Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-09
No 1A8
D. Cummings in error VS.. Rachael Diggs, Ad

a
under the belligerent rights Of the Confederate
States.
To exclude evidence of the official characte
OF the DE! defendant VINO, lnstlhea as IA ofhcer
Parol evidence Is admissible to prove that 8
defendant was Confederate officer.
From the Circuit Court of Anderson
county, S. r. Rodgers, j.
Baxter s. Champion for plaintiff in err.
ror, insisted that the Confederates had
been held entitled to belligerent rights il
the prize cases. 2 Black, 67S4, ant
Wood vs.. Stone, 2 Col. 374. Allegiance
and protection correlative, Lawrence
Wheat 526, n. Halleck's, L. and L. Of
Warg, 1872. Ri. Com.
War defined, Vattel 291, Mr.. Justice
Grier in the prize cases. The. Hoop /
Robs. R. 1876.
Enemy relation, Mrs. Alexander's Cot
ton, 2 Wal. 419, Prize cases, Vattcl 32l.
Subject of government, only res
ponsihle to his own sovereign for act OF
war, Mr.. Justice Story in Brown VS. Uni
ted States, 8 Or, 131 to 1873, Vattel 399,
S 226.
What is lawful for one be!ligerent is
lawful to the other in either a public or q
civil war; which are subject to the same
rules, at least as to enemy's property and
material of war.
Right to take private property was ex-
tensiyely practiced by United States ar
mics in the late war. Sheridan in She
nandoah Valley, Sherman in Georgia, and
in: his march to the sea, and from Savan,
nah to Goldsboro. Stoneman's raid to
Salisbury, N. c., Lyons in Missouri,
Grant in West Tennessee aid North
Mississippi, and about Richmond.
The seizures extended TO every
thing that could be of use 10
the U. S. A, or of advantage to tie
enemy, and what could not be taken was
destroyed. The soldier was permitted to
take what he chose, yet he could not be
held responsible to the civil courts for
this act. Rsvaging not condemned by
the laws of war. Vattel, p. 1854, SIS 161,
1877, 147, 1856 Wheat 500. Prize cases,
ubi supra Mrs. Alexanders, Cotton, 2
Wall. Brown V. U. S. s Or. 131 ct seq.
Geo. Andrews, for defendant, insisted
that the parol evidence that the plaintiff
was an officer was iuadmissible; but if
properly proved, that the fact would be
no justification, and cited Hickman v.
Jones, Wal, 1I. Cochran V. Tucker,
8 Col. 186. Barnhill V. Phillips, Col.
l. Thornburg V. Harris, Col, 157.
Yost V. Stout, Col, 2O5.
A military officer could not justify TAX
ing private property without showing
military necessity. Mitchell V. Harmony,
13 How 115.
j. R. Cooke, also for defendant, ad-
mitted that the parol proof was compe-
tent TO prove the Office of plaintiff in er-
Tor and cited Greene Ev $ go, but urged
that the error was not material, as the
plaintiff in error could not justify if he
were such officer. Citing Smith V. Isen-
hour, Cold, 3I4. Yost Y. Stout, 4
Cold, 205.
This action was commenced in the Cir
cult Court of Anderson county by sum-
mons and ancillary attachment, to recover
damages from the plaintiff in error free
taking from John Digs, intestate of de-
PENDANT in error, five rifle guns, and con-
verting them TO his own use. Plaintiff in
error put in two pleas-the general issue,
to which there was replication-and the
statute of limitations of one year, which
was demured TO and the demurrer sustain
ed. He also gave notice of his real de-
Tense to be relied on, which was, "That
the property and residence of the plain
tiff at the time of the alleged trespa:s, if
committed, was within the military lines
of the armies of the so-called Confeder-
ate States of America, military organic
alton at open and public war with the
United States, and that the defendant was
an officer in the armies of the so-called
Confederate States of America and as
such entitled to all the rights of belliger-
ents, and that the intestate of the plaintiff
was in the army of the United States at
the time, and that said defendant if he
took said articles, took them as such bel
ligerent as he lawfully might" The
case was submitted to jury who render
ed verdict against the plaintiff in error,
on which judgment was entered and from
which he appealed in error to this court.
1t appears from the bill of exceptions
that the plaintiff in error introduced a
witness who proved that "Coi. Cummings
vas Colonel of the 10th Tennessee regi-
had frequently seen him
at the head of his regiment dressed as a
Confederate Colonel-many officers had
no commissions but Colonelssalways had
them" The proof was objected to and
from the jury by the presiding
Judge, on the ground that it was not the
best proof of the fact that plaintiff in
error was a Confederate Colonel.
We think the court erred in excluding
this evidence, but we concur with the
counsel of defendant in error, that the
error was immaterial, if upon the law it
be true, that the fact of plaintiff in error
being a Confederate officer and acting at
the time ia that capacity, could be no
justifca ion Of the taking of the guns.
The facts of the case, upon which the
questions of law arise, ale few and
simple. About the time of the Fishing
Creek battle, shown to be in De-
cember, 1861, ten Confederate soldiers
came to the house of John Digs, the in
ties ate of defendant in error, in Anderson
county, Tenn, and demanded of the
family arms Whilst they were getting
the guns out of fodder stock plaintiff
in error rode up and directed the soldiers
to take all five of the guns, which they
did, and took them off, going in the di-
rectiOn of Fishing Creek. JOAN Diggs,
the owner of the guns, was proven to be
a federal soldier in the I'd Tennessee reg
ment, then absent in the federal army.
These facts present the question wheth-
er the plaintiff in error, by virtue of his
office of Colonel in the Confederate army,
was jus'iiable in the exercise of bellig-
erent right in taking the guns, the prop
erty of federal soldier absent from home
in the federal army, the guns having
been left at home in place of conceal
ment.
In the case of Smith VS.. Brazleton, de-
cided at the present term, we have de-
duced from the authorities therein cited,
the following propositions, viz:
l. The late contest between the United
States aud the Confederate States was
civil wal, and so recognized by the Gov
of the United States from its
2 Black. R. 635, in the
Prize cases.
2. Both parties in that case were en-
titled to the exercise of belligerent rights
during its continuance. Vattel' 425. 2
Black. 635. Coolidge vs. Gutherie, by
Justice Wayne, at Cincinnati. Hammond
vs.. the State; Cold. 1873.
3. Upon the breaking out of the war
all the citizens within the limits of the
territory occupied by the respective con-
testants became enemies of each other
and all the property within
their respective boundaries became enc
my's property as to each other. Vattel
92l-364.
4. The property of the opposing par
ties, whether on land or water, was sub
jeos to capture and cOnfscation. Vattel
864E
5.As to the property of noncombatant or
pacific enemies, the right of capture was
limited to special cases dictated by the
operations of the war, exclud-
ing Gin generaD the seizure of private