4. TRAMMELL v. BASSETT.

(Supreme Court of Arkansas, 1866. 24 Ark. 499.)

Mr. Justice CLENDENIN delivered the opinion of the court. On the 28th of July, 1865, the appellee, Bassett, commenced his action of trespass, against the appellants Leonard Trammell, George S. Trammell and Baker Pidcock, Daniel T. Smith, Jackson Dyer and George W. Drain. At the May term, 1866, all the defendants appeared. Smith filed his plea in abatement, and the other defendants their plea of not guilty, and also special pleas of justification. The plaintiff admitted the truth of Smith's plea, and he was discharged. The plaintiff joined issue on the plea of not guilty, and demurred to each and all of the special pleas. The demurrer was sustained, and defendants then filed their plea of the statute of limitations, upon which issue was made up, and on the application of the defendants the cause was continued.

At the next term of the court in August, 1866, defendants, Leonard Trammell, Dyer and Drain, filed an additional special plea, and at the same time, defendants, Pidcock and Dyer filed an additional plea, and defendant George S. Trammell, also, filed his additional special plea, all of which said pleas the plaintiff moved to strike from the files, the motion was sustained, and the pleas stricken from the files, to which defendants excepted, and incorporated their pleas in the bill of exceptions. The case was then submitted to a jury, and a verdict found against defendants, Leonard Trammell and George S. Trammell, and in favor of Pidcock, Dyer and Drain. During the trial, the defendants excepted to decisions of the court, in regard to the admission and exclusion of testimony, and also to instructions given by the court; all of which exceptions appear by the record of the case. Leonard and George S. Trammell appeal to this court and assign for error:

1st. The circuit court erred in sustaining the demurrer to the several pleas of justification.

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This plea, in substance, set up the existence of a civil war, that the defendants were soldiers in that war; and that the acts done were done by order of their commanding officer (naming him); and presents the question whether a private soldier in time of war can justify his acts by virtue of the orders of his commanding officer.

That a civil war existed at the period shown by the pleadings in this case, there can be no question. We have, at the present term of this court, in the case of Hawkins v. Filkins, 24 Ark. 286, fully recognized and decided that point; and therefore, there being a war, and these defendants being soldiers in that war, what was their duty? We think it may be laid down as a well settled proposition, that obedience is the first duty of a soldier. It is not for him to ask the reason for the order he receives, or the act he is to do, or to consider the consequences of the act. He must obey. To him the maxim of despotism, that "to hear is to obey," is more nearly ap plicable than to any other class of society. If such be the rule applicable to the private soldier, he should certainly be permitted to prove it in his justification.

It is no doubt upon this principle that the law holds officers to a more strict account for acts done by them, than it does the private soldier, and that officers have a discretion in effecting that which they are required to perform. And this question incidentally came up before this court at the present term in the case of Taylor v. Jenkins, 24 Ark. 337, 88 Am. Dec. 773, in which the court say: “and while officers may exercise a discretionary power in effecting that which they are required to do, soldiers under their command have no i such discretion; they act under orders, are in fact the instruments. through which orders are carried into effect." Vattel says: "The troops, officers and soldiers, and in general all of those by whose agency the sovereign makes war, are only instruments in his hands to execute his will and not their own," which we again repeat and re-affirm as the law applicable to the question now before us. And applying it to the pleas in this case we think the circuit court erred in sustaining the demurrer to the pleas.

(Court of Appeals of Kentucky, 1866. 1 Bush [64 Ky.] 404, 89 Am. Dec. 632.)

ROBERTSON, J., delivered the opinion of the court.

General John H. Morgan, of the Confederate army, having penetrated Kentucky with a strong military force and captured Cave City, near the Louisville & Nashville railroad, on the 10th day of May, 1862, awaited the transit of the train, and, on the same day, with the coerced co-operation of the appellant, and other soldiers under his command, burnt a locomotive and two passenger cars, and destroyed or materially damaged several other cars, for which the appellee sued the appellant as a trespasser, and recovered a judgment for fifteen thousand dollars, which, by this appeal, he seeks to reverse.

Waiving all consideration of several preliminary objections as not needful, we must reverse the judgment for radical error in instructing and refusing to instruct the jury, and in overruling a motion for a new trial sought on that ground, and also on the ground that the verdict was against the law and evidence of the case.

That the insurgent party in a civil war has some belligerent rights is neither denied nor consistently deniable; nor can a jurist deny that, on the 10th of May, 1862, the rebellion had matured into an actual and universally recognized civil war. And it was so adjudged by this court, not only in the case of Bland v. Adams Express Company (1 Duv. [Ky.] 232, 85 Am. Dec. 623), but also unanimously by the supreme court of the United States in the prize cases reported in 2 Black.

We need not here discuss the question whether both parties to a civil war have co-equal belligerent rights, nor the question whether or how far there may be any authoritative discrimination between belligerent rights in a civil and those in an international war; for the admitted laws of all civilized warfare entitle each party in a civil war to the same right of capture and destruction of enemy's property,

and show that when either the capture or destruction of property by one of such belligerents is lawful, it is equally lawful by the other; and, if unlawful by one, it would be equally so by the other.

In his treatise on the laws of war, Halleck (chap. 19, sec. 22, p. 464) says: "While there is some uncertainty as to the exact limit fixed by the voluntary law of nations as to our right to appropriate to our own use the property of an enemy, or to subject it to military contributions, there is no doubt whatever respecting its waste and useless destruction. This is forbidden alike by the law and the rules of war. Buf if such destruction is necessary in order to cripple the enemy or to insure our own success, it is justifiable. We may destroy provisions or forage in order to cut off the enemy's subsistence; but we cannot destroy vines and cut down fruit trees without being looked upon as savage barbarians. We may demolish fortresses, ramparts, and all structures solely devoted to the purposes of war; but we cannot destroy public or private edifices of a civil character, temples of religion and monuments of art, unless their destruction become necessary in the operations of a siege, or in order to prevent affording a lodgment or protection to the enemy." Perfectly coincident with the same doctrine is the following extract from the decision of the supreme court in the prize cases: "The right of one belligerent not only to coerce the other by direct force, but also cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war."

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The decisive question in this case is, whether the destruction of the cars by Morgan's authority was a wanton waste, or was for crippling his enemy and cutting off his supplies; and the facts authorize the deduction that it was done for the latter and legitimate purpose.

Gen. Buell's Federal army, then occupying Tennessee, confronted on the south by Bragg's Confederate army, depended chiefly for transportation of troops and supplies of munitions and provisions on the Louisville and Nashville railroad. To cut off or obstruct this indispensable avenue of supplies was an obvious stroke of southern policy to compel Gen. Buell to fall back on Kentucky and thus make her the seat of war.

This railroad was then, and for some time had been, transporting troops and other supplies to Gen. Buell, and some of the cars thus used belonged to the Federal Government.

How, then, can we doubt that the act complained of in this suit was, according to the laws of civil war, a lawful exercise of a bel-. ligerent right? We cannot resist that conclusion. *

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In the state of case as thus outlined, the court gave to the jury the following instruction:

"If the jury beljeve from the evidence in this case that the defendant Bell set fire to plaintiff's car and other property, from which the same was destroyed, or was present and aided in doing so, they should find for the plaintiff such damages as was sustained by the destruction so done, unless they further believe that said defendant was forced against his will to join Morgan's forces, and done what he did towards the burning, if anything, by compulsion."

And refused to give the following instruction asked by the appellant:

"If the jury believe from the evidence that W. F. Bell set fire to the cars of plaintiff, but believe that he was a soldier of the so-called Confederate army, and was acting in obedience to the command of his superiors, John Morgan and others, and believe that plaintiff was employed by the United States government in May, 1862, for carrying ammunition, implements of war, soldiers, and provisions, to United States army, they will find for the defendant, W. F. Bell.”

Tested by the foregoing facts and principles as herein recognized, the circuit court erred in giving the first instruction, and also in refusing the last. And, moreover, the law and evidence, which ought to have controlled the verdict, did not authorize that on which the judgment was pronounced; and, consequently, the court erred in overruling the appellant's motion for a new trial.

For reasons suggested in Price and Price v. Poynter, 1 Bush, 387, 89 Am. Dec. 631, Judge WILLIAMS does not concur in this opinion. Wherefore (Judge WILLIAMS dissenting), the judgment is reversed, and the cause remanded for a new trial.

6. DREHMAN v. STIFEL.

(Supreme Court of Missouri, 1867. 41 Mo. 184, 97 Am. Dec. 268.)

HOLMES, J., delivered the opinion of the court.

This was an action of forcible entry and detainer upon a complaint made before a justice of peace under the statute. The case comes here by appeal from the St. Louis Circuit Court. The proceedings were commenced in September, 1863. After several trials before the justice, and a recovery, at last, of some $7,000 damages, an appeal was taken to the Circuit Court, where it was tried again in May, 1866, after the passage of the ordinance of 1865, relating to such suits, which had been pleaded in bar, and a verdict and judgment were rendered for the defendant. The questions for consideration here arise, mainly upon the instructions which were given or refused by the court below. Divested of all extraneous irrelevant matters, the substance of the case made on the facts may be stated as follows:

Some time in the first half of June, 1861, during the first uprising of rebellion in Missouri, and in a time of civil commotion, great peril and actual war, while General Lyon had command at the Arsenal and post of St. Louis, a regiment of Home Guards under Col. Stifel (the defendant here), by order of the commanding officer of the post, occupied a certain brewery building in the tenth ward of the city as their camp and headquarters, and as a position for the defense of the city and the protection of the community against insurrectionary violence. This brewery belonged to the defendant. A two-story building on the adjoining lot, belonging to the plaintiff, had twice taken fire and was partly burned, and being rendered untenable, was vacated by the plaintiff, who left the premises under the charge of an agent residing in the neighborhood. Nobody was in the actual occupation of the premises.

Upon a suggestion made by the defendant, as colonel in command, to the commanding officer, at the Arsenal, his adjutant was sent to examine the premises, with a view of putting the position in a state of military defense (as the adjutant himself states) and to report their condition. Upon the report of this officer a positive verbal order was given to him by the general in command, to examine the place again in company with the general officer commanding that immediate district, and, with his approval, to have these burnt ruins pulled down and removed, and to have all the grounds adjoining the building smoothed off for a parade ground and other military uses. After consulting fully with the general and other regimental commanders as to what was necessary to be done (as he says) with reference to putting all the posts in a state of military defense, the order was given the defendant, under which, as expressly directed, he seized the premises for public use, and proceeded to remove the ruins and clear the ground. The premises were occupied by this regiment for some time, but were evacuated by the military forces before the first day of January 1862, and were not, after that date, claimed or occupied by the defendant, though the enclosure erected by the military authorities still remained there.

The plaintiff offered some evidence tending to show that the defendant owned the brewery, and had some time previously purchased the reversion of the plaintiff's lease of this lot, had refused to accept rent from the plaintiff, and had desired to purchase his lease. This evidence was properly excluded as irrelevant and immaterial. It had no direct bearing upon the issue, and could only tend to mislead the jury. Some slight circumstances having a like tendency were stated by some of the witnesses for the plaintiff, upon which his counsel have endeavored to construct a theory respecting the conduct and motives of the defendant, which, so far as we are able to discover from anything contained in the record, would seem to be in great part imaginary or wholly unfounded, and not at all warranted by the evidence produced, to the effect that the military order was procured by the defendant for a malicious or selfish purpose, and was a mere cover for his own private ends, and that the acts done were not done by virtue of any lawful military authority, nor upon any immediate and pressing danger, or upon any urgent necessity for taking private property for public use, but were an arbitrary abuse of military power, and, in fact, a lawless invasion of private property for individual purposes, without any military authority whatever. The plaintiff appears to have proceeded on the assumption that the Home Guards were an unauthorized military force, and that the acts of these officers were to be regarded as trespasses and forcible entries, and that the personal relations and individual transactions of these parties were admissible in evidence on the issues in the case. It is not apparent how the justification of a military officer for acting in obedience to positive orders can in any manner depend upon his private relations with the parties whose property happens to be taken for public use. We deem it unnecessary to dwell upon this part of the case. It is not otherwise important than in reference to the instructions. We are not well satisfied that there was any competent evidence before the jury which could have warranted them in finding the fact according to the theory supposed, but the instructions