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!