Ford v. Surget

46 Miss. 130 | Miss. | 1871

Simrald, J.

The pleas in bar set up in substance that the people and state of Mississippi, in combination and confederation with Louisiana, Alabama, Georgia, and other states, known as the Confederate States, were waging war against the United States that, by an act of the congress of the Confederate States, cotton, liable to fall into the hands of the hostile belligerents, was by the military to be destroyed; that Gen. G. T. Beauregard was the commander of the army, having possession and control of the state of Mississippi; that he, as such commander, directed an order to A. K. Farrar, provost marshal of Adams county, to burn the cotton on the Mississippi river, and the railroad ; that said Farrar commanded the defendant and one Minor, to execute it, by burning cotton on certain specified plantations on the Mississippi river; and that, by authority thereof, defendant did destroy the plaintiff’s cotton. The question, not free of difficulty, is, whether these facts excuse or justify the act complained of, as a trespass. That again requires an inquiry into, and an ascertainment of, the status of the respective belligerents toward each other during the war. We pro-, pose this inquiry, simply and purely, as a legal problem, / to be deduced from the principles announced by the supreme] court of the United States, the final arbiter of such questions. \ It may not be easy to aver principles from the publicists to be in all circumstances safely applied to the late war. It were a safer process of reasoning, to look to the leading historical facts, as exerting a controlling influence over' legal questions arising out of them. Such was the course of the supreme court in the prize cases, 2 Black, 673. It will be remembered that the president in the recess of congress, April, 1861, issued his proclamations declaring a blockade of certain ports. Captures were made on the high seas, and the question was, whether the vessels could be condemned as prizes of war. It was conceded by the court that the president could not declare or initiate a war, against a state or states ; but he was charged by the acts of 1795 and 1807, with the duty of using military means to suppress an insurrection, or repel an invasion. Capture and condemnation as prize are belligerent lights, and are only lawful in war. ,The court concluded that the insurrection at once culminated in civil war; referring to the facts, “that it was not a loose, unorganized insurrection, having no defined boundary or possession. It acted as states claiming sovereign power over persons and property within their limits; several of which states had combined to form a new confederacy. South of its military lines, it is enemy’s territory, held in possession by an organized military power. All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies.” From such premises the court determined that the blockade was a rightful measure, to aid in overcoming the insurrection, and was conclusive that “ a state of war existed.”

A civil war is never preceded by a declaration, it becomes such by its accidents, the number, power and organization of those who engage in it. The declaration of independence, the organization of great armies, the commencement of hostilities, induced some of the powers in May, 1861, to recognize the insurgents as belligerents, and gave to the conflict the character of “war.” The court in the same case quote, approvingly, the language of Yattel, laying down the rules which apply in civil wars: “The nation is divided into two independent parties who consider each other as enemies and acknowledge no common judge. Having no common superior to judge between them, they stand in precisely the predicament of two nations who engage in a contest and have recourse to arms.” In 2 Wall. 419, it is repeated that the war was governed by the principles of pub-lie law, as alike applicable to civil and international wars, and that all the people inhabiting the insurrectionary states must be regarded as enemies and their property as enemies’ property.

The president, by the act of 13th July, 1861, was directed to issue his proclamation, declaring what states and parts of states were in insurrection, and thereupon, intercourse and commerce was forbidden with such territory, and thereupon it was impressed with the status of hostile territory until the national authority was re-established. The executive proclamation was so issued the seventeenth of August of the same year. So that the late domestic war had two distinguishing features: 1st. From its careful and orderly organization, the magnitude of its preparations, and the strength of its resources, it at once assumed the proportions of “war.” 2d. It had a territory of defined boundaries, within which, for a time, it exerted supreme authority. In the means adopted by the United States for its suppression these were accepted facts, and the measures were suited to the exigencies. The inhabitants and their property, whether of citizens or foreigners, were, for many purposes (pending the conflict), tainted as hostile. As in foreign war, blockades were instituted, captures made on the high seas and condemned as prizes of war. It was no defense in the prize court to allege that the vessel or its cargo was the property of a foreigner, or a citizen of friendly or loyal sentiments toward the United States ; if the cargo was the product of the hostile territory, it was lawful prize. If the vessel was trading with it, that condemned it.

Ordinarily in the practice of modern times, movable property is not treated as spoils of war, except that an invading army may levy contributions or take without compensation, food for' its subsistence, and animals for military purposes.

In the late war, both belligerents regarded cotton as a com-1 rnodity of special and peculiar importance, not in the sense of its intrinsic value, or its worth as an article of commerce simply. It was looked to by the Confederates as the ¡ chief source of credit, and the means by which arms and 1 munitions of war were to be procured. It was regarded, ¡also, as an element of power, to influence favorably the western nations of Europe, so largely engaged in its manufacture, and dependent greatly on this country for supply. It is well known that the Confederate government was a very large owner of cotton, bought for the purpose of being used to procure military supplies and munitions. The exclusion of American cotton from the consumption of the world had advanced its price in the manufacturing states and in Europe to very high rates. It became the policy of the Confederate belligerent to prevent cotton falling into the possession of the United States. Therefore, it was ordered by law of the Confederate congress that when; so exposed, it should be destroyed. Thus cotton became quasi contraband of war, indirectly to one of the belligerents, a cheap munition, and source of supply; to the other, a strengthening of resources and a weakening of the adversary. Hence, in Mrs. Alexander’s case, 2 Wall. 418, while accepting the general rule to be, that “ private property (under the modern !usages of war) is not subject to seizure for the sake of ■gain,” and ought to be “restricted to special cases dictated by the necessary operations of the war,” yet cotton formed an exception to the general rule, on account of the peculiar character of the property, because “the ‘rebels’ regarded it as one of their main sinews of war,” and their government, rather than permit it to fall into the possession of the national troops, has everywhere devoted it to destruction, however owned. It was liable to destruction, rather than that it should remain an element of strength to the rebellion. The capture of Mrs. Alexander’s cotton, and its condemnation, was justified, both on the grounds of public policy and under the act of congress of August 6, 1861, making all property employed in aid of the rebellion, with consent of the owners, to be a lawful subject of capture and prize, wherever found. It was because of the special value attached to this property, as a means of prolonging the conflict, that the United States considered it, on motives of policy, subject to seizure and appropriation, and the Confederate belligerent, in order to prevent a “main sinew ” of the war from falling into the possession of the United States forces, devoted it to the flames. It follows, therefore, that it was a lawful belligerent act, in certain circumstances, to destroy cotton. To relieve the party engaged in it from civil responsibility to the owner, he must be in such relation to the Confederate belligerent as to give the act the character of belligerency and hostility, his conduct must be guided and prompted by military authority.

Ho rights of sovereignty pertained to the Confederate States. As to the United States the Confederate States was an usurpation; it was not a defacto government; its legislation was a nullity, having no effect or validity in law. Thorington v. Smith, 8 Wall. 9, 10, 11, 12; United States v. Kuhler, 9 ib. 86. Therefore, in the last of these cases, it was held that a postmaster of the United States was not justified in paying money over to the Confederate government or its officers, because a law of the Confederate congress so required. The law itself was no justification, the act could only be excused when accomplished by a “ms major”

It is averred in the pleas, that at the time the plaintiff’s cotton was burned, the county of Adams was in the possession of and subject to the .insurgent authority, capable of enforcing obedience, and constraining the conduct of the inhabitants. It was represented by the military power. A. K. Farrar was provost marshal under Gen. Beauregard as his superior. The order came from the general to the provost marshal, and through him to defendant and one Minor. The pleas negative the idea that the burning was voluntary, wanton or malicious. It is inferable, inasmuch as the command was given to the defendant, that he was amenable to the authority of the provost marshal. It was a military command, originating with the highest authority ¡in that district. While those engaged in waging war ¡ against the United States might, after the war was over, he held to account by the sovereign for a breach of their allegiance ; yet, while it lasted, for all hostile acts done, they could rightfully appeal to the privileges and immunities of the public law as members of a belligerent power. The destruction of certain sorts of private property, such as provisions, beasts of burden, or their removal beyond the reach of the enemy, ought to be referred to and adjudged of by the exigencies of war. It is a legitimate belligerent right to destroy whatever private property is the subject of seizure and condemnation, in order to prevent it coming into the use of the enemy. It would hardly be claimed that the Confederate general, who ordered the destruction of thousands of bales of cotton (whatever may be thought of the wisdom of his conduct), on the evacuation of New Orleans, could be held to account to the owners as a trespasser ; his plea would be that he did it to prevent the property inuring to the captors as spoils of war.

An order by the military power, in the conti’ol of the .country, with means to compel obedience, directed to and executed by the persons named (as in this case to burn , cotton) is a belligerent act, as much so (according to the •policy of both belligerents) as the strategetic movement of an army or a battle. The legislation of the Confederate congress, or of the state, affords no protection as imparting jlegality to the act. The Confederate government, in judicial . questions like this, can receive no other consideration than as - the organized head of the insurgent power, part of the combination by arms to overthrow the national government and union. The only import of such legislation is to supply evidence that the insurgent belligerent regarded cotton as its chief resource to supply the means of war, and, therefore, justified the policy of the United States to treat it as quasi contraband of war and subject to seizure.

But who is to judge of the propriety of Gren. Beauregard’s order through the provost marshal ? There was no tribunal competent to stay it, or adjudge of its fitness and validity. Farrar, as a subordinate, bad no discretion. He was shut up to obey. Those to whom he intrusted its execution bore toward him the same relation that he did to his superior. In the view which we have taken of the subject, we think the defense is complete when it is ascertained that the burning of the cotton was a hostile, belligerent act, in; obedience to military order. - The fact that the order wasj given to Surget and Minor necessarily implies that they were subject to obey. It was said by the chief justice, in Texas v. White, 7 Wall., that, while belligerent rights were conceded, the United States studiously avoided any other recognition of the Confederate States than as a part, as the organ of the military power. Whatever might be rightfully done in a foreign war by a belligerent in the prosecution of hostilities could be done by the Confederates. Murrain v. Insurance Co., 6 Wall. 10, 11, 12, 13; Hanger v. Abbott, ib. 335, 336, 337. The principle, having this extent of application, has been repeatedly stated by the supreme court of the United States; -but while this concession is made, it has as often been declared that the sovereign, because of it, foregoes none of his rights to deal with his citizens for taking arms against him. All that we mean toi affirm is, that acts considered legitimate in the prosecution! of hostilities do not render the doers of them amenable to; make reparation, in damages, to private persons who have,' been injured in their property. If horses had been taken from non-combatants (by impressment) for military service, it would hardly be maintained that those who did it would be liable personally to the owners, nor would the courts give a remedy to restore these animals to their former owners, if, at the close of the war, they were found in the possession of citizens who derived a right, through the military, as by a quarter-master’s sale of condemned property.

The circumstance that the provost marshal published the order to the people of Adams county, indicates that they were in sympathy with its motive and purpose, and that no serious difficulties would be encountered in carrying it out; nor can it be doubted that, if he had not the means at hand to overcome opposition and resistance, that ample force would have been promptly supplied.

Necessarily there were many excesses of authority, abuses of power, and wrongs done during the late war. In this, the greatest struggle of arms of modern times, employing the utmost energy and resources of the people; when nearly all of them, in one form or another, were participating in the struggle; when the courts, for the most part, were closed, and the laws, in the midst of arms, were silent, or, if they spoke at all, uttered but a feeble voice, it is not to be expected that, in all circumstances, personal rights and private property would be scrupulously respected, or that those who acted under military orders were at all times discreet and forbearing.

We do not think that it would be wise to encourage the exhuming of such transactions, of those distempered times, for adjudications in the courts.

Any other doctrine than that we have announced, as the result of mature reflection, wouldflood the courts with suits for compensation for property taken or destroyed during the war. That so few have been brought is persuasive that •the conclusion of law we have reached has been sanctioned by the judgment and conscience of the community, it com-inends itself to the reason, and is promotive of quietude dnd charity, one toward another.

We have examined the cases referred to by counsel at the argument, reported in 2d and 4th West Virginia Reports. With deference and respect for that learned court, we are constrained to the belief that the court failed to apprehend and apply the correct principle of law to the facts before it.

We have looked to the pleas solely with reference to their substance, and not to their structure and technical sufficiency, so they were treated by counsel at the argument.

Let the judgment be affirmed.