Secrets of the Late Rebellion, Now Revealed for the First Time

by Jacob R. Freese

"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.