Jurisprudence: United States v. Cashiel

With this post I’m inaugurating a new occasional series that will appear at various times: court cases that either impacted the Civil War or Reconstruction, dealt with Civil War or Reconstruction issues, or grew out of the Civil War or Reconstruction.

These cases won’t be in any particular order on my part.

The first is the 1863 case of United States v. Cashiel, a Federal case from Maryland. The full nomenclature is United States v. Cashiel, 25 Fed. Cas. 318, Case No. 14,744 [1 Hughes. 552]  District Court, D. Maryland. 1863.

In June, 1863, Mr. Hazel B. Cashiel had about 500 head of cattle on his farm in Montgomery County, Maryland. These cattle actually belonged to the United States. That morning, they were driven away along with another about 500 head of cattle that also belonged to the United States, so they could be protected from confederate cavalry in the area. The confederates rode up to where Cashiel and some others were standing and wanted to know where the cattle went. One of the men gave a false direction, and when the confederates returned and repeated their demand, “the accused is alleged to have indicated to him the road which the cattle had taken, their number, and the fact that they were driven without any guard except their ordinary herdsmen. This information did not result in any benefit to the enemy, as the cattle were driven safely within the Federal lines.” [25 Fed. Cas. 318] Cashiel was arrested and tried by military court, charged with providing intelligence to the enemy, and found guilty. The court, however, decided his only punishment would be a warning to be more on guard in the future when enemy soldiers questioned him. Secretary Stanton approved the finding but disapproved of the sentence. Stanton wrote, “Although the accused has been relieved of all responsibility under the 57th article of war, he is still liable to be prosecuted under the 2d section of the act to suppress insurrection, etc., approved July 17th, 1862 [12 Stat. 589], for giving aid and comfort to the rebellion, and that the prosecution for this offence may be proceeded with he will be handed over to the civil authorities.” [Ibid.] Cashiel was arrested again and indicted. “When the case was called for trial at the present term of the court, the counsel for Mr. Cashiel put in the plea of autrefois convict, averring that as he had been before tried by the proper tribunal, he could not be again impeached and put in jeopardy for the same offence. To this plea the United States demurred.” [Ibid.]

Judge William Giles was the District Judge presiding. In his decision, he first framed the case in terms of the applicable law: “The 2d section of the act of 17th of July, 1862, under which the traverser stands indicted, is as follows: ‘That if any person shall hereafter incite, set on foot, assist or engage in any rebellion or insurrection against the authority of the United States or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any existing rebellion or insurrection, and be convicted thereof, he shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.’ The trial and conviction which forms the subject-matter of the plea filed in this case, was had before a general court-martial, held in the city of Washington, in pursuance of orders from the war department. The charge against the traverser before that court was for a violation of the 57th section of the article of war, which article is as follows: ‘Whoever shall be convicted of holding correspondence with, or giving intelligence to the enemy, either directly or indirectly, shall suffer death, or such other punishment as shall be ordered by the sentence of the court-martial.’ See act of 1806 (2 Stat. 366).” [25 Fed. Cas. 318, 319]

Judge Giles next identified two questions that had to be answered: “1st. Had the court-martial, whose record is referred to in the plea filed in this case, jurisdiction of the offence there charged and over the person of the traverser? And if so, 2d. Is the said charge the same offence (within the meaning of the fifth amendment to the constitution of the United States) for which the traverser now stands indicted?” [Ibid.]

Judge Giles determined the two laws punished separate infractions, therefore Mr. Cashiel was being charged with a separate violation of the law and this was not a case of double jeopardy. He tells us, “In the case at bar, the traverser is charged with a violation of the act of 1862 by giving aid and comfort to those in rebellion. The charge on which he was tried before the court-martial was for giving intelligence to the enemy, in violation of the articles of war.” [25 Fed. Cas. 318, 321]

While this particular case had no earth-shattering ramifications regarding the war, it is still a part of the jurisprudence that came about as a result of it.  Some of the cases we look at will be like this.  Others will have profound impacts.

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8 comments

  1. Excellent! I’ll look forward to this series.

    1. I have a lot of cases available thanks to some research I did at the University of Hawai’i’s Law Library a few years back. 🙂

  2. Thanks for posting. As an attorney, I hope you don’t mind if I make a couple of technical or language corrections. Instead of nomenclature it should be citation and instead of saying the case is still part of the jurisprudence, it would probably be better to use the term case law.

    1. Thanks, Brad. I’ll make those changes in future postings.

  3. Jerry Doherty · · Reply

    I’m not so sure this is still good law. Ever since the US Supreme Court case of Blockburger in the 1930’s there has been the concept that you can’t do multiple prosecutions that all arise out of the same facts. This looks to me like a case where the facts are all the same, but the only issue is that the government found a different violation. Today, this would not be permitted.

    It is an interesting case, though, and is illustrative of Stanton’s micromanaging of many minute aspect of the war effort. Thanks for sharing

    1. Oh, any number of the cases to be posted in this occasional series may have been reversed since the original ruling. That, of course, would have happened after the era in question, though. 🙂

  4. Jerry Doherty · · Reply

    I’m sure. I just wasn’t clear on what you meant by this case being “still a part of the jurisprudence” that came about from the conflict. It sounded to me that you might be saying this was still the law of the land. But in terms of the jurispridence of the day, it is an interesting case.

    1. What I meant was that even though it doesn’t seem to have had much impact on the way we view the war or the issues surrounding it, it was still a part of the case law that surrounded the war–not in the sense that it endures to this day–it may or it may not.

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