Dow v. Johnson

Now v. Johnson. Cfc. Dow law, judges oj> On the trial of an action 1. at when the of the Circuit Court are law, posed opinion question .opinion presiding in on a of material the of the judge prevails; conformably may, but the rendered with- thereto error, regard amount, uponHheir out its be reviewed on a certifi- writ question. stating cate States, army serving enemy’s 2. An officer of the United in whilst the country during rebellion, the was not liable to an action courts of the country injuries resulting acts; that military orders or nor required by explain justify could he civil upon any a tribunal to them allegation injured party justified by military were not ne- war, cessity. subject He was the laws and amenable to his-own government. insurgent any portion 8. occupation When was in States of the forces rebellion, during municipal laws, suspended of the United States if not superseded, generally by ordinary administered there tribunals persons protection military for the and benefit of not in the service. Their protection, continued enforcement was not for the or the control of officers ' ' army. or soldiers of the — A district court of Louisiana continued in 4. existence after the (cid:127) occupation States, by by the State the United authorized the com- — manding general parties brigadier- causes hear between summoned a general army petition therein, of the United to answer States filed setting had, company pursuant orders, forth that a to "his seized personal property plaintiff, off alleged carried certain who war, law, the seizure was unauthorized the necessities of or martial superiors Judgment of that officer. default was rendered 9,1863, April the property. him for value of sued .When States, upon judgment, Circuit United pleaded Court supply army. Held, taken to "the demurrer plea, had court no action, that the State of the cause of was void. n Circuit United States for the Dis- Error of Maine. trict facts are

The stated in the court. opinion The case was The JS.Mr. B. argued by Attorney- G-eneral and. Smith, error, Assistant for the Attorney-General, plaintiff Mr. Thomas J. for the Durant defendant in error.

Mr. Field delivered the Justice court. below, The defendant in the court in error here, Dow, Neal brigadier-general the United army war, late civil States and in 1862 and during 1863 was Johnson, v% and St. of Forts Jackson in command in Louisiana stationed River, These below New Orleans. on the Mississippi Philip, of the United States April, surrendered to the forces forts them and passed The fleet under Admiral Farragut month, soon after- 25th of the reached on the New Orleans of the States United wards the the by forces occupied city of the the city, On possession General taking Butler. of date on the 1st a issued proclamation, bearing May,' General which, until 1862, in other he declared that among things, would United States restoration authority city ; disorders, martial law that all disturbances of be governed by nature, and crimes of an with aggravated interfering peace, United'States, of forces or laws would “be referred ” and a court trial that other misde- punishment; to the if it meanors would municipal subject authority, “ act; between and that civil causes would be desired parties referred to the tribunals.” Under this proclamation, ordinary and Parish of New the Sixth District Court of Orleans City existence, the was allowed to continue in taken judge having States., the oath of to the United allegiance 1868, sued In Dow was in that court General January, by Johnson, in this case. Bradish The petition, plaintiff of in in designation given system procedure action, Louisiana first in a civil set forth that pleading York, a and citizen New for several plaintiff years Louisiana, owner of a in had been the slaves plantation River, about miles New Mississippi forty-three ; on the 6th his tem- September, Orleans during “ absence, the steamer Avery,” charge porary Captain- Snell, of B of Thirteenth Maine with- Company Regiment, command, had his at the force under plantation, a stopped and that hogsheads' taken from it said sugar; twenty-five and. force had dwelling-house plantation plundered knives, a off a silver half dozen silver other carried pitcher, ware, the the whole private table property plaintiff, $1,611.29; these taken value amounting his and of the officers and soldiers under acts Snell Captain “ command, wan- which the characterized as illegal, petition ton, under a oppressive, unjustifiable,” perpetrated Dow v. Ct. Dow,

verbal secret then order Neal Brigadier-General States, tbe service of the command of United Forts who, orders, Jackson and St. secret his which the Philip, by “ declared were his unauthorized petition superiors, by law, martial provision of néces- by any requirements war,” out of state abused his sity growing wantonly power, and inflicted of which he upon com- wrongs ; and therefore he the General plained prayed judgment against value of the property. Dow, To this suit General served with personally though citation, no ma.de He have that dur- may appearance. thought war, existence of the in a district where insurrection ing been and was suppressed, break- recently only kept from out of the armed forces of the United ing again presence States, he was not called rule of law to answer by any orders, and civil tribunal for his satisfy were authorized the necessities superiors, growing of a state of war. He have out that for his supposed mili- conduct he to was his responsible tary only superiors military whose officer he was. and government that as whatever other reason Be have may, no had, he made he was response petition; therefore Court of The Sixth District defaulted. the Parish of New that it not seem consider was did at all Orleans inconsistent his as an officer with of the in duty army United States forts, his at the which to leave guarded post of the passage distant, hundred miles a and attend Mississippi, nearly orders, its summons military seek counsel justify evidence for his defence. Nor does it procure appear have that, if its occurred court jurisdiction over him was recog- nized, there such a multitude of might spring up suits toas keep the officers of the stationed in' its army district so that busy would have little time to look after the enemy guard default of his attacks. The the General against entered, being received was .that showing testimony articles mentioned seized detachment by military sent him and by removed that their from the value amounted to plantation, $1,454.81. was entered in favor thereupon Judgment plaintiff sum, interest and that with costs. It bears 9, date April action was in the this' brought Upon judgment present for the District of Maine. of the United States Court Circuit mentioned, declaration states the The recovery To it the defend of an authenticated and makes copy. proferí record, issue, iiel nul three special ant pleaded general is to show that the Dis of special The object pleas pleas. in to render had no ques trict time tion, that at the its district was the reason part in- insurrection of.the against government of the country States, it, and war held making against United its armed forces. It is not to state important subjection of It the averments each these will suffi at length pleas. the material and a to state second parts plea single cient substance, sets of the third. The second plea, up averment 1861, the State Louisiana that as adopted February, early secession, she ordinance withdraw attempted and establish an that from the Union independent government; 9, 1863, date time until after that April judg was in rebellion she ment in against government question, States, its war making the United authority; forces the United States en military consequence took forcible rebellion suppressing possession gaged district of the State of the Sixth comprising portion Orleans, and held of New District Court occupation military 1863, after which time it until martial long April during enforced; there and established defendant law was service of the United then a brigadier-general President, States, commissioned in-that acting duly war; his orders and the articles of State 22, 1862, of the President order com July general Carolina, within States South Virginia, manders Georgia, Florida, Texas, Alabama, Louisiana, and Arkansas Mississippi, manner, directed, in an seize and use orderly any prop real might convenient personal, necessary erty, several commands as or for their other supplies, for defendant, the in the that performance duty purposes; was in command of of the as United troops brigadier-general, Louisiana; in and that the his order seized States troops by State, then a chattels citizen that certain from the plaintiff, VOL. x. Cfc. and convenient for the:

necessary supplies army and' States, and other that for United that purposes; District seizure the action was Sixth Court of brought him, in in which the New Orleans question judgment ; no was rendered but that the District Court had jurisdiction commencement, over the at action defendant its or at rendition of the the judgment. that,

The third also avers for the plea purpose suppressing the rebellion and the national restoring authority, govern- States, officers, ment of the its declared United through proper Louisiana, 1, 1862, in and maintained martial law from May after the 9th of all the until April, long deprived State, the Sixth in that District Court New including courts such should Orleans, of all be conferred except jurisdiction, of the officer them commanding forces by authority State, that in that no jurisdiction oyer States United States, service of the United acts in the military persons of their in the line con- authority duty, performed ferred that court. upon record, To the first tiel replied

. nul plea, record, there of which inspection; was/such prayed in his found favor. the record court being produced, the District Court To special' pleas plaintiff replied causes, within had lawful over jurisdiction parties and of.action mentioned:, and to district at the time and. its render place de- in To the defendant judgment question. replication arose, murred; demurrer two upon questions upon in Court were opinion, which the Circuit opposed judges is a and sufficient 1st, good whether replication namely: and, 2d, District whether the Sixth to the pleas; reply special mentioned, had Court, at the time and place action, to render question. and cause of judgment parties are statute, Circuit opposed judges when By cause, of a on the trial question arising opinion prevails, presiding justice entered in with it. Here justice presiding conformity was a sufficient spe- of opinion reply replication over cial and that the District Court pleas, cause, to render the question. parties Dow v. Johnson. n Accordingly, final the demur- upon judgment costs; rer, $2,659.67 entered for which was here writ of error on a has the cause brought by defendant. division of certificate of opinion. determination thus for our presented

The question important is liable is, officer of United States whether an army local tribunals for in the resulting a civil action injuries character, whilst in him in ordered acts by States, in the the United upon service of enemy’s country, acts not injured justified party allegation of war. necessities is a to its there before prelim- But consideration proceeding act of of. The to be disposed question inary 1875, of cases in the Su- 16, “to facilitate disposition Feb. States, and for other of the United purposes,” preme re- then in it was laws that whenever by provided, force the sum or matter in should exceed dispute quired costs, in $2,000, order that the exclusive value of judgments the circuit courts of the United States might and decrees Court, such in the Supreme judgments be .re-examined should not be re-examined in thereafter rendered decrees matter in should exceed the Court, unless the dispute Supreme $5,000, costs. 18 It Stat. 315. or value sum exclusive that a cannot*be reviewed therefore contended judgment court, a certificate of division of between the this upon $5,000; Court, the Circuit if the be judges case under that amount. present think, however, that conclusion is warranted do this We of the act in That act makes no question. change language laws, as to amounts except previous necessary give the amount is when material. the court Where jurisdiction, $2,000 was the sum afterwards before required purpose, But before that $5,000 was the sum. questions act arising of a trial to this court for de- brought could progress of division of a certificate without termination opinion, in the to the amount case. The controversy orig- reference 1802, this mode of act of inal allowing procedure, always our material held to extend appellate jurisdiction questions civil, cases, criminal as in all well as of law without arising Ct; to the amount in regard the condition of controversy Its defect consisted litigation. in the it created fre- delays quently midst of a suspending proceedings trial. To obviate this defect the first June, section of the act of the case to passed, requiring proceed notwithstanding division, the presiding justice prevail time and this is feature retained in being; the.Revised Stat- 650, 652, utes. Sects. 698. The benefit of the certificate can now be had after a writ of error or judgment upon appeal. That material from the only law. We change original doubt, therefore, have no of our in this case. This us to the consideration the main brings of. in- question volved, which we do not as at all solution, difficult of regard when reference is had to the character of the late war. That war, not between though nations, independent but between' nation, different of the same was portions accompanied by incidents of an international war. It. was general be- waged territories, tween different people occupying separated each other well-defined lines. It attained by proportions sel- dom reached in the wars of modern nations. Armies of greater and more formidable in their magnitude than equipments known in the were into the field present century put by The parties. States an contending united insurgent organ- States, ization known as the Confederate which acted by they movements; a central their through authority guiding and to them were accorded belligerent rights Federal by This was shown in the treatment of government. as captives war, prisoners exchange prisoners, release of officers in numerous parole, arrangements as mitigate far as inevitable possible miseries suffering attending The the conflict. States on the people hand, one loyal other,, Confederate States on the people thus other, enemies to each became and were liable to be dealt with such without reference to their as individual opinions dispo- Commercial sitions. intercourse and correspondence between were as them well prohibited, enactments of express by Congress doctrines of The law. accepted enforcement of public contracts made between them was previously suspended, part- dissolved, were and the courts of each nerships were belligerent Dow v. other, its citizens of territory closed marched When, therefore, our armies other enemy’s country. Con- the authority into country acknowledged their is, into the enemy’s country, federate government, laws, to its nor amenable were not officers and soldiers subject to their for their acts. subject to its tribunals They only laws, its administered its au- own government, As observed could be called account. thority, Tennessee,it is well settled the recent case Coleman to march country, permitted through friendly foreign army, in it of its be stationed sovereign govern- or to by authority The ment, from its civil and criminal exémpt jurisdiction. re- was so stated in the celebrated The Exchange, law case must this 7th Cranch. Much more exemption ported where a hostile an country. enemy’s invades army prevail would absurd permitting There something singularly be tried or soldier of' an officer enemy, invading army ex- same reasons for his whose had invaded. The country to civil from criminal proceedings. emption prosecution apply of be and as' little likelihood There would as much incongruity, war, civil of as in criminal freedom irritations in- In both its continuance. prosecuted during proceedings stances, war, from the nature of the tribunals of the enemy very be without to sit in the mili- must judgment upon conduct the officers and soldiers invading army. tary manifest; to its is difficult reason so It upon proposition announcement, is evident its bare and no ad- correctness force can be to it amount of ditional statement given by any of war. is manifest that if or conduct It officers proper to leave could their and soldiers be required posts army tribunal, the summons of local of a troops, upon pain every them, at the default termination of by States, could hostilities be enforced suit in their own would as a hostile force be de- efficiency army utterly Nor it make with can difference what denunci- stroyed. any characterize their atory epithets complaining party If could conduct. confer would epithets jurisdiction, they be of form. An inhabitant always supplied every variety a bombarded would have little hesitation city declaring et:

bombardment and cruel. Would be unnecessary pretended that he it, could call who ordered general, commanding (cid:127) before a local tribunal to show its or be mulcted necessity The owner of seized or damages? de- supplies would have no as human nature- stroyed is consti- difficulty, tuted, in and that the seizure and destruction believing affirming were wanton and discussion, needless. All is too this plain and bewill admitted. readily

Nor is the affected, position his invading belligerent relation to the local tribunals occu- changed, by temporary and domination of pation portion enemy’s country. As a of such domination, necessary consequence occupation relations of its political their former people government are, time, for the severed. But their benefit, protection and the protection benefit of others not in the military or, service, words, in other in order that .the ordinary pursuits and business of not be society may unnecessarily deranged, — is, laws such as affect municipal private rights persons — for the property, provide punishment crime are force, allowed to continue in be generally administered tribunals as were administered ordinary before the are occupation. considered as They unless sus- continuing, pended superseded by But occupying their belligerent. continued enforcement is not for the protection control of or its officers or soldiers. army, These remain subject war, the laws and are for their responsible conduct their own government, tribunals which those laws are administered. If of wanton guilty or of cruelty persons, or of unnecessary spoliation other acts not property, author- ized war, laws of tried and they may punished by tribunals. are amenable to no tribunal, other They which, except it is public to be opinion, will hoped, brand with always all who authorize or sanction acts infamy of cruelty oppression.

If, now, we the thus views the apply to case at expressed bar, there will be no in of it. The condi- difficulty disposing tion of New Orleans of the district it, connected with at the time of the seizure of the property of the Dow, entry was not of judgment against a country Dow v. Oct. 1879.] Union, its the fact nominal relations restored by forces, in been our and were held subjec- captured by of intense A of feeling government tion. hostility against before, which as with the was the Union ready prevailed, people, out into insurrection to break upon appearance enemy force, or in the withdrawal of our The upon troops. country law; its under martial no was armed occupation gave juris- to the civil tribunals over officers and diction soldiers not to be harassed and mulcted army. occupying They at the their action. The complaint any person aggrieved by which District Court was authorized to exer- jurisdiction over between cise civil causes parties, proclamation by Butler, did not extend to cases them. The General against was third the court special plea alleges deprived by of all con- as was except general government no and that ferred commanding general, by acts for performed over military-service persons it. of their was ever thus conferred was not It line duty settlement their control in any way, complaints them, court was allowed continue exist- stated, was, for the ence. It benefit protection already the inhabitants of others there conquered country service. not engaged was there taken an officer

If or a soldier private property character, when, acting occupying army, proclamation war, or the the laws commanding the. seizure, been should have the owner exempt general,.it commander, to that who have have could complained might restitution, or sent the mili- before a ordered offending party tribunal, as circumstances have or he might required, tary had recourse to the have redress. could But government doubt of could no right army there appropri- there, although ate individu- property belonging private for its Was als, which convenient for its necessary support This right, use. belligerent extinguished .was for its although occupation country, necessity lessened. However from seizure exercise thereby exempt been, have there it was other grounds private n always to be when the neces- appropriated, required subject v. Johnson. Ct.

sities or convenience of the the owner of army, though prop- taken in such case had a erty have claim the just against government indemnity. of

The case is an Bedreechund Elphinstone if authority, needed, that a court no has municipal the of a hostile of adjudge upon seizure validity property; is, a made seizure in the exercise of a There belligerent right. that a appeared of India had been city the captured by forces, British and a provisional established, which government held undisturbed subsequently possession the place. Several months after its the members occupation, of the provisional seized the native, of a 'government private under the property it was belief that intrusted to his public care property The native had been hostile refused the sovereign. benefit of fortress, of a articles of capitulation which he was gov ernor, been but had to reside under permitted surveil in his own house in lance where the seizure city, was made. time, no there were hostilities in At the immediate neigh borhood, civil courts were for the sitting administration but the war was not at an end justice; throughout was a there on the country, feeling great part hostility which' was place, people only prevented into insurrection Out of' an armed breaking presence In these force. was similar' respects position place Orleans, and that of New under the adjacent country of General Butler. seized command The consisted of coin, shawls; died,.an and the owner jewels, gold having value was executor action their brought by against seizure, who ordered the members provisional government them in rendered Court Supreme That court to be appeared its deci Bombay. controlled some the fact that for months before the sion seizure the had been the undisturbed possession city provisional courts, were-; and that civil under its government, authority, for the there administration But on justice. sitting appeal think,” Council the reversed. Privy “AVe “ Tenterden, Council, Lord for the said speaking proper made, was that of a of the transaction hostile seizure character hello, eessante if not nondum regard yet being flagrante, Dow v. time, and, to the both consequently, place, person; had no Municipal adjudge upon amiss, that, recourse but if was done subject, any thing could for redress.” 1 Kn. 361. be had government Here, taken that the articles of property special pleas allege detachment under Dow were seized General by military order, as and convenient for the necessary supplies occupy-^ seizure, It was a so that of the hostile as as much ing army. cited, made, one,. in the case like that property being exercise of a or belligerent right, upon propriety necessity of which the Court had no to Municipal authority adjudge.

This of doctrine to the tribunals of the invaded non-liability for acts of warfare members of country applicable when in Confederate as to of members army, Pennsylvania, the National when in the States. The officers army insurgent or soldiers of neither could be called to account army civilly in acts, those tribunals for such those acts whether criminally resulted in the destruction the destruction of life.; nor could be those tribunals required explain their conduct averment of the upon justify injured party thát the acts of were unauthorized the necessi complained that, ties of war. It follows in our the District judgment, Court New was without Orleans to render the in in this case question, special pleas .consti tuted a answer to the declaration. See perfect Coleman v. Tennessee, 509; 594; 97 U. S. Ford Su id. v. also rget, Le Eden, 594; Browne, Caux v. Lamar v. Doug. 187; 92 U. S. v. Coolidge Amer. Law n. s. 22. Reg. Guthrie, with We fully agree presiding justice Circuit in the doctrine that Court should be military always kept to the laws of the subjection which it country belongs, and that he is no friend who advocates the Republic The free contrary. is, principle every people established that the law shall alone and to it the govern; must doWe not controvert the always yield. doctrine Mitchell Howard; the 13th of Harmony, reported on the con rve it. But it has no trary, approve to the case at application bar. The for Avhich the seizure was trading there made had been the Executive permitted of our Department govern- . v. Ct. Dow

.170 is, the law which ment. here What governs The question It is the civil ? law an army invading country enemy’s is not civil law of the conquer- invaded country; — law,'— war, and its : it is the law ing country of the officers and soldiers for the protection supremacy field in is as when service in enemy’s country, army, as the supremacy essential efficiency army home, is essential to the at in time and, pres- civil law peace, ervation of liberty. is, that the to us certified

Our decision questions and sufficient is not reply special replication good Orleans, at of New District Court Sixth pleas; mentioned, had not time place to render the and cause of action question. parties reversed, must, therefore, Circuit The judgment to that to enter directions court the cause remanded with the defendant on the demurrer to repli- final judgment ; cations and it is

So ordered. Swayjne from the dissented Mr. Justice court, the of this but to court on the point relating in involved the questions concurred therewith on remaining case. the dis- and Mr.

Mr. Justice Miller Clifford Justice sented. mili and soldiers in the Officers

Mr. Justice Clifford. war, amenable, not in time of service are process tary of their for done in the civil tribunals act the performance any duties; or if the act done to but injurious person property actor, the and 'was outside of the wilfully wholly duty inflicted, or for the mere pri oppression purpose wantonly com or whose it was vate the whom orders gain, party by the courts of mitted be in answerable ordinary justice, may the are silenced when the civil tribunals exigencies except Borden, 46. How. rule or martial law. Luther 7 of war extreme in time Private in case of necessity, property, Oct. v. Johnson. 1879.] or of immediate and be im- impending public danger, may service, into or be seized and pressed public may appropri- use, ated to the even without public may destroyed consent of the owner and without antecedent compensation. arise, eases of kind Extreme doubtless as where the may is taken time of war to con- property imperatively necessary struct defences for the of a at preservation military post moment of an attack impending enemy, supply food or to a destitute of clothing suffering famishing army such necessaries and without other means of such supplies.

Such service have and emergencies here- public war, after occur in time of and in such cases no doubt is enter- tained that is power ample government supply moment wants extent public way immediate but the must be public exigency; public danger imminent and -the impending, emergency public service must be extreme and- such will imperative admit of or a resort to other source of delay any supply. kind do arise in time of war or

Exigencies impending but it is the public danger; gives emergency right, is it clear that must be shown to exist emergency before the can be Russell, taking United States v. justified. 13 Wall. 623.

Public convenience authorizes the exercise right domain, eminent to the condition that due subject provision ; made for in time of war or compensation public necessity, authorize impending public danger, may taking private without any the moment provision, supply wants, extent of public which can- public exigency, Kent, not be other supplied Com. way. (12th ed.) but the will Nothing warrant the emergency taking; law in this settled court that the officer-who makes the seizure his cannot the orders of justify his trespass merely showing rule that an order to commit a superior, being can trespass no afford whom it is justification person executed. v. Mitchell 13 How. 115. Harmony, all before enunciated

Support is found in principles court, able of the very Chief given Justice in which he admits that be Taney, private fully property may v. Dow Ct. it from commander into taken prevent falling by military taken, that it also be the hands of the and in cei>~' enemy, cases, without use tain extreme public just compensation. entertained; that cannot be doubt Reasonable subject show, what is it cannot but equally plain, proceeds was in the first case done unless appears danger second, in the unless it nor immediate and appeared impending, and were such as would admit the necessity urgency Lewis, Bush, 66. Farmer v. delay. war is a trader with Where during engaged trading por- that has been reduced to tion of the subjection, enemy country there is the in- his encouraged trading permitted cannot be seized on the that he ground vading army, goods trade with the In such a in an unlawful enemy. is engaged becomes liable for the case, the officer seizing owner of the and the entitled goods abuse of his authority, suffered. for the Harmony to recover damage trespass 1 Blatch. 548. Mitchell, 1868, rendered, the defend- April against

Judgment Orleans, Court New in an action District ant Sixth unlawful conversion of the for the taking goods trespass described in the schedule annexed chattels plaintiff refused, the writ. Payment being action of debt the same brought District, for the Maine in the Circuit Court defendant where made, resides. Service defendant the defendant tiel record and three nul as special and pleaded pleas, appeared which rendered the the court had That follows: case, for the reason that no military jurisdiction States, to the rendition of the of the United prior forces judg- Orleans, of New and held ment, took forcible possession 2. That the said court locality. military possession case, he, for-the reason that as a of-the no chattels commander, mentioned as seized the goods sup- court the said had no 3. That army. plies case, officer, he was a for. the reason he acted in and chattels that in obedience' taking goods of his officers. orders superior n matters, did new These special pleas, containing prop- Oct. Dow v. Johnson. 173 1879.] verification, concluded with a erly which made it necessary if in the allowed, form as now the'replication, general tender an issue to the similiter, Instead of country. adding defendant filed a demurrer to the general and the replication; is, now that objection form, defective in replication too to amount to a being general traverse the new matters set forth in the special pleas.

Two answers to that be 1. That the given: form ac- cords with that most given by text-writers approved the subject. 60; Plead. Stephen, Am. (9th ed.) Chitty, Plead. 606. 2. That the (16th ed.) demurrer should have been special, avail the order defendant. 1 Plead. Chitty, (16th 694; Plead. ed.) Stephen, 40. (9th ed.) had, court, and' the Hearing both judges concurring, found in favor of the that there is such a record plaintiff, that set forth arid described in the declaration.

Two also arose under the questions demurrer of the defend- ant to the filed to the replication three special Those are as follows: 1. questions Whether the pleas. replica- is a arid tion sufficient to the three good reply special pleas the defendant. 2. Whether said Sixth District Court at the time and aforesaid had place parties cause of action alleged declaration. of division of

Certificates between the opinion judges Court under a Circuit act former gave Supreme juris certified, diction of but the questions imiversal rule was that Court would consider Supreme single question . Lee, certified 2 Cranch, v. 33. questions Ogle could come before the court under Nothing such certificate certified except-the single question questions here circuit to which were judges, respect opin- divided Chamberlain, Black, 430-434; ion. Stat., Ward Rev. sect. Jurisdiction in that mode of ácquired was limited proceeding certified, and could not be extended points certifi cate of division to what would thing except revi open sion here a writ error or Braden, Davis v. appeal. 286.; Nixon, 408; 10 Pet. id. Southard, Wayman v. Packer v. . 10 Wheat. 66 ,174 Dow v. Ct. those were at the time and

Both of certified questions record; and the act of entered provides duly Congress occurs, whenever such a difference presiding shall and be considered the of the court justice prevail the Pursuant to that the time being. statutory regulation, to state that he was of the presiding justice proceeded opin- : 1. the a suffi- ion That is and replication plaintiff good cient the three the to defendant. reply special pleas pleaded by did, the 2. That said District Orleans at the Sixth Court of New time, aforesaid, the and have parties place jurisdiction cause of forth and action render the described set judgment the in declaration. sustained as a sufficient the replication

Having reply the demurrer to the three special pleas, replica- overruled bad, and rendered tion pleas judg- adjudged special in amount of the ment for the priár judgment lawful interest. 1. in court as follows: That

Errors this are assigned is there such record that men- in that court erred finding erred 2. That the court in in the declaration. ruling tioned is sufficient the three that reply replication good erred in that 8. That the court the Sixth ruling pleas. special had and the cause of jurisdiction parties District Court in erred the rendition of That court 4. action. judg- ment. matters, it those becomes to de

Before discussing necessary court, this whether question termine preliminary laws, has re-examine existing Prior to the act of the in this case. 16th Court Circuit or decrees the circuit courts all February, judgments or in at common law where civil actions equity, suits $2,000,. or value sum matter' in exceeded dispute costs, re-examined in the be Court Supreme might exclusive 84; 244; 2 id. id. or 1 Stat. a writ of error appeal. 196. in the mode of certain moment removing

Alterations great decrees, Court to the Su- Circuit final judgments act; but been Court made before passage preme “such enacted that judgments day Congress Oct. Dow v. Johnson. 1879.] decrees hereafter rendered not shall be re-examined in Su- Court, unless the matter in shall sum preme exceed the dispute $5,000, value of exclusive of costs.” 18 id. doubt, all the exclusion of Beyond Supreme Court universal in to all and decrees of the respect judgments Circuit Court where matter does exceed dispute $5,000. sum or value of more Words express fitting intent, end, or more effectual to that be found our cannot and it is clear that will admit of no language, equally they unless are emasculated of their universal mean- exception they ; and it is that the final ing yet suggested decree still, of a circuit court if the record contains a certificate of the Circuit Court judges opposed case, in this opinion upon point re-examined court even the matter the sum or exceeds value though barely $500, costs, exclusive the smallest amount cog-, nizable in the Circuit in-civil actions common at law in suits in. equity. our was

When judicial system organized, jurisdiction courts, to the circuit with the courts of the given concurrent States, of suits of séveral all nature law or in civil at common costs, exceeds, where the matter in exclusive equity, dispute $500, or the sum value of and the United are States plaintiffs or alien is. a or or the suit is between a petitioners, party, citizen where the suit is State a citizen of brought than another State. More have since ninety years elapsed enacted, no has in alteration been made yet provision the amount as to the circuit courts required give jurisdic- at tion in suits of a civil nature or common law in equity, 470; 78; Stat., id. Rev. l id. sect. 629. Court are Circuit at the

Judges required certify, counsel, of either or' their division of request party any opinion suit, between them on the or trial of such occurring hearing is that such certificate shall be provision entered Id., sect. record. 652. doubt, either such a

Beyond certificate may require party be entered if such division of occurred civil any in opinion Court, action or suit in no the Circuit equity cognizable cent, matter if the amount one exceeds controversy v. Johnson. Ot. costs, exclusive of- the sum. or of $500. value Provision is made that in causes the Circuit Court shall find and state admiralty the facts and conclusions of law but the requirement separately, does not that, extend to suits in from which it follows equity; if the correct, read is Court must opinion just Supreme - re-examine the facts as well as the law in such final every here, decree even the amount in .brought though dispute barely $500, because reeord contains-such a cer- exceeds merely tificate of division enactment opinion, spite express that such final decrees shall not be re-examined in Congress unless matter Court shall Supreme exceed' dispute $5,00$. the sum or value of kind, cares,

Certificates of the both in civil and criminal when made act, before as directed weve cer judgment, original tified under the Court, seal of the Circuit Court Supreme and their effect was to all in the cause which suspend proceedings merits, would until the mandate of the prejudice Supreme went down Court and was filed. 2 Stat.

Mere act, were sent under the sixth section points up was the nor bar in a civil suit to a writ error proceeding any decree, final to remove appeal, subsequent the whole case into the Court re-examination. Mat Supreme ters of difference of between the of the Circuit opinion judges in criminal are cases still to be certified here required in that before sentence mode of with procedure, out whatever. any change Every day’s experience proves but of a different character have regulations proposition; very difference been where the occurs in civil provided opinion 6; Stat., or suits in actions 17 Stat. 19 Rev. sects. equity. 650-652.

Whenever a difference of shall occur between of Circuit Court in a civil action or suit in judges is that of the circuit or provision opinion equity, justice and be considered the circuit shall judge prevail, opinion but court the time final órdecree being; judgment when entered, such action or suit shall be it made is of duty in case such a difference occurred in the of judges, opinion —same, trial or to make the certificate of the hearing, required it that which event either remove provided party may 1879.] Oct.. into the Court,

such'final decree on writ Supreme judgment’or error or appeal. act, the Like the Revised that Statutes-require original certified, be in difference shall stated by judges points and that such certificate shall be entered record without any act, inas it shall be certified requirement, original under the seal of the Circuit Court to Court at Supreme their session. no such next Evidently proceeding required, as is not the certificate division will contemplated ever come before Court re-examination unless Supreme the final or decree is removed here writ of error by Id., sect. 652. or appeal. laws that final

Existing require in civil actions judgments shall the writ error or precede remove the cause appeal re-examination, into this court for no matter whether the ques- tions for revision are raised in the record a bill of excep- tions, a certificate of division of statement of opinion, agreed facts, demurrer, or or even court, by special finding or limitation, verdict. Jurisdictional special to the prior of the act the 16th of passage was that the February, matter in must exceed the sum dispute $2,000, or value of ex- costs; clusive of but that act raised the minimum of jurisdiction $2,000 $5,000, as actions, in all civil already explained, the same section certificate providing division in criminal be before, cases shall made and be cer- tified the seal of the Circuit Court to the Court. Supreme 316; Stat., 18 Stat. sect. Rev.

Circuit-court or decrees in civil actions judgments or suits in in order that be equity, re-examinable in the they may Supreme final, Court, must be matter in must exceed dispute costs; $5,000, sum value of exclusive of must be they removed into the Court writ of error or Supreme appeal, cannot here in removed other will apd way this court to reverse or affirm the give Id., 691; decree. sect. 18 Stat. 316.

Power to re-examine decree Circuit any judgment is not Court unless case comes given Supreme act within that now in force Congress provid- category, decrees, that such entered after the act ing judgments VOL. x. Dow v. Johnson. Ct. “

went into shall not be re-examined in the operation, Supreme Court unless the matter in shall exceed the sum or dispute $5,000, value exclusive of costs.” Prior 1, 1872, of June the certificate of act division of Court to decide the opinion gave Supreme ques- tions in difference without to the amount in dispute, regard it cases, both to civil and criminal and in both had the applied effect to action to the merits until the de- suspend prejudicial cision Court was It received. final Supreme preceded decree, was certified to Court Supreme under the seal of the Circuit certificates in Court. Such crim- cases inal are still to be certified in that required still way, certified, Court give Supreme points of the merits or of other wholly irrespective question id. case. 17 19fi. act, Since civil cases proceeding passage different, and suits in office cer- equity altogether tificate division of like that of a bill of opinion, exceptions, record, to raise the being questions merely require- ment it shall be certified the seal of Circuit Court at its next session Court Supreme being entirely omitted in the new regulation.

Bills of are on the record what exception required place rested in are allowed in the Circuit Court irre- parol, they of the amount in but a writ of error will not spective dispute; lie to remove the cause into the Court unless the Supreme $5,000, amount in exceeds exclu- value dispute thevsum sive of costs. the amount in is less than that dispute Where amount, takes on a motion for new review trial place the Circuit Court.

Differences of between the circuit judges may them when sit certified together, irrespective and the effect is amount, certificate becomes part record; and if the amount in sufficient to dispute give the cause be removed here jurisdiction, Supreme may ; writ of error or for re-examination but if the appeal amount is insufficient for that then dispute purpose, only remedy for the is a motion for new trial in the Circuit losing party n Court. for review in appellate modes questions raising Other be done as, : known example, well courts are the declaration or facts, demurrer statement agreed court, of the special finding a material pleading, — cases the final verdict, in all'of which judgment a special of error into the Court removed writ Supreme decree may sum or value of in exceeds the if the matter dispute or appeal, costs; but if the amount in does $5,000, of exclusive dispute amount, the that act of Congress not exceed peremptory in re-examined Court. shall not be Supreme act the Circuit Court were original judges Under the certificate and cause it to be to make certified to required rendered, before final was Court but judgment Supreme new act the final in civil cases' is under the required judgment certificate; nor is there any requirement precede of shall ever be certified to the the difference Supreme under the seal of the Circuit Court. Stat. 196. Court believed, these it is can be None of propositions, successfully not, controverted; and, if it follows to a demonstration that this no of the case to or affirm court has reverse jurisdiction Court, it of the Circuit that the of decree appearing judgment $2,650.67. the sum for of Court It seems Circuit exists case, to hold that in such a absurd when act of decrees of the cir- provides judgments Congress not be re-examined courts shall cuit Supreme the matter unless exceed the sum or dispute value of sha]l of costs. $5,000, exclusive this, I am then it becomes wrong to re-

Suppose necessary whether the examine Sixth District question Court of New cause of Orleans action and of the par the time the ties at described the declaration rendered, that the who was a It citizen of plaintiff, New appears loyal York, owned a valuable plantation parish Placque mines, on the River, situated bank of the right Mississippi Orleans, miles New defendant, about forty the time of the service of the writ at and of the rendition was a officerin the service of the United judgment, States, stationed at the near the that on Parapet, the 5th city; Johnson; Ct. Dow detachment, 1862, a small September, acting defendant, secret

the verbal and orders landed at the took plantation plaintiff, wrongfully, alleged, therefrom and from his there situated the dwelling-house goods and chattels mentioned in annexed to the schedule the petition redress, $1,611.29. refused, value Redress being suit instituted the to recover the value of plaintiff present seized detained. Personal service property Avrongfully made, been and the defendant having having neglected refused- to he was defaulted. was taken as appear, Testimony seizure and as to the the circumstances value comrerted; court, due consideration, after rendered in favor the sum of $1,454.81. issued, and the Execution sheriff returned that the not be found. defendant could Satisfaction the execution refused, March, 1866, on the 80th of insti being plaintiff, action of debt to recover the tuted amount of that present judgment. considered, from the technical defences

Apart the already the defence is that Sixth District Court New Orleans or of had no the the cause of parties action ren- this is made to maintain der that defence judgment. Attempt that, inasmuch as the the defendant was solely upon a ground States, in the of the officer service United not was to civil court of amenable from the process justice taking the of the and chattels of the at time and goods place the and Avhere same Avereseized and carried when aAvay. to that defence is be drawn Support from the attempted State, 1861, on 26th of fact January, passed rebellion; of secession and ordinance that joined war ensued; between the and United States Confederacy and war, action at time the was that commenced and the ' rendered, was and not still ended. flagrant Military officers, contended, it is are to civil subject process under circumstances, even which acts are the sub- though constitute an abuse of ject complaint power were perpe- trated without authority. secession,

War followed and it is undoubtedly true equally that, 1862, 1, New Orleans was prior May occupied forces. dominion pas- Confederate Rebel city, mentioned, last was secession ordinance to date sage New Orleans reached Vice-Admiral Farragut complete. the surren- as he demanded the 25th of April, flag-officer not made. der of the but the surrender was Transports city; the command Major-General conveying troops first Certain Butler arrived on the proceedings day May. followed, are detailed decision. Suffice which fully prior this decided in case court to say, - forces Union became complete city occupation date of the proclamation published by May Venice, 2 There General Butler. The Wall. 258-274. disturbance, then nor no hostile demonstration subsequent that all the and this court determined rights unanimously and from the terms from such occupation obligations resulting be regarded existing might proclamation properly from that date. referred to as evi-

Two clauses proclamation may document: 1. That intent import dencing “ public kind will be held invio- of whatever all property rights late, to the laws of the States.” 2. That United subject Only ” “ not made oath of who have all foreigners allegiance “ bewill their persons property protected Confederacy as heretofore.” the national forces successful re-establish

Wherever national rights persons authority, ing of intelli and enforced. Persons were immediately respected will see that that framed proclamation gence everywhere and with the same as that which actu in the same intent spirit the first act to insurrection. ated suppress Congress in'passing 257, sect. 5. 12 Stat. act, President that under cer- was given

Authority conditions, to declare that the inhabitants tain by proclamation insurrection; ain state of or óf a State were a State part was, when done all commercial in- that that was the provision such district and the rest óf tercourse between insurrectionary should cease and be unlawful so as long United States should continue. The 5 Wall. Reform, condition of hostility Dow v. Ct. Certain States and of States were declared be in in- parts surrection in tbe the President, made proclamation Aug. 1861, and in that document he exempted from that expressly condition all districts districts which from time parts might to time be and controlled the forces of occupied the United States in the engaged Intercourse dispersion insurgents. commercial with such purposes prohibited places districts while so and controlled. were not re- occupied They insurrection, as in garded actual or their inhabitants as subject to treatment as enemies. 12 Stat. 1262.

Commercial intercourse interdicted, was never wholly were framed in regulations the same of forbearance spirit towards the and districts places where the national authority “ was re-established. As far as said Justice Chief possible,” “ Chase, of such as people States parts insurgent came under the national and control were occupation treated as if their relations to the national had never been government Venice, The interrupted.” supra.

Sufficient Code of appears Practice of the State that the district support proposition courts of Louisiana were, rebellion, before the courts of general jurisdiction, their extends over provides all civil causes jurisdiction dollars; where the amount in exceeds dispute this fifty court, in held its construing provision, legal import was to render those tribunals courts of general jurisdiction all civil causes not embraced within Fourne exception. Perkins, 160, 169; Cannon, 7 How. White v. quet Wall. 448-450. in this case was rendered in the

Judgment Sixth District Orleans, Court New which was established before rebel- lion and had in all civil causes. Rev. Stats. (La.), title sect. 72. Judiciary, to show that the Sixth District

Enough appears Court was created statute more than fifteen before the insurrec- years tion, and was in that it the full exercise of its when secession ordinance was that it was never abolished passed; or other order or that it suspended by any military power; to of General But- kept open subsequent proclamation ler, the clerk attendance judge being day, day 188 Johnson. v. 46 and causes between party,” demanded. party as business Civil 44 tribu to tbe referred will ordinary tbe said proclamation, military governor, After General appointed nals.” Shepley held District Court its regular the Sixth following, August statute. fixed the State Early at the time sessions place oath of alle took the of the after the the-city judge capture office, of his with the functions and resumed proper giance authorities. From approbation recognition the oath District took Sixth moment judge 14, June as general, required by commanding allegiance, its court continued in the exercise all powers, did, rebellion, court that before the and was same as in the fall of that until General year, appointed judges Shepley, first, second, and third districts. judicial in time of states war may foreign Military conquerors doubtless courts the conquered displace country, tribunals in their civil administering establish place true such cases it justice; unquestionably of suits is'transferred every description 246; Rice, v. new tribunals. United States Cross Wheat. Harrison, 'that noth v. 16 How. concession But proves case, conceded that the mere in this as ing universally does not occupancy necessarily displace territory Y. local tribunals of 45 N. justice. Pepin Lackenmeyer, case, in this were but suffered to displaced 27-33. They their in the exercise of with the rec judicial powers, continue commander. ognition approbation exist between war differences .a foreign Important waged a civil war restore dis- waged conquest, insurrectionary their could tricts to Nor allegiance sovereign. rightful after the date of the commander department, procla- Butler, seize mation of General as private property booty war, order it. or make Planters’ Bank v. confiscating Bank, Union 16 Wall. 483. Butler, the 17th of same General August

On year, the commander of the issued an order department, requiring the banks of to the chief over quartermaster city pay in their to hostile all belonging army money possession made hostile official persons. corporations Payments Dow v. Of. bank, order, the defendant to that of a pursuant large (cid:127) . amount bank. Reimbursement deposited by refused, been bank the suit to recover having plaintiff brought amount,-and rendered in of favor ultimately $24,713. the sum of were filed Exceptions defendant, court, and the cause was removed into this by-the where the was affirmed.

Two were ruled this court: 1. points That order was make, one which the had no commanding general authority and that it was invalid. 2. That chief wholly payment did not the debt. quartermaster satisfy case, In of the Mr. Justice disposing remarked, Strong of New was then Orleans city quiet possession forces; that United States it been fifteen months captured time, before that and that undisturbed had -been possession maintained ever after its the order was not an capture; hello, to seize the nor was attempt it a property flagrante for the immediate use of the it was seizure army; which, confiscate it attempt private property, though may is, to confiscation subjected by legislative authority, according nations, to the modern law as exempt capture booty war. that, and still the

Concede all defendant rests his defence on of his third plea, Sixth District proposition special had no over the defendant, person he officer in the because was United army States, orders of his But this acting superiors. - war in case which not the the courts foreign of the enemy over an assumed officer of the invading army. kind is were, -and if it pretended, could Nothing not be for a moment. that, Instead of States, United supported hostilities, the active were throughout engaged down putting the insurrection rebellion, suppressing with a view to the re-establishment complete restoration of the national Throughout whole authority. period civil war the maintained that government ordinances of secession void, and that did not and could .not have the effect to out take a of the Union State or to annul its constitution ox laws. Dow v. insurrection, but all know that soon as the

War followed as forces of the States United wrested any portion authorities, the national from the rebellious and ac- territory it, full and control of the normal condition quired complete restored, became first act of affairs indicated Congress President, and the which subject, proclamation soon followed the of that act. passage

Towns, Halleck, territories, are provinces, says war, retaken from the re- or. which are conqueror during stored to their former are peace, sovereign by treaty entitled to right original sovereign postliminy; owner, them, his dominion force over whether recovering of arms or bound to to their former restore them by treaty, - words, them, In other state. no new over acquires right either . rules act of or of restoration. . . He recapture to not title which relates back by any newly acquired any title, former but his in contem- which, antecedent period, law, Halleck, Law, has never Int. 871. plation been devested. town, arms, retaken When a reduced enemy’s Vattel, those of her own is restored to her she sovereign, says condition, and former reinstated in her all Vattel rights. 395. (ed. by Chitty), seiz in time of war authorize

Pressing emergency may ure before private property compensation, providing but, owner, without of the consent justify taking must be no available alterna- necessity apparent, leaving tive. months before

Four under- expedition, marauding acting defendant, verbal and secret orders of entered the and his tem dwelling-house plantation plaintiff, during absence, mentioned, and seized the and chattels goods porary had New Orleans fallen into the undisturbed city posses Butler, forces under the sion Union command of General who never authorized the defendant acts perpetrate in the declaration. Evidence in charged plunder necessity this- case is without which the acts wanting, wholly charged Zomes, in declaration cannot be Sellards v. justified. Bush, doubt, he to Beyond might have-appealed commanding v. Johnson. Ct. for an order general discontinued; the suit should be but not, did and it reason for not so was doing that he knew if he did a court of would be ordered. inquiry Public order was in restored and the courts were fully city, and open, in the full person every enjoyment .was pro- tection promised issued four military proclamation before, months when the Union forces entered the Pro- city. cess issued, in due form of law was service personal having made, been defendant, if he defence, bound to had any it. appear plead

Actual insurrection in ceased, and the mili- locality control of the substantial, Union forces was tary complete, and, such, it permanent; drew after it the full measure of being protection consistent with the persons fact that the Avaroutside and in other localities had not terminated. Rebel the national and all authority replaced by authority, Avas the inhabitants Avere enjoyment protection then in rights promised force. military proclamation Hostilities ceased in that the defendant Avas having locality, not active engaged His any operations. military duties did not his attendance at the court to prevent make his defence. No evidence is exhibited the pleadings showing affairs, civil, condition of the defend- excusing summons; ant from if the court refusing judicial obey had no he should have jurisdiction, and so appeared pleaded. time, to do that at the Having he cannot now neglected attack in a suit it in another collaterally brought upon When the attached, has .jurisdiction. judg- ment is conclusive for all and is purposes open inquiry merits; and if conclusive in the State Avhereit was it is conclusive in the pronounced, courts equally everyAvhere of United Const., 1813; States. 2 sect. Christ- Story, Russell, 302; 290, mas v. 5 Wall. Mills v. Cranch, 7 Duryee, is not It even that authorities suggested ever military suit, interfered to and, fact, as matter of prevent it is known that no such interference ever took Instead of place. that, the clear is that the defendant inference to sub- preferred mit to the of the court Avherethe suit jurisdiction was brought, Dow v. 187 and, than himself to court of rather subject military inquiry; so, choice, and he now be it was his own cannot if permitted which attack the was rendered to consequence and his own his defence. negligence appear plead Confirmation of the that it was the proposition duty his derived defendant defence is from the plead appear for act of of those Congress prosecuted passed protection search, seizure, arrest, made, done, for or or any imprisonment committed, or acts omitted be under and done virtue of order of the President under his or under any authority, “ color of law of that Congress, provision being defence be made under the by special may plea general issue, in the districts in national insurrectionary had been restored authority and con- undisputed possession sect. 4. trol.” Stat. fifth section same act it is that

By provided all civil suits criminal the character prosecutions described section, in the fourth in which final be rendered judgment may Court, be carried Circuit writ error to the may Court, be whatever the amount Supreme judgment. At the date the rendition question States had undisturbed United control possession embraced within-the of the Sixth District territory Court, which was recognized by fully military governor the State as a tribunal full civil causes having all within district. If the defendant could arising judicial act, section of for the fourth that justified, alleged him, the same section made it his trespass charged against duty summons, answer to the appear judicial make his defence by plea. cases, in numbers and of

Reported high great authority, sup officer, when war is proposition except port when courts are silenced flagrant exigencies law, rule or martial subject judicial process his the abuse of or for acts done outside of authority wrongful 161, 175. military jurisdiction. Mortyn Fabrigas, Cowp. for false Trespass imprisonment brought case Minorca, he, the Governor of charging governor, the defendant, had beat and wounded him imprisoned Dow v. Johnson. 188 Cfc. months, the of ten without reasonable cause space probable Plea, Pleas, the issue. Trial in the Common and ver general £3,000. dict for the the in sum of plaintiff were Exceptions defendant, filed the and he out a writ of sued error re Bench, moved thé cause the into where Lord Mansfield King’s court, the all other the court gave judges that He held would lie for an abuse of concurring. trespass he conclusion the court power-, supported by stating time, bar, a case that he occurred while was at the early a which train of sued captain artillery military gov of Gibraltar, ernor who confirmed sentence a court- martial which had been tried and sentenced to .plaintiff action, His that whipped. Lordship brought says defended, and, he added, was that governor ably nobody ever action would lie. that the thought

Two other mentioned that cases were magistrate, great b}*- circuit, him which were tried before in the one of which was a suit and the other was a suit against captain, against both an admiral in the resulted in which favor navy, case, Errors were in the plaintiff. assigned principal report questions argued, shows elaborately that the was of the lower court affirmed'. unanimously Green, 453-462; v. 50 Miss. McLaughlin Case, Bellamonte 625; 2 Salk. 6 Mod. v. 195. Yally, Rep. Way the kind courts of are Examples parent country numerous, and in case the quite was every alleged wrong-doer to his and if it act put justification; appeared wrongful was done without lawful com- plaintiff recovered authority, Smith, for the Lead. Cas. II. pensation injury. par. (7th ed.), 1035. of a

Where a fine a sol- captain imposed company dier, collection, and issued a warrant its soldier and it the statute con- imprisoned, appeared no ferred to issue warrants captain authority upon cases, dield, collection in such an action of fines the soldier brought trespass captain, was entitled to recover. 17 Conn. Mallory Bryant, Waite, 178; 6 and Defences, Actions Acts within officers of their .scope v. Dow excess of théir are in while are protected, Id. actionable. 107. are President is civil and where the power suspended,

When forces, but in all other to military has right govern by martial law and by excludes government the civil cases power 370; Waite, Wilcox,21 Ind. Actions v. 7 war power. Griffin Defences, 314. and that he was on the obeying soldier cannot

A justify, ground officer, if orders were illegal of his the orders superior war, such that a the rules and usages by justified that obedience know would intelligence ordinary person State, 3 Cold. and criminal. v. Riggs (Tenn.) would be illegal 337; Cranch, 331, v. 87; Withers, 3 Commonwealth v.Wise Palmer, 2 Bush 570. (N. Y.), commander, after follows capture

It as Orleans, to seize had no New right private property booty^ it, had ceased and reason that hostilities confiscate to Bank, 16 Planters' Bank v. Union Wall. the courts open. Waite, Defences, 483; Actions and 315. 7 direct order from the commandant of a Without proof his acts as been au the defendant cannot having justify place, officer, his even if that would afford a thorized superior case, if said a celebrated for, Dr. Lushington justification; which he did was in itself the act produced damage wrongful must have the same he, to plaintiff, plaintiff, remedy own, the act action whether wrong-doer, unauthorized, it were done or whether spontaneous in such are order Agents respon cases superior power. acts; but the is bound for their tortious sible government morally as the court held in that them the rule to being, give indemnity, “ case, to right compensation party injured Dutt, v. P. C. C. to that consideration.” 13 Rogers paramount Franklin, ; N. 259. 209, v. C. 236 Wilson that,, J., be if a mili said It is not questioned, Phelps, take the limits of his cog officer transcend authority tary are his acts a matter not within his nizance of jurisdiction, act under void, afford no to those who and will justification 148, Bowen, 10 151. Conclusive him. v. Vt. Darling support needed, found in if several Eng- proposition, v. Ct. list cases of undoubted 4 Taunt authority. Bailey, Warden 65-87. made

During reference was argument, order of the 16th of which au- August, purported thorize commanders in certain States seize real property, or convenient commands or their personal, necessary other but it is order clear that that had no military purposes; application localities within the peaceable possession forces, reasons, Union for several either one of is suffi- — cient to show it is a mere afterthought: Orleans, It could not to New if because it did apply would contradict and supersede General proclamation Butler, in which he that all the promised rights of whatever kind should be held inviolate.

2. Because it been has decided this court that a solemnly district, commander of that the said proclamation, after could not seize as of war. Planters’ private property booty Bank, Bank v. Union supra.

3. Because the record that the whole shows district had been Union, restored to the all the that inhabitants were in cheer ful submission to the Federal Constitution.

4. Because there was no more .for necessity seizing private as than would there have been if the supplies Union forces had been of the cities encamped any-one great loyal of the North.

Concede correctness of these and two con- suggestions, clusions follow: 1. That this court has no to re- jurisdiction verse or affirm the That, Circuit Court. if has this court such then jurisdiction, the Cir- cuit Court should be affirmed.

Attention was not called to the question below; is the court nor it that the result would' probable have been, if as been different it the universal in the practice favor Court render Circuit appeals every facility a re-examination of the unless the promote judgment, right denied some has been decision of the by express Supreme Court, some by explicit unambiguous congressional regulation. v. Johnson. brother with Concurring my Clif- Miller.

Mr. Justice because amount court without jurisdiction, this ford to rest $5,000,1 am content does exceed in controversy has said. what point should Court Circuit

I also believe judgment' in as few affirmed, reason, I state for a which will single as words possible. that, of New Or-

It is soon after very capture apparent as forces, the between leans our administration justice individuals remitted The civil courts. proclamation of General shows that was rights Butler purpose should their determination required judicial proceedings as tribunals, with little be asserted in the as interruption ordinary as as little interference possible. military authority that, to be without Evidence of this is found in fact who had taken oath of change judge, allegiance, District continued Sixth New Orleans was functions, which, its exercise of all under the proclamation, “ included the between civil adjudication causes party exercised both law It óf party.” general Louisiana and express commanding proclamation The The was a States. United part general. locality were citizens of the States. active United No parties were, it; then carried on within that operations city and for reason that its had been very possession perfectly forces, secured the civil courts were restored to loyal their functions the exercise of in cases between man ordinary man, or, it, between proclamation expresses party condition, therefore, was different and The from party. very forces that when invade and a coun- military occupy foreign which, or before the declaration of any peace, try, treaty it to the to annex is held conqueror, purpose territory former armed its sovereign, and hostility-to solely by strong case, hand. In a submission of the can inhabitants only and maintained by military power; subject power to the courts of the is to' jurisdiction subjugated country abdicate all control over it.

But New Orleans it was far otherwise. Our there, forces and in their own rightfully country, among v. Ct. States, citizens of the United ttr the same subject paramount and to the same Those authority, owing allegiance government. citizens had a insurrection, been few months in and only were- invited to submit laws, themselves the same again to have their courts, and, contested decided the same rights case, in this the same judge. Johnson,

In this condition of affairs, who was a resident citizen, made, whose no filed in loyalty charge court his law, due form petition, that certain setting forth had, violence, with force and persons committed a on trespass home, and taken therefrom of the value personal property dollars, of several thousand Dow with charging being guilty of this trespass.

The usual of summons Dow, process served personally answer, on his failure to or either appear himself entered, a default was rendered for attorney, the value of the taken. This judgment remaining effect, it, in full to enforce the plaintiff, payment brought suit in the Circuit Court of the United present States Maine, the District where Dow resides.

The defence —the defence which could be relied on—is only total and want of absolute alleged Sixth jurisdiction District Court over the case.

But that court did have of an surely jurisdiction action The sue, but trespass. competent court, to a if entitled in that cause action was remedy such as he declared. It is not denied that the trespasser, he not been a member forces of the United States, suit, would have to' been liable and bound to answer. But it is said that because Dow was an officer of those forces he was not bound answer.

aWhen case brings before proper plaintiff actionable it, court which has due service of process made, I hold to be a of universal principle prevalence of the defendant’s from such question personal exemption must, some other by plea process appropriate mode, be before the court. I know of no brought exceptions rule, which is all .on to this laid down the works pleading, time. is no There other present way Chitty 198 Dow v. Johnson. un- if it be not court can know exemption which court, The in the stated plaintiff’s pleading. necessarily and must stands, judg- case has pronounce jurisdiction, sued deems any If the proper the law. ment of party silent, he does at the or remain so peril reason to away stay be as- him cannot rendered which against a having judgment sailed collaterally. into the officers the evil of is dragging military

Much said can But the circumstances. power under such courts itself as will orders make such protect general So, the which it has recognized. abuse right expressly to leave his not to have been Dow compelled idea that ought Orleans, in New to defend this suit at Fort St. Philip, post found at the fort for service force. If he had to be of little in his could have a put lawyer easily employed process, in abatement that he was military authority, acting plea not liable to the suit. and therefore cause, or without is liable to be sued man wrongfully

Every laws, bound to submit to is, of our but-he very genius not this class make defence. should evil and this Why be men, others most who of all despotic power, required, possess it ? to show the which exercise authority by mistaken in these I see no If I am not principles, escape before It is their influence in case us. too controlling to admit of that a rendered settled well controversy, court, having jurisdiction parties subject- some can direct suit, impeached matter pro- it, and that when an action on it to avoid is brought ceeding court, no defence can be should which other interposed not, in the former suit. General Dow could been made have therefore, a bar to set Circuit Court as up matters that he should have the court the same pleaded rendered, was bound to render it. this should matter It impossible discussing memory interest, famous case of historical fail to recall involving very half a cen- the same which occurred about principles, many this, which the the theatre. and of same before city tury Orleans, at has been called the of New what siege During Britain, close of the last war with Great commanding VQL. X. Dow v. Ct. of our forces law in declared martial This

general city. citizens, was to and to others who claimed unpleasant to many domiciled at the time. there Some of these foreigners restraints, restive under its made of a becoming publications seditious character in the for which newspapers, Hall, arrested order General Jackson. When Judge court, civil issued a for their habeas proper corpus release, the tore the writ the and sent general up judge by this, force his lines. a Within few after the beyond very days achieved, of the 8th of was and on the victory January, the news declaration of receipt treaty peace Hall, martial law was revoked. on his Judge resuming judicial functions, issued a General process Jackson against contempt of court in his action in to the writ of referenpe habeas corpus. man,

That in midst of the adulation distinguished though on the did act consequent as the defendant in great victory, did, this case no to the attention but came to by paying process, dress, court in citizen’s attended member of single only by his and with his adviser. He offered to military family legal read same which his counsel had read paper against issuing and, when court declined to hear process contempt, it, submitted himself to its this there At judgment. a demonstration of in the crowded court-room that ill-feeling said he could not and would judge proceed, adjourn court. But the noble defender of declared' he city court, to equally defend the ready begged would without he judge proceed fear do what think might $1,000 his A fine of was entered duty required. up against once, which he at and used'his general, paid authority, needed, mob, which was who were inclined to disperse violence judge.

I I confess been have believe taught always Judge Hall was fine, and that right General imposing Jackson earned the it, in his brightest page history by paying I gracefully Such believe is submitting judicial power. n of thoughtful inquirers; history judicial though refunded to her favor- grateful country very properly ite the sum general he had for a but unauthor- paid necessary ized exercise I have no doubt that General military power. Savings Oct. Bank Ward. 187.9.] did, Dow had think he would reasons for all I good have acted if, more the courts proper wisely respecting exercise of at functions, their he had his defence made right time before the tribunal. appropriate

Savings Bank v. Ward. A., employed paid solely report attorney-at-law, B. examine and ground, gave signature lot over title of the latter a certain ” “it) certificate," (describing good, title to this B.’s the lot communication, C., A. had is unincumbered.” with whom no contract money B., true, upon the latter this loaned to relied certificate B., executing by way security a the lot. before therefor deed of trust for A., conveyance, duly a employing lot fee recorded had transferred the ascertained, A., records, examining had he could have fact n exercised reasonable degree money paid, and of care. loaned was not The Held, collusion, being fraud, B. 1. That there neither or falsehood is insolvent. C., by A., privity is not to the nor of contract between him liable usage 2. That can- sustained reason of the certificate. latter for loss parties. a contract where none was made not make District of Columbia. Supreme

Error stated in the of the court. The facts are in error. Moss for the Mr. JR. Perry and Mr. John J. Johnson S. for. Mr. Joseph Bradley in error. defendant of the court. Clifford delivered the opinion Justice

Mr. to of real purchasers employed by Attorneys im- title prior purchase grantor investigate care skill in the exercise reasonable contract per- pliedly or fail and if are they formance undertaking, negligent, care and skill such reasonable discharge exercise service,- are to their employers responsible stipulated want of care and skill. occasioned for the loss neglect Addison, Contr. (6th ed.) em- when care and skill are also

Like required attorneys to ascertain whether titles real estate investigate ployed loan safe or sufficient for a rule is a security money,

Case Details

Case Name: Dow v. Johnson

Court Name: Supreme Court of the United States

Date Published: Feb 18, 1880

Citation: 100 U.S. 158

Court Abbreviation: SCOTUS