PREJUDICE PROMPTING THE ACTORS.
|ANOTHER class of cases brought before the provost-court at Alexandria
related to disloyalty as affecting the property-rights of individuals.
In the hasty evacuation of the city, when the Union troops were about
coming in, many had left their carpets, furniture, pianos, bed? and
bedding, cooking utensils, everything, indeed, except the clothing upon
their persons and such few things as they could pack in trunks. In
some cases, persons remaining in Alexandria had been given the keys of
abandoned houses and stores and the goods within left in their charge;
but in other cases, so great had been the fright and haste of the
occupants, that even this precaution had not been observed. What was
true of Alexandria was no less true of the country for several miles
around. As regiment after regiment came over from Washington and
encamped at points from one to five miles west and south of Alexandria,
they found many farm-houses and gentlemen's residences abandoned, in
which had been left the furniture, the pianos, the beds and bedding, and
whatever else could not be carried away in trunks. Of course, all such
abandoned residences were appropriated for headquarters of divisions,
brigades, and regiments, so far as they were needed for such purposes;
and, in Alexandria, such residences as were not needed for headquarters
were quickly applied for (or taken possession of in many cases without
any application to the General commanding) by those who came to the city
for purposes of trade, and for other purposes.
Thus far everything progressed with what seemed to be a sort of general
consent; but pretty soon a new class of questions arose, in which there
was a decided difference of opinion, not only as between Union citizens
and secessionists, but between Union officers and Union soldiers as
well. These questions arose from an assumed right, upon the part of
some, to appropriate for their own individual use and profit whatever
had been abandoned by those who had gone into the Confederate lines,
and who thereby had openly declared themselves not only disloyal, but
hostile, to the United States government.
Those who assumed such right, attempted to justify their opinions and
their acts by referring to the Act of the United States Congress of
August, 1861, by which all property used for insurrectionary purposes
was made liable to confiscation; and they further claimed that it was
but a fair retaliation to the Act of the Confederate Congress, by which
the property of all Union men, living within the Confederate lines, was
made liable to sequestration.
General Montgomery was among those who believed that, while the army,
as an army, had a right to make use of property abandoned by an enemy,
individuals, whether as officers, soldiers, or citizens, had no such
right; and among his first acts, after being appointed Military Governor
of Alexandria, was to direct his Assistant Adjutant-General to issue an
order forbidding the use of abandoned property, without permission
first had from general headquarters; and when the provost-court was
established, he directed Judge Freese to see that that order be in no
way violated or evaded. In every case reported to the Judge, where
an attempt was made to take an article from an abandoned house and
appropriate it to the private use of the taker, whether officer,
soldier, or citizen, the party was directed to refrain, or, if already
taken, to return it at once, under the penalty of arrest and punishment.
This soon became so generally understood in Alexandria that no further
attempt was made to appropriate abandoned property for private use and
profit there; but, after a time, a case arose from the country, which
required the interposition of the court, a trial of the case, and a
judgment; and it is this case which we now propose to relate.
Dr. W. was the assistant surgeon of the Fourth-Volunteers, and as good
a man, in every respect, as one often meets. When the government called
for troops, he was among the first to offer his services, though at
that time doing a large practice, having a large family to support, and
having but little of this world's goods; and when the Fourth regiment
was organized, the governor of his State appointed him its assistant
surgeon. This regiment was among the first to reach Washington, and
the second to establish a camp beyond Alexandria. The colonel of the
regiment was a wide-awake New Englander, an intense anti-slavery man, an
ardent admirer and supporter of President Lincoln, one who believed that
a secessionist, by becoming disloyal to the government, forfeited all
the rights he ever possessed, and that this forfeiture extended to
property quite as well as to personal rights. Though he was never known
to appropriate any abandoned property to his own private use or profit,
yet he had no scruples of using it himself, and of allowing others
of his regiment to use whatever fell in their way; and if any of his
officers or soldiers asked to appropriate to their own use anything
which they had found, he never answered nay. That he was entirely
conscientious in all this, no one that knew the man doubted for a
moment, however much they might differ with him in political opinion.
With a commanding officer holding such decided views, it was not at
all surprising that his lieutenant-colonel, major, assistant-surgeon,
adjutant, and almost, if not quite, every company officer should,
erelong, become as decided as himself upon this question.
Near the spot on which they fixed for an encampment was a large house,
which had been abandoned by its owner and occupant on the morning that
the Union troops marched into Alexandria. So hasty had been the flight
that even the breakfast-table, with the dishes upon it, was left
standing in the centre of the dining-room. Not an article of furniture,
so far as could be seen, had been removed. The house had been well
furnished, and, among other things, had a piano, about half worn. This
had doubtless been played upon by daughters of the family as well as by
the wife, as there were articles lying about the parlor which plainly
indicated recent occupancy by young ladies. The piano stood open when
the colonel, doctor, and other of his officers first entered the house,
and that most exquisite of all musical compositions, "Home, Sweet Home,"
was open on the music-holder.
This house the colonel at once appropriated for the headquarters of his
regiment, and not only he, but his lieutenant-colonel, major, doctor,
and adjutant slept and messed there. They slept in the beds, lounged on
the sofas, ate from the table, drank from the sideboard, and used nearly
everything about the house except the piano. No one of the officers
played, and erelong the piano became one of the neglected, if not one
of the useless, articles about the house. One day, when they were all
lounging in the parlor, the doctor said to the colonel:
"What a world of pleasure that piano would give my wife and daughters if
I only had it at my own home!"
"Well," replied the colonel, "why then don't you send it to your own
home? The owner, or once owner--for I hold, you know, that rebels
forfeit everything, even their lives--is not here to object, and I am
sure I won't."
This led to a general conversation on the subject among all the officers
present, the conclusion of which was that the doctor should have the
piano boxed, and sent to his family as soon as he could conveniently.
This, of course, pleased the doctor greatly, and on the following day he
got together boards, and a carpenter, had a suitable box made, the piano
carefully packed, and on the day following sent it to Alexandria, with
orders to have it forwarded to his home, in New England, as speedily as
possible. When it was being unloaded at the shipping warehouse, one
of the provost-guard chanced to be present, and inquired of' those who
brought it where it came from, who sent it, and where it was being sent
to? Those who brought it answered all these questions without hesitancy,
nor did they see any wrong in all that was being done; but the
provost-guard, knowing what the orders in the city were upon that
subject, felt it to be his duty to inform the Provost-Marshal of what
he had seen, and no sooner did the Marshal learn of it, than he informed
the Provost-judge.
The Judge directed the Marshal to go at once to the shipping merchant,
and direct him not to send that box away until further orders from the
court. He next directed the Marshal to call that afternoon upon the
doctor and the colonel, and request their presence at the court-room
next morning at ten o'clock. Should they decline to attend by request,
to inform him at once, when he would order their arrest; but he much
preferred to have all the facts inquired into without arrests, if it
could be done as well. The Marshal called upon the colonel and the
doctor that same afternoon, delivered the Judge's message, and both
promised to be at the courtroom next morning without fail.
Promptly, as per promise, the colonel, the doctor, and several other
officers of the regiment were at the courtroom next morning. The
doctor, it was plain to see, felt a little skary, but the colonel was so
confident of the justice of his case that he rejoiced in the opportunity
of convincing the Judge that for once, at least, he was in the wrong.
When all the other cases before the court had been disposed of, the
Judge turned to the doctor, and said:
"Now the court will hear your case."
The doctor at once arose, and said he was there in obedience to the
orders of the court, but was not at all aware with what crime he was
charged.
The Judge replied that, as yet, he was not accused of any crime, nor was
he present by the "order," but rather by the request, of the court: The
Judge then stated all that he had learned concerning the piano, and how
he had directed the shipping merchant not to send it away until further
orders from the court; that he had not issued an order for arrest, for
the reason that he much preferred to have the whole matter inquired into
amicably, as he was under the impression that all done thus far had been
from error of judgment rather than from any intent to do wrong; but,
if this course were declined, then there was but one other way
left--namely, arrest, trial, and judgment, whatever it might be.
The doctor and the colonel both replied that they much preferred an
amicable hearing of the case, and were ready, whenever it might please
the court, to state all the facts within their knowledge, either under
oath or upon their honors as gentlemen and officers.
The Judge expressed his pleasure at this frank manner of meeting the
case, and told the doctor to proceed, "upon his honor as a gentleman and
officer," to state all the facts of the case within his knowledge--to
which he might add any arguments he pleased by way of justification.
The doctor, thus assured and placed entirely at his ease, proceeded,
in a calm, pleasant way, to state just what had occurred, and how it
occurred, since their occupancy of that abandoned house. He particularly
detailed the conversation that had incidentally occurred between the
colonel and himself, which led to the packing up and sending away of
the piano--all of which, he said, could be confirmed by several
officers then in the courtroom; that he had done nothing secretly or
surreptitiously, nor had he once dreamed that he was doing a wrong
in anything he had done; but if, in the judgment of the court, it was
wrong, he was quite ready to undo all that he had done, and have the
piano put back exactly where he had found it. As to the matter of
justification, he preferred to leave that in the hands of his colonel,
who had given, to the subject more thought, and could better express
those thoughts than himself.
The Judge then extended to the colonel the same invitation he had given
the doctor, and upon the same terms. The colonel thanked the Judge
for the courtesy, and then proceeded to state the facts exactly as the
doctor had stated them, and exactly as heretofore given in this chapter.
This finished, he next entered upon an argument to prove that all that a
man had of personal rights, of property, and even of life, he forfeited
when he became disloyal to his government. He laid special stress upon
the act of sequestration passed by the rebel or Confederate Congress,
and said that the taking of abandoned property by Unionists on this side
of the line was only a fair retaliation for what the rebels were doing
with the Union people of the South. He also referred to the act of
confiscation then recently passed by the United States Congress, and
contended that if the government thought it right to confiscate the
property of rebels in a wholesale way, individuals were certainly
justified in doing it in a retail way. The colonel was earnest, at times
quite eloquent, and certainly made the best argument that could possibly
be made on that side of the question.
When the colonel had finished, the Judge inquired whether any other
person present desired to make a statement or an argument in the case.
Being answered in the negative, Judge Freese then proceeded to state his
own views as follows:
"The court is obliged, very greatly obliged, both to the doctor and to
the colonel, for the cordial manner in which they have met the issues
of this case. The court was reasonably satisfied before, but is still
better satisfied now, that nothing of wrong was intended in all that had
been done; that it was simply an error of judgment, and that none will
be found more ready than themselves to correct the error so soon as they
are satisfied that it is an error. About the facts of the case there
is no dispute whatever. All the statements agree. The only question,
therefore, is as to the reason or the law of the case. This court is not
strictly a law court. It is rather a court of necessity--of a 'necessity
that knows no law'--or of equity; but in this particular case it might
well afford to stand upon the law alone, even if there were no equities
in the case to be considered.
"The act passed by the United States Congress, on the 6th of August
last, known as the 'Confiscation Act,' provides that, 'in the present or
any future insurrection, any property given to aid such insurrection, or
used for that purpose with the knowledge and consent of the owner,
shall be subject to seizure and confiscation; that actions for the
condemnation of such property shall be brought in circuit, district,
or admiralty courts having jurisdiction of the amount, and that the
attorney-general, or any district attorney, may institute proceedings,
which in such cases _shall be wholly for the benefit of the United
States, etc_.' It will be observed how carefully Congress has pointed
out every step of the way by which this act shall be executed; and in
order to avoid any possibility of private peculation, the act says, in
so many words, 'such case shall be wholly--not in part, but wholly--for
the benefit of the United States.' There is nothing in this act to
justify a private individual in taking so much as the value of a pin
from a house abandoned by an avowed enemy, much less from the house of
one who still claims the protection of the common laws of his country,
though in temporary rebellion against the authorities now in power.
The court, it will be remarked, puts emphasis upon the words _private
individual_; for it holds that, for purposes of the army, for purposes
of attack and defence, for purposes of sustenance and locomotion, or
even for purposes of comfort, an army, or any regularly organized part
of an army, may seize, hold, and use any property, real or personal,
that may have belonged to those now in arms against that government.
"The colonel has also referred to the act passed by the Confederate
Congress, on the 30th of August last, known as the 'Sequestration Act,'
and thinks the passage of that act justifies Union men in appropriating
to their own use any property that may have been abandoned by the enemy.
That act was passed about three weeks after the 'Confiscation Act'
by the United States Congress, and shows upon its face that it was
altogether retaliatory. Indeed, one section of the act says this in so
many words. That section, which really gives the animus of the whole
act, reads as follows:
"'Be it enacted by the Congress of the Confederate States, that all
lands, goods, rights, and credits within these Confederate States owned
by any alien enemy since the 21st of May, 1861, be sequestrated by the
Confederate States of America, and shall be held for the full indemnity
of any citizen and resident of these Confederate States, or other person
aiding said Confederate States in the prosecution of the present war,
and for which' he may suffer any loss or injury under the act of the
United States to which this act is retaliatory, authorizing the
seizure or confiscation of the property of citizens or residents of
the Confederate States; and the same shall be seized and disposed of
as provided for in this act' Even this act, emanating from a spirit
of revenge and retaliation, gives no authority, in any part of it, to
private individuals to seize for their own use and benefit any property
belonging to a Union man; but expressly declares in the section just
quoted, that 'the same shall be seized and disposed of as provided for
in this act; and the provisions referred to are quite as stringent
and precise as those in the United States 'Confiscation Act.' heretofore
quoted.
"The reason why all governments are thus particular in pointing out the
exact mode by which an enemy's property may be seized and appropriated,
is plain enough, if one will but stop and consider it. Without such
particularity of procedure, an army going into an enemy's country would
soon become a rabble or mob--war would soon become rapine--officers
would soon lose all control of their men, and from thenceforth
plundering, spoliation, and pillage would become the order of the day.
Yea, more, it would have the effect to set an army to warring among
themselves, for each officer and each soldier would want the 'lion's
share,' and it would only be a question of strength and endurance as to
which should have it.
"In the matter of the piano now in question, what more right had the
doctor to it than the major? what more right had the major to it than
any one of the ten captains of the regiment? What more right had any
captain to it than any one of the twenty lieutenants? or what more right
had any lieutenant to it than any one of the one thousand privates? If
it were a question of strength only, the strongest man in the regiment
would finally gain the prize, even though he had to walk over the dead
body of every other man in the regiment to gain it. The court thinks
that even the doctor, though he had his hands full of scalpels, or the
colonel, though a sword were suspended from every hair of his head,
would shrink from a contest of this character!
"Again, it should be borne in mind that, though property may have been
abandoned temporarily by its owner, he may afterwards repent of
such abandonment and reclaim possession. Bouvier, in his admirable
'_Institutes of American Law_,' says: 'Things that have been abandoned
by the owner belong to the first occupant; but if the owner should
repent of having thrown away or abandoned the thing, _he may retake it
before any one else, and he regains his former title_. To entitle the
finder to such chattels, the former owner, must have wholly abandoned
his title; if, as in the case of a wreck, he has parted with the
possession on the ground of necessity, or with the evident intention of
resuming it, the property has never been abandoned.'
"Again, he says: 'The right of acquiring personal chattels by finding,
is limited to those found upon the surface of the earth. It does not
extend to goods found derelict at sea, though abandoned without hope of
recovery, nor to goods or money found hidden in the earth, known by the
name of _treasure trove_. In England such goods belong to the crown; in
this country the title to them perhaps has been seldom questioned in the
hands of the finder, except by the real owner. No title by occupancy
can in this country be gained in waifs, or stolen goods thrown away or
scattered by a thief in his flight, in order to effect his escape. In
England they belong to the King; here this prerogative has never been
adopted by the government against the true owner, and never, perhaps,
put in practice against the finder, though against him there would be a
better reason for adopting it. Nor can any title be gained by occupancy
of estrays, or cattle whose owner is unknown, or of wrecks, or such
goods as after a shipwreck are cast upon the land by the sea, and left
there, within some county, so as not to belong to the jurisdiction of
the admiralty, but to the common law.'
"Kent in his _Commentaries_ lays down the same principles, and both he
and Bouvier cite a large number of decisions, both English and American
cases, to prove the correctness of the doctrine. Indeed, the principle
has been so universally adopted, that it would be difficult to find a
court, in this or any other civilized country, that would not enforce
it, in every case where the question of abandoned property was brought
before them.
"This is the first attempt, so far as the court knows, to take a piano
from any one of the many abandoned houses in this city and vicinity;
but frequent attempts have been made to take smaller and less valuable
articles; and, in every instance, where it has come to the knowledge of
the court, the person making the attempt has been required to return the
article to the place where found. Nor can the court make any exception
to the rule in this case. If, from the law and reasons stated by the
court, the doctor and the colonel have become satisfied that they
committed an error in the taking of the piano, and will, without delay,
return it to the exact place where they found it, and promise to protect
it from removal or damage hereafter, or so long, at least, as they
continue to occupy the house for their headquarters, then no further
steps need be taken in this case. If they are not so convinced, and
decline to make any such promise, then the duty of the court will be to
order them both in arrest, and that the piano be taken in charge by the
Provost-Marshal, to await the further orders of the court."
The doctor immediately arose and said he "desired to extend his most
hearty thanks to the court for the many courtesies which had been
extended towards him, and to add, that the reasonings of the court had
entirely satisfied him of his error; that he would, without one moment
of unnecessary delay, have the piano returned to the house from whence
taken; and that from thenceforth, and so long as he remained in the
army, he would use whatever influence he possessed towards preventing
the taking of abandoned property for individual purposes."
The colonel then arose and said he was "reminded of the old maxim,
that it 'took a bolder man to confess an error than to face a cannon's
mouth,' and while he laid no claim to boldness, he did claim to be able
to do what he believed to be right; and since he had heard the law and
reason of the case, as laid down by the court, he was free to confess
that he had all along been in error, and that the court was in the
right." He had, he said, such "an utter detestation for disloyalty, that
nothing, he thought, could be too great punishment for a rebel, and he
had regarded the taking of their property--no matter when, how, or by
whom--as a part of their just punishment; but the reasoning of the
court had made it entirely clear to his mind that, while this could be
properly done by the government for the general good, it could not
be properly done by individuals for their private gain." He, like the
doctor, would "turn a short corner on this subject, and from thenceforth
use whatever influence he possessed to discourage the taking of
abandoned or captured property for private uses. So long as he retained
his present headquarters, he would see that nothing was removed from
the premises, and, so far as it was possible, he would have returned
whatever had been taken away."
Thus ended, pleasantly and satisfactorily, what, at one time, threatened
to be a very ugly case. Had the doctor and colonel chosen to disregard
the request of the court, and insisted upon their right to send the
piano to the doctor's home, it would have brought on a direct
conflict of authority, necessitated arrests, caused appeals to higher
authorities, and created confusion generally; but their respect for the
court was such as to overcome all these unhappy consequences. On the
afternoon of the same day on which the case was heard, the colonel sent
a team to the Provost-Marshal's office; the Marshal went with the driver
to the office of the shipping-merchant and directed the delivery of the
piano; and before sundown of that day, the piano stood in the exact spot
from which it had been taken a few days before.
The triumph of reason over error and prejudice was complete. From
thenceforth the long-mooted and often discussed question, as to how
disloyalty affected the rights of property, was settled in and about
Alexandria. There was no further attempt to appropriate abandoned
property for private uses.
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