David Mitchell, Plaintiff In Error v. Manuel Harmony

• Citation: 13 How. 115,54 U.S. 115,14 L.Ed. 75
• Parties: DAVID D. MITCHELL, PLAINTIFF IN ERROR, v. MANUEL X. HARMONY
• Decision Date: 01 December 1851
• Court: U.S. Supreme Court

54 U.S. 115 13 How. 115 14 L.Ed. 75 DAVID D. MITCHELL, PLAINTIFF IN ERROR, v. MANUEL X. HARMONY. December Term, 1851

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THIS case was brought up, by a writ of error, from the Circuit Court of the United States for the Southern District of New York.

Mitchell was an officer of the army, and was sued in an action of trespass by Harmony for seizing his property in the Mexican State of Chihuahua.

By an act passed on the 3d March, 1845, (5 Stat. at Large, 750) Congress allowed a drawback on foreign merchandise exported in the original packages to Chihuahua and Santa F e, in Mexico. Harmony was a trader engaged in this business, and on the 27th of May, 1846, had transported to Independence, in Missouri, a large amount of goods imported under this law, and in conformity with the regulations of the Treasury Department. On the 27th of May he left Independence, with several other traders, before the passage of the act of Congress of 13th May, recognizing the existence of war with Mexico, was known there.

The whole history of Colonel Doniphan's expedition was given in the record, being collected from official documents and the depositions of persons who were present. A brief narrative is given in the opinion of the court of all the facts which bore upon the present case.

The declaration was in the usual form and contained three counts, all of them charging the same trespass, namely, that the defendant, on the 10th of February, 1847, at Chihuahua, in the Republic of Mexico, seized, took, drove, and carried away, and converted to his own use, the horses, mules, wagons, goods, chattels, and merchandise, &c., of the plaintiff, and compelled the workmen and servants of the plaintiff having charge, to abandon his service and devote themselves to the defendant's service. The property so alleged to have been taken is averred to be of the value of $90,000, and the damages, $100,000.

Besides the general plea of not guilty to the whole action, the defendant, Mitchell, pleaded several special pleas.

1st. That war existed at the time between the United States and Mexico; that he was a lieutenant-colonel, &c., forming a part of the military force of the United States, employed in that war, and under the command of Colonel A. W. Doniphan, and he justifies the taking, &c., under and in virtue of the order, to that effect, of his superior and commanding officer, Colonel Doniphan; that the order was a lawful one, which he was bound to obey, and that he was no otherwise instrumental in the alleged trespass.

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2d. Alleging the same preliminary matter, avers that the plaintiff, Harmony, was a citizen of the United States, and, with a full knowledge of the war, had gone with his wagons, merchandise, &c., into Mexico with design to trade with the people of Mexico, and to afford aid to the same in said war; that said Doniphan, as he had a right to do, commanded the defendant to seize, take, &c., the said wagons, &c., and that he did, in obedience to said order take, &c., doing nothing more than was necessary to the execution of that order.

3d. With the same preliminary matter as in the second plea, justifies the taking by his own (Colonel Mitchell's) authority as an officer.

The three special pleas above stated are to the first count of the declaration.

To the second count the defendant pleaded of like effect with the above; and three like pleas were plead to the third count.

To the three first and three last pleas, that is, the pleas to the first and third counts, issues were joined to the country.

To the special pleas to the second count, the plaintiff replied as follows, to wit:—To the first, that the said Doniphan did not command the said horses, wagons, &c., to be stopped, taken, &c., nor were the same taken in contemplation of any proceeding in due course of law for any alleged forfeiture thereof, but to apply the same to the use of the United States without compensation to the plaintiff, of which the defendant had notice.

To the second, that the plaintiff did not carry his goods, &c., out of the United States, for any purpose of trading with the enemy, or elsewhere than in places subdued by the the arms of the United States, and by license and permission; and that said Doniphan did not command the defendant to take the same for or on account of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but to apply the same to the use of the United States, without compensation to the plaintiff.

To the third, that he did not, after notice of the war, carry his goods into Mexico, 'except to and into such place and places as had been, and was, or were captured, subdued, and held in subjection by the forces of the United States,' &c., and by the permission of the commanding officer of said forces; nor with design to carry on any friendly intercourse or trade with the citizens of Mexico hostile to the United States; and that the defendant did not, in the performance of his duty as lieutenant-colonel, seize, take, &c., said property, by reason of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but the same was taken by the defendant of his own wrong, & c.

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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, his 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 be 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

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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...