21 Ind. 370 | Ind. | 1863
Lead Opinion
The following general order was issued:
*371 “Headquarters District of Indiana and Michigan,
Indianapolis, June 8, 1863.
Capt. Wilcox, Provost Marshal, Indianapolis:
“ Captain; Yon will at once issue an order prohibiting the sale of liquor, by any party, to enlisted men. This order must be rigidly enforced. Any one violating it will be severely punished. I have noticed, with surprise, many intoxicated soldiers in our streets. This evil should and must be stopped. , very respectfully,
Your ob’t servant,
G. Collins Lyon,
Major and Chief Provost Marshal, District of Indiana and Michigan,”
Capt. Wilcox thereupon issued the following notice:
“ Office of Provost Marshal, Indianapolis, June 8, 1863.
“ All persons engaged in the traffic and sale of spirituous and intoxicating liquors, within this city, are notified that they are strictly prohibited, from and after this date, from selling the same to any enlisted soldier. A violation of this order, by any person whomsoever, will be visited with severe punishment. By order of
Prank Wilcox,
Captain and Provost Marshal.”
Joseph Griffin was arrested and imprisoned by Capt. Wilcox, for an alleged violation of the foregoing military order and notice. After his release, he commenced this suit in the Marion Common Pleas, against the captain,.for false imprisonment. Griffin was licensed to retail to everybody except minors, intoxicated persons, &c., both by the State and the Federal Government.
Capt. Wilcox answered the complaint of Griffin by justify
Legal authority is a justification to a person in making an arrest. Authority, appearing on its face to be illegal, is not a justification, and will be.no protection for making an arrest.
This case, it may be remarked, does not inyolve the question of the right, in any jjerson, or body of men, to suspend the writ of habeas corpus. Griffin did not apply for that writ in order to effect his discharge from imprisonment. He submitted to that, and then sued for damages on account of the imprisonment. And, it may be here observed, that the suspension of the writ of habeas corpus does not legalize a wrongful arrest and imprisonment; it only deprives the party thus arrested of the means of procuring his liberty, but does not exempt the person making the illegal arrest from liability to damages, in a civil suit, for such arrest, nor from punishment in a criminal prosecution.
Our attention has been called to the following section of the act of Congress of March 3, 1863. (Acts of 1863, p. 154.)
“ Sec. 4. And be it further enacted, That any order of the President, or under his authorty, made at any time during the existence of the present rebellion, shall be a defence in all Courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue.”
This act was passed to deprive the citizens of all redress for illegal arrests and imprisonments; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and im
These sections prohibit the passage of a law by Congress, authorizing the arrest of the citizen, without just cause, because such arrest deprives him of his liberty. They also prohibit the passage of a law depriving him, or authorizing the depriving him of his property, except through a judicial sentence, or upon just compensation. Taylor v. Porter, 1 Hill (N. Y.) R. 140.; 1 Kent, 10th ed. 623, note; 2 id. 430, note. The right to damages, to be recovered in a civil action, for false imprisonment, is a chose in action — is property — and passes to one’s representatives at death, by the law of Indiana. Gimbel v. Smidth, 7 Ind. 527. Hence it is assignable. Strong v. Clem, 12 id. 37. Patterson v. Crawford, id. 241, lays down the rule that such a right of action for a tort as would survive, is assignable, but overlooks the fact, decided in Gimbel v. Smidth, supra, that the right of action for false imprisonment survives.
The above section of the act of Congress can have no greater effect than that of a general pardon; but a pardon reaches the penalty for the crime only, not the civil right of property in damages. The State v. Farley et al., 8 Blackf. 229; Brightley’s Dig. p. 7, note. The act of Congress quoted can have no bearing upon this suit.
The real question, lying at the bottom of the case, involves the war power of the President of the United States; that is,
This question we propose fully and fairly to examine, simply for the purpose of ascertaining the law. If we can come to the conclusion that the military possess this power, we will
Griffin was not arrested and imprisoned under the civil law of this State, nor of the United States, for he had violated no such law. There is no act of Congress, nor of the State Legislature, prohibiting the sale of liquor to an enlisted soldier. The only law in this State, containing such prohibitien, when Griffin made his sale to a soldier, was that enacted by the military order of Major Lyon. Griffin was arrested, then, -by military authority. Could- he be legally arrested, for the cause ■ alleged for his arrest, by that authority, in the place, and at the time it was so made ?
Griffin was not connected with the military or public service, was not a spy from the enemy, and was not within military lines. He was a citizen of the State, pursuing, lawfully, his lawful vocation, in the civil walks of life. Had he been a soldier, in the service, he would have been subject to the well defined code of military law, which requires obedience by soldiers to the orders of their officers, and subjects them to punishment, by such officers, in prescribed modes, for disobedience to these orders. In this case, had Major Lyon addressed his order to the soldiers subject to his command, forbidding them to drink intoxicating liquor, or to leave the lines to go where it could be obtained, and the soldiers, subject to his jurisdiction, had disobeyed his order, he might, perhaps, though the point is not now before us for decision, have caused them to be punished by military law. Military men, in the service, are subject to the code of military law, enacted for their government, and to be enforced, in prescribed modes, by military officers. So, legislative bodies administer the lex parliamentaria — the law governing legislatures. It is
“That in times of war, insurrection, or rebellion; murder, assault and battery with intent to kill, manslaughter, mayhem, wounding by shooting, or stabbing with an intent to commit murdei’, robbery, arson, burglary, rape, assault and battery with intent to commit a rape, and .larceny, shall be punishable by the sentence of a general court martial or military commission, when committed by persons who are in the military service of the United States, and subject to the Articles of War; and the punishments for which offences shall never be less than those inflicted by the laws of the*377 State, Territory or District in which they may have been committed.”
Section 38, of the same act, is as follows:
“ That all persons who, in time of war or of rebellion against the supreme authority of the United States, -shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court martial, or military commission, and shall, upon conviction, suffer death.”
Such is military law. What is called martial law, we again repeat, is applied to the citizen, by subjecting him to the government of the military, in certain exigencies. “Martial law is the law of war, that depends on the just but arbitrary power and pleasure of the king, for, though he doth not make any laws but by the common consent in parliament, yet in time of war, by reason of the necessity of it, to guard against dangers that often arise, he useth absolute power; so that his word is law. However opposed to other authorities, this expresses what is distinctly meant, both in England and in this country, by martial law.” New Am. Cyclop. tit. Martial Law. The question now arises, when and where can the citizen be subjected to this martial law? He can not, certainly, without an act of Congress, be subjected to that law except upon necessity — occasioned by force, actually existing or immediately threatened, at the time and place where martial law is exercised. Whether, by act of Congress, martial law could be declared throughout the United States, we need not inquire. See DeHart, Mil. L. p. 17.
Martial law is the law of force, and is employed under two general conditions :
1. In a part, or the whole, of a foreign country, when, being at war with such country, our army may invade it, and expel the governing power from a part or the whole of it.
The right, in the military officer, to govern by martial law, as we have said, arises upon the fact of existing, or immediately impending force, at a given place, and time, against legal authority, which the civil authority is incompetent to overcome; and it is exercised precisely upon the principle on which self-defence justifies the .use of force by individuals. Robbers and burglars, and, in some eases, rioters may be resisted and even slain, in self-defence by private individuals. That is, there are cases where force must be resisted by force, instead of waiting for the civil authorities. This is the doctrine of Rutherforth, in his Institutes of Natural Law. See Book 1, chap. 19; Book 2, chap. 9. This is the doctrine expressed by the maxim, “ inter arma silent leges.” This maxim was first applied under such circumstances. It was first laid down by Cicero, so far as we have been able to ascertain, in his oration for Milo. The facts of that case are thus stated: Milo was on his way to Lanuvium. Clodius met him on the road. Milo was in his carriage with his wife, and was accom
This corresponds with Lord Coke’s idea of Cicero’s maxim, lie says:
“"When the courts of justice be open, and the judges and ministers of the same may by law protect men from wrong and violence, and distribute justice to all, it is said to be time of peace. So when by invasion, insurrection, rebellion or such like, the peaceable course of justice is disturbed and stopped, so as the courts be as it were shut up, et silent inter leges arma, then it is said to be time of war.” Coke upon Littleton, as quoted in Law. "Wheat. Int. Law, p. 525.
There is another maxim sometime quoted in connection with, the above from Cicero, which deserves a moment’s notice. Salus populi suprema lex — the good of the individual
These two maxims, and their application, illustrate and define martial law, under absolute governments; and, for the purposes of the ease at bar, we shall concede the right to exercise that law, as thus defined and applied under our government, limited, as all its departments are, by a constitution. It is the law of force, applied to govern persons and places where the civil law is expelled; its officers rendered unable to execute it, by forcible resistance. The right, thus temporarily and locally to exercise martial law, in case of necessity, is the war power of the Governor of a State and of the President of the United States, and it is all the war power that either possesses by virtue of which he can assume to govern independently of the civil law; and this war power, each executive usually exerts through his subordinate military officers.
This may be further illustrated by examples.
During the administration of Governor Wright, as the Executive of this State, it was alleged that a rebellion existed in
During the administration of Washington, as President of the United States, a rebellion occurred in western Pennsylvania, on account of the excise law; the civil power was overcome, in that portion of the State. General Washington sent thither a military force, and, within the limits of the territory from which the rebels had expelled the civil power, and for just the time necessary to restore the ascendency of that power, Washington, by his Generals, might have found it necessary to govern by the war power. So Washington understood this question, and he instructed his officers accordingly. His instructions to them were:
“ That every officer and soldier will constantly bear in mind that he comes to support the laws, and that it would be peculiarly unbecoming in him to. be, in any way, the infractor of them; that the essential principles of a free government confine the province of the military, when called forth on such occasions, to two objects: first, to combat and subdue all who may be found in arms in opposition to the national will and authority; secondly, to aid and support the civil magistrates in bringing offenders to justice. The dispensation of this justice belongs to the civil magistrates; and let it ever be our pride ami our glory to leave the sacred deposite there inviolate.” Irving’s Life of Washington, vol. 5, ch. 25.
Rhode Island presents a different example, but strictly with
The right, then, of the President to temporarily govern localities, through his military officers, he derives solely from the fact that he is the commander-in-chief of the army, and is to see that the laws are executed; and he can exercise it to just the extent that, and no. further than, hy the laws of war, a commanding general in the army of the United States could
The President does not derive his war power from his oath to support, protect and defend the Constitution. That simply obliges him to obey the constitution himself, and to use power which that instrument confers upon him, and none else, to cause others to obey it. He does not derive his war power from the right to suspend the writ of habeas corpus. We do not think he possesses that right under the constitution. We think that is an act of legislative power which can only be performed by Congress; and,-even when rightly suspended, it does not justify an exercise of the war power beyond the .necessities of the case, but simply takes away the means of obtaining liberty when illegally deprived of it. Simply because the habeas corpus is suspended, is it right to destroy every man’s liberty and property? The right, in a ease of emergency, to exercise the war power, temporarily and locally, supposing that power to exist at all, under the constitution, does not depend upon the fact of the habeas corpus being suspended, or not suspended.
And while upon this subject, it may not be improper to observe, that neither the President, nor Congress, has power to suspend the issuing of the writ of habeas corpus by a State Court. From this proposition, we take it, no jurist will dissent. Indeed, there is nothing in the act of Congress of’ March 3d, 1863, cited supra, -that justifies the inference that Congress assumed to attempt such suspension. The operation of that act must be limited by construction within the constitutional power of Congress.
The provision in the Constitution of the United States touching the suspension of the writ of habeas corpus by the General Government, is in the 9th section of article 1 of that% instrument, and the Supreme Court of the United States, in
So, the provisions in the Constitution of the United States, providing that property shall not be taken without compensation, and that crimes must be prosecuted by indictment, &c., only apply to the Courts and other departments of the General Government, and have no restraining power upon States, their Legislatures, or Courts. 1 Kent, Lecture 19; 9 Ind. Rep. 558. The suspension of the writ from our State Courts must come from the State Legislature. The statute law of our State requires the Courts to issue the writ; and the Constitution ordains, art. 1, sec. 26, that “the operation of the laws shall never be suspended, except by the authority of the General Assembly.” Nor can “the Circuit Courts of the United States interfere with the jurisdiction of the Courts of a State.” 1 Kent, p. 412. Nor can State Courts interfere with the jurisdiction of the United States, or her Courts; and, hence, while the State Courts have the undoubted right to issue writs of habeas corpus, in all eases, till a suspension of the right by the State Legislature, they have not a right to deliver persons held in custody by legal authority of the United States.
But to prevent such delivery of persons on habeas corpus, by a State Court, it must be made to appear to that Court, that the persons are held by authority of the United States. For example, a soldier is held under an enlistment by an officer of the United States. Is he thus held by authority of the
Congress can neither force jurisdiction upon State Courts, nor take it from them. The Courts of Indiana do not derive their power to issue writs of habeas corpus from the General Government, nor can that Government take it from them. But the State Courts can not extend their writs, when issued, into the domain of the General Government. .Prisoners in custody, by authority of the General Government, must go to the Courts of that Government for relief; and if that relief is suspended, they^ are without relief from the State Courts for want of jurisdiction. The Federal and State Governments are distinct and sovereign within their respective
The war power of the President, then, may be stated thus: He has a right to govern, through his military officers, by martial law, when and where the civil power of the United States is suspended by force. In all other times and places, the civil excludes martial law — excludes government by the war power. Where force prevails, martial law may be exercised. But in all parts of the country, where the Courts are open, and the civil power is not expelled by force, the Constitution and laws rule, the President is but President, and no citizen, not connected with the army, can be punished by the military power of the United States, nor is he amenable to military orders. See Skeen v. Monkeimer, ante, p. 1. If, in such parts of the country, men commit crimes defined by law., they must be punished, according to the Constitution and the law, in the civil Courts. If, in such parts of the country, men have not perpetrated acts constituting, in law, crimes, their arrest, trial, and punishment, by military courts, is but a mode of applying Lynch law; is, in short, mob violence. This is so, unless the old English tory doctrine of government is secretly included in our Constitution. That doctrine, as expressed by Eilmer, is, that “a man is bound to obey the king’s command against law; nay, in some cases, against divine laws.” May’s Const. Hist. vol. 2, p. 21, note. Suck was the maxim, the constitution, indeed, of Imperial Home. “ Quod principi placuit legis habet vigorem.” What pleases the Prince, has the vigor of law. Coop. Just. Inst. p. 9; 1 Black. Comm. p. 74.
It is not denied that an officer of the navy or army, might plead the order of his government in justification of any act of war he might commit upon a foreign nation; but it will scarcely be seriously contended, we think, by any lawyer, that if the President should order a military officer to seize
Having ascertained the principle by which the legality of cases of military arrest and punishment is to be tested, we are how prepared to proceed to the application of the principle to the case at bar.
The existing rebellion in the United States, vast as is yts extent^ is not general, but local. It is confined to the Southern States. It is a sectional rebellion. The theatre of force, where the civil tribunals are closed, is sectional, bounded by geographical lines. It. is limited to the slave States. This has been unanimously decided by the Supreme Court of the United States in the Prize cases. 2 Black’s Rep. p. 635.
There are those by whom it is thought that great provocations have been given to the people of the Northern States, or portions of them, calculated to irritate them into joining in the rebellion; but, under all persecutions and grievances, the people of the Northern States, thanks to their patriotism, have remained true and devoted to the Government of the United States.
The rebellion itself did not originate in an attempt, as we have read its history, to overthrow the Government of the United States, and is not now ostensibly prosecuted for that purpose. The rebellion consists in an attempt, if we have read aright, to withdraw a certain portion of people and ter
No one of the Northern States, constituting, as they together do, a decided majority of all the States, desires to overthrow the Constitution of the United States, or to withdraw from under its operation; nor do any considerable position, perhaps not any, of the people of such States, manifest any desire to resist the legal execution of the Constitution and laws. Resistance to illegal arrests and mob violence is not necessarily resistance to the Government. The Courts, in all the Northern States, are and have been open. But the Southern States are attempting, by violence, to sever the Union; and the Government of the United States, and the people of the Northern States, are attempting, as they assert, to prevent the sevei’ance of the Union of these heretofox’e United States. Such is the object, on both sides, of the war; not to maintain or overthrow the old legal Government of the United States, but on one side, to continue the existence of, and on the other to sever, the territorial unity of the nation. And the opposition to the administration, (not the Govern
There is one precedent upon this question to which we think it instructive to refer. When, in 1776, the American colonies rebelled against Great Britain, not to overthrow the British Government — that still stands — but to sever the British Union, to take the colonies out from under the jurisdiction of the British Government, King George the Third determined to go to great lengths in attempting to consolidate British public sentiment in support of his particular policy against the colonies. He laid down the two propositions, that the British "Union should never be dissolved, and that the colonies should be subjugated by the sword to the sovereign will, uninfluenced by any reasonable or fair terms to be offered to invite submission. He went great lengths in attempting to unite the Eng
But the King could not produce unity of sentiment in his exclusive war policy. Chatham, Fox, Burke, Barre, and other true Britons, far-seeing statesmen and illustrious patriots, were for compromise, conciliation, along with war; they warned the King that his policy was less humane, less Christian, than theirs, and was calculated to prolong and increase the expenses of the war; that it involved the overthrow of liberty in England itself, and might even subject him, at last, in the dispensations of Providence, to the loss of the brightest jewel of his crown. These sentiments were boldly and earnestly uttered; they were read by the army and the rebel colonists; and, though it was attempted, by a few narrow-minded bigots, to throw distrust upon the patriotism of those great statesman, we have never learned that the King even claimed that their course gave him a right to arrest them by virtue of martial law. See 1 Buckle’s Hist. Civ. p. 345. If the
We feel constrained, then, to come to the conclusion, that the war power of the President is limited to the simple right of exercising martial law, simply as armilitary chief, locally and temporarily, where actual or immediately impending force renders it a military necessity. No other doctrine can be reconciled with the Constitution of the United States, or is compatible with the liberties of the people.
The next question that arises is, how is the existence of the fact that the civil power is superseded by illegal, forcible resistance, to be ascertained ? Is it a fact to be proved on the trial, or decided by the Court upon judicial knowledge? If the former, there is no averment in the answer of the existence of such fact, and it was bad for that reason. If the latter, we are able to state, with a feeling of complete assurance, that there has at no time been any forcible resistance, on the part of the people, to the civil power, in the city of Indianapolis, which the officers of the law were not easily able to overcome, when disposed to do their duty. The Courts have at all times been open, and there are-a sufficiency of them here, including those of the city, State, and United States, to
The following opinion was delivered in the same case by—
Concurrence Opinion
In the conclusion upon the legal points necessary to be decided in the case at bar, I fully concur; nevertheless certain propositions are advanced in the opinion, by way of argument, which I think are unnecessary and illogical, and, with that part of the argument, I do not agree, and desire to so say, although what I may say can not be strictly called a dissent. There are also some additional and somewhat different reasons which have presented themselves to
In open disregard of all these guarantees, the appellant was seized without a legal warrant and punished, by imprisonment, without a trial. This, punishment was inflicted under the semblance of military authority. The opinion, as prepared by Judge Perkins, is clear and satisfactory to my mind that, no legitimate authority was, under the circumstances, possessed by those who attempted thus to exercise it. If in this we are mistaken, then it follows that in this portion of the country, where no war, insurrection or rebellion exists, the will of a military officer becomes the law; yea, the su
It will be observed that the judgment in this Court, in the case at bar, is based upon the theory of the unjust exercise of force by the military authority, and in the opinion many other instances of a like character are referred to. The opinion then seems to assume, and it appears to me to step aside to assume, that to prevent territorial separation, we concede the necessity of keeping up the army, to whatever improper use it may be put by the administration. This savors more of a political than of a legal proposition, and is, in my view the illogical part of the argument, is wide of the legal conclusion arrived at, and is, in effect, saying that to part with a portion of territory is the worst evil that can befal us. "Whilst, as a question of policy, all men are equally, perhaps, opposed to any division of territory, or separation of States, yet some honestly believe there are greater evils. The frame work of
As to the act of Congress, set forth in the opinion, and upon which the decision of the lower Court is attempted to
In England such statutes might be held valid, because they have no written constitution, and in their theory of government the Parliament is omnipotent; it has caused Princes to be crowned and Kings to be beheaded; it is supposed to be the voice of the governing power. In this country the people have said, hi effect, by a written constitution, this power we give to the President, this to the Congress, and this to the federal judiciary. They wrote down the grant of power to each department. Beyond the passage of laws necessary to carry out those powers, Congress can not rightfully go. All other powers not thus delegated to either or all of those three departments, nor prohibited to the States, are reserved to the States respectively, or to the people. See 10 amendment. Not content with this definite grant of powers, and positive reservation of all other powers not so granted, certain stringexit prohibitions and restrictions upon the action of the federal government and its departments were inserted. The very first line of the guarantees is that “ Congress shall make no law,” &c., &c. See 1 Amend. Const. U. S. Then follows, as I understand that instrument, the enumeration of
Eor these reasons, and those of a legal character given in the opinion of the Court, the judgment ought to be reversed.
Per Curiam. — The judgment is reversed, with costs. Cause remanded.