Summary
Ekkok to tlie circuit court of Adams county. Smiley, J.
The facts of this case distinctly appear in the opinion of the court. Although there was no bill of exceptions, and the errors assigned were alleged to arise out of the action of the circuit court on the pleadings, this court considered and decided the case upon the principles of law involved in the substance of the pleadings, without reference to their structure, and any further statement of the case than is contained in the arguments of counsel and the opinion of the court is deemed to be unnecessary.
The special pleas filed by the defendant in this case constitute no defense whatever to the plaintiff’s action.
The United States authorities have uniformly and persistently refused to recognize the government of the Confederate States or even the government of the states in rebellion as governments defacto. It was recognized as a belligerent, and as such the rights and duties of a belligerent were accorded to it. In the case of the United States v. Kelsler, 9 Wall. 83, the court uses this language: “The whole Confederate power must be regarded by us as a usurpation of unlawful authority, incapable of passing any valid laws, and certainly incapable of divesting, by an act of its congress or an order of one of its departments, any right or property of the United States. Whatever weight may be given under some circumstances to its acts of force, or on the ground of irresistible power, or whatever effect may be allowed in proper cases to the legislation of the states while in insurrection, are questions which we propose to discuss only when they arise. The acts of the Confederate congress can have no force or law in divesting or transferring rights, or an authority for an act opposed to the just authority of the federal government.” See, also, Hickman v. Jones, 9 Wall. 197, where this doctrine is more distinctly and clearly stated, and also that belligerent rights were never extended to the pretended government of the confederacy, but only to the belligerent in arms. This case determines the question very clearly that the law of the Confederate congress, authorizing or directing the burning of cotton, in certain cases, had no authority as a law under which the defendant can justify his action destroying the cotton of plaintiff. Nor does the order of the provost marshal at Natchez, issued under the directions of (Jen. Beauregard, make any more valid defense for the conduct of defendant.
The plea does not aver that the defendant was a soldier in the Confederate army, or subject to the military control and direction of the provost marshal, or Gen. Beauregard, or subject to punishment for disobedience to their orders, and should it be conceded that an order by a military superior to his inferior, or to a soldier under his command,, might justify or excuse the destruction of the private property of a third person, destroyed in obedience to such order, yet it is very clear that such order will not justify or excuse a third party, not a soldier nor amenable to military authority, for a trespass upon the person or property of another. See Smith v. Stuart, 21 La. Ann. 67; Law Review for October, 1870; Echols v. Stanton, 3 W. Ya. 574. If it were conceded that fear of personal danger or overpowering force might absolve him from liability, yet the plea does not aver or set forth that the acts were done under such circumstances as on these grounds would excuse.
But it is not admitted that fear of personal violence or injury apprehended will justify or absolve from liability for wrongs or injuries done to the property of another. It is true that the fear of personal injury, where the danger is imminent and impending, will excuse a party from punishment for the commission of an act which would otherwise be criminal; but there is .no rule of law which excuses or absolves a party from making compensation to another for the destruction or injury of his property. Where such destruction or injury has taken place, in order to protect one’s own property or person from serious or irreparable injury, no blame or crime will be imputed to a party who, under the apprehension of serious and immediate danger to his own person and for the purpose of protecting himself against it, uses or destroys the property of another ; but, at the same time, as he has used for his own protection that which did not belong to him, and converted or destroyed the property of another, there is no reason in law or morals that he should not compensate for what he has destroyed, or pay for what he has used. A starving man may take y onr food to save his own life. A sick man may seize the drug which will restore him to health and arrest the progress of a mortal distemper if he cannot otherwise procure it; but, in either case, he must make compensation to the owner. So, to save one’s self from freezing to death, you may burn the fence of another, but you must pay for it; and it may be true that the defendant feared that he would be subjected to personal injury or violence, or to pecuniary loss or to public obloquy if he did not obey the order of the provost marshal in this case, but he was under no legal obligation to obey the order, no duty required him to do so, and no law rendered it imperative upon him; and if, to protect himself or his property from violence or apprehended violence, he destroyed the cotton of plaintiff, while we impute no blame or moral turpitude for the act and excuse him from punishment for crime, there is no law, either moral or social, statutory or common, which will exonerate him from paying the just value of the property of another which he used to protect himself.
The declaration charges against the defendant a grievous wrong that he would not have consented to commit under any ordinary circumstances. For justification, he pleads that the act was done in aid of the rebellion against the United States; and thus his plea admits the cause of action. He pleads the authority of an alleged government persistently ignored by the United States, and asserts the orders of persons whose alleged commissions were not issued by any authority, whatever. Like the ordinances of secession, they were illegal and null. Again, it is urged in argument, in his behalf, that the act was done by direction of one acting as an officer in a host of belligerents, but it is not pretended that defendant was a soldier, nor in any way constrained, save by zeal in aid of rebellion, to do the wrong. Nor is it pretended that he was in any sense loyal or unwilling. It is said ■ there was • an actual government of force, in these southern states, to which defendant owed duty and obedience ; but the settled rule is, that obedience to such a wrongful domination may not extend to acts of hostility against the rightful government, while it may be excusable if limited to submission in matters of civil life. 8 Wall. 9, 10,11. Such a government may have its courts and other formal civil institutions, supported by force. Ib. 9. But those apparent courts cannot try persons for alleged acts of hostility to such a government (9 ib. 200), and such seeming courts are in law, “ nullities.” Ib. 201. It is not in law a government, but a mere illegal domination, made potent by the multitude banded together for an illegal purpose, and can never be regarded as the source of authority. Its apparent orders may serve for excuses only in some matters; but never where the thing done or attempted is in hostility to the rightful government. 8 Wall. 9, 11. For this reason the sale of the Texas bonds was inoperative, although they were in actual possession of the insurgent belligerents and were actually delivered over to the purchaser. Texas v. White. For this reason, the seizure and trial of a citizen for treason, as a friend of the United States, was held illegal and a trespass. 9 ib. 200. And on the same ground, a debtor of the United States was held liable, after full payment made under “ Confederate authority.” United States v. Kuhler, 9 ib. 33.
It is vain to claim that the magnitude of the controversy of armies, of itself, changed the legal character of the strife, or converted acts of treason into legitimate warfare. 9 Wall. 200. Alike vain is it, to attempt justification under any claim of “belligerent rights.” All that matter was dependent on the grace of the United States, and carefully limited to the customary treatment of prisoners of war; while, during all the time, the law denounced the Confederate “belligerents” as simply “rebels, enemies and traitors.” 2 Black, 669 ; Halleck’s Int. Law, 344, 345; 2 Wall. 420. Every act, legislative or otherwise, done in the name of a state located in this “ enemy’s territory,” has been held file-gal and void, if done “in aid of tie rebellion.” Thomas v. Taylor, 42 Miss. Every act of attempted seizure, or confiscation, done by the Confederate “belligerent,” hás been held inoperative and void. If acts done by or under authority of this “belligerent” were valid, why were not the seizure and sale of the Texas bonds, and the seizure of the post-office funds, and the seizure for treason, sanctioned by the federal courts ? If the argument for defendant be correct in law, all those decisions are erroneous. The fact is, that “martial law ” has not, within this union, subverted the good old laws, constitutional and common, as gentlemen-assume. See the case Ex parte Milligan. The Tennessee' decisions, relied on by counsel, rest on the erroneous assumption that the Confederate government existed, and that its warrant was a justification of a like character is the fallacy touching the alleged “full belligerent rights” of the Confederates. It is to be further noted, that the act complained of was done within the lines of actual military occupation held by the Confederates, and that, although done in aid of the rebellion, it was also a wrong to the property of the plaintiff. It is vain to claim from any act of the United States, an authority or excuse for this private wrong. The government might have waived prosecutions for all offenses against itself, and yet, such waiver would not preclude recovery for private injuries. The pleas do not charge complicity in the rebellion, against the plaintiff, nor would such a charge be relevant to the case. 9 Wall. 202, 208. Upon the general questions involved, see, in addition to cases cited, 2 W. Ya. 192, 306; 4 ib. 138, 170, 173, 176, 356, 420.
The case cited from 10 Wall. 480 is not relevant. It involved the construction of the acts of congress in relation to sales and transfers by southern citizens during the war, which enactments were intended to prevent conveyance made to defeat proceedings for confiscation. If the opinion in 8 Wall, can be construed as counsel read it, the same court corrected the error in 9 Wall. 200, 201.
We- invite special attention to the very able decision of the points in this case made by the court of West "Virginia. It is full of conclusive argument against the propositions of counsel. 2 W. Va. 192.
It is vain to argue that Provost Farrar “made soldiers” of the persons to whom his advertisement, was directed. It. was addressed “ To the citizens of Adams, county.”
The logic of the late war has. demonstrated what the commentators on the- constitution,, statesmen and jurists, did not seem before to understand, that the constitution of the-United States has within itself provided for two separate and distinct governments, the one to rule- in the time of peace, the other in the time of war; each sovereign and supreme in their separate spheres.
The declaration of martial law supersedes and subordinates the civil, and substitutes military rule over a particular district not of the country, while the declaration of a public war subordinates the whole territory and all its inhabitants to military rule, and the law of peace is suspended. Halleck on Int. Law, 371, §§ 24, 25, 26, 27, 28.
A second question, also, which seems not to have been properly, understood before, has been conclusively settled by the late war, viz., that a war can legally be commenced and carried on by the military authority and government of the United States, as provided for in the constitution, without a previous act of congress to sustain it. The constitution has carefully provided that the military rule shall not step in and assume the absolute sway over the country unless by the will of the society itself being first ascertained. Therefore, when a war originates with and flows from the will of the government, an act of congress is required in order to identify it with the will of the people. But, where a war arises from the will of the people themselves, no such act is required. It is the people themselves who invite military rule. Prize.' Cas., 2 Black, 666. The late war was commenced and conducted on the part of the United States upon these two principles, and all the decisions of the United States supreme court, rendered upon the conduct of the war, have'fully sustained them.
It is true that many of the decisions of the state and local courts seem to conflict with these views ; hut it is evident they do not understand the principles upon which the late war is fully justified by the supreme court of the United States, viz. : that the constitution has provided a rule of government for the people in time of peace and another for war, each distinct and supreme in their separate spheres.
. Justice Gtreer, in the prize cases, after showing that a war may arise from the will of the society itself, and when it. becomes of such proportions as to interrupt “ the regular course of justice” it requires no act of “ congress to baptise it with a name,” says: “By the constitution congress alone has the power to declare a national or foreign war. He cannot declare war against a state or any number of states by virtue of any clause in the constitution.” Again, ‘ ‘ he (the president) has no power to initiate or declare a. war either against a foreign nation or a domestic state.” 2-Black, 666. This case justifies the president in the course he pursued upon the ground: 1st. That the war originated with the people themselves, and not with or by the government ; and 2d. That the civil rule, as provided for in the constitution, had been suspended by the act of war, and it. became necessary for the president to resort to the war power vested in him.
The declaration of war then was a proclamation of martial law, subordinating civil to military rule, in all the-states not in rebellion. How far the military power could suspend the civil law in different localities would depend upon the state and condition of the- district. If the district be in a state of siege, the civil law is suspended altogether, but, under almost any other condition, the civil acts in concert with, but in subordination to, the military. See Halleck on Law, 374, § 26, title Martial Law.
The pleas show that the place, Adams county, at the time of the alleged burning, was in a state of siege, or about to be invaded and about to fall into the possession of the enemy. What was the duty of the inhabitants of that district under the circumstances % International law writers tell us what that duty is in public wars. “Every member of a society is obliged to serve and defend the state as far as he is capable.” Vattel, book III, ch. 2, § 8. “No person is naturally exempt from taking up arms in defense of the state.” Ib. § 10. “In the declaration of war the ancient form is still retained by which all the subjects are ordered, not only to break off all intercourse with the enemy, but to attack, ■them. Custom interprets this general order. It actually authorizes, nay even obliges, all subjects, of whatever rank, to seize the persons and things belonging to the enemy, when they fall into their hands, but does not invite them to undertake any offensive expeditions without a commission or particular order. Vattel, book III, ch. 15, §§ 223,227.
Halleck, after stating the general rule that “ every citizen is bound to serve and defend the state of which he is a member as far as he is capable,” shows that many persons are now excused from military service, and these are accounted non-combatants, and should not engage in offensive hostilities. “ Nevertheless, it often happens, in case of invasions and in the siege of fortified towns, that not only merchants, mechanics and the common peasantry, but also the clergy, magistrates, old men, women and even children take up arms and render good service in the common defense. In doing this they lose the character of non-combatants and become subject to the ordinary rules of war. Those who lay aside their peaceful avocations, and engage, either directly or indirectly, in hostile acts toward the enemy, whether by the orders of their government or their own free will, are liable to the consequences which lawfully result from such acts, but to none other. Halleck on Mil. Law, 383, § 3.
“Although a state of war puts all the subjects of one nation in a state of hostility with those of the other, yet, by the customary laws of Europe, every individual. is not allowed to fall upon the enemy. If subjects confine themselves to simple defense, they are to be considered as acting under the personal order of the state, and are entitled to be treated by the adversary as lawful enemies, and the captures which they make in such a case are allowed to be lawful prizes. But they cannot engage in offensive hostilities without the express permission of the sovereign. 1 Kent’s Com. 94, 96. The above maxims govern in public or national wars, and Vattel says they “ ought to be observed by both parties in every civil war.”
s ‘ The laws of war as established among nations have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights.” Prize Cases, 2 Black. 667. The same is asserted by that court in the cases of Mrs. Alexander, 2 Wall.; Thór-ington v. Smith, ■! ib. 554.
In Thorington v. Smith, the chief justice says : “To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. ■ But it made obedience to its authority in civil and local matters, not only as a necessity but as a duty; without such obedience civil order was impossible.” The case before the court was a transaction of a private character, between individuals, who were non-com batants, and while the court holds that non-combatants must necessarily obey that authority in civil and local matters, yet it will not justify acts of hostility on their part to the United States. The distinction between acts of hostility done by persons in obedience to military orders and mere civilians, who are bound to obey in ‘ ‘ civil and local matters” only, is plainly drawn, the former may justify and the latter not. The cases cited in 9 Wallace, by plaintiff’s counsel, are cases where the parties attempt to justify their acts of hostility under the civil and not the military government of the Confederate States of America.
If plaintiff in that case had been arrested by the military authorities and tried by court martial, the case would have been different. Is there any doubt that the court would have justified the act of the officer making the arrest, as well as the officers composing the court martial ? The belligerent rights conceded to the Confederate States of America cannot be confined to the mere exchange of prisoners of war, and their lives be prolonged to the end of the war, when they should be punished as traitors and hung.
The question in the Prize Case was one of belligerent rights over property of the enemy. So in Mrs. Alexander’s Case. All the authorities in the United States supreme court, upon the subject of the late civil commotion, draw the distinction between acts of hostility, done by individuals in obedience to the orders of the military authorities, while they were recognized as belligerents, and acts done either before the recognition or during the recognition, but without orders, or since. The former were imputed to the government, for which the individuals are not liable, either criminally or in private suit. Acts of the latter description the individuals are personally liable for, either at the suit of the government for crime or of private persons in suit for damages. The decisions of the state, courts to the con-tary are not law.
If we consider the conduct of the Confederate government and .the United States government in relation to-the article, cotton, during the late war, we will discover that it. possessed, in the opinion of the belligerents, peculiar importance. It was the subject of express legislation by the congress of each belligerent. It was treated by the officers of each army, navy and government, not as other property, but as possessing extraordinary qualities and power, and to be treated, even in the hands of non-combatant individuals, as different from ordinary private property. It formed the basis of the credit which the Confederate government was laboring to establish in Europe. Its retention in the southern states, and withdrawal from market, except when used by the Confederate government for war purposes, was considered of vital importance ; for it was hoped that its withdrawal from foreign markets would compel a recognition of the independence of the states in rebellion, and a raising of the blockade, which was destroying the resources of the Confederates and crippling their armies. Its destruction or retention in the south was operating injuriously to the northern states, by injuring their manufacturers, and thus weakening their resources. The congress of the Confederate States, prior to the' burning of the cotton in question, had directed by law that the cotton, sugar and tobacco, liable to fall into the hands of the federal army or navy, should everywhere be destroyed, and it is matter of history that millions of dollars’ worth of these articles was destroyed in consequence of this act and of orders from that government.
How was cotton treated and regarded by the federal government? In the Alexander cotton case, the chief justice points out precisely how the federal government would dispose of cotton found in the hands of a resident of a state in rebellion. In treating of the rule which, in general, exempts from seizure in war private property not used in warfare, he says: “ It may now be regarded as substantially restricted, in special cases, dictated by the necessary operation of the war,” and as excluding in general “the seizure of the private property of pacific persons for the sake of gain,” and cites 1 Kent, 92, 93. 2 Wall. 419. And while recognizing this humane rule, the chief justice proceeds to decide in the case referred to, in which cotton was the subject of litigation: “The capture seems to have been justified by the peculiar character of the property, and by legislation. It is well known that cotton has constituted the chief reliance of the rebels, for means to purchase the munitions of war in Europe. Jt is matter of history that, rather than permit it to come into possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction.” 2 Wall. 420.
So then, the supreme court of the United States affixed a peculiar character to cotton during the war, and recognized the character accorded to it by the rebel government. It was treated by both belligerents rather as contraband of war, as having lost its character as private property merely, but as having become the subject of especial governmental action and control, whether for preservation, seizure, confiscation or destruction.
Who were the parties, the owner and the destroyer of the cotton in question, at the time of its destruction in 1862 %
A war was then in progress between certain states styling themselves the Confederate States and the general government/ Foreign governments had recognized the belligerent character of the people in rebellion. The United States government had, by its acts, done the same thing. A blockade had been established; the exchange of prisoners made; large armies were in the field contending with varied success; the state of Mississippi had undertaken to sever her connection with the general government; a Confederate government was in full vigor with all the appropriate forms, officers and characteristics of a government ; Ford and Surget were citizens resident in Mississippi. They were alike held, according to well-known principles, to own allegiance to the power or government then holding the territory where they resided. Its orders they could not evade ; they did not attempt to evade them.
By the rules of law now indisputable, they were enemies for the time of the general government. So, in the Alexander- cotton case, the chief justice decides them to have been. He says: “We must be governed by the principle of public law, so often announced .from this bench, as applicable alike to civil and international wars, that all the people of each, state or district in insurrection against the United States must be regarded as enemies until, by action of the legislature and the executive or otherwise, the relation is thoroughly and permanently changed.” 2 Wall. 419.
On page 488 of the same case (Alexander’s) the court further decides as to Mrs. Alexander’s cotton : “ There can be no doubt, we think, that it was enemy’s property. The military occupation by the national military forces was too limited, too imperfect, too brief and too precarious to change the enemy relation created for the country and its inhabitants by three years of continuous rebellion ; interrupted, at last, for a few weeks, but immediately renewed and ever since maintained.”
In the prize cases decided in December, 1862, upon captures which were made in 1861, the court says : “Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared, it becomes such by its accidents, the number, power and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold, in a hostile manner, a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest as war.” 2 Black, 666, 667. In the same case, after referring to the recognition of the belligerent character of the people in rebellion by Great Britain, the court farther say: “After such an official recognition by the sovereign, a citizen of a foreign state is estopped to deny the existence of a war, with all its consequences as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms.” Prize Cases, 2 Black. 669, 670. And again, in the same cases, pages 673 and 674, the court say of the rebellion : “ It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies’ territory, because it is claimed and held in possession by an organized, hostile, belligerent power.” In a late case, not yet reported, of Thorington v. Smith, Chief Justice Chase, laboring very diligently to avoid calling the Confederate government a “defacto” government, yet doing it, and indulging in some wire-drawn distinctions on the subject, says that a “ de facto” government exists “when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country;” and again, of another sort of “defacto” government, which he seemed to think the Confederate government to have been: “Its distinguishing characteristics are, first, that its existence is maintained by active military power within the territories, against the rightful authority of an established and lawful government; and, second, that while it exists, it must necessarily be obeyed in civil” (why civil only?) “matters by private citizens, who, by acts of obedience, rendered in submission to such force, do not become responsible as wrong-doers for these acts, though not warranted by the laws of the rightful government.” He refers to the case of Castine, 4 Wheat. 253, and of Tam-pico, 9 How. 614.
In the same case occurs the following in regard to the Confederate government: “The whole territory governed by it was thereafter (i. e., after the war began) held to be enemy’s territory, and the inhabitants of that territory were held, in most respects, as enemies. To the extent then of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy would not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority.”
Then at the time of the burning of Ford’s cotton, a war was in progress. He and Surget alike were to be treated and regarded for the time being as subjects of the Confederate government, alike in rebellion, alike having risked property and life in the cause of the rebellion. Now, from the authorities cited, it is clear that a war existed; that, except so far as questions might arise as between the regular national government of the United States and the persons engaged in rebellion, the people of the states in insurrection must be held, as between themselves, and between the Confederate government and themselves, to have been, with their persons and property, under the control and authority of the insurrectionary government.
That government had, for the time, absolute and sovereign control over them; a right by the law of nations to enforce obedience and to punish failures to obey. But, “when war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the government of two nations is a war between all the individuals of the one and of all the individuals of which the other nation is composed.” 1 Kent, 63. “Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe,, every individual is not allowed to fall upon the enemy.. If subjects confine themselves to simple defense, they are to-be considered as acting under the presumed order of the state.” “ But they cannot engage in offensive hostilities.” Ib. 102.
Ford, as to the destruction of this cotton, was “a party to the acts of his own government.” He cannot question them now. If the rebellion had been successful he might have claimed recompense for property destroyed to keep it from benefiting the enemy, and his government, thus successful by law, would have been liable to recompense him; but not the instrument, not the individual used by his government, could have been held responsible for obeying the orders of their common government. Ford, Surget and thousands of others engage in rebellion and form an insur-rectionary government and recognize its authority; the whole scheme fails, and Ford asks that Surget may be compelled to pay him for the losses he has sustained in the rebellion in which they were participants. Will a court now interfere for such an unreasonable and unjust purpose ? See Yattel (ed. of 1855), 402, § 232.
Surget does not claim to have been in the military service of the Confederate government; but then he engaged in no offensive acts of war. His act was only defensive. Besides, to him directly through the regular channels, came the order of the government to destroy Ford’s cotton as well as his own. He is innocent and should be held harmless. Yattel properly lays down the law that should govern, in considering the liability of Surget, as follows: “On all occasions susceptible of doubt, the whole nation, the individuals and especially the military, are to submit their judgment to those who hold the reins of government — to the sovereign; this they are bound to do by the essential principles of political society and of government. What would be the consequences if, at every step of the sovereign, the subjects were at liberty to weigh the justice of his reasons and refuse to march to a war which might to them appear unjust? It often happens that prudence will not permit a sovereign to disclose all his reasons. It is the duty of subjects to suppose them just and wise until clear and absolute evidence tells them the contrary. When, therefore, under the impression of such an idea, they have lent their assistance in a war which is afterward found to be unjust, the sovereign alone is guilty. He alone is bound to repair the injuries ; the subjects, and particularly the military, are innocent. They have acted only from a necessary obedience.’ ’ Vattel, p 380, § 187.
As to Ford and Surget, who was, in 1862, the sovereign, as between themselves and the rebel government ? Why, the people of the insurrectionary states, of which both appellant and appellee were units, represented by the rebel officers. Will this court hold that Surget should have disobeyed his orders ? He was specially ordered to do a certain act, by the officers of the government in rebellion, carrying out the policy of that government, destroying cotton to prevent it from falling into the enemy’s hands. Quoad hoc, he was a soldier. He was bound to obey and could not have resisted. There was no one, no government de jure to protect him from the consequences. What inhumanity it would be, under such circumstances, to require him to disobey. Let it be remembered that no question arises as to the character of Surget’s act, in view of the claims of the government de jure upon him. It is a question between individuals as to who shall bear the loss of a common attempt to throw off allegiance to the United States government. Shall the courts protect the property of one rebel to the detriment of another, and undertake to fasten upon one the consequences of obedience to the potential government which claimed and exercised, by common consent of the governed, full sovereign power over life, limb and property?
Does the failure of the insurrection or rebellion change the principles which should govern this case? If it had been successful Surget would not have been liable to Ford. Why should he be now ? The government of the United States is not asking for punishment in this case. A disappointed rebel is. The Alexander Cotton case fixes his status. He could not divest himself of the character which the laws of war gave him when the war began. Both governments held him to this. Both governments held Surget to the same status while the war lasted.
The supreme court of the United States in the Peterhoff case decide, “that persons residing in the rebel states, at any time during the civil war, must be considered as enemies during such residence, without regard to their personal sentiments or dispositions.” 5 Wall. 60, and cases above cited. Why is this so % Can any other reason be conceived than that by the law of nations the resident of a country at war is bound to obey the laws of the government under which he resides, irrespective of his sentiments, and is subject at all times to be called upon to make war for that government? Can any other reason be assigned for the rule % It is important in its character. It is ancient and well established, and this upon the ground that the belligerent government was able and had a right to compel the services of residents, and to cripple the arm of its adversary, each belligerent must needs act upon this rule.
N or does the law ever undertake to punish by damages awarded to individual suitors, acts that are done by reason not of willfullness, wantonness, malice or neglect % Here an overpowering necessity, a present irresistible foree, that is, a strong government with armies and officers in full possession of means to compel obedience, operated upon Surget. He could not have avoided obedience. He could not know how the war would result. As Yattel well says, it was not his province to sit in judgment upon the orders of his government, for it was then his government, no matter how forcibly or unlawfully established, or how disastrously overthrown..
The law does not ask that impossible things should be done. It is not blind to the motives that influence men; it deals with men as responsible beings; responsible because they have liberty of thought and of action. Destroy this liberty of thought and action and responsibility at once ceases.
All governments must needs punish insurrection; self preservation requires it. But no government, and no court-will ever require citizens of an organized government, though in rebellion, to risk life, limb and property in resistance to it. It would be cruel beyond .measure to do so. Instead of checking a disposition to rebellion, which all good governments should do, it would be encouraging it, and be breaking down one of the strongest props of government.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
