Opinion
March Term 1818.
There is a law founded in extreme and, invincible public necessity, which justifies a military officer, in promoting the public welfare, to use and even destroy private property, without any precedent legal ceremonies. (Acc. Merritt v. M. A. of Nashville, 5 Cold., 95.)
In all other cases, under the bill of rights, impressments of property" can only be made when the legislature have authorized them by. law. (See Yost v. Stout, 4 Cold., 205; Witherspoon v. Woody, id., 605; Mitchell v. Harmon, 13 How., 129.)
Therefore it is no defense to an action for taking and carrying away the plaintiff's corn and fodder, that it was done under an order of a general of militia to furnish a quantity of corn and forage by pressing, which order could not be complied with otherwise than by seizing the property in question.
[Cited in: 4 Heis., 617.]
In Error. Page sued Barrow in the County Court of Davidson, in an action of trespass quare clausum fregit for treading down his grass, throwing down his fences, and taking and carrying away fodder, and corn, c.
To the declaration, the defendant pleaded, 1st. Not guilty; 2d. Not guilty of entering with force and arms, treading down the grass, and throwing down the fences. On these pleas issue was joined. The third and fourth pleas state, in substance, that, at the time of the supposed trespass, a division of Tennessee Militia in the service of the United States were stationed near the close aforesaid, under command of Major-General Carroll, in great need of forage and corn, and that the defendant, being forage-master to said division, was ordered by the general to furnish a quantity of corn and forage by pressing if it could not otherwise be had. Pursuant to this order, not being otherwise able to comply therewith, he was compelled by necessity to press, for the use of the division, five hundred pounds of fodder and twenty barrels of corn, and tendered to the said Page a certificate stating the amount and value; which is the same trespass,c. The plaintiff demurred to these pleas; the demurrer was overruled in the County Court, and the issues found for the defendant. On an appeal to the Circuit Court, the demurrer was sustained. The jury found the defendant guilty on the first plea, and assessed damages to $20.37½ and on the second not guilty. The only error assigned here is that the Circuit Court sustained the demurrer.
All other parts of the trespass charged in the plaintiff's declaration are negatived by the verdict, except that of taking the corn and fodder, mentioned in the third and fourth pleas; upon which the plaintiff demurred, and thereby is presented to the Court for determination, this question, whether, under the circumstances stated in the plea, the defendant was justified in making the impressment he did?
There is a law, founded in extreme and invincible public necessity, which justifies the officer, in promoting the public welfare, to use and even destroy private property without any precedent legal ceremonies'; such as-demolition, or even burning, of houses to render an attack upon an enemy successful, or to defeat his attempts. For like reasons also may the ground of an individual be occupied, and fortifications be erected and intrenchments be made in it. There salus populi est suprema lex. Com. Dig. title Trespass, allow such cause to be a justification. This is the law in extraordinary cases. In all other cases we have a positive and a fundamental law. It is contained within the twenty-first section of our Bill of Rights, "No man's property shall be taken, or applied to public uses without the consent of his representatives, or without just compensation being made therefor." In the case of an impressment in the late war, caused by a British officer in Canada, the injured party recovered heavy damages against him, though he endeavored to cover himself by the plea of necessity. In the English law, though the impressment of seamen is tolerated by long usage till deemed a part of the common law, yet there are no instances of legal allowance of the impressment of private property, nor any conversion of it to public uses, but by a previous law for the purpose and the intervention of a jury. This clause of our Constitution means that impressments may be made when the Legislature shall be of opinion that the public necessity requires them. And when they have authorized Them by law, under such regulations to prevent abuse and the oppression of individuals as their wisdom may invent for the purpose, they alone are the judges in all cases contradistinguished from the extreme ones just mentioned. When measures of so much inconvenience shall be resorted to it is not left, and ought not to be left, to the discretion of a military officer." For if the general may judge when it is necessary, and put it in practice, so may the next officer in command at another post, and those of still inferior grade in other parts of the country where stationed, until, at every military post, this despotic measure shall be resorted to, without any rule to restrain excesses, or to prevent oppression and disproportioned exactions. And can any state of despotism be conceived more injurious to the rights of the citizen? Can he be free who is subjected to means arbitrary? See Strange, 646; 6 Ba. Ab. 583; cited from Brooke's Trespass, pl. 213. If J. S. dig up land of J. M. to raise a bulwark against a public enemy, c., trespass will not lie. See also the removals in Dallas, cited in the university case, in North Carolina — and see, also Vattel, concerning the right of eminent domain.
Judgment for plaintiff below.