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

by Jacob R. Freese

Mr. T. was then called upon by the court to make any defence he thought proper. He replied that he had no defence to make, further than the Judge already knew, that every fact and every argument within his reach had been stated and made at the interview had at the headquarters. He added, that the attorney which Mr. S. had been in the habit of employing before he left Alexandria was in the court-room, and that he had tried to induce him to take charge of and conduct the case, but this he had declined to do, as he was not prepared to take the oath of allegiance to the United States government, required by the court from all attorneys who would practise in it He had not had opportunity to confer with Mr. S., by letter or otherwise, since these proceedings commenced, nor did he know that he should have for a long time to come, else he might ask for an adjournment of the case until he could hear from him. Under all the circumstances he saw no other way than to submit to the judgment of the court, whatever it might be.

All parties having rested, Judge Freese said he "would have much preferred not to take up this class of cases, but under all the circumstances it was a responsibility he could not avoid. The plaintiff came to this city seeking his debtor and the recovery of a just claim. Upon inquiry he learns that his debtor has fled and is now within the enemy's lines, yea, even under the very wings and protection of the authorities at Richmond. He cannot pursue him thither, nor can he issue, or have issued, any process by which to compel his return. The goods he sold him, however, with a large amount of other goods, he finds in Alexandria, in possession of a man who claims to be Mr. S.'s agent for the care and sale of his goods, but not his agent for the payment of his debts. Indeed, this so-called agent—who, in a legal sense, is no agent at all, and has no more claim upon the goods than any other gentleman in this court-room—even goes so far as to say that 'Mr. S. may not owe this plaintiff anything now, however justly he may have, owed him a few months ago, for the reason that the Confederate Congress has since then passed a law sequestrating all debts due from the South to the North; in reply to which the court told him, and may now repeat for the benefit of this whole community, that it matters not what laws may or may not be passed by the Confederate Congress, they can in no way affect the people of this city so long as it remains in charge of Union troops, and that is likely to be so long as the war continues. Had there been any other tribunal in this city to which this class of cases could have been referred, this court would not have taken them up; but, since the State and county courts of Alexandria had virtually run away when the people ran away, the simple question to decide was, whether this court should take up this class of cases, in addition to such as it had already taken up, or allow Mr. G., and others like him, to be without any remedy whatever? Viewed from this standpoint, it became a duty, a responsibility, and one which the court could not avoid, without inflicting great injury upon others and consequent blame upon itself.

"With regard to the facts in the present case there is not a shadow of doubt in the mind of the court, nor is it at all probable that Mr. S. would deny any one of them, if here himself. He unquestionably owes this debt to Mr. G.; the goods in the store-room which he lately occupied unquestionably belong to Mr. S.; Mr. T. has no claim upon them whatever, not even the claim of an agent or clerk, in a legal sense; he has assumed authority so far as it suited his own convenience, but declines to assume it when it does not suit his convenience or his secession notions; to sell the goods, pocket the money, and transmit all or part of it to Richmond was, to his mind, all right—to pay Mr. S.'s creditors with the money, or with a portion of the goods, was, to his mind, all wrong. In all this the court differs with him entirely, and holds that so much of the goods as have not been paid for belong to his creditors rather than to him, and that the agent, so soon as he became satisfied of the correctness of the claim, should not have hesitated a moment about returning to Mr. G. so much of his goods as remained in store, and paid him the balance in money or in other goods. It is a principle of law that a consideration of some kind must pass from buyer to seller before legal possession can be claimed by the buyer. Hence you see in contracts the words, 'For and in consideration of one dollar, the receipt of which is hereby acknowledged,' etc.; whereas no dollar, or any other sum, has passed between the parties, and yet these words or their equivalent are necessary in order to make the contract legal. It may be answered that the taking of a note, or a consent to a charge upon books of regular entry, are regarded as a 'consideration' in the mercantile world, and this may be so; but certainly, if the purchaser afterwards repudiates his note or book account, or if the government under which he has placed himself repudiates the debt for him, then there is not, nor has there been, any 'consideration,' and the seller, in law as well as in equity, has a right to the goods.

"Again: in the eye of the law, Mr. S. would be regarded as an absconded debtor, and had there been a court of common pleas in this city, Mr. G. could have had an attachment issued, and the goods of Mr. S. seized and held by virtue of that attachment. True, Mr. S. has not left the State—and in most of the States the law requires that the party shall have left the State before an attachment can issue—but, under the present state of things, Mr. S. has as virtually left the State, or at least the jurisdiction of a court in Alexandria, as though he had gone to England. I certainly should have taken this view of the case had I been presiding in a common pleas court, and this case been brought before me, and I doubt not any other judge would have done the same. In law, as in other things, 'circumstances alter cases,' and it is the duty of a court always to consider circumstances, and to give such construction to law as will best promote the ends of justice.

"Nor does this principle at all conflict with another, so often and so strongly insisted upon by this court, namely, that abandoned property shall not be taken for private gain. Had any party, having no just claim upon Mr S., attempted to take for his own use and profit any of the goods left by Mr. S. in that store-room, this court, if informed of the attempt, would have used all its power to prevent such taking, and, if already taken, the court would have made the party return the goods to the place from whence taken. But the case in hand is altogether different. Here the party has a claim, a just claim, indeed an implied, if not a legal ownership in the goods which he seeks to take, and, instead of preventing, it becomes the duty of the court to assist in the transfer.

"But, again, it may be said by some—and is probably thought, if not said, by this defendant and his secession friends—that, as this is a military court, it has not, and should not presume to have, any jurisdiction in civil matters, or matters touching the transfer of property, real or personal. As heretofore stated, this court surely would not have assumed any such jurisdiction, had there been a circuit, district, common pleas, or chancery court in this city, to which cases of this kind could have been referred; but, as all present well know, there has been no such court here since the Confederate troops left, and with them all the officers of State and county courts. Hence, as before stated, it was this court or nothing. But there is a view, and a very strong view, of the case, in which it would become not only the right, but the duty, of this court, or of any military court, to interfere in cases of this kind, namely, where it became known that property, or the proceeds from sales of property, was being surreptitiously transferred from the hands of friends to the hands of enemies. The third section of the third article of the Constitution of the United States defines treason to be the 'levying of war against the United States, or in adhering to their enemies, giving them aid and comfort.' Now, if the transfer of goods, or the transfer of money from the sale of goods, gives to an enemy 'aid and comfort,' then, surely, it is the business of a military court to stop it, and the evidence in this case shows this to have been done. The agent admits that he has sold the goods for cash in hand whenever he had opportunity, and that, as he has had opportunity, he has transmitted the money to Mr. S.; nor does he, or any other of his friends, pretend to deny that Mr. S. is an avowed enemy to the government which this court, in part, represents.

"So suddenly and so unexpectedly has this new class of cases come upon the court, that no time has been had to consult with the Attorney-General or other legal gentlemen, or even to consult legal authorities with regard to the matter; but the court has no doubt that the principles laid down in every law text-book, including Blackstone, Kent, Parsons, Greenleaf, Chitty, Cockburn, Stephen, and others, will fully justify every position thus far taken by this court, even though there be not a single precedent to cite. While this court would much prefer to follow than to make precedents, yet it has no hesitancy in making them when the circumstances of a case call for, or justify, such action. At the earliest possible moment the court will draw up and promulgate a course of proceedings in cases of this character. Until then the form of proceedings and the manner of adjudication will have to depend altogether upon the facts in each particular case.

"The judgment of the court in this case is, that the plaintiff choose one man, the defendant another, and the two, a third, or, if there be any disagreement about the choice of a third man, that the Provost-Marshal act as such third man. That the three thus selected constitute a commission, authorized and directed by this court to set apart, of the goods left by Mr. S., so much as will pay in full, at a fair valuation, the claim due from Mr. S. to Mr. G.; that this commission shall fix the price of every article transferred to Mr. G., and, where there is a disagreement as to value between the two, the judgment of the third shall be final; that the gross amount of goods to be transferred shall include the amount of Mr. G.'s claim, the estimated cost of transportation from this city to Philadelphia, and five dollars to each of the commissioners for the services they will render; that the commissioners make a written report to this court so soon as the goods have been selected and set apart; but that the goods be not taken from the store-room, until the report of the commissioners be approved by this court, and an order for their shipment obtained. The Provost-Marshal will see to the execution of this order in all its parts."

The court then adjourned. On the afternoon of the same day each party chose their man, and the Provost-Marshal consented to act as the third. Next morning the three went to the store-room, accompanied by Mr. G. and Mr. T., and before noon had a sufficient amount of goods selected and set apart to cover Mr. G.'s claim. In the afternoon they presented their written report to the Provost-judge; he examined and approved it, and at once gave an order for the delivery and shipment of the goods. Next day they were shipped, and probably a better pleased man never left Alexandria than Mr. G.

The only other case of this character to which we can give place, occurred between a large wholesale dry-goods firm of New York and one of the largest retail dry-goods houses in Alexandria, and differed from the first case only in the fact that here the store was securely locked up, and had been ever since the owners left. There was no agent in this case left to sell or otherwise dispose of the goods, though it came out, in the course of the evidence, that the clerk, with whom the keys had been left, had frequently been seen to take large packages of goods from the store, and he acknowledged that he had sent some across the lines to his former employers.