Ford v. Surget

• Citation: 97 U.S. 594,24 L.Ed. 1018
• Parties: FORD v. SURGET
• Decision Date: 01 October 1878
• Court: United States Supreme Court

97 U.S. 594

24 L.Ed. 1018

FORD v. SURGET.

October Term, 1878

ERROR to the Supreme Court of the State of Mississippi.

Ford filed his complaint against Surget in the Circuit Court of Adams County, Mississippi, on the 2d of October, 1866, alleging that he, 'at his plantation in said county, on the fifth day of May, in the year 1862, was possessed, as of his own personal property, of two hundred bales of cotton, averaging in weight four hundred pounds per bale, and of the value of $600 per bale; and that he being so possessed, Surget, at the place aforesaid, and upon the day and year aforesaid, did wilfully and utterly, and against the consent and will of the plaintiff, destroy of fire the said two hundred bales of cotton,' to the plaintiff's damage in the sum of $120,000.

The defendant pleaded not guilty, and also filed numerous special pleas.

The defence, although presented by the special pleas in different forms, is, in substance, embraced by the following allegations, namely:——

That, at and before the time the alleged trespasses were committed, the people of Mississippi, and of Virginia, North Carolina, South Carolina, Florida, Georgia, Alabama, Louis iana, Arkansas, and Texas, had confederated together for revolt against, and within their territorial limits had entirely subverted, the government of the United States, and in place thereof, and within and for their territory and people, had created a new and separate government, called the Confederate States of America, having executive, legislative, and judicial departments; that on the 6th of March, 1862, and from that date until the time when the alleged trespasses were committed, a war had been, and was then, waged and prosecuted by and between the United States and the Confederate States, and against each other, as belligerent powers and nations; that the Confederate States, for the prosecution of the war and the maintenance of its powers, then and before had maintained in its service, in the State of Mississippi, an army of which General Beauregard was commander, whereby the territory, property, and inhabitants of that State were held in subjection to and under the control of the Confederate States; that on the 6th of March, 1862, and by an act on that day approved and promulgated by the Confederate congress, it was declared to be the duty of all military commanders in the service of the Confederate State to destroy all cotton, tobacco, and other property that might be useful to the forces of the United States, whenever, in their judgment, the same should be about to fall into their hands; that afterwards, on the 2d of May, 1862, General Beauregard, commanding the Confederate forces, in obedience to that act, made and issued a general ordered, directed to officers under his command in the State of Mississippi and in the service of the Confederate States, to burn all cotton along the Mississippi River likely to fall into the hands of the forces of the United States; that before and at the date last mentioned, and afterwards, until the time the supposed trespasses were committed, Alexander K. Farrar was acting as provost-marshal of the county of Adams, charged with the duty, among others, of executing, within that county, the orders of military commanders in the State of Mississippi in the service of the Confederate States, and in pursuance thereof was commanded by the Confederate military authorities to burn all the cotton along the bank of that river likely to fall into the hands of the forces of the United States; that the cotton in the complaint mentioned was near the bank of the Mississippi within that county, and was, when burned, likely to fall into the hands of the Federal forces; that the defendant was than ordered and required by said Farrar, acting as provost-marshal under the orders aforesaid, to burn certain cotton, including the cotton in controversy; and that afterwards the defendant, in obedience to the act of the Confederate congress, and the orders of said military commanders and provost-marshal, did burn Ford's cotton, which is the supposed trespass complained of.

To each of the special pleas the plaintiff in error demurred, assigning numerous causes of demurrer. The demurrers were overruled and replications filed. The cause, being at issue, was tried by a jury. Verdict for the defendant. Judgment having been rendered thereon, the plaintiff removed the cause to the Supreme Court of the State. Upon the affirmance of the judgment, he sued out this writ of error.

Mr. R. D. Mussey for the plaintiff in error.

This court has jurisdiction. The pleadings draw in question the validity of a statute, set up by the defendant as a justification for his destruction of the plaintiff's property. Its validity, although assailed, upon the ground that its provisions violated rights, privileges, and immunities claimed by the plaintiff under the Constitution of the United States, was sustained by the decision of the court below.

The state, so far as this case is concerned, derived all its force from the effect given to it as the law of the land in Mississippi, by her solemnly expressed sanction of the acts of the 'Confederate States,' of which she was a member. It must, therefore, be regarded as her statute, within the meaning of the provision which confers upon this court jurisdiction to re-examine upon error the judgment or decree of a State court. The defendant's attempted justification rests upon two grounds:——

1. An act of the Confederate congress.

The Confederate States were only the military representative of the rebellion, and were never recognized by the United States as a de facto government. Their enactments are, therefore, absolute nullities, and cannot be pleaded, as a justification for the wrongful act of Surget. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 38; Franklin v. Vannoy, 66 N. C. 145; The Sequestration Cases, 30 Tex. 688; Reynolds, Auditor, v. Taylor, 43 Ala. 434; Keppel's Adm'rs v. Petersburg Railroad Co., Chase's Decisions, pp. 209, 210; United States v. Morrison, id. 525; Evans v. City of Richmond, id. 551; Texas v. White, 7 Wall. 700; Horn v. Lockhart, 17 id. 570; Sprott v. United States, 20 id. 459.

2. Belligerent rights.

The Confederate forces had no rights other than those expressly granted them; and hence it is incumbent on the defendant to aver that the precise belligerent right set up by him as a justification had been granted. Such averment is wanting in his pleas. No such right as is invoked in the argument was ever granted by the United States to the insurgents, by any proclamation, order, or statute. The courts are concluded in this respect by the action of the political department. They cannot supplement or extend the grant.

This court, in passing upon such rights, has carefully excluded any enlargement of them, and confined itself of the definition of what was actually given. See, for instance, Coppel v. Hall, 7 Wall. 554.

Conceding that the orders in question were lawfully issued, they can only justify the military man who executed them.

It is not averred that the defendant had any allegiance to the Confederate forces as a volunteer or a conscript, or that there was any vis major compelling him to obey the orders.

It is even denied, by high authority, that an act of a Confederate soldier, committed in violation of private rights as well as of public duty, can find a justification in the order of his commanding officer. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 138; Franklin v. Vannoy, 66 N. C. 145.

But be this as it may, the exemption from individual and personal liability does not extend to a citizen who, not directly connected with the Confederate forces, committed acts of private wrong in aid of the rebellion. Cochran & Thompson v. Tucker, 3 Cold. (Tenn.) 186; White v. Hart, 13 Wall. 646, 651; Sprott v. United States, 20 Wall. 459, 465.

Mr. W. T. Martin for the defendant in error.

A preliminary question of jurisdiction arises. To give jurisdiction here, it must affirmatively appear from the record not only that a Federal question was raised, but that it was actually decided, or that the judgment as rendered by the State court could not have been given without deciding it. Brown v. Atwell, 92 U. S. 327; Armstrong et al. v. Treasurer of Athens County, 16 Pet. 281; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; Murdoch v. City of Memphis, 20 id. 590; Railroad Company v. Maryland, id. 643; Cockroft v. Vose, 14 id. 5.

If the judgment might have proceeded upon some ground of general law, independently of the Federal question, the jurisdiction fails. Klinger v. Missouri, 13 Wall. 257; Commercial Bank v. Rochester, 15 id. 639; Rector v. Ashly, 6 id. 142; Gibson v. Choteau, 8 id. 317; Steines v. Franklin County, 14 id. 15; Kennebeck Railroad v. Portland Railroad, id. 23; Caperton v. Boyer, id. 216.

A plea of not guilty, and several special pleas all ultimately leading to issues of fact, were filed. The jury found for the defendant, and judgment was rendered in his favor. There was no bill of exceptions embodying the evidence or the instructions of the court. The judgment of the Supreme Court, affirming, in general terms, that of the subordinate court, having been, for aught that the record discloses, rendered irrespectively of any matter of law which might have been raised upon the special pleas, presents nothing which justifies the conclusion that a Federal question was actually decided. Neither the published opinion of the Appellate Court, nor the assignment of errors there filed, constitutes a legitimate part of the record; and, therefore, although incorporated in it, furnishes no aid in determining whether jurisdiction exists here. Medberry et al. v. State of Ohio, 24 How. 413.

So far as the record is concerned, the whole case may have turned solely upon the insufficiency of the evidence to maintain the issue for the plaintiff upon the plea of...