The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-09-23

So much for the marvellous 'ecclesiastical news of
Chatham street papers,"
United States Circuit Court.
The Hon. Judge Nelson presiding
rHE coNFIscArioS OF PRIVATE pRoPEaTY DURING
THE LATE MEXICAN WAR.
SEPT. A.-Harmony vs.. MitcheH-IAe Judges
|Charge-Ihe evidence in this having terIni-
Hon. William L. Marcy. Mr.. F. B. Cutting, and
Mr. c. b Moore, on the part of the plaintiff, and by
he United States District Attorney and Mcssrs.
H.. b Shepard, and J. W Eager, for the de-
endant. On Saturday Judge Nelson charged the
ury.
Judge Nelson commenced by saying that he had
ooked into the since tho argument of counsel
yesterday II appeared that one ground on which
| he defence is placed is, that the plaintiff was
aged IN an unlawful trade with the public enemy,
nd that, being engaged in an unlawful trade, his
oods liable TO coniscation and every person,
Particularly officer OF the army, could seize the
anne. This ground has, as l understand it, alto
,ether failed Not only he was not so engaged,
ut he was engaged in trade in that portion of the
erritory reduced to arms, and where our au
lorites were encamped The army was directed
D hold out encouragement to trading. There is
.lo ground, therefore, for this view.
Another ground taken by the defendants, and re-
ed upon depends upon an undisputed principle,
amey, that the goods were seized at time and
lace where il necessary for the purpose of pre-
cutting them from going into the hands of the en-
my-goods, such arms and munitions Of war,
'agons, mules, &c. Upon the testimony, taking
altogether, when the goods were seized at St.
easario, and giving full effect TO every part Of the
osition behalf Of the defence. this point has
.iled. No case Of peril or danger has been proved
hich would lay foundation for taking possession
{ the goods of the plaintiff on that ground, re-
the state Of the country and the force of the
nemy On the contrary, IL was in the possession
the arms of this Government. There was no
nemy-no public force, at the timo, in the neigh
orhood, which put the goods in the danger of being
iptured. As 10 the plaintiff, therefore, his goods
and in the same position az the goods Of any other
-ader.
The testimony does not make out a case of seizure
property justified by the peril OF its falling into
&c enemy's hands. The peril must be immedi-
e and urgent, not contingent or remotei other
Use every persons property, particularly on the
onters, would be more or less exposed to capture
b the enemy. There was no immediate impend-
X danger; there enemy advancing TO put
pc goods in peril. Then, the great question in
be case, and upon which it must ultimately turn,
the taking Of the goods by the public authority
Fr the alleged public have doubt that
,is is also a sound principle of public law. But
pat likewise rests upon the law of necessity for
be safety OF the Government, or OF the army at
ke time. An army upon its march, in danger,
ould have the right TO seize the private property
/ the citizen, and fortify themselves against an
Issut where danger existed, while It impended;
nd then a citizen SO taking it would not be liable
trcspssser; the owner must look TO the Gov
pment of the country for indemnity.
The safety Of the country Is paramount TO in
vidual welfare, and the latter must yield have
doubt. upon the testimony, if the enemy had
zen in force in the neighborhood of the United
Ates troops with the disparity which existed at
lcrsment to- that in peril and danger of that kind,
commanding officer might, for the safety Of his
N.Y. seize and use for the time being the wagons
pd teams that could be Immediately used TO assist
bid defend bis command from the peril An i'm
snding, immediate, existing overwhelming ne
tssty, might justify the seizure of private prop
ty for the safety OF the army; although find
rrvh M Ils nj in he .lq nd
ose cases seem to contemplate the destruction
hd not the taking Of private property for the pur
,ses Of use. Now, looking at the testimony in
is casc, IL is TO me quite clear that these goods
ere seized, not Tor any impending danger nt the
me, or for the purpose Of being used against an
inediate assault Of the enemy, by which the COM
and might be endangered; but that they were
ixed and taken into the command that they might
-operate with il and strengthen IT,, for the pur-
pse Of marching into and assailing the enemy in
lihushua.
The mules, wagons, and goods, were taken into
e public service for the purpose Of strengthening
army, and assisting in the ulteror object Of the
petition, which was 20 take chihuahua. II was
H ~ repcl an assault, or 70 protect the army from
impending peril. In my Judgment, all the evil
nee does not make out an impending peril, or an
Immediate and urgent necessity existing at the
me, a 20 justify the officer in taking the prop
ty and imprcssing II into the service Of the army.
bis ground of defence, therefore, alec fails. The
idence does not bring the within the princi-
oh case, or establish one coming within Inc
inoiplc. There is not only no evidence Of i'm
nding peril, but the goods were taken for a diff
rent purpose, namely: for tue object Of cO-opc-
ting with the army against Chihuahua. They
I'd 20 march over two hundred miles before they
scbed or found the enemy. The liability Of the
iendsnt for Ia king these goods, and appropriating
en- 10 the public service occurred at the time they
ere seized. II 1t was unlawful taking, the liza
lty immediately fastened upon the defendant, and
~ no, been discharged or released by any subso-
rent act on his part lconsidcr that Colonel Mitch
WIS not alone the party responsible. Colonel
oniphsn ALEC liable; they wero jointly and
vcrsliy responsible, 10 that any subsequent com
unications with Col. Donip ban stood upon the
INC footing az IL they bad been addressed 70 Col.
tchell, they being co trespnseers. Then was any
4 done by the plaintiff which waived the liability
Col. Doniphsn and Col. Mitchell. or that BIO re-
med possession Of the goods Certainly the nban-
bnment Of the goods could not be regarded an
{ vi resumption Of ownership; ON the contrary, II
as in harmony with the assertion Of Inability 10
IN. There negotiation between tho plain
and Col Donipbsn; Col. Donpbsn advised him
cell these goods and look 10 the government for
demnity, and, in pursuance Of this. measures
ere taken for their protection and safe-keeping.
iouLt If there be any evidence OF any act done by
plaintiff showing an intent to make these goods
private property, after they had been taken by
army.
The jury rendered verdict for plaintiff Of $780,
D ~, and Elk cents cOsts.