Secrets of the Late Rebellion

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.