Roger B. Taney

“ The person or property of a citizen cannot be seized and carried away by an inferior officer, and the latter be justified by a mere order of his official superior, not stating any cause, and being in fact without cause. Such an order during war is different from one during peace, only as it affords a justification against the public enemy, or against one acting, at the time, with or in the garb of an enemy. ”

“ His distance from home, and the duties in which he is engaged, cannot enlarge his power over the property of a citizen, nor give to him, in that respect, any authority which he would not, under similar circumstances, possess at home. And where the owner has done nothing to forfeit his rights, every public officer is bound to respect them, whether he finds the property in a foreign or hostile country, or in his own.
There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy ”

“ Urgent necessity would alone give him the right; and the verdict finds that this necessity did not exist. Consequently the order given was an order to do an illegal act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was executed. The case of Captain Gambier, to which we have just referred, is directly in point upon this question. And upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. ”

“ 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. ”

“ It is unnecessary to follow the movements of the troops or the traders particularly, because, up to the period at which the trespass is alleged to have been committed at San Elisario, in the province of Chihuahua, it is conceded that no control was exercised over the property of the plaintiff, that was not perfectly justifiable in a state of war, and no act done by him that had subjected it to seizure or confiscation by the military authorities. ”

“ The evidence tended to prove, and the jury found, that there had been no intent to resume ownership, nor any release of liability. There was nothing in placing the goods subject to the order of Colonel Doniphan, when the plaintiff could no longer attend to or watch them, that amounted in itself to any release or resumption of ownership inconsistent with the liability of the defendant. Plaintiff was not bound to trade with the enemy, nor to accept the property in such a different and hostile place, under such different circumstances, damaged, scattered, destroyed, and impossible to be saved ”

“ 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. ”

“ And the judge thereupon charged the jury that if they agreed with him in his view of the facts that they would find for the plaintiff, otherwise for the defendant; and upon this charge the jury found for the plaintiff, and assessed the damages stated in the proceedings. It is manifest, therefore, that the Circuit Court did not, in its instructions, trench upon the province of the jury, and that the jury could not have been misled as to the nature and extent of their own duties and powers. The decision of the facts was fully and plainly submitted to them. ”

“ And that when the troops are employed in an expedition into the enemy's country, where the dangers that meet them cannot always be foreseen, and where they are cut off from aid from their own government, the commanding officer must necessarily be intrusted with some discretionary power as to the measures he should adopt ”

“ It appears that the plaintiff, who is a merchant of New York, and who was born in Spain, but is a naturalized citizen of the United States, had planned a trading expedition to Santa F e, New Mexico, and Chihuahua, in the Republic of Mexico, before hostilities commenced; and had set out from Fort Independence, in Missouri, before he had any knowledge of the declaration of war. As soon as the war commenced, an expedition was prepared under the command of General Kearney, to invade New Mexico ”

“ The plaintiff entered the hostile country openly for the purpose of trading, in company with other traders, and under the protection of the American flag. The inhabitants with whom he traded had submitted to the American arms, and the country was in possession of the military authorities of the United States. ”

“ It appeared there had been an application to Congress to declare or recognize the necessity, which had not been successful.
2. The limitations of the charge, as to the character of the necessity requisite to justify such a seizure, were just, and did not prejudice the defendant. 'An immediate, existing, impending, and urgent necessity' as explained and exemplified in the charge, was at least indispensable. See authorities under 2d subdivision of the 2d point.
3. A forced service beyond the realm has always been condemned. ”

“ Under whatever color the acts may have been committed, the truth, good faith, and sufficiency of the cause alleged are the subjects of investigation as questions of fact without regard to the official station. ”

“ The plaintiff, a citizen of the United States, acting under such sanction and permission as he had, could rightfully and legally trade with the Mexicans:
(a.) In a territory and with inhabitants reduced to subjection. The United States v. Rice, 4 Wheat. Rep. ”

“ Art. 4 and 5 of Amendments to Constitution; Van Horne's Lessee v. Dorrance, 2 Dall. Rep. 311; Compensation Act of 9th April, 1816, sect. 6, 3 U.S. Stat. at Large, 262; Gelston v. Hoyt, 3 Wheat. 246; 1 Johns. Rep. 139, 561; Ship American Eagle and cargo, seized by order of the President, as fitted out for illegal purposes: verdict, $107,000; American State Papers, Claims, p. ”