# Ford v. Surget

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## Concurring Opinion

    Clifford
United States Supreme Court
97 U.S. 594
Ford v. Surget
ERROR to the Supreme Court of the State of Mississippi.
Ford filed his complaint against Surget in the Circuit Court of Adams County, Mississippi, on the 2d of October, 1866, alleging that he, 'at his plantation in said county, on the fifth day of May, in the year 1862, was possessed, as of his own personal property, of two hundred bales of cotton, averaging in weight four hundred pounds per bale, and of the value of $600 per bale; and that he being so possessed, Surget, at the place aforesaid, and upon the day and year aforesaid, did wilfully and utterly, and against the consent and will of the plaintiff, destroy of fire the said two hundred bales of cotton,' to the plaintiff's damage in the sum of $120,000.
The defendant pleaded not guilty, and also filed numerous special pleas.
The defence, although presented by the special pleas in different forms, is, in substance, embraced by the following allegations, namely:--
That, at and before the time the alleged trespasses were committed, the people of Mississippi, and of Virginia, North Carolina, South Carolina, Florida, Georgia, Alabama, Louis iana, Arkansas, and Texas, had confederated together for revolt against, and within their territorial limits had entirely subverted, the government of the United States, and in place thereof, and within and for their territory and people, had created a new and separate government, called the Confederate States of America, having executive, legislative, and judicial departments; that on the 6th of March, 1862, and from that date until the time when the alleged trespasses were committed, a war had been, and was then, waged and prosecuted by and between the United States and the Confederate States, and against each other, as belligerent powers and nations; that the Confederate States, for the prosecution of the war and the maintenance of its powers, then and before had maintained in its service, in the State of Mississippi, an army of which General Beauregard was commander, whereby the territory, property, and inhabitants of that State were held in subjection to and under the control of the Confederate States; that on the 6th of March, 1862, and by an act on that day approved and promulgated by the Confederate congress, it was declared to be the duty of all military commanders in the service of the Confederate State to destroy all cotton, tobacco, and other property that might be useful to the forces of the United States, whenever, in their judgment, the same should be about to fall into their hands; that afterwards, on the 2d of May, 1862, General Beauregard, commanding the Confederate forces, in obedience to that act, made and issued a general ordered, directed to officers under his command in the State of Mississippi and in the service of the Confederate States, to burn all cotton along the Mississippi River likely to fall into the hands of the forces of the United States; that before and at the date last mentioned, and afterwards, until the time the supposed trespasses were committed, Alexander K. Farrar was acting as provost-marshal of the county of Adams, charged with the duty, among others, of executing, within that county, the orders of military commanders in the State of Mississippi in the service of the Confederate States, and in pursuance thereof was commanded by the Confederate military authorities to burn all the cotton along the bank of that river likely to fall into the hands of the forces of the United States; that the cotton in the complaint mentioned was near the bank of the Mississippi within that county, and was, when burned, likely to fall into the hands of the Federal forces; that the defendant was than ordered and required by said Farrar, acting as provost-marshal under the orders aforesaid, to burn certain cotton, including the cotton in controversy; and that afterwards the defendant, in obedience to the act of the Confederate congress, and the orders of said military commanders and provost-marshal, did burn Ford's cotton, which is the supposed trespass complained of.
To each of the special pleas the plaintiff in error demurred, assigning numerous causes of demurrer. The demurrers were overruled and replications filed. The cause, being at issue, was tried by a jury. Verdict for the defendant. Judgment having been rendered thereon, the plaintiff removed the cause to the Supreme Court of the State. Upon the affirmance of the judgment, he sued out this writ of error.
Mr. R. D. Mussey for the plaintiff in error.
This court has jurisdiction. The pleadings draw in question the validity of a statute, set up by the defendant as a justification for his destruction of the plaintiff's property. Its validity, although assailed, upon the ground that its provisions violated rights, privileges, and immunities claimed by the plaintiff under the Constitution of the United States, was sustained by the decision of the court below.
The state, so far as this case is concerned, derived all its force from the effect given to it as the law of the land in Mississippi, by her solemnly expressed sanction of the acts of the 'Confederate States,' of which she was a member. It must, therefore, be regarded as her statute, within the meaning of the provision which confers upon this court jurisdiction to re-examine upon error the judgment or decree of a State court. The defendant's attempted justification rests upon two grounds:--
1. An act of the Confederate congress.
The Confederate States were only the military representative of the rebellion, and were never recognized by the United States as a de facto government. Their enactments are, therefore, absolute nullities, and cannot be pleaded, as a justification for the wrongful act of Surget. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 38; Franklin v. Vannoy, 66 N. C. 145; The Sequestration Cases, 30 Tex. 688; Reynolds, Auditor, v. Taylor, 43 Ala. 434; Keppel's Adm'rs v. Petersburg Railroad Co., Chase's Decisions, pp. 209, 210; United States v. Morrison, id. 525; Evans v. City of Richmond, id. 551; Texas v. White, 7 Wall. 700; Horn v. Lockhart, 17 id. 570; Sprott v. United States, 20 id. 459.
2. Belligerent rights.
The Confederate forces had no rights other than those expressly granted them; and hence it is incumbent on the defendant to aver that the precise belligerent right set up by him as a justification had been granted. Such averment is wanting in his pleas. No such right as is invoked in the argument was ever granted by the United States to the insurgents, by any proclamation, order, or statute. The courts are concluded in this respect by the action of the political department. They cannot supplement or extend the grant.
This court, in passing upon such rights, has carefully excluded any enlargement of them, and confined itself of the definition of what was actually given. See, for instance, Coppel v. Hall, 7 Wall. 554.
Conceding that the orders in question were lawfully issued, they can only justify the military man who executed them.
It is not averred that the defendant had any allegiance to the Confederate forces as a volunteer or a conscript, or that there was any vis major compelling him to obey the orders.
It is even denied, by high authority, that an act of a Confederate soldier, committed in violation of private rights as well as of public duty, can find a justification in the order of his commanding officer. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 138; Franklin v. Vannoy, 66 N. C. 145.
But be this as it may, the exemption from individual and personal liability does not extend to a citizen who, not directly connected with the Confederate forces, committed acts of private wrong in aid of the rebellion. Cochran & Thompson v. Tucker, 3 Cold. (Tenn.) 186; White v. Hart, 13 Wall. 646, 651; Sprott v. United States, 20 Wall. 459, 465.
Mr. W. T. Martin for the defendant in error.
A preliminary question of jurisdiction arises. To give jurisdiction here, it must affirmatively appear from the record not only that a Federal question was raised, but that it was actually decided, or that the judgment as rendered by the State court could not have been given without deciding it. Brown v. Atwell, 92 U.S. 327; Armstrong et al. v. Treasurer of Athens County, 16 Pet. 281; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; Murdoch v. City of Memphis, 20 id. 590; Railroad Company v. Maryland, id. 643; Cockroft v. Vose, 14 id. 5.
If the judgment might have proceeded upon some ground of general law, independently of the Federal question, the jurisdiction fails. Klinger v. Missouri, 13 Wall. 257; Commercial Bank v. Rochester, 15 id. 639; Rector v. Ashly, 6 id. 142; Gibson v. Choteau, 8 id. 317; Steines v. Franklin County, 14 id. 15; Kennebeck Railroad v. Portland Railroad, id. 23; Caperton v. Boyer, id. 216.
A plea of not guilty, and several special pleas all ultimately leading to issues of fact, were filed. The jury found for the defendant, and judgment was rendered in his favor. There was no bill of exceptions embodying the evidence or the instructions of the court. The judgment of the Supreme Court, affirming, in general terms, that of the subordinate court, having been, for aught that the record discloses, rendered irrespectively of any matter of law which might have been raised upon the special pleas, presents nothing which justifies the conclusion that a Federal question was actually decided. Neither the published opinion of the Appellate Court, nor the assignment of errors there filed, constitutes a legitimate part of the record; and, therefore, although incorporated in it, furnishes no aid in determining whether jurisdiction exists here. Medberry et al. v. State of Ohio, 24 How. 413.
So far as the record is concerned, the whole case may have turned solely upon the insufficiency of the evidence to maintain the issue for the plaintiff upon the plea of not guilty.
If, however, this court takes jurisdiction, and considers that the validity of the special pleas is a subject of discussion here, it is submitted that they are sufficient to bar the action.
The property of the plaintiff alleged to have been destroyed at his residence in Mississippi, May 5, 1862, was cotton, an article which each beligerent regarded as possessing a special character, and treated, even in the hands of non-combatants, differently from ordinary private property. 'It is well known,' said this court in Mrs. Alexander's Cotton (2 Wall. 420), 'that cotton has constituted the main reliance of the rebels for means to purchase the munitious of war in Europe. It is a 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.' The regulations established by the Federal government, the acts of its officers,-military, naval, civil,-and the decisions of its courts, show what importance it attached during the war to that species of property, and how it would be disposed of if found in the hands of a resident of a State in rebellion. It was treated by the respective belligerents as contraband of war, and was by each the subject of special governmental control and action, whether for its preservation, seizure, confiscation, or destruction.
The Confederate States, in prosecuting the war, had the right to destroy such property found within the limits of their military occupation, in order to prevent its seizure by the United States. Being a de facto government, its statutes and orders must have been necessarily obeyed by all persons residing within those limits. By acts of obedience in submission to a power which they could not resist, such persons did not become responsible as wrong-doers. Thorington v. Smith, 8 Wall. 1, citing United States v. Rice, 4 Wheat. 246, and Fleming v. Page, 9 How. 603.
The plaintiff insists that the statute in question was a nullity, having no binding force in law; that the Confederate States were founded upon an usurpation of the authority and jurisdiction of the United States, and were not recognized by the latter even as a de facto government.
The authorities are not consistent upon the subject. While, therefore, a decree confiscating the property of a non-resident of the Confederate States, or sequestering a debt due to him or to the United States, would, although rendered in accordance with a statute, be held inoperative to pass the title to the property or to extinguish the debt, no decision can be found affirming that, in such a case as this, the statute in question would not afford a complete justification to the defendant.
In 1862 the war was in progress. Ford and Surget resided in Mississippi, and were there justly regarded and treated as having, by their own voluntary act, rendered themselves subject to the Confederate government. They were alike in rebellion, and in its cause risked person and property. The rebels, as between themselves, or as between themselves and the Confederate government, must be held to have acquiesced in its authority, and to have incurred no liability by rendering obedience to its enactments.
Ford was, in judgment of law, a party to the acts of that government. 1 Kent, 63. He might perhaps have claimed compensation from it if the rebellion had been successful, but certainly not from Surget, acting under its order. They, and many thousands besides, established and recognized it as the government of their choice. It has perished; and Ford now asks that Surget be compelled to indemnify him for losses he sustained in their common attempts to maintain it and displace the authority of the United States. No court will sanction such an unreasonable and unjust demand. Vattel (ed. 1855), 402, sect. 232.
But rejecting as surplusage the allegation of the pleas touching the statute, they are a valid bar. The United States, from sound policy as well as humanity, conceded to the organized military forces of the Confederate States the same status and rights as if they had been engaged in warfare on behalf of a lawfully existing and independent power. The Federal army, in extending its sphere of successful operations, seized all cotton found within the insurgent States, and the proceeds of the sales of that species of property were paid into the treasury. The United States thus increased its resources for the prosecution of the war. Wherever, therefore, such property was liable to capture by that army, the Confederate commanders, in the absence of any statute of their government on the subject, had, by the laws of war, the same right to destroy it as if it had formed part of their public stores or munitions of war. The history of that eventful period renders it certain that the orders in the pleas mentioned would, at every hazard, have been carried into execution.
It is said, however, that Surget does not aver that he was in the military service. The allegation is not that provost-marshal was charged with the execution of those orders, and that by him Surget 'was ordered and required to burn' the cotton for the loss of which this suit was brought. He was, therefore, subjected to the military power, and his obedience to its commands would have been undoubtedly enforced by the same means of coercion as if he had been an enlisted soldier. The doctrine of vis major, therefore, applies.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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