Lenoir County NcArchives Court.....Melcher Rhem, Jesse W. Broadway V. 1874
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Martha M. Marble http://www.genrecords.net/emailregistry/vols/00022.html#0005285 May 21, 2011, 8:51 am

Source: N C Archives
Written: 1874

#10,832 – JESSE W. BROADWAY vs MELCHER RHEM

N. C. Supreme Court Case found at the NC Archives, Raleigh, NC and abstracted 
by Martha Mewborn Marble

NOTE: This case was found the week following the death of bin Laden in 
Pakistan after which there were questions in some quarters if this was legal 
under US law.  This case answers some of those questions as it refers to 
several US Supreme Court cases as to what is legal during times of war.  I 
considered it a very timely case from a historical context although obviously 
there is a difference between the seizure of property and the taking of a life 
and there is a difference between US and International Law.

June Court 1874, Lenoir Co.

The def recovered damages from the plf for the cost of the suit.  Broadway, 
Lemuel Harvey and Thomas A. Harvey shall pay all costs and damages

On 18 Sept 1866 sd Broadway sued on a writ – the Sheriff summoned John Rhem 
and Melcher Rhem on a plea of trespass and damages of $500

On jury – William Waller, Joseph Darden, John Fields, Henry Green, Isaac G. 
Taylor, Demus Isler, B. F. Daughety, Dennis Edmundson, George Pugh, Augustus 
Moseley, Eli Parker, Lewis Brint (sic)

The court found the def not guilty and the plf can’t recover his property.

Plf states the def in Nov 1861 in company with one Sutton took his mule 
against his consent – def said he and Sutton were privates in a company of 
Confederate soldiers of which one was Foy and the taking of such mule was 
under the orders of such Capt – they didn’t want to do it but were so 
ordered.  Rhem only acted as a guide to sd Sutton and stated the plf was 
within the lines of the Federal Army where he had gone a few days before and 
remained about 2 weeks

This case at the NC Supreme Court went into a great deal of details about a US 
Supreme Court case on the seizing of private property during war time but I 
only copied a few pages.

Written by the Court
In 1864 a portion of the army of the US occupied New Berne and its vicinity, 
while a Confederate force occupied the upper county.  The plf resided within 
the Confederate, or at least, without the Northern lines.  He left his home so 
far as appears voluntarily, and went within the Northern lines. While so 
absent, the defendant who was a soldier in the Confederate army, by command of 
his Captain, went with another soldier and they seized a mule of the 
plaintiff, which was turned over to the Quarter Master of the Confederate 
force.

The question presented seems to be this. Can an inhabitant of one belligerent 
country, maintain an action against a soldier of the hostile belligerent, for 
a trespass to the property of the former, done by the soldier in the course of 
his military duty? The counsel for the plf who affirms this proposition, have 
not cited an instance of such an action, nor the opinion of any jurist in its 
favor.  Considering the vast number of cases in which such actions might have 
been brought, and would have been, if the proposition could be maintained, the 
absence of any instance of one, must be deemed strong evident against it.

There are authorities which if they do not deny the proposition in terms, 
clearly assume that there is no right of action in such a case.

Kent (1 Com. 91-3) says that the general usage in war is to respect private 
property on land, unless in special cases.  If a conqueror seizes private 
property of specific persons he violates modern usage “and is sure to meet 
with indignant resentment and to be held up to the general scorn and 
detestation of the world”.

The learned writer indirectly considers this remote punishment, as the only 
one.

In the case of McLeod, indicted in or about 1840, in a Court of New York, for 
the burning of the American steamer Caroline, it was considered by the 
Government of the United States (Mr. Webster being Secretary of State), that 
after the British government had opurned ??? the responsibility of his act, no 
action civil or criminal would be against him.  Webster’s speech on the 
Ashburton Treaty Vol 5 of his speeches, and Diplomatic Correspondence.  It is 
absurd to suppose that a soldier who in time of war does any acts by order of 
his government within the limits of international law, is subject to any civil 
responsibility to an enemy injured by the act.  Within those limits, the 
soldier is responsible only to his government.  The laws are silent in war, 
not only as to a present remedy, but as to a remedy at any time, between 
individuals of belligerent communities.  The decision of the Supreme Court of 
the United State sustain these propositions.

The Confederate States were a belligerent power.  The rights of belligerency 
are reciprocal and equal during war and it is indifferent whether the war be 
between sovereign and independent nations or between powers, on of which 
claims sovereignty over the other as in the case of a civil war.  If the 
conflict is recognized as war and the rebellions power as a belligerent it is 
guoad hoc and as regards its belligerent rights on the same footing as an 
independent nation.

A belligerent power may rightfully capture private property on land at least 
if it be of a character to be useful to the enemy.

The plf having voluntarily left Confederate territory, and gone within the 
Northern lines, the Confederate Government might rightfully regard him as an 
enemy.

NOTE:  There was much more to this but I did not copy it.

NOTE: The steamer Caroline was sunk on 19 Dec. 1837 threatening war between 
the US and England.  It is interesting to read about this small piece of US 
history that most people are not aware of or is rarely written about.



File at: http://files.usgwarchives.net/nc/lenoir/court/melcherr2443wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 6.3 Kb