Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-12-27

| zion and laws of the Rebels. The prize
courts looked only TO the fact that the
region was in possession and control of
power capable Of carrying on hostilities
against the United States, and compelling
the government 10 meet them by the exercise
of beIligerent rights" Dana Wheaton 297.
note 1873. These cases donot sustain and sup
port the principles assumed for the plain
tiffs in error We cannot assent to the
proposition that peaceful citizen, engaged
in no act of hostility to either party, but in
the discharge of his ordinary and legiti-
mate business, is subject TO arrest impris-
onment and seizure of his property at the
will of men, who have organized an insur-
rectionary force to overthrow and destroy
their lawful government. 1t is according
to those in arms right and privileges that
do not belong to the officers of the lawful
government. An officer has no right to
impress private property, unless forced by
inevitable necessity, and an order from his
superior officer, unless such necessity ex-
lists, is no protection 10 him; Mitchell u.s.
Harmony, 18th Howard, 12S.
The court says there are, without doubt,
occasions in which private property may
be lawfully taken possession of or destroyed,
TO prevent it from falling in the hands of
the public enemy, and also when a mill
tary officer, charged with particular duty,
may impress private property into the pub
lie service, or take il for public use, nm
questionably in such cases, the government
is bound to make full compensation to the
owner, and the officer is not a trespasser;
but We are clearly Of opinion, that in all
these cases the danger must be immediate
and impending, or the necessity urgent for
the public service, and such az will not adj
NIT of delay, and when the action of the
civil authority would be too late in pro-
viding the means which the occasion called
for.
1t is impossible to define the dangers or
necessities in which this power may be
lawfully exercised; every case must depend
on its own circumstances; it is the emergen-
cy that gives the right, and the emergency
must be shown to exist before the taking
can be justified
An officer has no right to take the pri-
vate property Of any Individual not in arms,
to insure the success of any enterprise
against the public enemy, which he may
deem il advisable to undertake, where the
owner has done nothing to forfeit his rights
The rights of the citizen are carefully
guarded by the constitution and laws, and
any invasion of those rights, without au-
thority of law, is a trespass, for which the
party trespassing is liable in damages.
The law being thus rigid as to private
rights IN cases between the lawful govern
ment, its own officers and citizens, we can
not recogdize the principle that those in
arms against the government can be pro-
tected in their unlawful ats. The order
of the commander of the Confederate forces
to arrest and seize the property of the de-
tendant IN error, vas unlawful, and no
justification to them. In the case referred
to, the court says, upon principle, indie
pendent of the weight of Judicial decision,
1t can never be maintained that military
officer can justify himself for doing an I'M
lawful act, by producing the order of his
superior"
When the officer has not transcribed his
authority, and private rights have been
invaded, the government assumes and
makes full compensation. On the termi-
nation OF war between Independent pow
ers, treaty of peace follows, and each
power assumes to pay and indemnify its
own citizens for tortuOus acts of its own
officers and soldiers Hallecs, internation-
al law, 85l.
Upon the suppression of the rebellion,
no treaty of peace was made, nor was there
any power with whom such could have
been made, hence no indemnity can be had,
and the wrong committed upon citizens,
must remain unredressed, unless the tres
passers themselves are liable. Ii follows.
therefore, that the plaintiffs in error. in
Selling the property of Stout, was unlawful
the orders of their superior officers is no
defense, they were all trespasssrs who were
present, assisting, aiding or abetting, and
must be held liable for the consequences of
their illegal acts, End Cald. Davidson rs.
Manlove. Wright & Cantrel rs. Overall,
End Cald. 337. Wood rs. Stone, ib 1863.
There is no error in the charge of the conrt,
and the judgment will be affirmed.
SHACKLEFoRD, Judge