# Ford v. Surget/Opinion of the Court

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* Concurring Opinion Clifford
United States Supreme Court
97 U.S. 594
Ford v. Surget
We can notice only the ground of demurrer, which suggests that the defendant in his pleas sought to rely 'for justification of the trespass committed by him upon matters in themselves wholly illegal, against peace and good policy, and contrary to the Constitution of the United States, the supreme law of the land, and the government thereof.'
In view of the decision in Williams v. Bruffy (96 U.S. 176), but little need be said upon the preliminary question of the jurisdiction of this court. What is there decided would seem to be conclusive, in this case, upon the point of jurisdiction. That was an action of assumpsit for goods sold in March, 1861, by citizens of Pennsylvania to one Bruffy, a citizen of Virginia. The administrator of Bruffy claimed that the estate was not liable for the debt sued for, because, pending the recent war, his intestate paid the debt to a receiver of the Confederate States, in pursuance of a decree of a Confederate district court in Virginia, rendered in conformity with the provisions of an act of the Confederate congress, passed Aug. 30, 1861, sequestrating the lands, tenements, goods, chattels, rights, and credits within the Confederate States, and of every rights and interest therein, held by or for any alien enemy after May 21, 1861. That defence was sustained in the State courts, and, upon error, it was insisted that this court had no jurisdiction to review the final judgment of the Supreme Court of Appeals of Virginia. Referring to the provision in the statute conferring appellate jurisdiction upon this court, 'where is drawn n question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity;' and referring also the provision conferring such jurisdiction, 'where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority,'-this court decided that its right to review that judgment could be maintained upon both of those clauses of the amended Judiciary Act.
Some of the grounds of our decision are thus stated in the opinion of the court:--
'The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot therefore be regarded in this court as having any legal existence. It follows that whatever efficacy the enactment possessed in Virginia must be attributed to the sancting given to it by that State. Any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court. . . . By the only authority which can be recognized as having any legal existence, that is, the State of Virginia, this act of the unauthorized confederation was enforced as a law of the commonwealth. Its validity was drawn in question on the ground that it was repugnant to the Constitution of the United States, and the decision of the court below was in favor of its validity.'
We do not perceive that this case, upon the question of jurisdiction, can be distinguished from Williams v. Bruffy. The defendant, Surget, justifies his burning of the cotton under military orders, issued by a Confederate general, in pursuance of authority conferred by an act of the Confederate congress. If we regard substance rather than mere from or technical accuracy, the defense rested upon that act, the validity of which was, in terms, questioned by the several demurrers to the special pleas. The general orders of the State court overruling the demurrers must be accepted, in every essential sense, as an adjudication in favor of the validity of an act of the Confederate congress, recognized and enforced as law in Mississippi, and which act, according to the rule laid down in that case, must be, therefore, regarded by us as a statute of that State, within the meaning of the provisions of the act declaring the appellate jurisdiction of this court. It results that we have power to review the final judgment of the Supreme Court of Mississippi.
We come now to the consideration of the merits of the case, so far as they seem to be involved in the demurrers to the special pleas.
The principles of public law, as applicable to civil and international wars, have been so frequently under discussion here, that we shall not avail ourselves of the opportunity now afforded to renew that discussion, or enlarge upon what has been heretofore said. The numerous decisions of this court, beginning with the Prize Cases (2 Black, 635), and ending with Williams v. Bruffy (supra) and Dewing v. Perdicaries (96 U.S. 193), render any further declaration as to these principles wholly unnecessary for the purposes of the present case. Without attempting to restate all the reasons assigned in adjudged cases, for the conclusions therein announced, we assume that the following propositions are settled by, or are plainly to be deduced from, our former decisions:--
1. The district of country declared by the constituted authorities, during the late civil war, to be in insurrection against the government of the United States, was enemy territory, and all the people residing within such district were, according to public law, and for all purposes connected with the prosecution of the war, liable to be treated by the United States, pending the war and while they remained within the lines of the insurrection, as enemies, without reference to their personal sentiments and dispositions.
2. There was no legislation of the Confederate congress which this court can recognize as having any validity against the United States, or against any of its citizens who, pending the war, resided outside of the declared limits of the insurrectionary districts.
3. The Confederate government is to be regarded by the courts as simply the military representative of the insurrection against the authority of the United States.
4. To the Confederate army was, however, conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged under the laws of nations to the armies of independent governments engaged in war against each other,-that concession placing the soldiers and officers of the rebel army, as to all matters directly connected with the mode of prosecuting the war, 'on the footing of those engaged in lawful war,' and exempting 'them from liability for acts of legitimate warfare.'
5. The cotton for the burning of which damages are claimed in this civil action was, as to the United States and its military forces engaged in the suppression of the rebellion, not only enemy, but hostile property, because being the product of the soil, and, when burned, within the boundary of the insurrectionary district, it constituted also, as we know from the history of the insurrection it did, 'the chief reliance of the rebels for means to purchase the munitions of war in Europe.' Young v. United States, supra, p. 39; Mrs. Alexander's Cotton, 2 Wall. 404. It was therefore liable, at the time, to seizure or destruction by the Federal army, without regard to the individual sentiments of its owner, whether the purpose of effect of such seizure or destruction would have been to strengthen that army, or to decrease and cripple the power and resources of the enemy.
It would seem to be a logical deduction from these doctrines a deduction strengthened by considerations of humanity and public necessity-that the destruction of the same cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal army, was, under the circumstances alleged in the special pleas, an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved from civil responsibility at the suit of the owner voluntarily residing at the time within the lines of the insurrection. We do not rest this conclusion upon any authority conferred or attempted to be conferred upon Confederate commanders by the statute of the Confederate congress, recited in the special pleas. As an act of legislation, that statute can have no force whatever in any court recognizing the Federal Constitution as the supreme law of the land. It is to be regarded as nothing more than a declaration upon the part of the military representative of the rebellion, addressed to Confederate commanders, affording evidence to those adhering to the rebellion of the circumstances under which cotton within the lines of the insurrection might be destroyed by military commanders in the service of the Confederate States. It, however, assumed to confer upon such commanders no greater authority than, consistently with the laws and usages of war, they might have exercised, without the previous sanction of the Confederate legislative authorities, as to any cotton within their military lines likely to fall into the hands of the Federal forces. They had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces. Of that mode of conducting the war, on behalf of the rebellion, no one could justly complain who occupied the position of an enemy of the United States, by reason of voluntary residence within the insurrectionary district.
It is insisted with much earnestness that Surget should not be allowed to take shelter under these doctrines, since it is not averred in the special pleas that he constituted any part of, or held any official relations to, the military forces of the rebellion. But such a technical, narrow construction of the special pleas should not be allowed to preval in a case like this. It is distinctly alleged that the Confederate government was, at the time of the burning of the cotton, exercising all the functions of civil government within the State of Mississippi, and over its property and inhabitants. It is further alleged that the defendant was an inhabitant and citizen of Mississippi, subject to Confederate power, authority, and jurisdiction, and that he was ordered and required by the provost-marshal-charged by the Confederate department commander with the execution of the order to burn the cotton in Adams County likely to fall into the possession of the Federal forces-to burn the cotton on Ford's plantation, and that it was so burned in obedience to the act of the Confederate congress and the orders of the military authorities. These allegations seem to be sufficiently comprehensive to admit evidence that the defendant acted under duress or compulsion. Taking into consideration the extraordinary circumstances in which the people of Mississippi were then placed, especially the absolute authority which the Confederate government and its military commanders were then exercising over that portion of the territory and people of the United States, the special pleas should be deemed, upon demurrer, as sufficiently averring the existence of such relations between Surget and the Confederate military authorities as entitled him to make the same defence as any soldier, regularly enlisted in the Confederate army, acting under like orders, could have made. Whether Surget was, in fact, required to execute the order of the provost-marshal does not appear. No bill of exception was taken, and in view of the explicit averment that Surget was required by military authority to burn Ford's cotton, we cannot assume upon demurrer that he was a mere volunteer to aid in its destruction.
It will be observed that we have assumed, from the pleadings, as we think we are justified in doing, that Ford resided on his plantation in the insurrectionary district at the time his cotton was burned. The contrary is not alleged, and was not claimed in argument. He does not pretend that he resided in a loyal State, or adhered to the government of the Union in its efforts to suppress the rebellion. There is no intimation that his residence in Mississippi was, in any degree, constrained or temporary. Whether the redress here sought could, consistently with the provisions of the Federal Constitution, be denied to one who, by the laws of war, is to be deemed an enemy to the lawful government, solely by reason of residence within the insurrectionary district pending the struggle, but who, in point of fact, was a loyal citizen, adhering to the United States, giving no voluntary aid or comfort to the rebellion, it is not necessary for us now to decide. No such question is here presented, and we forbear any expression of opinion upon it. It will be time enough to consider and determine that precise question when it arises.
Our conclusion, therefore, is that the act of the Confederate congress, recited in the special pleas, was of no validity as an act of legislation; and while the demurrers could not have been overruled upon the ground that such unauthorized legislation afforded protection to Surget, nevertheless, the general facts set out in the special pleas, considered in connection with the belligerent rights conceded to the rebel army by the government of the United States, do constitute a defence to this action, and upon this last ground the demurrer might have been properly overruled.
Whether the State court, in its instructions to the jury, correctly expounded the law of the case, we cannot, upon this review, determine. No bill of exception was taken, either as to the evidence or the instructions, and we cannot, therefore, determine what errors, if any, were committed in the trial of the case. We have limited our investigation altogether to the Federal questions raised by the demurrer to the special pleas.
Judgment affirmed.

## Notes

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