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Mitchell v. Harmony.

On all these pleas and replications, issues were joined to the country.

When the testimony was closed, the judge charged the jury. The whole of the charge is set forth in the dissenting opinion of Mr. Justice Daniel, and therefore need not be recited here. The bill of exceptions brought the whole charge up to this court. The jury found a verdict for the plaintiff for $90,806.44; for which and the costs, amounting to 5,048.94, the court gave judgment for Harmony.

The cause was argued in this court by Mr. Crittenden, (Attorney-General,) for the plaintiff in error, and Mr. Cutting and Mr. Vinton for the defendant in error. Mr. Moore also filed a printed brief.

Mr. Crittenden, for the plaintiff in error, contended that the charge was incorrect throughout, and founded upon misconception of the facts and the law, and that the judgment ought therefore to be reversed.

The principal points, as stated in the charge, and decided by the judge, are as follows:

1st. “ One ground on which the defence is placed, is, that the plaintiff was engaged in an unlawful trade with the enemy, and that, being engaged in an unlawful trade, bis goods were liable to confiscation, and any person, particularly an officer of the army, could seize the same.”

After thus stating the point, the judge tells the jury, “ this ground has, as I understand the evidence, altogether failed."

The true point of the defence is here misconceived and misstated. It is not that the plaintiff was “engaged in unlawful trade with the public enemy,” but that he had the “ design" to engage in such trade, and thereby afford aid to the enemy, and that this authorized the means of prevention used by defendant. The pleadings show that the issue is expressly made on the " design," and not on any actual unlawful trade. The mind of the jury was thus misled from the true issue by the judge's misapprehension. If he had observed that the true issue and point of defence rested on the “ design” of the plaintiff, could he have said that Harmony's repeated solicitations and manifest wishes to precede the army, and finally his secret preparations, attempted to be concealed by falsehood, to separate himself from that army in the midst of the enemy's country, were no evidence of a “design” to trade with that enemy, under the protection of his Spanish passport? Or could he have said that such a " design” would not, in point of law, have justified the seizure of his wagons, goods, &c., and their detention, till the

Mitchell v. Harmony.

danger was passed ? I believe that the learned and honorable judge would have answered both these questions in the negative. The unlawfulness of trade with the enemy, and the right, under circumstances like those of the present case, to detain goods, designed for the enemy, and which might be “ useful” to him, are doctrines supposed to be established by authority and reason. 2 Wildman's International Law, 8; 1 Kent's Com. 66; Grotius, book 3, ch. 1, pp. 1-11, and particularly p. 5.

The charge of the judge, therefore, on this first point, was inapplicable to the defence specifically made by plea, and, to say the least, was misleading.

2dly. The judge tells the jury: " Another ground taken by the defendant, and relied upon, depends upon another principle of public law, viz., the taking possession of the goods at a time and place when it was necessary for the purpose of preventing them from falling into the hands of the enemy."

If this is understood to imply that, to justify the taking of goods only where it is certain that they will otherwise fall into the hands of the enemy, then it seems to me that the principle of law is too strictly laid down. The principle, if there be use or reason in it, must extend to cases wherever a reasonable apprehension may be entertained that goods may fall into the enemy's hands.

But take the law to be as stated by the judge. He proceeds to say: “ Taking the whole of the evidence together, and giving full effect to every part of it, we think this branch of the defence has also failed. No case of peril or danger has been proved which would lay a foundation for taking possession of the goods of the plaintiff,” &c.

He adds, “the peril must be immediate and urgent,” &c.; “ in this case there was no immediate or impending danger," &c.

With respect, I must say that this part of the charge is not a comment on the evidence, it is a peremptory decision, a positive conclusion of facts from the evidence, which ought to have been left to the jury; and the law and the fact are so blended that no jury could well distinguish the one from the other.

The judge tells the jury that no “immediate and urgent peril” was proved in this case. It seems to me that the depositions of Doniphan and Clark, before referred to, do prove such a peril, in the strongest manner, and in the most eminent degree; and that the judge, mistaking the evidence, misled the jury as to the fact

The charge is furthermore erroneous in requiring that the peril should be immediate,” “impending," "urgent.”

The principle of public. law which the judge lays down does not re

Mitchell o. Harmony. quire it. But the radical error is, that the charge throws the burden upon the defendant of proving in court all the circumstances that conduce to make up the required peril, and that it makes the court or jury, judges of those circumstances, as of a res integra, without allowing any effect to the decision of the defendant, or his commander, by whose authority the goods of the plaintiff are alleged to have been received.

The law made it the business of the commander to decide, in the first instance, whether the peril was such, and the condi. tion of his army and of the enemy such, as required their seizure and detention, and his decision must be entitled to some respect. Unless the integrity of his judgment can be impeached, that de: cision stands as proof and protection for him, against any suit or legal proceeding against him. He, no more than a judge on the bench, can be sued for a mere mistake of judgment, if mistake he has made. This is as true in respect to military, as it is in respect to civil officers, and as true in respect to the exercise of military, as of civil authority. Crowell et al v. McFadon, 8 Cranch, 94; 9 Cranch, 355; Martin V. Mott, 12 Wheat. 19-33; 9 Peters, 134; Wilkes v. Dinsman, 7 How. 128, 129; Luther v. Borden; Id. 45, et seq.

These authorities fully, I think, establish the doctrine for which I contend, and the incorrectness of the instructions given to the jury in this respect.

3dly. The next and third point of the charge is this : “ The next ground of defence, and which constitutes the principal question in the case, and upon which it must probably ultimately turn, is the taking of the goods by the public authorities for public use."

In respect to this the judge admits the “right of a military officer, in a case of extreme necessity of the government of the army, to take private property for the public service.But then the judge further tells the jury, “ in my judgment, all the evidence taken together does not make out an immediate peril or urgent necessity existing at the time of the seizure, which would justify the officer in taking private property and iinpressing it into the public service; the evidence does not bring the case within the principle of extreme necessity,” &c.

Against this particular charge the plaintiff in error relies upon and urges all the exceptions and objections made to the preceding charges, and upon the authorities cited above. The seizure, as it is called, was in this case made by a military officer; he must decide in the first instance whether an “extreme necessity,” (if that be required,) “ for the safety of the army,” made it proper to make the seizure. If the law made it his duty to decide it, and he gave an honest, though mistaķen, judgment on

Mitchell «. Harmony.

goods ?

the subject, will the same law hold him personally responsible for it?

Let the reason of the case, and the authorities last cited, answer the question. Yet, by the charge, the military question decided by the general in the field, and in the midst of danger, is to be rejudged in court, de novo. This cannot be either justice or law. To make the military officer in such a case Iiable, it must be shown that his decision was corrupt, malicious, or, at least, without any reasonable ground.

If this view of the subject be in any degree right, the charge must be erroneous.

4thly. The judge says, “ as to the remaining grounds of defence, the liability of the defendant for taking the goods and appropriating them to the public service, accrued at the time of the seizure. If it was an unlawful taking, the liability immediately attached; and the question was, whether that liability had been discharged or released by any subsequent act of the plaintiff, Colonel Mitchell, who executed the order, was not alone responsible; Colonel Doniphan, who gave the order, was also liable; they were jointly and severally responsible. Then, was any act done by the plaintiff which waived the liability, or by which he resumed the ownership and possession of the

On this question the judge doubts “ if there be any evidence showing an intent, on the part of the plaintiff

, to resume ownership over the goods, &c., or any act done by him that would, when properly viewed, lead to that result.”

In reviewing this last charge, it is to be remembered that Harmony was never deprived of the ownership, or even the possession, of his property, otherwise than constructively, by force of the order of the 10th February, 1847, which required him to accompany the army, and which order he obeyed. He retained ownership and possession, but was constrained to use those rights in a particular manner, and he did so use them. There is more and better ground to "doubt” whether he was ever deprived of ownership or possession, than to “doubt” whether he ever "resumed" that ownership and possession. He certainly, and by all the evidence, did have uncontrolled possession, and exercised uncontrolled ownership of the goods, from their arrival at the city of Chihuahua.' There is no room for any doubt as to this fact. It is in effect admitted, and the attempt is made to qualify it, by alleging that Harmony took possession of said goods, and made sales of them, under agreement and arrangement with Colonel Doniphan. Now, if this was so, by what series of implications, by what accumulation of constructions construed, can the defendant, Mitchell, be made responsible, under the arrangement, for the whole value



Mitchell v. Harmony.

of the goods, merely because of the trespass, if trespass it was, committed by him on the evening preceding the 10th of February, 1847? It might as reasonably be pretended by Harmony, if he had retailed his goods in Chihuahua, and any of the purchasers had failed to pay the price, that Mitchell was responsible for that price, because it all came from his old trespass. Yet the plain import of this charge is to make Mitchell liable for all the goods, notwithstanding

that said Harmony had made them the subject of a subsequent contract with Doniphan, under which, as Harmony has attempted to prove, these same goods were lost by the inattention and negligence of Doniphan.

There seems, therefore, that there was no legal ground to make Mitchell liable to the extent to which he is made so by this charge, and that it is therefore erroneous.

But, as it appears to me, the great error of this part of the judge's charge is in his telling the jury, in effect, that the order of Colonel Doniphan afforded no legal defence or protection to Colonel Mitchell. The judge said that“ Colonel Mitchell, who executed the order, was not alone responsible; Colonel Doniphan, who gave the order, was also liable; they were jointly and severally responsible,” &c. On the part of Mitchell

, it is most respectfully, but earnestly, contended that this instruction to the jury is not warranted by law, but is directly contrary to law.

The order was such a one as Mitchell was bound by law to obey; and it would be contradictory in the law to bind him to obey, and then to punish him for obeying.

In addition to the cases and authorities cited on the 2d point, and which are relied on as particularly applicable to this, the court is referred to the act of Congress of the 10th of April, 1806, “ for establishing rules and articles for the government of the armies of the United States," and particularly the 9th article of the 1st section, which makes disobedience to the law. ful command of his superior officer” punishable, at the discretion of a court-martial, with death. 2 Stat. at Large, 361.

If the judge, by his charge, meant to say that, in his opinion, there was no evidence - no competent evidence — before the jury to maintain the two grounds of defence first alluded to by him, then the questions he decided were questions of law, just as much as questions arising on demurrers to evidence, and were proper to be decided by the judge, and not by the jury.

Considering it, then, as a question of law, like that arising on a demurrer to evidence for some material defect, it becomes necessary to examine the evidence, to ascertain whether the question of law has been correctly determined. To that exa

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