

IKDEMNITY. 



523 



Circuit Court United States, Eastern District of 

 Pennsylvania William II. Hodgson vs. William Mill- 

 ward, tt al. This case has been removed into this 

 court under the provisions of the 5th section of the 

 act of the 3d of March, 1863 (12th Stat. at Large, 756). 



It is now moved to remit the record, on the allega- 

 tion that the case is not within the provisions of that 

 act. Although the certificate of the judge who order- 

 ed the removal of the case may not be conclusive on 

 this court, if we should be of opinion that we cannot 

 entertain jurisdiction of the parties or of the cause, yet 

 it lies ou the party who alleges that fact to make it 

 clearly appear that we see no reason to doubt the cor- 

 rectness of the decision of the learned judge who has 

 certified this case, and fully concur in the opinion de- 

 livered by him. 



It would be superfluous to repeat the arguments so 

 well stated by that learned judge. It is clear that the 

 defence of the defendants (if they have any) depends 

 wholly on the construction of the Constitution of the 

 United States, and of acts of Congress. The courts of the 

 United States have, therefore, jurisdiction of the subject 

 matter without regard to the citizenship of the parties. 



The act of Congress already mentioned, which au- 

 thorizes the removal of such cases to this court, is not 

 alleged to be unconstitutional, nor that the party has 

 not pursued the mode pointed out by the act in a case 

 where there has been a final judgment, and which, of 

 course, was still pending in that court. 



The objection that the record shows that the trespass 

 with which the defendants are charged was not com- 

 mitted by virtue of any order of the President, or un- 

 der his authority, or under color of any act of Con- 

 gress, cannot now be urged, as it constitutes the very 

 question to be tried and determined by the court when 

 tne case shall be heard before a jury. Assuming the 

 allegation to be true that the President may have had 

 authority conferred upon him to issue such orders, and 

 that the order issued by the United States attorney 

 was irregular or void, yet these are the very questions 

 which the defendants have a privilege, conferred by 

 statute, of a trial and decision in the Courts of the 

 United States. 



The order or warrant under which the defendants 

 justify, purported to have been issued by virtue of au- 

 thority derived from the President. This was " color " 

 of authority, whether the substance existed or not. 

 The argument that color being an accident, cannot ex- 

 ist without substance, may be metaphysically correct, 

 but has too much subtility for practical application in 

 the construction of statutes. We do not think it ne- 

 cessary to give a definition of " color of authority " to 

 suit all cases. For the purposes of this case it is 

 enough to say, that an officer acting in good faith un- 

 der a Warrant purporting to come from his superior, 

 whom he is bound to obey, is acting under " color of 

 authority," whether his superior transgresses his pow- 

 er, or the warrant be irregular, or not. This is the 

 question to be tried under proper pleadings and evi- 

 dence before a jury. 



If the State Court should assume to refuse to certi- 

 fy the case into this court, because, in their opinion, 

 the superior officer had not authority, or the warrant 

 was irregular and void, they would deny to the party 

 the privilege conferred on him by the act, and treat its 

 provisions with contempt. 



This case was, therefore, properly certified into this 

 court, and must be tried in the same manner as if 

 brought here by appeal, or as if it had been brought 

 in said court by original process. 



Motion denied. 



^Another class of cases, arising under the second 

 division named, were claims presented for com- 

 pensation for property taken for military uses. 



The case of William S. Grant vs. the United 

 States was decided by the Court of Claims in 

 the beginning of 1864. The claim in this case 

 was for' private property destroyed and aban- 

 doned in Arizona on the 15th of July, 1861, by 



order of Capt. J. N. Moore, commanding Unit- 

 ed States troops in the vicinity of Tucson. 

 Grant was a contractor with the Government 

 for furnishing commissary and quartermasters' 

 supplies for the forts and military posts in Ari- 

 zon, and in furtherance of his contract had ex- 

 pended large sums of money in the repair and 

 erection of flouring mills, dwelling-houses, store- 

 houses, shops, and corrals. He had personal 

 property also of considerable value, consisting 

 in part of flour, wheat, corn, barley, beans, mer- 

 chandise, furniture, &c. In the mills and store- 

 houses of Grant were valuable supplies belong- 

 ing to the Government. 



The people of Tucson were lawless adven- 

 turers and intensely hostile to the Government 

 of the United States. Lieut. Lord speaks of 

 the citizens of the Territory as "traitors of 

 the deepest dye" "that they openly talked 

 secession long before the war commenced, 

 especially those in the vicinity of Tucson. Capt. 

 Chapin, in his deposition, says: "Tucson was 

 full of gamblers and murderers. Large numbers 

 of white people were Southerners in feeling and 

 ready to take up arms for the Southern cause. 

 Exceptions to this rule were rare." A Confed- 

 erate flag was flying at Tucson, and when the 

 property was burnt the people assembled in 

 large numbers armed, and with such threaten- 

 ing demonstrations as induced Lieut. Lord to 

 prepare for an expected attack on his train. 

 Fort Breckinridge had been burnt and aban- 

 doned on the 10th of July, and Capt. Moore 

 had received information by express that Fort 

 Buchanan was also to be abandoned and de- 

 stroyed. He also had information that Texan 

 rebel forces held Fort Union, and were deter- 

 mined to occupy the territory, and cut off the 

 United States troops within it. 



With this information, and the state of things 

 as he knew them to exist at Tucson, Capt. 

 Moore directed Lieut. Lord, commanding a 

 company of dragoons, to destroy such Gov- 

 ernment stores as he could not transport, to- 

 gether with such private property of Grant as 

 might be of value to the public enemy or to the 

 disloyal people of Tucson. On receiving in- 

 formation that Fort Buchanan was to be aban- 

 doned, he took an escort and reached that fort 

 in advance of the main body. In his report to 

 the War Department he says: "On learning 

 the urgency of the case, I sent the enclosed 

 written order to Lieut. Lord, in command of 

 troops en route from Fort Breckinridge ; his re- 

 port in the case I forward." 



Judge Wilmot read the opinion of the court, 

 Judge Loring dissenting. Judge Wllrnot said : 



We do not doubt from this evidence, taken in con- 

 nection with the active participation of Lieut. Lord in 

 the destruction of the property, himself setting fire to 

 the large mill, and giving orders to his men to fire the 

 other buildings and property, that he acted under and in 

 accordance with the express orders of Capt. Moore. 

 Lord notified Mr. Grant half an hour before the fire 

 was set, of his intention to burn all his buildings and 

 property, and requested him to secure at once such 

 valuables and papers as he wished to preserve. 



Is the Government legally and equitably bound to 



