The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-16
RATES OF ADVERTISING.
COURT OF APPEALS
Opinion of Hon. James u brown ON
the Question of rBtIIIgercmt RiShIH.
Delivered July 10Th. 1867.

Delivered July 10Th, 1867.
ESOCu &. HEDGES rs SAMUEL MICHAEL;
SAME SN JACoH PRICE: SAME Nv LEWIS
kuTMAN-UpHn wits OF SMpeITSsdsHSa I t,sSt ,e,, 10
County.
Jacob Price. Samuel Michael and
Lewis Lutman, each brought his sepa-
rate suit in the Circuit Court of Berke-
ley county against Enoch q. Hedges, to
recover from him the value of certain
personal property taken from them re-
spectlyely 10y the said Hedges. When
the cases came on for trial, Hedges at
tempted to justify the taking of the
property by him under the plea that he
was, ,,at the time he took the property, a
soldier in the service of the late pre-
tended Confederate States Government,
and took the property under orders
from his superiors for tn" use of the
Confederate. army. ana that since the
taking of the property he had sub
scribed to the oath of amnesty under
the proclamation of the President ofthe
United States, of May %, 1865.
The Circuit Court of Berkeley county
held that the defence set up was not
sufficient to relieve Hedges from his
liability, and rendered Judgments
against him, in each case, for the value
of the property taken. Appeals were
taken by Hedges, in each case, and the
causes carried to the Supreme Court OF
Appeals, where they were argued elab-
orntely mt the last term of the Court,
but held by the Court under advise
meut until the present term. The Court
has at the present term decided, with
out division, that there is no error in
the Judgment of the Court below, and
affirmed the judgments against Hedges,
with costs and damages.
Judges Brown and Maxwell, of the
Supreme Court, and Judge Loomis, OF
the Pnrkersburg Circuit, were sitting
when the cases were decided.
C.J. FAuLKNEK, for PIaint!V in error;
STANTON IL ALLISON, for DefendnntS.
The following is the opinion delivered
by Judge Brown:
These are three several actions OF
trespass de bonus nSportdLS, in which
Euoch G. Hedges, the defendant i'll the
court below, who is the plaintiff in err
ror here, pleaded the general issue,
and filed four special pleas of justitca-
ton in bar in each case-eXcept one.
The special pleas in each case were
the same respectively, and were all de-
INJURED to, and the demurrers sus-
tained.
And the only question is whether the
three special pleas constituted bar TO
the action.
Several objections have been taken to
the form of the pleas, even upon the by
pothesis that II rebel soldier may plead
his rebellion in Justification.
Now, that several, though perhaps
not all OF these objections, are we'll
tuken, am sufficiently suIished-but
have not given them the consideration
should have done had the eases turned
upon them-nor do l deem them OF
sufficient importance to justify longer
delay of the decision ot the mmin and
greal question involved in these con-
tests, upon which the rights OF the par
ties must alternately turn, and yet they
are too important as questions of plead =
ing to be determined hastily.
L think it proper therefore TO express
no opinion upon these objections-thnt
shall conclude an impartial reconsid-
Grafton when similar objection may
arise but have directed my attention to
the main question which lies at the bot
tom of all these cases, and in its effects
reaches far beyond them.
The plaintiff in error makes six
points for the consideration of the
Court-which may be reduced in sub
stance o three, viz:
i. That the late rebellion was civil
war.
2. That during the war the same bel
ligerent rights which pertained to the
United States, likewise pertained to the
Stataa 4n.palIa1
3. That a soldier of the latter is re-
sponsibIe only to the former, and not
TO the private party injured by him,
and that liability ended with pardon.
The first proposition is not contro-
yerted by the opposite side, nor can
there be any doubt OF its correctness
! whether tested by the facts of the case,
the various writer's On international
law. or the decisions of the Supreme
| Court OF the United States and OF the
several State Courts.
The third proposition is not equally
admissible.
1.-THE second be true, it is difficult TO
see how the third can be correct, for it
seems to be in direct conflict wish 1t.
By what principle of international
law Is the soldier of one belligerent
power held individually responsible to
The other7 To his own master he
standeth or falleth.
eign enter the territory OF neutral
power and commit breach of the mu-
nicIpnl law of such neutral, or
violate the rights of its citizens, he is
personally responsible, whether he
acted under the authority and orders OF
his sovereign, or not; and whether the
act was done in fuftherance OF the OBJ
iect OF the war-and that, too, even
though the citizen had been n pGrticepS
in the hostilities against the SOW
ereign whose authority was voucheu
for the offending soldier. People Us
MCLEOD, 25 Wendell 4S3. And here |
feel constrained to say, that notwith-
standing the criticisms of this case i'll
" endelI, in the argument at this bar,
and Notwithstanding the opinion of
Mr., Jaw and Mr.. Webster, think the
correct views of the case are declared
and maintained by Mr.. Forsythe and
Judge Cowen, who delivered the opln-
ion of the Supreme Court OF the state OF
New York in that case.
JJpon the principle contended for OF
the equality of belligerent rights, the
rebel soldiers, as such, could owe no
resnonsibility to the United States
which the Onion soldier did not owe to
the Confederate States, so called, but hs
citizen, subject to the sovereign power,
which he sought in vain to subvert,
the rebel soldier most unquestionably
owed responsibility TO the United States,
which the Union soldier never owed TO
the so-called Confederacy. The diner
But as respects the Sd proposition, it
NV he remarked further, that the same
act may be, and often is, private in
;nrv and n public offence, aud the lat
Ter Ter no less because Of the former.
If one assault another, or commit a
trasnass upon his property, which the
steIpte declares to be public offence,
nn one would pretend that the offend
no OhO for ba nnl1lip