Allen v. Colby , 47 N.H. 544 ( 1867 )

Perley, C. J.

No question is made on the hearing, and none appears to have been made at the trial, that the plaintiff was a resident of Guildhall, Vermont, liable to the draft which had been ordered by the President, and that he had absented himself from the town of Guildhall and the State of Vermont, to avoid the impending draft. He was, therefore, within the terms of the general order No. 104, which authorized such persons to be arrested wherever they might be found within the jurisdiction of the United States. The position is taken for the plaintiff that this order did not warrant his arrest, because the President had no legal authority to issue it.

The Constitution of the United States, article 1, section 8, confers on Congress the power "to raise and support armies, to make rules for the government of the land and naval forces, to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” Under this grant of power to raise and support armies and call out the militia, there can be no doubt that Congress has power to make and authorize such orders and regulations as may be necessary to prevent those, who are liable by law to military service, from evading that duty; and an order to prevent them from leaving the country and State, to avoid an impending draft, would be necessary for that purpose. This was, therefore, a legal order, if made by the authority of Congress.

By the act of July 17, 1862, it was provided "that whenever the President of the United States shall call for the militia of the States to be employed in the service of the United States, he may specify in his call the period for which such services shall be required, not exceeding nine months.” "If, by reason of defects in existing laws, or in the execution of them in the several States, or any of them, it shall be found necessary for enrolling the militia and otherwise putting this act in execution, the President is authorized to make all necessary rules and regulations.”

The President had ordered a draft from the militia, to serve for nine months, under this and former acts. So far as we are informed, there was no law or regulation of this State, or of Vermont, to prevent men from leaving the places where they resided and were enrolled in the militia, and so avoiding the 'draft; and some regulation like this order was obviously necessary to provide for putting the act of July 17, 1862, in execution. Whether the President, as commander-in-chief, charged with the execution of the law, would not have had power to make the order without this grant of authority from Congress, it is not necessary here to inquire; inasmuch as the power is plainly given by the act. We have had no hesitation in coming to the conclusion that the order was. legal and valid, and that if the defendants had found the plaintiff in the county of Coos, they might have legally arrested him under it.

Were the defendants justified in taking possession of the plaintiff’s valise and wearing apparel and detaining it, if they believed that he was at Northumberland, about to leave for Canada, or concealing himself there to avoid the draft, and believed that by so doing he would be prevented from escaping to Canada, and that this might lead to his arrest, and they acted in good faith for the sole purpose of effecting his arrest ?

Officers, who are empowered to arrest the person, should not be encouraged to intermeddle unnecessarily with the property of the party to be arrested. If a loose rule were admitted on this point, it might lead to great abuse. On the other hand, it was. in this case, of vital importance to the country that orders and regulations intended to secure the recruiting of the army should be effectually enforced ; and it would have been unjust to the true men, who willingly remained to take their chance under the draft, if others of a contrary disposition had been allowed to shirk the military service, which they owed to the country. The selectmen of Guildhall were, therefore, performing a duty, which they owed, not only to the public, but to their loyal townsmen, in endeavoring to bring back the plaintiff to abide the draft; and the conduct of the defendants in their attempts to arrest the plaintiff is entitled to an indulgent construction. They would be justified in using, and having undertaken this office for the selectmen of Guildhall, they would be bound to use, all reasonable means to arrest the plaintiff; and for this purpose there can be no doubt that in circumstances which might be supposed they would have a right to take his property. If, for instance, he were meditating flight, and had a horse ready saddled to ride away on, or had a boat prepared to convey him across the river in his flight, there could be no question of the officers’ right to take the horse or the boat to prevent his escape, and accomplish his arrest. Those would doubtless be stronger cases than the present; but each case must be decided on its own circumstances, and rvhether the officer acted reasonably, discreetly, and in good faith, must, in cases of doubt, be inferred from the circumstances as matter of fact. The evidence went to show that the plaintiff’s father had carried and deposited the valise and wearing apparel of the plaintiff at Hawley’s; the selectmen had been informed that the plaintiff was concealed in Northumberland; and the evidence reported, notwithstanding the plaintiff’s denial, tends strongly to the conclusion that such was the fact. At any rate, the defendants had every reason to suppose that the plaintiff was lurking in that neighborhood with the intention of escaping to a safer distance when he had convenient opportunity ; and that he had been waiting there for the wearing apparel, which his father brought and left at Hawley’s. It seems to us that the defendants might reasonably suppose, in these circumstances, that taking and detaining the valise and contents would prevent or delay his departure, and lead to his arrest, and that the instructions of the court on this point were correct.

The case does not find, and there is no evidence reported, from which it can be inferred, that the defendants broke into Hawley’s house, or committed any other wrong in order to obtain possession of the plaintiff’s valise and clothing. The authorities have, therefore, no application in which it has been held that property cannot be taken on a legal warrant, if possession of the property was first obtained by a wrongful act.

The provision of the constitution against unreasonable searches and seizures cannot be understood to prohibit a search or seizure, made in attempting to execute a military order authorized by the constitution and a law of Congress, when the jury under correct instructions from the court, have found that the seizure was proper and reasonable, as they have in this case.

The objection that the order No. 104 was not legally proved, is not insisted on, and cannot prevail.

Judgment on the verdict.