
    BROOKE’S CASE Francis J. Brooke v. The United States.
    
      On the Proofs.
    
    
      Certain drugs and medicines are taken from the claimant and delivered to an officer of the government} who applies them to its use in the military hospitals. Claimant seeks to recover the value of said property, and also an advance of twenty-five per cent, for their increased value between the time of the taking and the demand for the restoration.
    
    I, In respect to a recovery on an implied contract, tlie evidence applicable to individuals is applicable to an individual and tbe government.
    II. The claimant’s oath is not regarded as evidence in the Court of Claims.
    
    Mr. John Jolliffe for the claimant:
    About February 9, 1863, claimant purchased, through Joseph W. Nairn, a druggist iu Washington city, D. 0., five boxes of quinine, morphine, gum opium, and nitrate of silver, for which he paid, including commissions and costs of transportation, $2,272, or $2,274. Mr. Nairn had purchased' these medicines (by an agent) in Philadelphia. They were consigned and delivered to him, with his name upon the boxes, and left on the pavement near his store. -Upon payment for them, Mr. Brooke.took them into his possession.
    On the 9th of February, 1863, the claimant was arrested by order of Colonel Baker, the provost marshal for the War Department, and taken before him, (Baker,) who sent him to the central guard-house, in Washington; and from thence he was taken to Carroll prison, where he was kept until May 13, 1863, and was then released upon his taking the oath of allegiance. Soon after he was released he applied to the War Department for the return of his goods, and his application was refused. His goods, without any judicial decision, had been turned over to the Medical Director of the United States government.
    There is no evidence that' proves that these goods were “ pi oceeding to a State, or part of a State, in rebellion.” The burden of proving the alleged evil intention rests upon the government. Suppose that Mr. Brooke intended to take the goods into Virginia; still such intention, even if clearly proved, was no warrant for the seizure. They were not “proceeding to” such State, but were at rest. The act applies only to goods in motion. The claimant has his locus penitential. ( The Imina, 3 Robinson, 138.)
    
      It was the general policy of tlie government, during tlie whole war, that each and every one of the guarantees of the Constitution of the United States should be respected; and the war was waged for the single purpose of securing to the loyal people of the United States everywhere their constitutional rights.
    The context of the fifth amendment to the Constitution proves that its provisions and guarantees apply to all persons, at all times, save in the cases therein excepted. Thus, “ no person shall he held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury.” At the time this seizure was made, the civil courts were in session in this District, and persons were indicted by the grand juries “for capital or otherwise infamous crimes.” The claimant, at that time, “ could not have heen compelled, in any criminal case, to he a witness against himself” Nor could he “he twice put in jeopardy of life or limb for the same offence; ” and, therefore, he could not he “ deprived of life, liberty, or property, without due process of law.”
    
    This part of the fifth amendment is hut the re-enactment of the principal matter of Magna Gharta, cap. 29:
    “ Nullus liber homo capiatur vel imprisionetur, aut disscige/ur, de libro tenemento suo * * * nisi per legale judicium parium
    
    
      suorum vel per legem terree.”
    
    And in 2 Inst., folio 50, Lord Coke, commenting oh these words, “nisiper legem terree,” says this chapter is declaratory of the old law of England, and refers to a case in the time of Edward III.
    The very slaves, in the worst days of slavery, could not be twice tried for the same offence. Ex parte Jesse Brown, 2 Bailey, (N. C.,) 323; Wheeler’s Law of Slavery, page 222; Cobb’s Law of Slavery, § 311.
    Again, the Congress of the United States has no power to authorize the seizure and confiscation of any man’s property, without giving him an opportunity to be heard. This rule is wholly different from that which results from the constitutional guarantee. It arises from the nature and object of government, which exists to protect, not to oppress ; to prevent robbery, and wrong, and not to seize a man’s property and “forfeit” it, without any sort of trial or hearing. (See Fletcher v. Peck, 6 Cranch’s Reports, 321; Wilkinson v. Leland, 2 Peters, 656-7; 2 Kent’s Com., 13; 3 Story on the Constitution, 661; Taylor v. Porter, 4 Hill’s, (V. 7,) 159 ; In the matter of Albany street, 11 Wendell, 149; Bowman v. Middleton, 1 Bay’s Reports, 252; 1 Kent’s Com., 13, and note b, and 451; Hoke v. Henderson, 
      4 Dev., 1; Jones v. Perry, 10 Yerger, 50; Matter of John and Cherry streets, 19 Wendell, 659; Varrich v. Smith, 5 Paige, 137; Tucker’s Black. Com., Appendix, 305; Parsons y. Bedford, 3 Peters, 446, 449; Kirkpatrick v. The State, Meigs, 124, 126.)
    The question is not one of time or of amount. The citizen cannot be deprived of a dollar’s worth of his property, even for an hour, “ without due process of law.” (See Prigg vs. Pennsylvania, 16 Peters, page 612.)
    Again: The powers of the government of the United States are distributed among legislative, executive, and judicial departments. As this distribution has been made by the Constitution, Congress has no power to alter it. Thus, judicial officers cannot be burdened with executive duties. (See Play born’s case, 2 Dallas, 409, 410, 411, in note; American State Papers, vol. 1, “Miscellaneous,” p. 49; and 1 Curtis’s Decisions of the Supreme Court, pp. 9, 10, &c., in note)
    An act of Congress cannot confer judicial duties upon any executive officer. (See Ex parte Randolph, 2 Brockenbrough’s Reports, 447; Commonwealth of ICentucky v. Dennison Governor, 24 Howard, 66.)
    The Assistant SolicitoR for the defendants:
    1st. The court has no jurisdiction of this case. Upon the claimant’s own showing, the seizure of his goods was unauthorized and unlawful ; if this be so, then it results that he who ordered, and those who aided in, the seizure are simply trespassers. Their acts were unauthorized and unlawful, and for relief against these the law has conferred upon this court no jurisdiction.
    2d. In order to entitle this claimant to recover here, he must show such facts and circumstances as raise an implied obligation on the part of the United States to make him compensation.
    If the claimant seeks to recover upon an implied promise to pay for his goods because they were appropriated to the public use, he must show that there was an urgent necessity for taking his goods. Unless there was such necessity, the officer who takes and appropriates the goods or property of the citizen is a trespasser and is dersonally liable. Mitchell v. Harmony, 13 How., 134. W. S. Grant v. The United States, 1 C. Cls. R., p. 41.
    3d. Baker was a government police officer, and it was his duty to prevent violations of the law, as well as to detect and arrest those who had already violated them. He might rightfully arrest any person about to engage in unlawful practices. He alone could rightfully judge of the necessity for preventing any contemplated violations of law. If he acted in good faith, and without malice or evil intent, he is not liable. If he acted otherwise, he is a trespasser. Croioell v. McFaddon, 8 Craneh, 93. Otis v. Watkins, 9 Cranch, 393.
    4th. It does not appear that the government ever sanctioned, adopted, or ratified the acts of Baker in making this seizure. No department of the government has power to adopt or sanction the unlawful acts of its agents. That power, if it exists anywhere, belongs alone to Congress.
    6th. There is no necessity of controverting the correctness of the position of the claimant’s solicitor, that “ no citizen may he deprived of life, liberty, or property without due process of law.” It is- the misfortune of this claimant that he has been unlawfully deprived of his property by the unauthorized acts of one of the agents of the United States, and for this unlawful act, the agent, and not the government, is liable.
    
      
       This was prior to the act 2d March,' 1867, (14 Stat. L., p. 457.)
    
   Peok, J.,

delivered the opinion of the court:

Francis J. Brooke alleges that he was the owner of certain drugs and medicines which were taken from him in this District in the month of February, A. D. 1863, by one Baker, who delivered the same to an officer of the government, who applied them to its use in the military hospitals. He now seeks to recover their value, which he alleges was $2,272, and also an advance of twenty-five per cent, for their increased value between the time of the taking and the demand for the restoration of them.

The claimant proves the purchase of the medicines, their arrival in Washington, their delivery to him, and the payment for them. He also proves that they were seized by Baker and taken to bis office, whence they were taken by a United States wagon and traced to the possession of Henry Johnson, who says he held the office of medical purveyor and storekeeper of the army at Washington, and that it was his duty to purchase and distribute medical supplies for the army. Johnson states in his testimony that he received from Baker five boxes, containing the medicines; that he took them from the boxes, issued them to the army hospitals, and that they were used in the medical department of 'the army. He also states .that he made an official entry of the medicines in his returns, and that the amount appears in bis abstract of receipts for tlie month and year, which was February, A. D. 1863.

As between individuals these circumstances would justify a recovery of the value of the goods; so should they as between an individual and the government.

Except by his own oath, which we do not regard as evidence, the claimant furnishes no other proof of the value of these goods than the price of them in Philadelphia, which we allow, and direct a judgment to be entered in his favor for the sum of two thousand and eight dollars and seventy-two cents.

Judge Loring did not hear the argument in this ease, and therefore did not take part in its .decision.  