1. We do not think that the legality of the Confederate Government, or even the validity of its civil laws, pro tempore, as the acts of a government de fado, arises, under the facts disclosed by this record. The seizure of this cotton was not pretended to be done by virtue of any laws of the Confederate Government, nor was it seized by a civil officer, or by virtue of any civil process. It was done, avowedly, as an act of war, by a regularly organized military force, and by virtue of military orders. It was done, avowedly and actually, to prevent the cotton from falling into the hands of the United States forces, and, as we suppose, it was only seized and transported to Savannah, rather than destroyed, in mercy to the owner, and because the purpose to be attained, could, under the circumstances, be as well attained that way as by its destruction.
The real questions, therefore, are: 1st. Was the seizure of this cotton a belligerent act, an act of war, legitimately, ac*561cording to the practice of civilized nations? 2d. Admitting it to be such an act, is General Mercer personally responsible for it as a trespass ?
It will be found impossible to lay down any precise rule as to how far it is legitimate to interfere with private property in the prosecution of a war. The general rule undoubtedly is, that private property, not contraband of war, is not to be interfered with. But as to what is contraband, seems to be wholly unsettled. Every war gives it a new definition — the belligerents always finding some new phase of affairs to justify their conduct.
In the case of Mrs. Alexander’s cotton, 2 Wallace, 404, the Supreme Court of the United States held, that cotton within what was called the Rebel States, or rebel territory, was the subject of capture by the United States forces, even though it belonged to a person loyal to the United States, on the ground, that it was a material part of the sinews of war. Do not the principles laid down in that case settle this question ?
If it was a belligerent act for the United States forces to seize cotton, that it might not be taken by the Confederates, would it not necessarily follow that it was a belligerent act for the Confederates to seize it, to prevent it falling into the hands of the Federals? 2 Wallace, 424. What but this principle can afford any justification for the desolation of the Valley of the Shennandoah by General Sheridan; the destruction of Atlanta by General Sherman, and of innumerable acts, by both parties, in the four years civil war, the ravages of which still dot the land with ruins? It is admitted upon all hands that the Confederates were belligerents. They were recognized as such by the principal nations of the world, and by the United States itself. If the recognition of belligerency means anything, it means that the acts of individuals, in the legitimate progress of the war, are to be treated as the acts of the belligerent; that the individual is not responsible to the civil tribunals, for any act done in the legitimate progress of the war.
*562Unless this be so, every Confederate soldier is liable, now, to indictment, either as principal, in the first or second degree, or as accessory, to the unlawful killing of those who fell upon the field of battle. If this be so, too, this action will not lie, because the trespass is merged in the felony; since, if this was not a belligerent act, it was robbery: See Revised Code, section 2919. In any view of it, we think the charge of the Court, upon this branch of the case, was right.
2. As to Gue, the other defendent, he was but the agent of the owner of the warehouse. As we hold the seizure of the cotton not a trespass, it came legally and properly into the possession of the warehouseman. He was no trespasser in the receipt of the cotton. The same belligerent force which removed it from the plantation of the owner, against his will, deposited it with the warehouseman in Savannah, and it was legitimately there. If it was improperly sold after it was put there, under the direction of the warehouseman, the clerk who sold it is not responsible. He is but the servant of his principal. If the taking was a trespass, all concerned are liable, but if it was legitimately there, and was sold without authority by the warehouseman, or by his direction, he and not the clerk is responsible.
Judgment affirmed.