the time of the seizure, which would justify the officer in taking private property and impressing it into the public service; the evidence does not bring the case within the principle of extreme necessity," &c. . . . This cannot be either justice or law. To make the military officer in such a case liable, it must be shown that his decision was corrupt, malicious, or, at least, without any reasonable ground. The points made by the counsel for the defendant in error were the following. . . . Second, In respect to the justification set up on the trial, but not in the pleadings, of taking the property, lest it should fall into the hands of the enemy. . . . The rules of law stated [by the trial judge] were correct; the peril must be great, immediate, and urgent, such as an enemy near or advancing; not remote, and the attack uncertain and contingent. A mere general exposure of the property to capture, from a hostile public force not near nor advancing, but at rest 200 miles distant, or from irregular marauding parties, to which all property is exposed during war, and particularly so on a frontier, cannot be sufficient to justify the seizure. Mayor, &c. of New York v. Lord, 17 Wend. 285; 18 Id. 126; and cases referred to; so "to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity," per Chancellor WALWORTH, Ibid. p. 129. A jettison during an impending peril, Ibid. p. 130. . . . The evidence tended to prove, and the jury found, that there was no such necessity; that there was no immediate, existing, impending and urgent occasion for the seizure. . . . 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. ... Mr. Chief Justice TANEY delivered the opinion of the Court. This is an action of trespass brought by the defendant in error, against the plaintiff in error, to recover the value of certain property taken by him, in the province of Chihuahua during the late war with Mexico. 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 Fé, 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; and a detachment of troops was set forward to stop the plaintiff and other traders until General Kearney came up, and to prevent them from proceeding in advance of the army. The trading expedition in which the plaintiff and other traders were engaged, was, at the time they set out, authorized by the laws of the United States. When Colonel Doniphan commenced his march for Chihuahua, the plaintiff and the other traders continued to follow in the rear and trade with the inhabitants, as opportunity offered. But after they had entered that province and were about to proceed in an expedition against the city of that name, distant about 300 miles, the plaintiff determined to proceed no further, and to leave the army. And when this determination was made known to the commander at San Elisario he gave orders to Colonel Mitchell, the defendant, to compel him to remain with and accompany the troops. Colonel Mitchell executed the order, and the plaintiff was forced, against his will, to accompany the American forces with his wagons, mules and goods, in that hazardous expedition. . . . When the Mexican authorities regained possession of the place, the goods of the plaintiff were seized and confiscated, and were totally lost to him. And this action was brought against Colonel Mitchell, the defendant, in the court below, to recover the damages which the plaintiff alleged he had sustained by the arrest and seizure of his property at San Elisario, and taking it from his control and legal possession. This brief outline is sufficient to show how this case has arisen. . . . It is admitted that the plaintiff, against his will, was compelled by the defendant to accompany the troops with the property in question when they marched from San Elisario to Chihuahua; and that he was informed that force would be used if he refused. This was unquestionably a taking of the property, by force, from the possession and control of the plaintiff; and a trespass on the part of the defendant, unless he can show legal grounds of justification. He justified the seizure on legal grounds. 1. That the plaintiff was engaged in trading with the enemy. 2. That he was compelled to remain with the American forces, and to move with them, to prevent the property from falling into the hands of the enemy. 3. That the property was taken for public use. The 2d and 3d objections will be considered together, as they depend on the same principles. Upon these two grounds of defence the Circuit Court instructed the jury, that the defendant might lawfully take possession of the goods of the plaintiff, to prevent them from falling into the hands of the public enemy; but in order to justify the seizure the danger must be immediate and impending, and not remote or contingent. And that he might also take them for public use and impress them into the public service, in case of an immediate and pressing danger or urgent necessity existing at the time, but not otherwise. In the argument of these two points, the circumstances under which the goods of the plaintiff were taken have been much discussed, and the evidence examined for the purpose of showing the nature and character of the danger which actually existed at the time or was apprehended by the commander of the American forces. But this question is not before us. It is a question of fact upon which the jury have passed, and their verdict has decided that a danger or necessity, such as the Court described, did not exist when the property of the plaintiff was taken by the defendant. And the only subject for inquiry in this court is, whether the law was correctly stated in the instruction of the [trial] Court; and whether anything short of an immediate and impending danger from the public enemy, or an urgent necessity for the public service, can justify the taking of private property by a military commander to prevent it from falling into the hands of the enemy or for the purpose of converting it to the use of the public. ... The instruction is objected to on the ground, that it restricts the power of the officer within narrower limits than the law will justify. 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; and if he acts honestly, and to the best of his judgment, the law will protect him. . . . 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; and also where a military officer, charged with a particular duty, may impress private property into the public service, or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner, but the officer is not a trespasser. But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had a right to rely upon, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterwards that it was false or erroneous, will not make him a trespasser. But it is not sufficient to show that he exercised an honest judgment, and took the property to promote the public service; he must show by proof the nature and character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for a jury to say, whether it was so pressing as not to admit of delay, and the occasion such, according to the information upon which he acted, that private rights must for the time give way to the common and public good. But it is not alleged that Colonel Doniphan was deceived by false intelligence as to the movements or strength of the enemy at the time the property was taken. His camp at San Elisario was not threatened. He was well informed upon the state of affairs in his rear, as well as of the dangers before him. And the property was seized, not to defend his position, nor to place his troops in a safer one, nor to anticipate the attack of an approaching enemy, but to insure the success of a distant and hazardous expedition, upon which he was about to march. The movement upon Chihuahua was undoubtedly undertaken from high and patriotic motives. It was boldly planned and gallantly executed, and contributed to the successful issue of the war. But it is not for the Court to say what protection or indemnity is due from the public to an officer who, in his zeal for the honor and interest of his country, and in the excitement of military operations, has trespassed on private rights. That question belongs to the political department of the government. Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is, whether the law permits it to be taken to insure the success of any enterprise against a public enemy which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it. The case mentioned by Lord MANSFIELD in delivering his opinion in Mostyn v. Fabrigas, 1 Cowp. 180, [post, No. 1123,] illustrates the principle of which we are speaking. Captain Gambier, of the British Navy, by the order of Admiral Boscawen, pulled down the houses of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet it was an invasion of the rights of private property, and without the authority of law, and the officer who executed the order was held liable to an action, and the sutlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of private property are guarded by the laws in England; and they are certainly not less valued nor less securely guarded under the constitution and laws of the United States. We think, therefore, that the instructions of the Circuit Court on the 2d and 3d points were right. ... Upon the whole, therefore, it is the opinion of this Court, that there is no error in the instructions given by the Circuit Court, and that the judgment must be affirmed with costs. 763. REX v. TUBBS KING'S BENCH, 1776 2 Cowp. 512 THE Recorder of London (Mr. Serjeant Glynn) having obtained a rule nisi for a habeas corpus to bring up the body of one John Tubbs, an impressed sailor, Mr. Attorney General Thurlow, Mr. Solicitor General Wedderburne, Mr. Wallace, and Mr. Cuft now showed cause. The facts upon the affidavits appeared to be as follows: Lieutenant Tait, being empowered by warrant from the admiralty in the usual form, "to impress seamen, sea-faring men, and persons whose occupations and callings were to work in vessels and boats upon rivers," pressed the defendant Tubbs, a waterman, at that time employed in navigating a ship in the river Thames, below Gravesend. Upon which, Tubbs produced and showed him the following certificate: "These are to certify to whom, &c. that John Tubbs is duly admitted a waterman of the city of London, to attend upon the Lord Mayor and Aldermen of the said city, when and as often as he shall be required; of which all persons, empowered to impress men into his Majesty's service, are desired to take notice, for that by such admission he is exempted from being impressed or compelled to such service. Signed W. Dawson, water-bailiff." — The Lieutenant, notwithstanding this certificate, took Tubbs and sent him on board the Conquestadore, a guardship lying at the Nore. . . . It was contended against the rule on two grounds. 1st, That it was a matter of great doubt, whether if this exemption could be supported at all, it could be founded on any less authority than an Act of Parliament. 2dly, If it could be warranted by usage or prescription, whether there was sufficient evidence to support the usages in this case. Upon the first ground it was observed, that the exemption, in the extent in which it was claimed, was a general, permanent, perpetual, unqualified exemption, without reference to any circumstances of public exigence or emergency whatsoever. That by first principles of law, every man was bound to serve in defence of the State. . . The Recorder of London, Mr. Dunning, Mr. Davenport, Mr. Alleyne, and Mr. Lee, contra, in support of the rule, stated the ground of the application to be, that the defendant being retained as the known public officer of the chief magistrate of the city of London, to be attendant on his person in the execution of a public trust, was privileged from being taken out of that service by any power whatsoever. That this exemption was founded in usage and utility, and that they claimed it as a matter of right. . . . Lord MANSFIELD. I am very sorry that either of the respectable parties before the court, the city of London on the one hand, or the lords commissioners of the Admiralty on the other, have been prevailed upon to agitate this question. . . . The real question between them is, whether there is a legal right of exemption or not? . . . The power of pressing is founded upon immemorial usage, allowed for ages. If it be so founded and allowed for ages, it can have no ground to stand upon, nor can it be vindicated or justified by any reason but the safety of the State. And the practice is deduced from that trite maxim of the constitutional law of England, "that private mischief had better be submitted to, than that public detriment and inconvenience should ensue." To be sure, there are instances where private men must give way to the public good. In every case of pressing, every man must |