The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-09-16
u. y. Circuit Court.
The Hon, Judge Nelson presiding.
lie CoNEISCATInN OF PRIVATE PRnrERrl

The Hon. Judge Nelson presi1irg,
THE coNFISCATtoN OF PRIVATE PROPERTY DURING
TIM LATE MEXICAN WAR,
srFr, IL -IidrmonV rs Mitchell = IN, Judge, Charge.
The evidence In this case having Terminated
on Friday, Arguments were urged by the Hon. VIM.
l.. Marcy, Mr.. y. b. Cutting, AMI Mr.. o. Moore,
on The part Of the plaintiff and BY the United States
District Attorney and uessrs. l.. b. Shepard, and j.
W. Bsgsr, for the defendant. On Saturday Judge
Nelson ei arged the jury.
Judge Nelson commenced BY saying that he had
looked into the case since the argument Of counsel
yesterday 1t appeared that one ground which the
defence IL placed IL that the plaintiff engaged In
unlawful trade with the public enemy, ana that
being engaged In unlawful trade, his goods were
nsble TO oonnscation and every person particularly
an officer Of the army. could seize this same. This
ground has as understand H. altogether failed Not
only he was not 80 engaged, but he vas engaged In
trade in that portion Of The territory reduced to our
arms, and where our authorities we're ped The
amy directed to hold out encouragement to
trading There Is no ground therefore. for this view
Another ground taken by the defendants and relied
upon, depends upon undisputed principle, namely
that the goods seized at time and place where
u vas necessary for the purpose Of preventing them
arms and munitions Of war. wagons, mules, sc
Upon the testimony, taking II altogether when the
goods were seized At St ataso and giving full ef
feet to every part Of the position on behalf OF the de-
fence, this point has failed No Of peril or dan
ger has been proved which would lay foun istion for
taking possession Of the goods Of the plaintiff that
ground, respects the state OF the country, and
the iores Of the enemy; ON the contrary, u
ment There was no snsmy-no public force at
the time, In the neghborhood which put the
.nr ~ ". ps'r e. S SoGa s.sS IL n. 70 @s
position the goods Of any ether trader. The tesi
aeny does not make out case Of seizure Of property
justified by the peril Of its falling into the enemys
banss The peril must be immediate and urgent, not
contir gent remOte otherwise every persons pro-
perty particularly the frontsrs would be more or
less rcssd 10 capture by the enemy. There was no
i'm edste impending danger there was no enemy adj
vancing 70 put the goods In peril Then the grest
ina,sly turn h the taking Of the goods by the public
authority Tor the altered public use have no doubt
that this is also sound principle q public Law But
that hkevse rests upon the 81 Necessity for the
safety Of the government Of the army at thu time
An army upon it, march In danger, would have the
right TO eiEe the private property q the citizen aud
fortify themselves against assault where danger
existed, while II impended; and then citizen 30
taking "a would not be liable q trcep1sser the
indemnity. The safety Of the country IL paramount
to individual welfare. and the latter must yield
have doubt, upon the testimony " the enemy had
been In force In the neishborhood Of the United
states troops with the disparity which eristed .,
Sacramento that In peril and danger 81 that kind
the commanding ofoer might for the safety Of bis
army scizs ana for the time being the wagons aud
teams tha, could be immediately used 90 assist aud
defend his command from the peril An impending
immseire essting ovsrvhslmins NECESSITY, mis s.
q the army Although end very little authority on
this point IN the books and those 70 con
template the destruction and the taking Of private
property or the purposes Of use New looking at thu
testimony In this case u 10 quite clear that thes
goods we, seised not for any impending danter q
immediate ssssult Of IN. enemy BY which toe com
napd might be endangered but that they we're ssifeu
n , nto .ns ,rms,hsp 'p for he parpos,
Of marching into and ssssins the ensmy a., =.
Chihushus. The mules, wagons, and soos., ssr r
| taken into the public service for We pun.
pose Of strengthening the srmy, ana ss,i'tns y
| the interior object Of the expedition, which vas Y
take Chihushus II vs not 70 rsps, IN asss n, m,
Judgment ell the evidence does not make out an I'm
pending peril or an Immediate Fni prTsr' neee's'V