v. Griswold, Sec. of State and Intervenor-Appellee/Cross-Appellant Donald J. Trump, Case No. 23SA300, 2023 CO 63, 2023 Colo. LEXIS 1177, 2023 WL 8770111, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam), rev’d Trump v. Anderson, U.S. Sup. Ct. No. 23-719, 2024 WL 8992072024 U.S. LEXIS 1190144 S. Ct. 662601 U.S. ---- (U.S. Mar. 4, 2024) (per curiam), <https://supremecourt.gov/opinions/slipopinion/23>, <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html>; 

 

Because the Supreme Court of the United States reversed the decision of the Colorado Supreme Court, the opinion and order of the state trial court judge remain good, persuasive law. The Colorado state trial court held that the President of the United States is NOT an “officer of the United States.” The trial courts decision has not been overturned, overruled, or vacated. Although the trial court’s decision was reversed (by the Colorado Supreme Court), that reversal was itself reversed (by the U.S. Supreme Court). So the first-in-time reversal is a nullity. 

 

That’s the law of the case.




 

Seth Barrett Tillman, ‘The Law of the Case: Trump v. Anderson,’ New Reform Club (Mar. 5, 2024, 2:37 AM), <https://reformclub.blogspot.com/2024/03/the-law-of-case-trump-v-anderson.html>;



 

Monday, March 04, 2024

Political Evangelism in Today’s Ireland

 





Under proportional representation, voters pick the members of the legislature, not the government or cabinet or executive. Under proportional representation, the members of the governing coalition having executive power or forming the cabinet is not under the control of the voters. Rather, it depends on the bargaining positions and skills of the elected parties after the election. Proportional representation has advantages if your nation has no external enemies or has farmed out its defense to third parties. If the greatest threat your nation fears is a portion of its own citizens, then proportional representation may be the best way to organize your elections. 

On the other hand, where a nation faces actual external threats, proportional representation inhibits decisive action by the executive during war time and other emergencies. Proportional representation makes decisive action during war time and other emergencies difficult because different parties within the governing coalition or cabinet have different interests, will shift blame, and will look to their position in the next poll and in the next election. A multi-headed executive invites a lack of transparency, a lack of accountability, and a lack of responsibility. The reality is that proportional representation undermines collective cabinet responsibility. So sure, proportional representation might very well work here, in Ireland, but whether it is a good model for other countries ... I have doubts. See Federalist No. 70 (1788) (Hamilton); see also Federalist Nos. 77 & 85 (1788) (Hamilton). 

 

Seth Barrett Tillman, ‘Political Evangelism in Today’s Ireland,’ New Reform Club (Mar. 4, 2024, 2:42 AM), <https://reformclub.blogspot.com/2024/03/political-evangelism-in-todays-ireland.html>;

Jason O’Mahony (@jasonomahony) on Twitter (Mar. 4, 2024, 6:20 AM), <https://twitter.com/jasonomahony/status/1764536411087122802>; 


Saturday, February 17, 2024

Power, Confidence, and Authority

 

Edmund Burke, Reflections on the Revolution in France (1790):

 

You would not cure the evil by resolving that there should be no more monarchs, nor ministers of state, nor of the gospel; no interpreters of law; no general officers; no public councils. You might change the names. The things in some shape must remain. A certain quantum of power must always exist in the community in some hands and under some appellation. (emphasis added)

 

 

Federalist No. 26 (Hamilton) (1787):

 

The idea of restraining the legislative authority, in the means of providing for the national defence, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. (emphasis added)

 

They [who supported the Glorious Revolution] were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. (emphasis added)

 

Huang Tsung-hsi, Waiting for Dawn: A Plan for the Prince (1663):

 

Final authority always rests with someone, and the palace menials, seeing the executive functions of the prime minister fall to the ground, undischarged by anyone, have seized the opportunity to establish numerous regulations, [and] extend the scope of their control . . . . (emphasis added)


Seth Barrett Tillman, Power, Confidence, and Authority, New Reform Club (Feb. 17, 2024, 6:59 PM), <https://reformclub.blogspot.com/2024/02/power-authority-and-confidence.html>;





Tuesday, February 06, 2024

Understanding Head-of-Government Succession

 


Chapter 80: Romance of the Three Kingdoms

 

Xu Jing spoke, “The late Emperor of the Hans has been slain by Cao Pi. You, O Prince, will fail both in loyalty and rectitude if you do not assume the succession and destroy the wrong-doers. The whole empire requests you to rule that you may avenge the death of the late Emperor, and the people will be disappointed if you do not accede to their wishes.”

The Prince replied, “Although I am descended from the grandson of Emperor Jing, I have not been of the least advantage. If I assumed the title of ‘Emperor’, how would that act differ from usurpation?”

Zhuge Liang pleaded with him again and again, but the Prince remained obdurate. Then Zhuge Liang bethought that where argument failed a ruse might succeed. So having arranged the parts his several colleagues were to play, he pleaded illness and remained at home. Presently it was told the Prince that his adviser’s condition was becoming serious, wherefore Liu Bei went to see him as he lay on his couch.

“What illness affects you, my Commander-in-Chief?” asked Liu Bei.

“My heart is sad like unto burning, and I shall soon die.”

“What is it that causes you such grief?”

But Zhuge Liang did not reply. And when the question was repeated again and again he said nothing, but just lay with his eyes closed as if he was too ill to speak.

The Prince, however, pressed him to reply, and then with a deep sigh Zhuge Liang said, “Great Prince, from the day I left my humble cottage to follow you, you have always listened to my words and accepted my advice, and now this western domain, the whole of the two River Lands is yours just as I said it would be. But this usurpation of Cao Pi means the annihilation of the Hans and the cessation of their sacrifices, wherefore my colleagues and I desired you to become Emperor in order to crush this upstart Wei and restore the Hans. We all worked for this end, never thinking that you would refuse so obstinately to accede to our wishes. Now the officers are all annoyed, and they will drift away before very long. If you are left alone and Wu and Wei come to attack, it will be difficult for you to hold on to what you have. Do you not think this sufficient reason for me to feel grieved?” 

“Unless I refused, the whole world would blame me. I am afraid,” replied the Prince. 

Quoting Confucius the Teacher, Zhuge Liang replied, “If names be not correct, language is not in accordance with the truth of things.’ In other words, if one be not really straight, people will not speak of one favorably. O Prince, you are straight, and people speak of you favorably. What more is there to say? You know when Heaven offers and you refuse, you are certainly to blame.”

“When you have recovered, it shall be done,” said the Prince.

Up leapt Zhuge Liang from his bed . . . .


Seth Barrett Tillman, Understanding Head-of-Government Succession,’ New Reform Club (Feb. 6, 2024, 6:12 AM), <https://reformclub.blogspot.com/2024/02/understanding-head-of-government.html>; 



 

 

Sunday, February 04, 2024

Chapter 17: Romance of the Three Kingdoms

 

Romance of the Three Kingdoms

 

Chapter 17

 

The army marched away. In the course of the march they passed through a wheat region, and the grain was ready for harvesting but the peasants had fled for fear, and the corn was uncut. Cao Cao sent proclamations to all villages and towns:

“I am sent on the expedition by command of the Emperor to capture a rebel and save the people. I cannot avoid moving in the harvest season; but if anyone trample down the corn, he shall be put to death. Military law is strict without exception, and the people need fear no damage.”

The people were very pleased and lined the road, wishing success to the expedition. When the soldiers passed wheat fields, they dismounted and pushed aside the stalks so that none were trampled down.

One day, when Cao Cao was riding through the fields, a dove suddenly got up, startling the horse so that it swerved into the standing grain, and a large patch was trampled down. Cao Cao at once called the Provost Marshal and bade him decree the sentence for the crime of trampling down corn.

“How can I deal with your crime?” asked the Provost Marshal.

“I made the rule, and I have broken it. Can I otherwise satisfy public opinion?”

Cao Cao laid hold of the sword by his side and made to take his own life. All hastened to prevent him.

Guo Jia said, “In ancient days, the days of the Spring and Autumn Annals, the laws were not applied to those of the most important. You are the supreme leader of a mighty army and must not wound yourself.”

Cao Cao pondered for a long time. At last he said, “Since there exists the reason just quoted, I may perhaps escape the death penalty.”

Then with his sword he cut off his hair and threw it on the ground, saying, “I cut off the hair as touching the head.”

Then he sent messengers to exhibit the hair throughout the whole army, saying, “The Prime Minister, having trodden down some corn, ought to have lost his head by the terms of the order; now here is his hair cut off as an attack on the head.”

This deed was a stimulus to discipline all through the army so that not a person dared be disobedient.

from: Luo Guanzhong, Romance of the Three Kingdoms (Charles Henry Brewitt-Taylor, trans., 1925) (first printed version circa 1522). 


Seth Barrett Tillman, Chapter 17: Romance of the Three Kingdoms, New Reform Club (Feb. 4, 2024, 9:07 AM), <https://reformclub.blogspot.com/2024/02/romance-of-three-kingdoms.html>;