NELSON. Circuit Justice.
One ground on which the defence is placed is. that the plaintiff was engaged in an unlawful trade with the public enemy, and therefore his goods were liable to confiscation; and that any person, particularly an officer of the army, could seize the same. The principle of law is admitted; but, as I understand the evidence, this ground of defence has altogether failed. The defendant was not only not so engaged, but was engaged in trading with that portion of the territory which was reduced to subjection by our arms, and where his trading with the inhabitants was permitted and encouraged. The army was directed to hold out encouragement to traders, for the purpose of conciliating the inhabitants, and did so.
Another ground taken by the defendant and relied upon in the defence, stands upon [564]*564another principle of public law, namely, the taking possession of the goods of the plaintiff at a time when it was necessary for the purpose of preventing them from falling into the hands of the enemy. This has been urged as particularly applicable to his goods, some portions of which consisted of arms and munitions of war, wagons for transportation, &e. Talcing the whole of the evidence togetner. and giving full effect to every part of it, we think this branch of the de-fence has also failed. No case of peril or danger has been proved, either as it respected the state of the country, or the force of the public enemy, which would lay a foundation for taking possession of the goods of the plaintiff at San Eleasario, the place at which they were seized. On the contrary, the country was in possession of the arms of this government; and there was no enemy or hostile public force at the time in the neighborhood, which put the goods in the danger of being captured. The ■ plaintiff’s goods, therefore, stood in the same condition as the goods of any other trader who had been permitted to trade in the. country. The evidence fails to make out a case of seizure of property on account of the urgent danger of its falling into the hands of the enemy. The danger must be immediate and urgent, not contingent or remote; otherwise every man’s property, particularly on the frontiers, would be liable to be seized or destroyed, as it always will be more or less exposed to capture by the public enemy. There was no immediate or impending peril in the case, as there was no enemy in the neighborhood or advancing to put the goods in danger. They were more exposed to marauding parties than to any public force; and those the- plaintiff considered himself able to take care of.
The next ground of defence, which constitutes the principal question in the case, and upon which it must probably ultimately turn, is the taking of the goods by the commanding officer, for public use. I admit this principle of public law. But this, too, rests upon the law of necessity. I have no doubt of the right of a military officer, in a case of extreme necessity, for the safety of the government or of the army, to take private property for the public service. The officer in command of an army upon its march, if it were in danger from the public enemy, would have a right to seize the property of the citizen, and use it to fortify himself against assault while the danger existed and was impending, and, in ordering the seizure, would not ■ be liable as a trespasser. The owner must look to the government for indemnity. The safety of the country is paramount, and the rights of the individual must yield, in a case of extreme necessity. No doubt, if the enemy had been in force in the neighborhood of the United States troops at San Eleasario, with the disparity which existed at Sacramento, and if the same danger had existed there that threatened them at the latter point, the commanding officer might, for the safety of his army, have seized the wagons and teams of the plaintiff, and have appropriated them to the public service while the danger lasted. An immediate and urgent necessity would have justified the seizure for the safety of the army. Looking, however, at the testimony, it seems to me quite clear, that these goods were seized, not on account of any impending danger at the time, or for the purpose of being used against an immediate assault of the enemy by which the command might be endangered; but that they were seized and taken into the public service, for the purpose of co-operating with the army in their expedition into the enemy’s country. The mules, wagons and goods were taken into the public service, for the purpose of strengthening the army, and aiding in the accomplishment of the ulterior object of the expedition, which was the taking of Chihuahua. It was not to repel a threatened assault, or to protect the army from an impending peril. In my judgment, all the evidence taken together does not make out any immediate peril, or urgent necessity, existing at the time of seizure, which would justify the officer in seizing private property, and impressing it into the public service. The evidence does not bring the case within the principle of law. There is not only no evidence of an.impending peril to be met and overcome by the public force, but the goods were taken for a different purpose. The army had to march over two hundred miles before it reached or found the enemy. The danger, if any, lay in the pursuit; not in remaining at San Eleasario, or returning to Santa Fé. There had, indeed, been a sudden insurrection against, the authority of the government at Santa Fé; but it was immediately suppressed.
As to the remaining grounds of defence— the re-delivery of the property, and its acceptance by the plaintiff — the liability of the defendant for taking the goods, and appropriating thorn to the public service, accrued at the time of the seizure. If it was an unlawful taking, the liability immediately attached; and the question is, whether that liability was discharged or released by any subsequent act of the plaintiff. Col. Mitchell, who executed the order, was not alone responsible. Col. Doniphan, who gave the order, was also liable. They were jointly and severally responsible. Was any act, then, done by the plaintiff, which waived the liability, or by which he resumed the ownership and possession of the goods? Certainly, the abandonment of the goods to Col. Doni-phan at Chihuahua cannot be regarded as an act of resumption of ownership; on the contrary, it was consistent with the assertion of. his liability. There had been a negotiation between them; Col. Doniphan advised him to-sell the goods at Chihuahua, and look to the government for indemnity; and. in pursuance of this, measures were taken for their pro[565]*565tection and safe keeping. I doubt if there be any evidence showing an intent on the part of the plaintiff to resume ownership over the goods as his private property, after they had been seized by the army, or any act done by him that would, when properly viewed, lead to that result.
[NOTE. The defendant then sued out a writ of error from the supreme court, where the judgment was affirmed in an opinion by Mr. Chief Justice Taney, who said that the trading, having been sanctioned by the executive branch of the government, and also by the commanding military officei, could not be considered as commerce with the enemy. Private property may be seized to prevent it from falling into the hands of the enemy or for use of army in some immediate danger such as will not admit of delay. Private property, however, cannot be seized for the purpose of insuring the success of a distant expedition upon which the army is about to march. Free access — add to your briefcase to read the full text and ask questions with AI
NELSON. Circuit Justice.
One ground on which the defence is placed is. that the plaintiff was engaged in an unlawful trade with the public enemy, and therefore his goods were liable to confiscation; and that any person, particularly an officer of the army, could seize the same. The principle of law is admitted; but, as I understand the evidence, this ground of defence has altogether failed. The defendant was not only not so engaged, but was engaged in trading with that portion of the territory which was reduced to subjection by our arms, and where his trading with the inhabitants was permitted and encouraged. The army was directed to hold out encouragement to traders, for the purpose of conciliating the inhabitants, and did so.
Another ground taken by the defendant and relied upon in the defence, stands upon [564]*564another principle of public law, namely, the taking possession of the goods of the plaintiff at a time when it was necessary for the purpose of preventing them from falling into the hands of the enemy. This has been urged as particularly applicable to his goods, some portions of which consisted of arms and munitions of war, wagons for transportation, &e. Talcing the whole of the evidence togetner. and giving full effect to every part of it, we think this branch of the de-fence has also failed. No case of peril or danger has been proved, either as it respected the state of the country, or the force of the public enemy, which would lay a foundation for taking possession of the goods of the plaintiff at San Eleasario, the place at which they were seized. On the contrary, the country was in possession of the arms of this government; and there was no enemy or hostile public force at the time in the neighborhood, which put the goods in the danger of being captured. The ■ plaintiff’s goods, therefore, stood in the same condition as the goods of any other trader who had been permitted to trade in the. country. The evidence fails to make out a case of seizure of property on account of the urgent danger of its falling into the hands of the enemy. The danger must be immediate and urgent, not contingent or remote; otherwise every man’s property, particularly on the frontiers, would be liable to be seized or destroyed, as it always will be more or less exposed to capture by the public enemy. There was no immediate or impending peril in the case, as there was no enemy in the neighborhood or advancing to put the goods in danger. They were more exposed to marauding parties than to any public force; and those the- plaintiff considered himself able to take care of.
The next ground of defence, which constitutes the principal question in the case, and upon which it must probably ultimately turn, is the taking of the goods by the commanding officer, for public use. I admit this principle of public law. But this, too, rests upon the law of necessity. I have no doubt of the right of a military officer, in a case of extreme necessity, for the safety of the government or of the army, to take private property for the public service. The officer in command of an army upon its march, if it were in danger from the public enemy, would have a right to seize the property of the citizen, and use it to fortify himself against assault while the danger existed and was impending, and, in ordering the seizure, would not ■ be liable as a trespasser. The owner must look to the government for indemnity. The safety of the country is paramount, and the rights of the individual must yield, in a case of extreme necessity. No doubt, if the enemy had been in force in the neighborhood of the United States troops at San Eleasario, with the disparity which existed at Sacramento, and if the same danger had existed there that threatened them at the latter point, the commanding officer might, for the safety of his army, have seized the wagons and teams of the plaintiff, and have appropriated them to the public service while the danger lasted. An immediate and urgent necessity would have justified the seizure for the safety of the army. Looking, however, at the testimony, it seems to me quite clear, that these goods were seized, not on account of any impending danger at the time, or for the purpose of being used against an immediate assault of the enemy by which the command might be endangered; but that they were seized and taken into the public service, for the purpose of co-operating with the army in their expedition into the enemy’s country. The mules, wagons and goods were taken into the public service, for the purpose of strengthening the army, and aiding in the accomplishment of the ulterior object of the expedition, which was the taking of Chihuahua. It was not to repel a threatened assault, or to protect the army from an impending peril. In my judgment, all the evidence taken together does not make out any immediate peril, or urgent necessity, existing at the time of seizure, which would justify the officer in seizing private property, and impressing it into the public service. The evidence does not bring the case within the principle of law. There is not only no evidence of an.impending peril to be met and overcome by the public force, but the goods were taken for a different purpose. The army had to march over two hundred miles before it reached or found the enemy. The danger, if any, lay in the pursuit; not in remaining at San Eleasario, or returning to Santa Fé. There had, indeed, been a sudden insurrection against, the authority of the government at Santa Fé; but it was immediately suppressed.
As to the remaining grounds of defence— the re-delivery of the property, and its acceptance by the plaintiff — the liability of the defendant for taking the goods, and appropriating thorn to the public service, accrued at the time of the seizure. If it was an unlawful taking, the liability immediately attached; and the question is, whether that liability was discharged or released by any subsequent act of the plaintiff. Col. Mitchell, who executed the order, was not alone responsible. Col. Doniphan, who gave the order, was also liable. They were jointly and severally responsible. Was any act, then, done by the plaintiff, which waived the liability, or by which he resumed the ownership and possession of the goods? Certainly, the abandonment of the goods to Col. Doni-phan at Chihuahua cannot be regarded as an act of resumption of ownership; on the contrary, it was consistent with the assertion of. his liability. There had been a negotiation between them; Col. Doniphan advised him to-sell the goods at Chihuahua, and look to the government for indemnity; and. in pursuance of this, measures were taken for their pro[565]*565tection and safe keeping. I doubt if there be any evidence showing an intent on the part of the plaintiff to resume ownership over the goods as his private property, after they had been seized by the army, or any act done by him that would, when properly viewed, lead to that result.
[NOTE. The defendant then sued out a writ of error from the supreme court, where the judgment was affirmed in an opinion by Mr. Chief Justice Taney, who said that the trading, having been sanctioned by the executive branch of the government, and also by the commanding military officei, could not be considered as commerce with the enemy. Private property may be seized to prevent it from falling into the hands of the enemy or for use of army in some immediate danger such as will not admit of delay. Private property, however, cannot be seized for the purpose of insuring the success of a distant expedition upon which the army is about to march. An officer making a seizure cannot justify his trespass by showing the orders of his superior oflicer, as an order to commit a trespass can afford no justification to the person committing it. Whether the owner resumed possession of goods after seizure is a question for the jury, and in the present case they were justified in finding that he did not. 13 How. (54 U. S.) 115.J
After the expression of these views by the coiirt, the counsel on both sides declined going to the jury, and, under the law as laid down, the jury rendered a verdict upon the facts for the plaintiff, for $90,806.44.