Tweed's Case/Dissent Bradley

Mr. Justice BRADLEY, with whom concurred Mr. Justice DAVIS, dissenting.

I dissent from the opinion of the court in these cases. Tweed, the defendant in error, repaired to the Red River region to purchase cotton, under a written engagement with a government agent to purchase and pay for the same, and to deliver one-fourth part to the government, upon the express consideration stated in the agreement, that it was well known that a great deal of cotton belonging to the Confederate government was in th t district, but could not be identified, and was kept back by the parties having it in possession for fear of its being seized. Tweed was to have the prestige of government protection; was to purchase any cotton he could find for sale, without any questions; was to send it to the government agent at New Orleans, and there three-fourths of it were to be set apart to his use and one-fourth to the use of the government. This was the general purport and effect of the agreement. There cannot be a doubt, from the evidence in the case, that he derived great advantage from his semi-official character. But having made his purchases, he concluded that it would be a better speculation to have all the cotton than only three-fourths of it; and, therefore, he sets up the pretence that he did not act under the agreement, but on his own independent account. The cotton, however, went forward, protected by the general policy of insurance taken out by the government agent, and arrived at New Orleans. The government agent, Flanders, took possession of it, and gave up to Tweed his three-fourths, according to the agreement. The balance he retained for the government, against Tweed's consent, and was sustained in his action by the Secretary of the Treasury.

Tweed sued out a sequestration (a writ in the nature of the common-law replevin) from the United States Circuit Court of Louisiana, and by virtue of that writ one-fourth part of the cotton held by Flanders, the government agent, for the government, was taken out of his possession, and the court held that this was a lawful exercise of the judicial authority.

Now, on the merits of the case, I cannot concur in the opinion that Tweed could, under the circumstances, repudiate his agreement; but I think he was bound by it and by his acts, and was estopped from asserting an independent purchase of the cotton on his own account; and that the charge of the court should have been to that effect, and that the charge given and the refusal to charge as requested were erroneous.

I also hold that this was a suit against the government itself. Flanders did not hold the cotton on his own account, but on government account; and his acts were sanctioned and adopted by the Treasury Department. He was acting for the government, and his possession was the government's possession. Whether he was acting lawfully or unlawfully was a question which the court could not decide by an adverse proceeding in a suit brought for the recovery of the cotton.

This is a very different case from that of a replevin brought by the owner of goods unlawfully taken by a sheriff upon execution against another person. Goods in the custody of the law, seized for the benefit of a private party, in satisfaction of a judgment or to meet an asserted claim, may be replevied by the true owner; but goods claimed by the government itself, as its own goods, and held by its agents in possession, cannot be reclaimed in this manner. They can only be reclaimed by application to Congress, or, in certain cases, to the Court of Claims.

Nor is the case governed by that class of cases in which a mandamus will lie against a government officer to compel him to perform a ministerial duty. Such a writ is issued, or is supposed to be issued, by the government itself, to compel its officials to do their duty to its citizens.