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Smith v. Brazelton.

account of timber growing on it; and of this, the federals had destroyed about two and the rebels six acres, leaving two acres standing. On the second occasion, above mentioned, the rebels took some eight acres of standing corn, six or eight hogs, about two thousand pounds of hay, and about twenty dozen bundles of oats, and converted them to their use.

There was some conflict of evidence as to whether the plaintiff in error directed and advised the spoliation of the lands of his neighbor. Verdict and judgment were rendered in favor of defendant in error for $500 and costs, and the case is before this court upon appeal.

Barton, W. McFarland and J. R. Cooke, for plaintiff in error.
Thornburg, R. McFarland, Meek & Gratz, for defendant.

NELSON, J. (after deciding some questions of evidence). And had it been established by positive proof, instead of conjecture, that the plaintiff in error, discovering that the soldiers were determined to encamp upon his own land, or that of the defendant in error, and would take the timber or property of one or the other, informed them that he was a rebel, and the defendant in error was a union man, and actually requested them to take the property of the latter and spare his own, we do not regard it as our duty to hold that he incurred the slightest civil responsibility. An old case, almost analogous in the criminal law, establishes a precedent from which such a conclusion may, without violence, be drawn: for, "where two persons being shipwrecked, have got on the same plank, but finding it not able to save them both, one thrusts the other from it, and he is drowned, this homicide is excusable, through unavoidable necessity, and upon the great universal principle of self-preservation, which prompts every man to save his own life, in preference to that of another, when one of them must inevitably perish." Broom's Legal Maxims, 48; Law Lib., 6, m; 4 Black. Com., 186, m. But if the law of necessity, as applied to the saving of life, is inapplicable to the preservation of property, we hold, upon the facts of this case, and assuming that the jury were warranted in presuming that the timber was cut, and the other property taken, upon the suggestion or the advice of the plaintiff in error, that he cannot be held as a trespasser, unless it appears that the act done by the party counseled or advised was unlaw

Smith v. Brazelton.

ful a trespass—and subjected him to civil liability. This defense may be relied upon under the plea of not guilty. It is not a technical justification, but a defense growing out of the testimony introduced by the plaintiff below. It is part of the transaction on which his action is founded, and he could not be surprised by the evidence. It falls within the rule laid down in 2 Greenl. Ev., § 94, that "if the act of the defendant was done by inevitable necessity, as, if it be caused by ungovernable brute force, his horse running away with him without his fault; or, if a lighted squib is thrown upon him, and to save himself he strikes it off in a new direction; in these and the like cases the necessity may be shown, under the general issue, in disproof of the battery." In Davis v. Mc Mees, 8 Humph. 40, which was an action of slander, the defendant was permitted to show, under the plea of not guilty, that the words proved were spoken under such circumstances that they were not actionable; and, we hold in this case, that whether the plaintiff in error acted under inevitable necessity or otherwise, if the acts established by the proof against him were not unlawful, he may rely upon this defense, under the genera issue. See, also, Gibbons v. Tarter, 5 Sneed, 644.

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The question then recurs: Was the plaintiff in error a trespasse upon the facts proved in the case, and liable to a civil action? W answer it by declaring that the act of taking and using wood for fires for an army, under the circumstances of this case, is an acv justified by the usages of war; that it grows out of an absolute necessity a necessity that, so far as we know, was never doubted or questioned, as justifying the federal army, under similar circumstances; and this presents the question as to whether, in the recent war, there was any difference in the rights of the two belligerents as to what acts each might perform, in the prosecution of the various operations of the war in which they were engaged. The solution of this question depends upon various considerations; and, as there are other cases before us in which similar cases are presented, we proceed to state our conclusions, and the process by which we have arrived at them, at greater length than would otherwise seem to be demanded by the circumstances proved in this Aware that some conflict has existed, and still exists, in judicial opinions, as well as in the legal profession, in regard to various questions arising out of the war, and differing, as we do, to some extent from the views promulgated by our immediate

case.

Simth v. Brazelton.

predecessors, it is alike respectful to others, and just to parties litigant, that the reasons for our conclusions should be presented with more than ordinary elaboration.

When the framers of the constitution of the United States conferred upon congress the power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions," and when congress passed the act of 1795 (chap. 36, 1 U. S. Stat. at Large, 424), and the act of 1807 (chap. 39, 2 id. 443), authorizing the president to call forth the militia, and employ the land and naval forces for the purpose of executing the laws and suppressing insurrection, it cannot be reasonably supposed that either the members of the convention or of congress had it in contemplation that any insurrection or rebellion would ever attain the gigantic proportions of the late civil war; and, consequently, no provision was made for the contingency of a civil war, in contradistinction to an insurrection or rebellion, as defined by Vattel and recognized by the supreme court of the United States in The Prize Cases, 2 Black, 667, 668. In the absence of any constitutional provision or congressional enactment, the courts and the text-writers have resorted to the law of nations for the purpose of obtaining a solution of the difficult questions growing out of the war; and, a the case cited, which was determined while the war was pending, the contest was declared to be, not an insurrection or rebellion merely, but "the greatest civil war known in the history of the human race." Id. 699. In that case it is said, that, "under the very peculiar construction of this government, the citizens owe supreme allegiance to the federal government; they owe, also, a qualified allegiance to the state in which they are domiciled. Their persons and property are subject to its laws. Hence, in organizing this rebellion, they have acted as states claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the federal government. Several of these states have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. The forts and territory of each of these states are held in hostility to the general government. It is no loose, unoryanized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be cross-d only by force: south of this line is enemies' territory, because it is VOL. II.-86

Simth v. Brazelton.

claimed and held in possession by a hostile and belligerent power." 2 Black, 673, 674.

Vattel, whose work on the Law of Nations is of the highest authority, says that," when a nation becomes divided into two parties, absolutely independent, and no longer acknowledging a common superior, the state is dissolved; and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations. Whether a republic be split into two factions, each maintaining that it alone constitutes the body of the state, or a kingdom be divided between two competitors for the crown, the nation is severed into two parties who will mutually term each other rebels. Thus, there exists in the state two separate bodies who pretend to absolute independence, and between whom there is no judge. They decide their quarrel by arms as two different nations would do. The obligation to observe the common laws of war toward each other is, therefore, absolute; indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state." Vat. Book III, chap. 28, pp. 426, 427, § 295.

It is thus shown that a civil war is, in its technical sense, a public war; and that, while it continues, the belligerents, so far as the laws of war are concerned, maintain the same relation toward each other as independent nations in a public or regular war. The same great author says there are certain rules adopted by the voluntary law of nations, which may be briefly stated as follows: 1. That regular war, as to its effects, is to be accounted just on both sides. 2. That the justice of the cause being reputed equal between two enemies, whatever is permitted to the one, in virtue of a state of war, is also permitted to the other; and 3. That this voluntary law of nations, which is admitted only through necessity, and with a view to avoid greater evils, does not, to him who takes up arms in an unjust cause, give any real right that is capable of justifying his conduct and acquitting his conscience, but merely entitles him to the benefit of the external effect of the law and to impunity among mankind. Id. pp. 382, 383, book III, chap. 12, § 191. And in the same book (chap. 13, § 195, p. 385), it is repeated that, "by the rules of the voluntary law of nations, every regular war is, on both sides.

counted just, as to its effects, and no one has a right to judge a uation respecting the unreasonableness of her claims, or what she thinks necessary for her own safety."

Smith v. Brazelton.

It follows, therefore, that although municipal rights of sovereignty remained in the United States during the late civil war, and could be re-asserted whenever and wherever the government was successful in arms, yet, while the war was pending, and wherever the government was unable to assert its authority, the belligerent rights of parties to the war were precisely the same, and neither could, lawfully, assert any belligerent right superior to or different from the other. It is granted, in the prize cases, that these rights were mutually conceded in the late civil war; and so much of the pinion in Yost v. Stout, 4 Cold. 208, as assumes or seems to assume that belligerent rights were accorded, from motives of humanity and policy, and as a concession by the government of the United States alone, is founded in error, or should be qualified by the statement, that, soon after the commencement of the war, the United States recognized it as a civil war, in which belligerent rights existed under the law of nations. It is well known, that, in the commencement of the late civil war, the president of the United States was disposed to treat as traitors all who were acting under authority of the confederate states. In the earlier stage of the 'war the government refused to agree upon a cartel for the exchange of prisoners, and it was declared in Mr. Lincoln's procla mation, of 19th April, 1861, that any person who should molest a vessel of the United States, under the pretended authority of the confederate states, should be held amenable to the laws of the United States for the prevention and punishment of piracy, 12 U. S. Stat. at Large, 1258, 1259. Under this proclamation, certain privateersmen, acting under commissions from the president of the confederate states, who were captured by the United States, were taken into New York and Philadelphia, and indicted for piracy. Four of them were convicted in Philadelphia, but never sentenced; while, in New York, the jury could not agree. These arrests led to retaliatory action on the part of the confederate states, and in consequence of their threat to execute an equal or greater number of prisoners, if the so-called pirates were punished, and also, in consequence of remonstrances of the British government, the government of the United States, on the 31st January, 1862, virtually receded from its position. See Law. Wheat. 253 (2d ed.); Tenney's Mil. and Nav. Hist. Reb. 61. After various negotiations, a cartel for the general exchange of prisoners was finally agreed upon, on the 22d of July, 1862; and, under its provisions, those who were at

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