A., who was an officer of the army and acting as a
provost-marshal in Vermont, arrested B., during the rebellion, on
the charge of aiding and abetting deserters from the army. At the
time of making the arrest, A. had no warrant, but was acting under
orders of his commanding officer based upon a report made to him by
A. B. having brought an action for false imprisonment against A.,
the latter, for the purpose of satisfying the jury of the
misconduct of B. and in support of his own testimony as to the
state of facts which he at the time of making the arrest believed
in good faith to exist, offered to show, by evidence which was not
known to him at the time of B.'s release from imprisonment, that
the latter had, during the rebellion, been engaged in procuring men
to enlist in the army and to desert after they had obtained their
bounty; but the court, on the ground that the offered evidence did
not become known to A. until after the commencement of the suit,
excluded it.
Held that the evidence was admissible in
mitigation of damages.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is an action by Andrew J. Bean against Beckwith and Henry,
plaintiffs in error, for assault and battery and false
imprisonment. It was commenced in the year 1865, in the
Page 98 U. S. 267
County Court of Orange County, Vermont, and was thence removed
for trial into the circuit court of the United States for that
district. The defendants pleaded not guilty and also filed several
special pleas. At a former term, the case was brought to this Court
upon a certificate of division in opinion between the circuit and
the district judge as to the sufficiency of some of those special
pleas. We adjudged them to be defective.
85 U. S. 18
Wall. 515. Upon a return of the case to the court below, a trial
under the plea of not guilty resulted in a verdict in Bean's favor
for $15,000. Judgment having been rendered thereon against the
defendants, this writ of error is prosecuted.
Before entering upon the discussion of the legal propositions
presented for our determination, it is necessary to state the
leading facts out of which this litigation arose, and which the
evidence before the jury tended to establish.
Bean, the defendant in error, was, in June, 1864, a resident of
Coaticoke, in the Dominion of Canada. His ordinary business was
that of a harness maker, but during the period hereinafter referred
to he was to some extent engaged in the business of substitute
brokerage, or in furnishing substitutes for our army. Henry and
Beckwith, plaintiffs in error, were officers of the Union army, the
former being provost-marshal and the latter assistant
provost-marshal of the Second Congressional District of Vermont.
They were appointed, commissioned, and sworn, as required by the
statute popularly known as the Conscription Act of Congress, and
were subordinates of General Pitcher, who was Acting Assistant
Provost Marshal General for Vermont until October, 1864, when he
was succeeded by Major William Austine. All of said officers and
subordinates were subject to the authority of Major General Dix,
commanding, by appointment of President Lincoln, the Department of
the East, which embraced the State of Vermont.
On the 14th of June, 1864, Bean, accompanied by one Jewell and
one Buckland, came from Canada to the headquarters of Captains
Henry and Beckwith at Woodstock, Vt. They were accompanied by Eldon
Brown and John Guptil. Before leaving Canada, Bean had a contract
with Brown that the latter should come to the United States and
enlist in our army as a substitute for persons drafted under the
Conscription Act. In that
Page 98 U. S. 268
contract Buckland had an interest by stipulation with Bean.
While at Woodstock, these five persons occupied the same room.
Bean, Buckland, and Jewell proposed to or through one J. C. Stevens
to enlist Brown and Guptil as substitutes, and thereupon an
agreement was made whereby Stevens was to pay Bean and his
associates $600 for Brown and Guptil each, the proposed substitutes
to receive out of that sum $200 each. Brown and Guptil, upon
examination, were accepted and clothed in the uniform of soldiers,
receiving $200 each from Stevens, while Bean, Jewell, and Buckland
received $800 between them, and returned the same day to Canada.
For the purpose, doubtless, of guarding against immediate
desertion, Brown and Guptil were required by the provost marshal to
deposit their bounty with a clerk in the office as security for
their departure, on the following evening, to the recruiting
rendezvous at New Haven, Conn. During the next day, each obtained
five dollars of their bounty money, and the same day deserted. On
the 23d of June, 1864, all the facts and circumstances connected
with the enlistment and desertion of Brown and Guptil were verbally
communicated by Captain Henry in person to General Pitcher, who
directed that transportation to the northern border of Vermont be
furnished to Captain Beckwith, with instructions to arrest the
deserters, as well as Bean, Jewell, and Buckland, and bring them to
headquarters. Transportation being furnished to Beckwith in
pursuance of that order, he endeavored, under written instructions
from Captain Henry, to effect the arrest of the parties, but his
efforts in that direction were fruitless until Nov. 11, 1864, when,
meeting Bean upon the cars, he arrested him, using no more force
than necessary. He informed him at the time that he had no warrant,
but was acting under military order, and that the charge against
him was that of aiding and abetting Brown and Guptil to desert.
Upon the succeeding day, Bean was taken to Captain Henry's
headquarters, and by his order was placed in the state prison at
Windsor -- that being the usual place for confinement of persons
charged with offenses against military law -- and he remained there
in custody until April, 1865, when he was discharged under the
circumstances hereafter detailed.
Page 98 U. S. 269
The testimony of Bean tended to show that his confinement was
prolonged unnecessarily not only under circumstances of humiliation
and severity, but against his protestation of innocence and
frequent demands to be tried by the civil courts for the offense
imputed to him. It further tended to show that such confinement
without trial was procured or caused by the plaintiffs in error,
and that among the results of such imprisonment was the destruction
of his business in Canada, the loss of property, and the
expenditure of large sums of money.
Upon the part of the plaintiffs in error, the evidence tended to
show that from the circumstances and such information as they were
able to obtain, they each believed before and at the time of Bean's
arrest that the enlistment and desertion of Brown and Guptil were
in pursuance of a previous plan for that purpose formed between the
deserters and Bean, Jewell, and Buckland, and that Bean and his
associates aided and abetted in such desertion and escape; that on
20th November, 1864, Captain Henry embodied in his regular
tri-monthly report to the provost marshal general at Washington a
general statement of Bean's arrest upon the charge of "taking part
of the money paid for two substitutes," and then "being privy to
their desertion," and that he was held for the return of the $800;
that on the 8th of December, Bean wrote to Major Austine, inquiring
whether report of his case had been made to him, which letter was
referred to Captain Henry for "report on the case;" that on the
13th of December, Captain Henry made such report, and had delayed a
report until that date by the request of Bean; that on December 16,
Captain Henry, by direction of Major Austine, furnished Bean a
written statement of the charges against him, and saying, "And it
is claimed that you shall pay for the use of the government the
$800, with the expense of your arrest;" that on 20th December, he
communicated to Major Austine other facts in the case; that on 21st
December, he again by written communication called the attention of
Major Austine to the case, expressing the opinion that the evidence
then in his possession was insufficient to convict Bean in the
civil courts under the Enrollment Act, and suggesting that he be
turned over to General Dix or the military authority, rather than
to the district attorney; that on 3d January,
Page 98 U. S. 270
1865, Major Austine was officially advised from department
headquarters that the case of Bean and his confederates was one of
gross fraud upon the government, and authorizing him to collect
from them, either individually or collectively, the amount received
by them; to take all necessary steps for the arrest of the parties
then at large, and keep them in custody until the money and
expenses of their arrest were paid, and to discharge them when the
money was paid over -- of which order Bean was advised on 6th
January, 1865; that on 21st January, Bean addressed, through Major
Austine, a communication to General Dix, protesting his innocence,
complaining of Major Austine, and demanding trial before the civil
courts; that on 24th January, an answer came from department
headquarters reiterating the condition of Bean's discharge as set
forth in the order of January 3, and directing Major Austine "to
cause Bean to be distinctly informed that he was arrested by orders
from these headquarters;" that on 24th February, Major Austine sent
all his papers to department headquarters, and they were
transmitted to the adjutant general of the army at Washington, with
an endorsement by General Dix, that "Bean was held by mine (his)
orders for complicity in a gross fraud against the United States;"
that the papers were returned to Major Austine in April, after
passing through the offices of Secretary of War, adjutant general,
judge advocate general, provost marshal, and inspector general,
with directions that Bean be turned over to the civil authorities
for trial; that, upon receiving the order last mentioned, Captain
Henry called the attention of the district attorney to its
provisions, and invited his attention to the case; that, on 26th
April, 1865, Bean was taken before a justice of the peace, who
discharged him upon bond for his appearance before a United States
commissioner when called upon; that on 11th May, 1865, an examining
trial was held and Bean required to give bail for his appearance to
answer any indictment before the grand jury, but that tribunal,
upon investigation, failed to find an indictment against him.
It is stated in the bill of exceptions that the plaintiffs in
error gave no other or further evidence, either oral or written, of
any orders from the President of the United States or their
superior
Page 98 U. S. 271
officers than those just described; that the defendants and
General Pitcher were examined as witnesses, and did not claim that
said orders had been issued, known to, or approved by the
President.
The evidence of plaintiffs in error tended to show that while
imprisoned, Bean was treated humanely; that Beckwith, in all he did
in regard in the arrest and confinement of Bean, acted in good
faith and under the command of his superior officer, Captain Henry;
that the latter, in all he did, acted in good faith and in
obedience to the orders of his superior officers, as hereinbefore
detailed; and that from time to time he promptly communicated to
Bean the orders he received from his superior officers.
During the trial, the plaintiffs in error offered in evidence
the depositions of George W. Kinney and of said Jewell and Brown,
to the reading of which the defendant in error objected. The
objection was sustained, and plaintiffs in error excepted.
Kinney, in his deposition, details the substance of a
conversation held by him with Bean after the latter's discharge. He
says:
"I was talking with him in regard to this matter, asking if he
didn't think it rather rough to be taking those fellows over the
other side to get shot, or words to that effect. He replied, he
didn't calculate to have them shot; if they were smart, he should
have them back in a few days."
Witness says that there were a good many persons in Canada,
during the war, who were generally known as deserters from the
federal army, and he understood from Bean that his dealings, to
some extent, were with that class, and that some persons enlisted
by him "had been out already two or three times."
The deposition of Brown shows that in July, 1863, he enlisted in
the State of Maine in the federal army, and within a short time
thereafter deserted, and went to Canada; that Bean and others, who,
as he thought, knew him to be a deserter, suggested that he should
return to the United States and enlist; that, in consequence of the
hard times, he concluded to adopt the suggestion; that, after
advising with Jewell upon the subject, the latter told him to go
on, and he would overtake him upon the road; that he learned at the
same time from Jewell that one Isaac Thomas would be sent along
with him;
Page 98 U. S. 272
that en route to Vermont to enlist, Buckland overtook them, and
claimed him (Brown) "as his man;" that farther along in the
journey, Bean joined the party, and held a conversation with Jewell
and Buckland apart from the witness; that there was conversation in
the crowd about Thomas and himself enlisting under assumed names;
that he concluded not to change his, but Thomas assumed the name of
John Guptil; that it was first determined to enlist at Lebanon, and
for that purpose Bean, Jewell, and Buckland went to the provost
marshal's office at that place, but failing to enlist there, they
all proceeded to Woodstock, where they did enlist.
The deposition of Jewell shows that he was himself a deserter.
He details the circumstances under which Bean, Buckland, and
himself formed the purpose to place Brown and Guptil as substitutes
in the army. It appears in his deposition that some dispute arose
between Buckland and Bean about Brown. Bean insisted that Brown
"belonged" to him. Their differences were compromised by an
agreement "to divide the profits if they put him in." He explains
why Brown and Guptil were not enlisted at Lebanon. He says,
"We all went from White River Junction to Lebanon, where the
provost marshal's office was, to see what we could get for the men.
Not succeeding to our satisfaction there, we concluded to go
elsewhere. The reason was they were shipping their men daily direct
to Concord. Brown did not want to go to the front so soon, but
wanted longer time to get away, he not designing to go to the front
at all; went back to White River Junction; took dinner there. We
fell in with a man by the name of Stevens. This man was buying men,
and said he would give so much for them there, or something more to
take them to Woodstock and put them in. We concluded the best way
was to take them to Woodstock. We procured a team at the junction.
. . . When we came to Woodstock, Bean, Buckland, and myself went to
the provost marshal's office first, and afterwards all went there,
but did not enlist the men, for the reason that the men could not
get their bounty till they got to camp, and they would not enlist.
We drove back to White River Junction; saw Stevens again; I think
he gave them some money, can't tell how much, to go back to
Woodstock
Page 98 U. S. 273
and enlist. After they (Brown and Thomas) has received the
money, they started to Woodstock the second time with Stevens. I
remained at the junction. My being subject to the service, Bean and
Buckland advised me to remain there, and they would do the business
of enlisting the men at Woodstock. Next day they came bank, and we
all -- Bean, Buckland, and myself -- took the train for Canada. I
had received nothing out of the bounty before that from Thomas.
They said they would fix me all right when we got home. After we
got home, I said something to them about it. They said they had
nothing for me, that I was lucky to get back myself. . . . I knew
from both Brown and Thomas, before we left Canada, they were
deserters. It was distinctly understood by us all, including Brown
and Buckland, that both Brown and Thomas were deserters, and that
was the reason why we were selecting other names by which they were
to be enlisted. At least that was the way I understood it, and
supposed all understood it so."
Upon the conclusion of the evidence, the court overruled a
motion of plaintiffs in error to dismiss the action, refused to
instruct the jury as asked by them, and gave an elaborate charge
upon the evidence and the law of the case.
The action of the court below in excluding the depositions of
Kinney, Brown, and Jewell presents the first question for our
consideration. Counsel for defendant in error contends that the
facts stated in those depositions are not admissible for any
purpose, not even in mitigation of damages.
There can be no rational doubt that the facts detailed by those
witnesses, in connection with the evidence before the jury,
conduced to show that Brown and Guptil were, at the time of their
enlistment as substitutes, known to Bean, Jewell, and Buckland to
be deserters from the federal army, and that Bean, in conjunction
with his associates, enlisted them in pursuance of an understanding
had before leaving Canada, that they would desert as soon as they
received their bounty, and that in such desertion they would
receive all the aid which Bean and his associates could render. We
express no opinion as to the degree of credit to which these
witnesses were entitled. Nor do we say that the jury should have
reached the conclusion which their evidence conduced to establish,
viz.,
Page 98 U. S. 274
that Bean was in fact guilty of the offense for which he was
arrested by Beckwith, under the written and verbal orders of his
superior officers -- an offense punishable, upon conviction, by a
fine not exceeding $500 and imprisonment not exceeding two years
nor less than six months. 12 Stat. 735. Was the excluded evidence
competent for any purpose in this case? We are of opinion that it
was competent in mitigation of damages. It tended to show the state
of case which plaintiffs in error testify under oath they believed
in good faith existed at the time of the arrest. It conduced to
show that plaintiffs in error did not act from mere personal ill
will or from corrupt motives, and were not guilty of a wanton,
reckless exercise of power for the mere purpose of humiliating and
oppressing one who had not become obnoxious to the laws of the
land. It tended to rebut the presumption of malice which might
arise from the simple arrest and imprisonment, unaccompanied by any
explanation of the reasons therefor. In connection with evidence
which was admitted without objection, it seems to present a case
which, under the law, did not call for or admit of vindictive or
punitory damages against the plaintiffs in error. In determining
whether the case demanded such damages, the jury had the right to
consider all the attendant facts and circumstances out of which the
arrest and imprisonment arose. They could not well ignore the
important fact that the arrest occurred at a period in the
country's history when the intensest public anxiety for the fate of
the Union pervaded all classes. The necessities of the government
and the condition of the army had compelled the adoption of the
most stringent and, in some respects, harassing regulations for an
increase of the national forces. The enforcement of those
regulations in some localities was made the occasion of tumultuous
assemblages which threatened to disturb the peace of the country at
a time when the utmost energy and unity of action were required for
the preservation of the government against armed insurrection.
Citizens drafted were required to enter the military service or
furnish acceptable substitutes. The plaintiffs in error were
charged with delicate and important duties in connection with the
enlistment and enrollment of substitutes for that service. It is to
be presumed that, independent of the
Page 98 U. S. 275
desire to discharge the obligations of their official oaths,
they shared the prevailing anxiety for the safety of the government
and recognized the fact that its safety depended upon speedy
additions to the army then engaged in defending it. Neither
evidence nor argument is needed to prove that the efforts of the
government to strengthen the national forces by draft would have
been seriously retarded, and perhaps altogether thwarted, if
substitute brokers could, with impunity, and for purposes of
private gain, impose fraudulent enlistments upon recruiting
officers and then connive at or aid and abet the desertion of the
substitutes as soon as they had received their bounty money.
Whether such considerations influenced, or to what extent they
should have influenced, the course of plaintiffs in error was for
the jury when determining whether punishment by exemplary damages
should be inflicted. Further, if Captain Henry in good faith
believed that Bean was guilty of such misconduct in the enlistment
of the two deserters, it was his duty to communicate the facts and
circumstances to his superior officer. If the order to Beckwith to
arrest Bean was given by him in good faith, believing it to be his
duty to obey the command of his superior officer, General Pitcher;
if Beckwith executed the order under a like belief, and in like
good faith; if the arrest was made and the imprisonment ordered
from an honest purpose to guard the public interests and protect
the army from the evil consequences of sham enlistments and
frequent desertions -- they were entitled by every consideration of
justice to stand before the jury in a more favorable light upon the
question of damages than they would or should have stood had they
been actuated by ill will or sought to oppress one whose conduct
had not justified the conclusion that he had violated any law.
Every fact, therefore, which served to illustrate the motives which
governed the plaintiffs in error in committing the trespasses
complained of, and every fact which fairly conduced to prove the
existence or non existence of just grounds for imputing to Bean the
fraudulent and illegal acts charged against him, and which were
assigned as the cause of his arrest, were competent evidence, not
in justification, but in mitigation of damages. It is the settled
doctrine that "damages are graduated by the intent of the party
committing the wrong." Sedgwick,
Page 98 U. S. 276
Damages 455. It is equally well settled that in the absence of
gross fraud, malice, or oppression in cases of trespass to person
or estate, the jury should restrict damages to compensation or
satisfaction for the actual injuries sustained. Sedgwick, Damages
39;
Day v.
Woodworth, 13 How. 361. They may, when legal
justification is not shown, consider the direct expenses incurred
by the injured party, his loss of time, his bodily sufferings,
under some circumstances his mental agony, his loss of reputation,
the degree of indignity involved in the wrong done, and the
consequent public disgrace attending the injury. These and similar
elements of injury may be made the basis of compensation, and such
compensation cannot be diminished by reason of good motives upon
the part of the wrongdoer. But when the injured party seeks, as
here, to show a case of "great aggravation, cruelty, and
injustice," and upon that ground asks for exemplary or vindictive
damages by way of punishment, it was competent, in reduction of
such vindictive damages and for the purpose of restricting the jury
to compensatory damages, to give in evidence such facts and
circumstances connected with the injury complained of as might show
the truth of the whole case, as it existed at the time of arrest.
In
Day v. Woodworth, supra, this Court said that the
question of smart money
"has always been left to the discretion of the jury, as the
degree of punishment to be thus inflicted must depend upon the
peculiar circumstances of each case"
-- that is, "upon the degree of malice, wantonness, oppression,
or outrage of the defendant's conduct." Hence it has been held that
where the injury complained of was an arrest without warrant, the
defendant could show, in mitigation of damages and as explaining
the arrest, that the plaintiff was justly suspected of felony. 2
Greenl.Evid., sec. 267; 3 Phillips, Evid. 518. The text in
Greenleaf seems to rest partly upon the authority of
Chinn v.
Morris, 1 Ry. & M. 424, and
Simpson v. McCaffrey,
13 Ohio 508. The first case was trespass for an assault and false
imprisonment. The defendant had given the plaintiff in charge to a
constable for felony, and he was taken by the officer to a
magistrate, who dismissed the charge. The defendant admitted on the
trial that he had not sufficient evidence to sustain the charge of
felony, but proposed to show that there
Page 98 U. S. 277
was reasonable ground of suspicion. Best, C.J., held the
evidence admissible in reduction of damages. That case was cited
with approval in
Linford v. Lake, 3 H. & N. 276. The
case in 13 Ohio was trespass for illegally entering and searching
plaintiff's house, tearing up porch, ransacking house, and breaking
open desk, without legal authority. Certain evidence was offered in
justification as well as in mitigation of damages. The court
said:
"The evidence ruled out by the justice of the peace, as shown by
the bill of exceptions, in no sense constituted a justification of
the trespass complained of. But it was competent in mitigation of
damages. The principle of permitting damages in certain cases, to
go beyond naked compensation is for example, and the punishment of
the guilty party for the wicked, corrupt, and malignant motive and
design which prompted him to the wrongful act. A trespass may be
committed from a mistaken notion of power and from an honest motive
to accomplish some good end. But the law tolerates no such abuse of
power nor excuses such act; yet in morals and the eye of the law
there is a vast difference between the criminality of a person
acting mistakenly from a worthy motive and one committing the same
act from a wanton and malignant spirit, and with a corrupt and
wicked design. Hence, when a jury are called upon to give smart
money or damages, beyond compensation, to punish the party guilty
of the wrongful act, any evidence which would show this difference,
or rather all the facts and circumstances which tend to explain or
disclose the motives and design of the party committing the
wrongful act, are evidence which should go to the jury for their
due consideration."
To the same effect is
Roth v. Smith, 54 Ill. 432. That
was an action to recover damages for having advised and procured,
upon affidavit, the arrest and imprisonment of the plaintiff, by a
federal officer, upon the charge of discouraging enlistments.
Evidence was admitted, against the objection of the plaintiff, that
he had in fact discouraged enlistments, and upon appeal to the
Supreme Court of Illinois, that evidence was held to be competent
in reduction of damages upon the ground that it explained the
circumstances of the alleged arrest and tended to show that the
defendant was not actuated by malice. That
Page 98 U. S. 278
court, speaking through Chief Justice Lawrence, said:
"Admitting that on proof of these facts the plaintiff would have
been entitled to a verdict for some amount, he certainly would not
have been entitled to nearly as large a sum in the way of damages,
if the affidavit was true, as he should have received if it had not
been true. If the affidavit was not true, and if the arrest was by
procurement of defendant, the jury should presume malice and award
heavy vindictive damages. If the affidavit in fact was true and the
jury could see that the defendant, in making it, even though he
voluntarily furnished it to the marshal and advised the arrest of
the plaintiff, was acting without malice and in the belief that the
public good required the arrest of the plaintiff, and that he could
be legally arrested, and that, in causing his arrest, so far as the
defendant could be said to cause it, he believed himself to be in
the performance of his duty as a citizen, it would clearly in such
a case be the duty of the jury to give only compensatory and not
vindictive damages."
In
McCall v. McDowell, 1 Deady 233, which was an action
for false imprisonment brought by McCall against General McDowell,
it appeared in evidence that the plaintiff had, in gross and
incendiary language, expressed exultation at the assassination of
President Lincoln, for which conduct he was arrested and imprisoned
under the orders of General McDowell. While this conduct did not,
in the opinion of the learned judge trying the case, furnish legal
justification for the arrest and imprisonment, it was competent
evidence, in mitigation of damages, to go to the jury to show that
the arrest was without bad motive, and with the purpose of
discharging what the defendant, in the execution of high and
responsible public functions, conceived, in good faith, to be his
duty at a critical period in the country's history.
A case in point is
Botts v. Williams, 17 B.Mon. (Ky.)
687. That was an action for trespass and false imprisonment. It
appeared that the defendants, without warrant, and in violation of
the laws of Kentucky regulating the apprehension and detention of
fugitives from other states, arrested the plaintiff in that state
and took him to Ohio, from which state it was alleged he was a
fugitive from justice, having committed a felony there. The
defendants, under the plea of not guilty,
Page 98 U. S. 279
offered to prove the declarations of the plaintiff that he had
committed a felony in Ohio, and that a reward had been offered for
his apprehension. It was held that while such declarations did not
establish justification for the apprehension and transportation of
the plaintiff beyond the state, they were
"admissible in mitigation of damages, as conducing to show that
the defendants, in making the arrest, were prompted by honest
motives and no ill will to the plaintiff."
The same general doctrine is announced in Mr. Mayne's Treatise
on the Law of Damages. That author says:
"Of course, in all cases where motive may be a ground of
aggravation, evidence on this score will also be admissible in
reduction of damages. Hence, in an action for false imprisonment,
evidence may be given of a reasonable suspicion that the plaintiff
had been guilty of a felony, without any attempt at setting up a
justification."
Says the same author:
"And if the plaintiff was given in custody for an offense not
justifying an arrest, evidence may be given of the offense. It is
in the nature of an apology for the defendant's conduct."
Mayne, Damages, pp. 74, 75.
Further citation of authority seems to be unnecessary. The rules
announced in the authorities cited meet our approval, and we are
not referred to any elementary treatise or adjudged case which
states the law differently. It results that the court below erred
in sustaining objections to the reading of the depositions of
Kinney, Brown, and Jewell. The reasons assigned for their exclusion
were insufficient. The court, in excluding them, said that it did
so
"upon the ground that the guilt or innocence of said Bean was
not a question for the determination of the jury, but that all the
facts and circumstances which were known to the defendants, or with
which they in any way became acquainted prior to the imprisonment,
could be admitted for the purpose of rebutting malice and showing
that they acted in good faith; but that they could not give in
evidence circumstances of which they had never heard until after
the commencement of this suit."
It is true that the guilt or innocence of Bean was not for the
determination of the jury, for the purpose of inflicting punishment
for the offense imputed to him. But, as already shown, it was the
right of the plaintiffs in error to prove, in mitigation of
damages, that
Page 98 U. S. 280
they were governed in their whole conduct by a sense of public
duty, and not by a malignant purpose to oppress and humiliate the
defendant in error. It was their right to show that the truth of
the case, as it actually existed at the time of arrest, sustained
the belief under which they acted.
Such a right would, however, be valueless and such proof
impossible if the jury were not allowed to inquire whether there
were in fact just grounds to charge upon Bean the fraudulent and
illegal acts which were assigned as the reason for his arrest. The
existence or nonexistence of such grounds might materially
influence the mind of the jury in determining whether the
plaintiffs in error acted from a sense of duty, or from malice and
sheer wantonness. If evidence of an honest belief upon the part of
plaintiffs in error that Bean was privy to the desertion of the
substitutes was competent in mitigation of vindictive damages,
proof that he was in fact guilty of that offense would serve to
show that such belief was not recklessly or inconsiderately formed,
and that "the charge was not a pure invention."
Linford v.
Lake, supra. The fact of Bean's complicity in the desertion of
Brown and Guptil was believed in good faith by Henry and Beckwith
to exist when the arrest and imprisonment occurred. So they testify
under oath. Should they be precluded from establishing such
complicity by the admission of Bean himself to the witness Kinney,
simply because such admission was not made until after Bean's
release from custody? We think not. Had the admission been in
writing, its competency could not well be doubted. That it was
verbal is an objection not to its admissibility, but to its value
as evidence upon which to find a verdict. Verbal confessions or
admissions, made in the presence of the witness alone, constitute,
it is true, very unsatisfactory evidence, partly because of the
facility with which they may be fabricated. It is therefore to be
received with great caution; but "where the admission is
deliberately made and precisely identified, the evidence it affords
is often of the most satisfactory nature." 1 Greenl.Evid., sec.
200;
Botts v. Williams, supra; Higgs v. Wilson, 3 Met.
(Ky.) 337. "The caution," says the Court of Appeals of Kentucky,
"should be applied to the proof of the statement, and not to the
statement when proved."
Page 98 U. S. 281
The same considerations apply to the evidence of Brown and
Jewell. Most, if not all, of the substantial facts to which they
deposed were known to defendants in error at and before the arrest.
The excluded evidence was in support and corroboration of that
which was known and believed at the time of the arrest to exist. It
was cumulative evidence of the same general character as that which
was admitted without objection. It introduced no new issue. That
plaintiffs in error may not have been advised until after Bean's
discharge that those facts could be established by the testimony of
Brown and Jewell more fully or more clearly than other witnesses
could, or in corroboration of what other witnesses would state,
constituted no reason for the exclusion of that evidence. Nor is
the determination of this question affected by the fact that the
defendant in error, upon the trial, complained more of his long
confinement in prison than of the original arrest. We should regard
all the circumstances attending the imprisonment, and not merely
the period during which the imprisonment was continued.
Read v.
Sowerby, 2 M. & S. 78; 3 Starkie, Evid. 1452, 1453. One of
the issues before the jury, as shown by the charge of the court,
was as to the responsibility of the plaintiffs in error for the
prolongation of the imprisonment and the denial to Bean of a speedy
trial in the civil courts. While it is true that good faith in the
original arrest and imprisonment might have been succeeded by bad
faith in unnecessarily continuing the imprisonment and in
preventing a trial of Bean in the civil courts, which alone had
cognizance of the specific offense charged, it was for the jury,
upon all the legitimate evidence which either side could produce,
to determine whether such was the fact. If the excluded evidence
was competent upon the issue of good faith in the arrest and the
original imprisonment -- and we have held that it was -- the
plaintiffs in error were entitled to have it before the jury in
their consideration of the whole case, since any failure or
deficiency in their proof in that respect might have justified the
jury in believing that from the very outset they were actuated by
improper motives.
A less liberal rule in the admission of evidence than that
indicated in this opinion would often work the grossest injustice
in cases where, as here, vindictive damages are sought
Page 98 U. S. 282
against mere subordinates, whose testimony, if credited by the
jury, would show that they acted in good faith, from a sense of
public duty and in obedience to the orders of their superior
officers, who promptly assumed, and upon whom justly rested, the
responsibility not only for the prolongation of the imprisonment
complained of, but for the denial of a speedy trial in the civil
courts.
Upon this branch of this case it is proper to make one further
remark. When the depositions of Kinney, Brown, and Jewell were
offered, the objection was that, in their substance, they were not
competent evidence, but that if any part of either of them was
admissible, "it was so intermingled with inadmissible statements
that the whole became inadmissible." The objection was made at the
moment they were offered, without calling the attention of the
court to the particular portions of the depositions which were
claimed to be inadmissible under any view of the case. They were
not excluded upon any such ground. They were excluded upon the
broad ground that the facts and circumstances detailed by those
witnesses were not heard of by the plaintiffs in error until after
the commencement of this action. In this condition of the record,
it would be improper for this Court, in view of what has been said,
to sustain the ruling of the court below simply because in those
depositions there may be, here and there, isolated statements not
affecting the substance of what the witnesses testified and which,
upon specific objections, could have been excluded as incompetent
under the general rules governing the admission of testimony.
Upon the conclusion of the evidence before the jury, the
plaintiffs in error moved in writing that the case be dismissed
upon the ground that
"all the facts proved establish that the acts done by them, for
which the plaintiff claims to recover, were done by them as
military officers acting under the authority of orders of the
President of the United States during the existence of the late
rebellion against the United States."
This motion was properly denied for the reason, if for no other,
that there were many disputed facts in the case, disconnected from
any question of authority derivable from the general orders of the
President. It was the province of the jury to consider those facts
in connection with such propositions of law as the
Page 98 U. S. 283
court should announce for their guidance. For like reasons, the
court properly refused to charge the jury as requested by
plaintiffs in error. That request altogether ignored the evidence
introduced by the defendant in error, who testified substantially
that the plaintiffs in error, under circumstances of oppression and
wantonness and by improper and fraudulent representations, procured
their superior officers to continue the imprisonment longer than
necessary, and prevented them from having a speedy trial in the
proper court for the offense charged. It was the province of the
jury to consider that evidence, and if they believed it to be true
and had discredited the opposing evidence, the defendant in error
would have been entitled to a verdict by reason of any oppressive
or corrupt abuse of authority on the part of the plaintiffs in
error in making the arrest and ordering and continuing the
imprisonment.
In the argument of the case before us, a good deal was said in
reference to that portion of the elaborate charge to the jury which
discussed the right of the plaintiffs in error to take shelter
under the Act of March 2, 1863, entitled "An Act relating to habeas
corpus and regulating judicial proceedings in certain cases," and
the Act of March 2, 1867, entitled
"An Act to declare valid and conclusive certain proclamations of
the President, and acts done in pursuance thereof, or of his
orders, in the suppression of the late rebellion against the United
States,"
the former act, it will be remembered, authorizing defense to be
made by special plea or under the general issue. They are known as
the Indemnity Acts, passed by Congress for the protection of
military officers, and others who, between certain dates, made
arrests or were connected with the imprisonment and trial under the
authority of the orders and proclamations of the President of
persons charged with participation in the late rebellion or with
disloyal practices in aid thereof. Upon the part of the plaintiffs
in error, it is insisted that the charge was so inflammatory as to
prevent a dispassionate and impartial consideration of the defense
relied upon. It is further insisted that the court erred in what it
said as to the right of the plaintiffs in error to justify under
the provisions of the two statutes referred to. It is still further
insisted that Beck with and Henry having acted in good faith under
the
Page 98 U. S. 284
directions of their superior officers, both in ordering and
making the arrest, and in holding Bean in custody after such
arrest, they could not in any event be liable for vindictive
damages, however illegal their acts may have been. Touching these
objections to the charge of the court, it is sufficient to say that
they are not presented by the bill of exceptions in such form that
we should consider them. The only exceptions to the charge are in
these words:
"To the omission of the court to charge as requested, and to the
charge of the court placing a construction upon said acts of
Congress, and to so much of the charge as relates to the attempted
justification of the defendants under said act, and the evidence
hereinbefore detailed, the defendants excepted."
We have already commented upon the refusal of the court to
charge as requested by the plaintiffs in error. The exceptions to
the charge as given are too vague and indefinite to raise the
questions which were claimed in argument to arise under the acts of
1863 and 1867.
Lincoln v.
Claflin, 7 Wall. 132;
McNitt
v. Turner, 16 Wall. 362;
Beaver v. Taylor,
93 U. S. 46. The
exception is scarcely more definite than a general exception to the
whole charge would have been. We cannot tell what specific portion
of the elaborate charge construing the acts of Congress, or what
specific portions of the charge concerning the evidence relied upon
for justification under those acts, were intended to be covered by
this general exception. The exception was to a series of
propositions in gross, relating to the construction and to the
validity, in certain aspects, of these acts of Congress, and to a
mass of evidence introduced for the purpose of establishing the
defense allowed by those acts. Some of those propositions seem to
be sound in any view of the case, but since the exception did not
call the attention of the court below to the specific propositions
which were objected to, it cannot be regarded here. For the same
reasons, we cannot consider the alleged error of the court in its
charge to the jury upon the question of vindictive damages. While
some portion of the amount found by the jury may be attributed to
the charge of the court upon the subject of vindictive damages, it
is sufficient to say that no exception was taken upon that point.
We forbear, therefore, any
Page 98 U. S. 285
expression of opinion as to whether the evidence before the jury
authorized vindictive damages, or brings this case within the
provisions of the statutes of 1863 and 1867. We express no opinion
as to the construction of those statutes or as to the questions of
constitutional law which may arise thereunder. We feel obliged to
adopt this course because counsel for defendant in error, assuming
that our decision in 18 Wallace as to the sufficiency of certain
special pleas settled all the questions under the acts of 1863 and
1867, which could arise upon the evidence in this case under the
general issue, did not, in his oral or printed argument, discuss
the grave questions of statutory and constitutional law which
perhaps the general exceptions to the charge were designed to
present for our determination. We therefore restrict our decision
to the single point properly presented for our determination,
viz., that the court erred in excluding from the jury the
depositions of Kinney, Brown, and Jewell, and upon that ground the
judgment is reversed, with directions for such further proceedings
as may be consistent with this opinion.
Upon the whole case, we are of opinion that justice will be
promoted by another trial of the case, and it is
So ordered.
MR. JUSTICE MILLER did not hear the argument in this case or
take part in its decision.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE CLIFFORD,
dissenting.
I am unable to concur in the judgment of the Court in this case,
and I will state the reasons for my dissent. The action is for an
assault and battery upon the plaintiff and his imprisonment in the
state prison of Vermont for more than six months without process of
law and under circumstances of great cruelty and oppression. The
plaintiff is a citizen of the United States, though in 1864, when
the grievances complained of were committed, he was temporarily a
resident of Canada.
It appears from the uncontradicted evidence in the record that
on the 11th of November, 1864, whilst returning from
Page 98 U. S. 286
a trip to Boston to his home in the Province of Quebec, he was
arrested in a passenger car near Wells River, in the State of
Vermont, by the defendant Beckwith, without any warrant or process
of law, and taken to Beckwith's residence in Sutton in that state;
that he was there detained during the night under the charge of
keepers; that his father, who lived at the distance of about
fifteen miles, and for whom he had sent, arrived during the night,
but that Beckwith refused to allow them to have an interview except
in his presence; that on the following day he was forcibly taken,
by order of the defendant Henry, and placed in the state prison at
Windsor, where he remained until the 26th of April, 1865, a period
of nearly six months, when he was admitted to bail and released
from imprisonment; that during this period he was locked up at
night, and for the first few days in the daytime, also, in a narrow
and scantily furnished cell, being one in which convicts were
confined at night; that after the first few days he was allowed,
upon his complaint of the coldness of the cell, to spend the day in
the shops where the convicts worked, but he was required to go out
and to return when they did, and at no time to be out of sight of a
keeper, and not to go on the corridors or in the yard for exercise;
that the food offered to him was the fare served to the convicts,
which he could not eat, and that afterwards he obtained his meals
from the keeper's table by paying a small sum each week; and that
during this period, no complaint against him was filed with any
magistrate; he was held simply upon the order of the
defendants.
And what is the excuse offered for this imprisonment and
treatment, for justification there could be none in a country where
there were constitutional guarantees against the invasion of
personal liberty -- such as are found in the Constitution of
Vermont and in the Constitution of the United States? What is the
excuse? Simply this: that the defendants, one of whom was provost
marshal, and the other assistant provost marshal, of a military
district embracing Vermont, suspected that the plaintiff had aided
or been privy to the desertion from the army of two substitutes,
who had been furnished upon a contract with one Stevens, and for
whom Stevens had paid
Page 98 U. S. 287
$1,200, of which sum $800 had been received by the plaintiff and
two others. Suspecting the plaintiff, as stated, the defendants
determined to hold him in the state prison until they should coerce
him to the payment not merely of what he had received, but of what
his supposed confederates had received also. The defendants claimed
that they were acting all this time in the service of the United
States, but surely this is a mere pretense, for their duties as
enlisting officers did not require them to compel the return of
money of which a substitute broker had been defrauded, and in which
the United States had no interest, and could not have retained had
these officers succeeded in coercing its payment.
After the plaintiff had been in the state prison for a few days,
the defendant Henry called upon him, and verbally informed him that
he was charged with aiding or being privy to the desertion of the
substitutes, but that he would be discharged on payment of the
$800, and $25 additional for expenses. The plaintiff protested that
he was innocent of the charge, and demanded a trial. He was told in
reply by Henry (whose words I quote) that "he could not have a
trial, and could not get one," but that his case would be reported
to the assistant general provost marshal. He then requested Henry
to make an immediate report, which he promised to do. Later in the
day, being in great distress of mind and anxious to return to his
family, and thinking that perhaps the money might be paid under
protest, he telegraphed to his father to bring him the $800, and
requested Henry to withhold the report until his father arrived. On
the next day but one, his father arrived, and, in an interview with
Henry told him that neither he nor the plaintiff would pay a
dollar, and requested him to report the case at once. The record
then reads thus (I copy the words):
"From that time, plaintiff constantly urged that his case should
be reported, or that a trial should be given him, or that he be
admitted to bail, and protested his innocence; and Henry repeatedly
promised to report the case, but frequently told him and his father
he could not get a trial, nor be admitted to bail, and that he
would be discharged at any time on payment of the $825."
On the 20th of November following, Henry reported to his
Page 98 U. S. 288
superior officers the arrest of the plaintiff, and the reasons
for it, stating that he was held for the return of the $800; and in
December, Henry informed the plaintiff in writing of the charges
against him, claiming that he should pay the $800 for the use of
the government, with the expenses of his arrest. All the
communications between the different officers of the military
district with reference to the plaintiff show that he was held upon
the charge of aiding or of being privy to the desertion of the
substitutes, without any intention to bring him to trial for the
offense, but to coerce, by his imprisonment, the repayment of the
money which he, with two others, had received from the substitute
broker. In one of his letters to the assistant provost marshal,
Henry stated, with reference to turning the case over to the
district attorney, that he did not think that the plaintiff could
be convicted under any section of the Enrollment Act from any
testimony which he then possessed, but that he had heard of
additional facts which might perhaps be sufficient for that
purpose. No such additional facts, however, were obtained.
The record also shows that the plaintiff, throughout his
imprisonment, made constant efforts in various ways to obtain a
trial or a release on bail, which he was able and willing to
furnish; and that eleven journeys were made by his father from the
northern part of Vermont to Windsor and Brattleborough for that
purpose. Among other efforts, the plaintiff appealed by letter to
General Dix, the commander of the department, to order him to be
brought to trial, and to give him an opportunity to prove his
innocence. But no trial was allowed him -- that right which belongs
or ought to belong to everyone, even the humblest in the land, was
denied to him, a born citizen of the United States; and not until
after the intercession, at Washington, of a member of Congress from
Vermont in his behalf were any steps taken for his release. His
father and he had pleaded in vain to the defendant Henry, urging,
among other things, that his wife, who needed his support, was
about to be confined. At last, on the 26th of April, 1865, he was
taken before a justice of the peace and discharged on bail.
To add to the enormity of this case, the District Attorney
of
Page 98 U. S. 289
the United States for Vermont states in his testimony that there
were many other cases in his district, during the war, of persons
charged with inciting or assisting soldiers to desert, and that
they were all turned over to him to be prosecuted, and that they
were prosecuted by him in the civil courts, but that he knew
nothing of this case until April, 1865, and that soon afterwards
the plaintiff was released on bail. The grand jury of the United
States court found no cause for his prosecution, though the
defendant Henry told his story to them.
Whilst these things were being done in Vermont and the plaintiff
was, by the action of the defendants, lying in the state prison as
absolutely helpless as though he had been immured in the dungeon of
an Asiatic despot, there was no rebellion in that state against the
laws and government of the United States; there were no military
operations carried on within its limits; there was no army there.
The courts of justice, both federal and state, were open and in the
full exercise of their jurisdiction, and the plaintiff was not in
the military service or in any way connected with such service, and
for the offense of which he was suspected, or for any other
offense, could have been brought before them on any day of the
year. By his imprisonment, and the report that he was in the state
prison, his business was ruined, his personal property and
furniture were seized by creditors and sacrificed at sheriff's
sale, and his wife was compelled to leave his home and return to
her friends in Vermont. [
Footnote
1]
On the trial of the action, the defendants relied for their
defense upon the fourth section of the Act of Congress of March 3,
1863, "relating to habeas corpus, and regulating judicial
proceedings in certain cases," 12 Stat. 756, and upon the Act of
March 2, 1867, to declare valid and conclusive certain
proclamations of the President, and acts done in pursuance thereof,
or of his orders in the suppression of the late rebellion,
contending that under them the defendants were to be presumed
Page 98 U. S. 290
to have acted by the orders of the President, and were thereby
released from responsibility to the plaintiff. 14 Stat. 432. And if
they were not thus released from responsibility, then they sought
to give in evidence in mitigation of damages the testimony of
certain parties which was discovered long after the arrest and
imprisonment of the plaintiff, tending to establish facts which, if
known at that time, would have justified to some extent their
suspicions as to his complicity in the escape of the substitutes.
The court below held that the defendants were not released from
responsibility under those acts, and that evidence of the possible
guilt of the plaintiff, discovered after the commission of the
grievances complained of, was inadmissible in mitigation of
damages. Its ruling upon both of these positions is assigned as
error by the Attorney General, but it is upon its ruling on the
first that he chiefly relies for a reversal of the judgment. It is
against that ruling that his argument is mainly directed. This
Court holds that the testimony offered should have been received,
and it overrules the exception to the refusal of the court below to
instruct the jury that the defendants were to be presumed to have
acted under the orders of the President, and that the statutes in
question constituted a full and complete justification for the acts
complained of, not on the ground that the statutes were invalid, or
that the orders, if issued, would have afforded no justification to
the defendants, but on the ground that there was evidence for the
consideration of the jury whether the defendants had not by
fraudulent representations induced their superior officers to
continue the imprisonment of the plaintiff "longer than necessary,"
and prevented him from having a speedy trial in the proper court
for the offense charged. [
Footnote
2]
In considering this case, I shall endeavor to show that the
Page 98 U. S. 291
court below ruled correctly, as well where its ruling is
pronounced erroneous as in refusing to give to the jury the
instructions requested, and that its refusal in that respect should
be sustained on the ground that neither the statutes mentioned nor
any orders of the President under them could constitute any
justification for the arrest and imprisonment of the plaintiff. And
I shall examine the propositions of law presented by the rulings in
the order in which they were discussed by the Attorney General.
The act of 1863 provided that "any order of the President or
under his authority" made during the rebellion should "be a defense
in all courts to any action or prosecution" for any search,
seizure, arrest, or imprisonment under and by virtue of such order,
or under color of any law of Congress.
By the act of 1867, all acts, proclamations and orders of the
President, or acts done by his authority or approval after March 4,
1861, and before July 1, 1866, respecting martial law, military
trials by courts martial, or military commissions, or the arrest,
imprisonment, and trial of persons charged with participation in
the rebellion, or as aiders or abettors thereof, or as guilty of
any disloyal practices in its aid, or of any violation of the laws
or usages of war, or of affording aid and comfort to rebels, and
all proceedings and acts of courts martial or military commissions,
or arrests and imprisonments in the premises by the authority of
the orders or proclamations, or in aid thereof -- are approved,
legalized, and declared valid to the same extent and with the same
effect as if the orders and proclamations had been issued, and the
arrests, imprisonments, proceedings, and acts had taken place under
the previous express authority and direction of Congress. The act
also declares that no person shall be held to answer in any civil
court "for any act done or omitted to be done in pursuance or in
aid of any of said proclamations or orders, or by authority or with
the approval of the President" within the period and respecting any
of the matters mentioned, and that
"all officers and other persons in the service of the United
States, or who acted in aid thereof, acting in the premises, shall
be held prima facie to have been authorized by the President."
These statutes, as is apparent on their face, extend only to
Page 98 U. S. 292
acts done in compliance with express orders or proclamations of
the President. They do not cover acts done by persons upon their
own will and discretion, who may have been at the time in the
service of the government, simply because they were under the
general direction of the President as commander in chief. They were
not intended to protect against judicial inquiry and redress every
act of a subordinate in the military service in suppressing or
punishing what he may have regarded as a disloyal practice, no
matter how flagrant the outrage he may have thus committed against
life, liberty, or property. Such was the purport of the decision of
this Court when this case was here before.
85 U. S. 18 Wall.
510.
It is not pretended that any proof was produced that the arrest
and imprisonment of the plaintiff were made under any express order
or proclamation of the President, but it is contended by the
Attorney General that under the last clause of the act of 1867, it
is to be presumed that their action was authorized by the President
and that they are thus relieved from accountability for it.
The court below held that assuming the construction placed by
the Attorney General upon the statute to be correct, and that from
the commission of the act the presumption arose that it was
authorized by the President -- the act thus presumptively
establishing its own validity -- the presumption in this case was
repelled, inasmuch as it appeared in evidence by whose direction
the orders were issued under which the plaintiff was arrested and
imprisoned. It appeared that they never originated with or had the
sanction of the President.
If, however, the court below erred in this respect, there is
another and a conclusive answer to the defense -- one which renders
futile and abortive all attempts to justify the action of the
defendants under any presumed orders of the President -- and that
is that it was not within the competency of the President or of
Congress to authorize or approve the acts here complained of, so as
to shield the perpetrators from responsibility. It is to be borne
in mind, as already stated, that the plaintiff was not in the
military service of the United States; that his arrest and
imprisonment were in Vermont, far distant from the sphere of
military operations; that there the courts
Page 98 U. S. 293
of the United States and of the state were open and in the full
exercise of their jurisdiction, and that the plaintiff could have
been brought before them for any offense known to the laws; and
that there, if anywhere in the United States, the provisions of the
Constitution for the security of one's person from unlawful arrest
and imprisonment were not superseded.
Persons engaged in the military service of the United States
are, of course, subject to what is termed military law -- that is,
to those rules and regulations which Congress has provided for the
government of the army and the punishment of offenses in it.
Congress possesses authority under the Constitution to prescribe
the tribunals as well as the manner in which offenders against the
discipline of the army and the laws for the protection of its men
and officers shall be summarily tried and punished, and to the
jurisdiction thus created all persons in the military service are
amenable. But that jurisdiction does not extend to persons not in
the military service who are citizens of states where the civil
courts are open.
It may be true also that on the actual theater of military
operations what is termed martial law, but which would be better
called martial rule, for it is little else than the will of the
commanding general, applies to all persons, whether in the military
service or civilians. It may be true that no one, whatever his
station or occupation, can there interfere with or obstruct any of
the measures deemed essential for the success of the army without
subjecting himself to immediate arrest and summary punishment. The
ordinary laws of the land are there superseded by the laws of war.
The jurisdiction of the civil magistrate is there suspended, and
military authority and force are substituted. The success of the
army is the controlling consideration, and to that everything else
is required to bend. To secure that success, persons may be
arrested and confined and property taken and used or destroyed at
the command of the general, he being responsible only to his
superiors for an abuse of his authority. His orders, from the very
necessity of the case, there constitute legal justification for any
action of his officers and men. This martial rule -- in other
words, this will of the commanding general, except in the country
of the enemy occupied and dominated by the army -- is limited to
the
Page 98 U. S. 294
field of military operations. In a country not hostile, at a
distance from the movements of the army, where they cannot be
immediately and directly interfered with and the courts are open,
it has no existence.
The doctrine sometimes advanced by men, with more zeal than
wisdom, that whenever war exists in one part of the country, the
constitutional guaranties of personal liberty and of the rights of
property are suspended everywhere has no foundation in the
principles of the common law, the teachings of our ancestors, or
the language of the Constitution, and is at variance with every
just notion of a free government. Our system of civil polity is not
such a rickety and ill jointed structure that when one part is
disturbed, the whole is thrown into confusion and jostled to its
foundation. The fact that rebellion existed in one portion of the
country could not have the effect of superseding or suspending the
laws and Constitution in a loyal portion widely separated from it.
The war in the Southern states did not disturb Vermont from her
constitutional propriety. She did not assent to the theory that war
and disturbance elsewhere could destroy the security given by her
laws and government. The same juridical institutions, and the same
constitutional guaranties for the protection of the personal
liberty of the citizen, with all the means for their enforcement,
remained there as completely as before, and the Constitution and
laws of the United States were as capable of enforcement in all
their vigor in that state during the war as at any time before or
since. The arrest and imprisonment of the plaintiff, even if made
by direct order of the President, were therefore in plain violation
of the fifth constitutional amendment, which declares that no
person shall be deprived of his liberty without due process of law.
No mere order or proclamation of the President for the arrest and
imprisonment of a person not in the military service, in a state
removed from the scene of actual hostilities, where the courts are
open and in the unobstructed exercise of their jurisdiction, can
constitute due process of law, nor can it be made such by any act
of Congress. Those terms, as is known to every one, were originally
used to express what was meant by the terms "the law of the land"
in Magna Charta, and had become synonymous with them. They were
intended,
Page 98 U. S. 295
as said by this Court,
"to secure the individual from the arbitrary exercise of the
powers of government, unrestrained by the established principles of
private right and distributive justice."
Bank of Columbia v.
Okely, 4 Wheat. 235. They were designed to prevent
the government from depriving any individual of his rights except
by due course of legal proceedings, according to those rules and
principles established in our systems of jurisprudence for the
protection and enforcement of the rights of all persons.
"By the law of the land," said Mr. Webster in his argument in
the
Dartmouth College Case,
"is most clearly intended the general law -- a law which hears
before it condemns, which proceeds upon inquiry and renders
judgment only after trial. The meaning is that every citizen shall
hold his life, liberty, property, and immunities under the
protection of the general rules which govern society."
Those words have been held in English law to have this potency
since the date of Magna Charta.
The clauses of that instrument which declare that no freeman
shall be taken or imprisoned or be disseised of his freehold or
liberties, or free customs, or be outlawed or exiled, or any
otherwise destroyed, or be passed upon except by the lawful
judgment of his peers or by the law of the land, and that justice
shall not be sold, nor denied, nor delayed to any man, are
considered by English jurists and statesmen to be sufficient to
protect the personal liberty and property of every freeman from
arbitrary imprisonment and arbitrary spoliation.
"It is obvious," says Hallam,
"that these words, interpreted by any honest court of law,
convey an ample security for the two main rights of civil society.
From the era, therefore, of King John's charter, it must have been
a clear principle of our Constitution that no man can be detained
in prison without trial."
2 Hallam, Middle Ages, c. 8, part 2, p. 310. And the same
writer, in his Constitutional History of England, mentions among
the essential checks upon royal authority, established under Magna
Charta as part of her Constitution, "that no man could be committed
to prison but by a legal warrant specifying his offense," and
that
"the officers and servants of the crown violating the personal
liberty or other
Page 98 U. S. 296
right of the subject might be sued in an action for damages, to
be assessed by a jury, or in some cases were liable to criminal
process; nor could they plead any warrant or command in their
justification, not even the direct order of the King."
1 Hallam, Const.Hist., c. 1, p. 3.
"The glory of the English law," says Blackstone,
"consists in clearly defining the times, the causes, and the
extent when, wherefore, and to what degree the imprisonment of the
subject may be lawful. This it is which induces the absolute
necessity of expressing upon every commitment, the reason for which
it is made, that the courts upon a habeas corpus may examine into
its validity, and, according to the circumstances of the case, may
discharge, admit to bail, or remand the prisoner."
3 Blackst. 133.
As stated by counsel, the last vestige of any claim on the part
of the government of England to the right of arrest, except upon
such process as was authorized by the general law of the land, was
overthrown in 1765 in the celebrated contest concerning the
legality of general warrants. The arrests of parties by such
warrants from the Secretary of state was condemned by repeated
judgments of the highest courts of England as illegal and
unconstitutional, and from that day to this, such warrants have
never been issued. No barrister or judge in England would now have
the hardihood to assert that such warrants are due process of
law.
To me, therefore, it is a marvel that in this country, under a
Constitution ordained by men who were conversant with the
principles of Magna Charta and claimed them as their birthright --
a Constitution which declares in its preamble that it is
established "to secure the blessings of liberty to ourselves and
posterity" -- it could ever be contended that an order of the
Executive, issued at his will for the arrest and imprisonment of a
citizen, where the courts are open and in the full exercise of
their jurisdiction, is due process of law, or could ever be made
such by an act of Congress. I certainly never supposed that such a
proposition could be seriously asserted before the highest tribunal
of the republic by its chief legal officer. I had supposed that we
could justly claim that in America, under our republican
government, the personal liberty of the citizen
Page 98 U. S. 297
was greater and better guarded than that of the subject in
England. It is only the extraordinary claim made by the counsel of
the government in this case which justifies any argument in support
of principles so fundamental and heretofore so universally
recognized. It may be necessary at times with respect to them, as
it is necessary at times with respect to admitted principles of
morality, to restate them in order to rescue them from the
forgetfulness caused by their universal admission.
The assertion that the power of the government to carry on the
war and suppress the rebellion would have been crippled and its
efficiency impaired if it could not have authorized the arrest of
persons, and their detention without examination or trial, on
suspicion of their complicity with the enemy, or of disloyal
practices, rests upon no foundation whatever so far as Vermont was
concerned. There was no invasion or insurrection there, nor any
disturbance which obstructed the regular administration of justice.
A claim to exemption from the restraints of the law is always made
in support of arbitrary power whenever unforeseen exigencies arise
in the affairs of government. It is inconvenient; it causes delay;
it takes time to furnish to committing magistrates evidence which,
in a country where personal liberty is valued and guarded by
constitutional guaranties, would justify the detention of the
suspected; and therefore, in such exigencies, say the advocates of
the exercise of arbitrary power, the evidence should not be
required. A doctrine more dangerous than this to free institutions
could not be suggested by the wit of man. The proceedings required
by the general law for the arrest and detention of a party for a
public offense -- the charge under oath, the examination of
witnesses in the presence of the accused with the privilege of
cross-examination, and of producing testimony in his favor,
creating the objectionable delays -- constitute the shield and
safeguard of the honest and loyal citizen. They were designed not
merely to insure punishment to the guilty, but to insure protection
to the innocent, and without them everyone would hold his liberty
at the mercy of the government. "All the ancient, honest, juridical
principles and institutions of England," says Burke --
"and it is our glory
Page 98 U. S. 298
that we inherit them -- are so many clogs to check and retard
the headlong course of violence and oppression. They were invented
for this one good purpose, that what was not just should not be
convenient. [
Footnote 3]"
Whoever therefore favors their subversion or suspension, except
when in the presence of actual invasion or insurrection the laws
are silent, is consciously or unconsciously an enemy to the
Republic.
If neither the order of the President nor the act of Congress
could suspend, in a state where war was not actually waged, any of
the guaranties of the Constitution intended for the protection of
the plaintiff from unlawful arrest and imprisonment, neither could
they shield the defendants from responsibility in disregarding
them. Protection against the deprivation of liberty and property
would be defeated if remedies for redress, where such deprivation
was made, could be denied.
I pass from this subject to the second position of the
defendants, that if they were not justified by the acts of
Congress, so far at least as to be exempted from responsibility for
their treatment of the plaintiff, they were entitled to give in
evidence testimony, subsequently discovered, tending to establish
the correctness of their suspicions of the complicity of the
plaintiff in the desertion of the substitutes. The court below
refused to admit the testimony, and this Court holds that it thus
erred, and for that reason reverses its judgment. The testimony
consisted of three depositions filled with hearsay, conjectures,
understandings, beliefs, and other irrelevant matter which rendered
them inadmissible as a whole in any court on any subject, and on
that ground they were objected to and in my judgment ought to have
been excluded. They were offered to show the guilt of the plaintiff
in aiding the desertion of the substitutes, and though the evidence
they furnished was of the vaguest and most unsatisfactory
character, the court excluded them on the ground that the guilt or
innocence of the plaintiff was not a question for the determination
of the jury, and that for the purpose of rebutting malice and
showing good faith, they could not give in evidence circumstances
of which they had never heard until after the commencement of the
action. As facts not known at that time could not have influenced
the conduct
Page 98 U. S. 299
of the defendants, it is difficult to comprehend how proof of
those facts could be received to show the motives -- of malice or
good faith -- with which they then acted. [
Footnote 4]
Independently of this consideration, it seems to me that the
evidence of the guilt or innocence of the plaintiff was entirely
immaterial. Assuming that he was guilty of the complicity alleged,
-- that he had admitted his guilt to the defendants, -- that
circumstance would not have justified their conduct in the
slightest degree. They would have been equally bound upon that
assumption, as they were in fact bound, -- no more and no less, --
to take the plaintiff before the proper magistrate, to be proceeded
against according to law. To keep him for nearly six months in the
state prison among convicts, without taking him before the proper
officer to be held to bail or brought to trial, was a gross outrage
upon his rights, whether he were guilty or innocent. There were
magistrates in every county of the state competent to act upon the
charge, and the district attorney was ready to take control of all
cases against the laws of the United States and prosecute them. The
defendants not only omitted this plain, imperative duty, but
detained the plaintiff in prison, not with a view to punish him for
the offense of which they suspected him to be guilty, but to coerce
from him payment of money alleged to be due by him and others to a
substitute broker. Where is the law or reason for allowing one who
by force holds another in confinement in order to extort the
payment of money to show in extenuation of his conduct that the man
had been guilty of some offense against the law? The answer in all
such cases should be that the law attaches the proper penalties to
its violation, and appoints the ministers by whom those penalties
are
Page 98 U. S. 300
to be enforced, and whenever they can act, whoever usurps their
authority and attempts to punish supposed offenders in any other
mode than that provided by the law, is himself a criminal. For, as
it was said by a distinguished statesman and jurist of England,
when the laws can act, "every other mode of punishing supposed
crimes is itself an enormous crime."
The doctrine announced by the decision of the court in this case
is nothing less than this: that a gross outrage upon the rights of
a person may be extenuated or excused by proof that the outraged
party had himself been guilty of some crime, or, at least, that the
perpetrators of the outrage had reason to suspect that he had. This
doctrine is pregnant with evil. I know not why, under it, the
violence of mobs, excited against guilty or suspected parties, may
not find extenuation. Let such a doctrine be once admitted, and a
greater blow will be dealt to personal security than any given to
it for a century.
If we turn to the adjudged cases, we shall find nothing to
support, but every thing to condemn, the doctrine. Thus, in
Delegal v. Highley, 3 Bing.N.C. 950, which was an action
brought for a malicious charge before a magistrate, the defendant
pleaded that he had caused the charge to be made upon reasonable
and probable cause, stating what the cause was. Upon special
demurrer, the plea was held insufficient in not alleging that the
defendant, at the time of the charge, had been informed of or knew
the facts on which the charge was made. "If the defendant," said
Chief Justice Tindal,
"instead of relying on the plea of not guilty, elects to bring
the facts before the court in a plea of justification, it is
obvious that he must allege, as a ground of defense, that which is
so important in proof under the plea of not guilty,
viz.,
that the knowledge of certain facts and circumstances which were
sufficient to make him, or any reasonable person, believe the truth
of the charge which he instituted before the magistrate, existed in
his mind at the time the charge was laid, and was the reason and
inducement for his putting the law in motion. Whereas it is quite
consistent with the allegations in this plea that the charge was
made upon some ground altogether independent of the existence of
the facts stated in the plea, and that the defendant now
Page 98 U. S. 301
endeavors to support the propriety of the charge, originally
without cause, by facts and circumstances which have come to his
knowledge for the first time since the charge was made."
So also, the converse of this doctrine is true: if a defendant
prove that at the time of the arrest, he had reasonable cause to
believe the plaintiff guilty, this cannot be rebutted by proof
that, afterwards, he turned out to entirely innocent.
Foshay v.
Ferguson, 2 Den. (N.Y.) 617.
It will appear from an examination of the adjudged cases, as it
must on principle, that when illegal measures have been taken to
redress private wrongs, or to punish for offenses against the
public, it is inadmissible to prove, in mitigation of actual or
exemplary damages, that the party injured was guilty of the offense
or misconduct constituting the provocation to the illegal measures,
except where the provocation is of a personal character calculated
to excite passion, and so recent as to create the presumption that
the acts complained of were committed under the influence of the
passion thus excited. Thus, in an action of trespass for destroying
or injuring certain dwelling houses, it was held by the Supreme
Court of Maine incompetent for the defendant to prove in mitigation
of damages that they were occupied as houses of ill fame.
Johnson v. Farwell, 7 Me. 378. So, in a similar action for
shooting into a house in the night time, it was held by the Supreme
Court of Illinois that the defendant could not prove, in mitigation
of exemplary damages, the kidnapping and seduction of his daughter
by the plaintiff and her husband, done nearly a year previous.
Huftalin v. Misner, 70 Ill. 55. And in trespass for
tearing down the plaintiff's house, evidence that it was occupied
by disreputable females as a disorderly house, whereby the
defendant had suffered serious injury and disturbance, was held by
the Supreme Court of New Hampshire inadmissible either to rebut the
presumption of malice or in answer to a claim for exemplary
damages.
Perkins v. Towle, 43 N.H. 220.
See also
Weston v. Gravlin, 49 Vt. 507.
Many other illustrations might be adduced from the adjudications
of the state courts. They are founded upon the plain principle that
no one can be allowed to undertake the punishment of wrongdoers
according to his own notions; that the
Page 98 U. S. 302
administration of punitive justice for all offenses is confided
by the law to certain public officers, and whoever assumes their
functions without being authorized usurps the prerogative of
sovereign power and becomes himself amenable to punishment. He
shall not be permitted to set up the real or supposed offenses of
others to justify his own wrong.
Here, the defendants having, by a gross abuse of their official
authority, confined the plaintiff in a state prison among convicts
for many months, not that he might be prosecuted for a public
offense, but for the avowed purpose of coercing the payment of
money, they ought not to be permitted to set up, either in
mitigation of actual or exemplary damages, that the plaintiff was
guilty of an offense for which the law had prescribed another and
different punishment. In the whole range of adjudications in the
English and American courts I can find no ruling which sanctions
the admission of such testimony for any purpose.
There is nothing in the cases cited in the opinion of the
majority from the English Common Pleas, or from the decisions of
the courts of Ohio, Kentucky, and Illinois which has any relevancy
to the question here presented, as anyone may satisfy himself by
their examination. The circumstances of which evidence was there
allowed existed and were known when the grievances complained of
were committed, and tended to establish probable cause for them.
There is no intimation in any of the cases of the novel doctrine,
now for the first time announced, that subsequently discovered
evidence could be received in extenuation of conduct not founded
upon it.
The charge of the court to the jury was, except perhaps in one
particular, as favorable to the defendants as the case permitted.
It gave a succinct and clear statement of the facts and declared
the law applicable to them with precision and accuracy. It told
them that the arrest of the plaintiff was of little consequence as
compared with his imprisonment; that had he been taken at once
before a United States commissioner, the arrest without a warrant,
though an illegal act, would have called for small damages, and
that the importance of the case consisted in his imprisonment and
the purpose of it. In adding that after the plaintiff was
imprisoned it was not the
Page 98 U. S. 303
purpose of the defendants to try him in the civil courts, but to
hold him with a strong hand until the money was paid, the court
merely stated what the uncontradicted evidence on the trial
established, and what was not disputed. For this, said the
court,
"he is entitled to just damages, to be recompensed for his
expenses, to be paid for the suffering to body and mind from
confinement in a common cell in the state prison, for the disgrace,
for the separation from his family at a time when it was very
important that he should not be separated from them; in brief, for
the loss of his personal liberty, and for the immediate and
necessary losses in his business resulting from his confinement,
and to the pecuniary loss which he immediately and directly
sustained."
To this the court added that if the defendant Henry was
influenced in all his conduct by a determination to prevent the
release of the plaintiff, and to hold him after he was ordered to
be turned over to the civil authorities, and was thus guilty of
malice or ill will, the jury might give, in addition to
remunerative, punitive damages -- that is, such sum as would punish
him for the malice exhibited, and teach him and others to refrain
from similar conduct.
The case here is much stronger than that of
Mitchell v.
Harmony, reported in the 13th of Howard. There the property of
the plaintiff had been seized by an officer of the army of the
United States upon the belief that he was unlawfully engaged in
trading with the enemy. It turned out that he had been permitted by
the Executive Department of the government to trade with the
inhabitants of neighboring provinces of Mexico which were in the
possession of the military authorities of the United States. In an
action for trespass for seizing the property, the defendant, among
other reasons, justified the seizure on the ground that he acted in
obedience to the order of his commanding officer, and, therefore,
was not liable. But the court answered, Mr. Chief Justice Taney
speaking for it, by referring to the case of Captain Gambier,
mentioned by Lord Mansfield in his opinion in
Mostyn v.
Fabrigas, 1 Cowp. 180, and observing, that
"upon principle, independent of the weight of judicial decision,
it can never be maintained that a military officer can justify
himself for doing an unlawful act by producing the order of his
superior. The order may palliate, but it can never
Page 98 U. S. 304
justify."
And in that case, the court added that the defendant did not
stand in the situation of an officer who merely obeys the command
of his superior, for it appeared that he advised the order, and
volunteered to execute it, when that duty more properly belonged to
an officer of an inferior grade.
Here the defendant Henry was especially officious in securing
the arrest and in continuing the imprisonment of the plaintiff. He
advised the arrest; he insisted upon the imprisonment until the
payment of the $800 was coerced, and he urged against turning the
case over to the civil tribunals. The spirit which actuated him as
well as Beckwith is shown in their telling the plaintiff at Sutton,
on the day of his arrest, and afterwards, when in confinement in
the state prison,
"that if they could not hold him as privy to the desertion, they
should take him to Canada, to be prosecuted there under the foreign
enlistment acts for enlisting the men, unless he paid over the
money."
The case of Captain Gambier, mentioned by Lord Mansfield and
referred to by Mr. Chief Justice Taney, was this: by order of an
admiral of the English navy, he had pulled down the houses of some
suttlers in Nova Scotia who were supplying the sailors with
spirituous liquors, by which their health was injured. "The
motive," says the Chief Justice,
"was evidently a laudable one, and the act was done for the
public service. Yet it was an invasion of the rights of private
property, and without authority of law, and the officer who
executed this order was held liable to an action, and the suttlers
recovered against him to the value of the property destroyed. . . .
This case,"
he adds,
"shows how carefully the rights of private property are guarded
by the laws of England, and they are certainly not less valued nor
less securely guarded under the Constitution and laws of the United
States."
The only criticism perhaps to which the charge is open is that
it does not distinguish between the conduct of the defendant
Beckwith and that of the defendant Henry. The former does not
appear from the evidence to have been as officious and persistent
as the latter in efforts to hold the plaintiff until the money was
coerced from him. But no objection to the charge was made on this
ground; nor does it appear that on the trial
Page 98 U. S. 305
any distinction was drawn as to the extent of liability between
the two defendants, or that any other than compensatory damages
were allowed by the jury. They may well have supposed that the
amount awarded was at best but poor compensation. Few, indeed,
would consider the verdict given as sufficient for the disgrace,
humiliation, and suffering wantonly inflicted upon the plaintiff.
As punitive damages, the verdict was not at all excessive. On this
last point I will quote from only one case, decided in 1763. It is
the case of
Huckle v. Money, 2 Wilson, 205, tried before
the Chief Justice of the Common Pleas of England. The plaintiff was
a journeyman printer, and was taken into custody by the defendant,
the King's messenger, upon suspicion of having printed a newspaper
called the "North Briton," and was kept in custody six hours; but
he was used civilly, so that he suffered little or no damages. The
defendant attempted to justify under a general warrant of the
Secretary of State to apprehend the printers and publishers of that
paper; but the justification was overruled by the Chief Justice,
and the plaintiff recovered �300 as damages. A new trial was moved
for on the ground that this amount was excessive, it being in
evidence that the printer received only weekly wages of a guinea.
But the motion was denied, and in giving the decision of the court
the Lord Chief Justice said:
"That if the jury had been confined by their oath to consider
the mere personal injury only, perhaps �20 damages would have been
thought damages sufficient; but the small injury done to the
plaintiff, or the inconsiderableness of his station and rank in
life, did not appear to the jury in that striking light in which
the great point of law touching the liberty of the subject appeared
to them at the trial; they saw a magistrate over all the king's
subject, exercising arbitrary power, violating Magna Charta, and
attempting to destroy the liberty of the kingdom, by insisting upon
the legality of this general warrant before them; they heard the
King's counsel, and saw the Solicitor of the Treasury, endeavoring
to support and maintain the legality of the warrant in a tyrannical
and severe manner -- these are the ideas which struck the jury on
the trial, and I think they have done right in giving exemplary
damages. To enter a man's house by virtue of a nameless warrant, in
order to procure
Page 98 U. S. 306
evidence, is worse than the Spanish inquisition -- a law under
which no Englishman would wish to live an hour; it was a most
daring public attack made upon the liberty of the subject: I
thought that the twenty-ninth chapter of Magna Charta,
nullus
liber homo capiatur et imprisonetur, etc.,
nec super eum
ibimus, etc.,
nisi per legale judicium parium suorum vel
per legem terrae, etc., which is pointed against arbitrary
power, was violated."
I am clearly of opinion that the judgment of the court below
should be affirmed.
The following statement of the character of the evidence given
on the trial touching the treatment of the plaintiff is printed
from the record in the case:
"The plaintiff's evidence tended to show that on the eleventh
day of November, A.D. 1864, while on his return from a trip to
Boston, to his home in Coaticook, in the Province of Quebec, he was
arrested in a passenger car, near Wells River, in the State of
Vermont, by defendant Beckwith, without any warrant or process of
law, and taken from thence to Sutton, Vt."
"That Beckwith at first proposed to take plaintiff to St.
Johnsbury jail, but afterwards decided to take him to his
(Beckwith's) residence at Sutton, to which place he was then on his
way, for the purpose of allowing plaintiff to see his father, who
lived about fifteen miles from Sutton."
"That said Beckwith kept the plaintiff there through the ensuing
night, under charge of keepers; that the plaintiff's father, for
whom the plaintiff sent after his arrival at Sutton, came there
during the night, but Beckwith refused to allow the plaintiff to
have an interview with his father except in his (Beckwith's)
presence."
"That on the following day defendant forcibly and against the
will of the plaintiff took him, and by order of Gilman Henry, the
other defendant, placed him in the state's prison, at Windsor, Vt.,
where he remained until on or about the twenty sixth day of April,
1865, when he was admitted to bail, and released from said
imprisonment."
"That during all that time he was locked up in the night time,
and for the first few days in the daytime also, in a narrow and
scantily furnished cell, being one of those in which convicts in
the state's prison were confined at night; that after the first few
days he was allowed, upon his complaint of the coldness of the cell
in the daytime, to spend the day in the shop where the convicts
worked, but was required to go out and return to his cell when they
did, and not at any time to be out of sight of a keeper, nor to go
upon the corridors or in the yard for exercise; that the food
offered him was the fare served to the convicts, and which he could
not eat, and thenceforth he obtained his meals to be sent to him
from the keepers' table, by paying three dollars per week, which he
paid during the whole time."
"The plaintiff's evidence further tended to show that he was
informed, at or soon after the time of his arrest, by defendants,
that he was charged with being one of three persons who had
received $800 of money paid for two men two had enlisted in the
army in June previous as substitutes, and had immediately
Page 98 U. S. 307
deserted, as more particularly stated hereafter, and with being
privy to their desertion."
"That he was imprisoned on Saturday, and saw no one but the
keepers till the Monday following, when defendant Henry came to see
him; that Henry told him be could be discharged on payment of the
$800, and $25 more for expenses; that the plaintiff protested his
innocence and demanded a trial; that he was told by Henry he could
not have a trial, and could not get one, but that his case would be
reported to Major Austine, at Brattleboro', Assistant Provost
Marshal General."
"That plaintiff thereupon requested him to make immediate
report, which he promised to do. That later in the same day, the
plaintiff, being in much distress of mind and anxiety to return to
his family and thinking perhaps the money might be paid under
protest, telegraphed to his father to come and bring $800, and sent
word to Henry, by the messenger who took the dispatch, requesting
him not to report the case till his father arrived, which he
expected would be on the following day."
"That his father arrived on the next day but one. That his
father had an interview with Henry, and said to him that neither he
nor the plaintiff would pay a dollar, and requested him to report
the case at once."
"He was further told by both defendants, both at Sutton and
after his confinement at Windsor, that if they could not hold him
as privy to the desertion they should take him to Canada to be
prosecuted there under the foreign enlistment acts for enlisting
the men, unless he paid over the money."
"That from that time plaintiff constantly urged that his case
should be reported, or that a trial should be given him, or that he
be admitted to bail, and protested his innocence. And Henry
repeatedly promised to report the case, but frequently told him and
his father he could not get a trial, nor be admitted to bail, and
that he would be discharged at any time on payment of the
$825."
"
* * * *"
"The plaintiff's evidence further tended to show that throughout
his imprisonment he made constant efforts in various ways to obtain
a trial, or a release on bail, which he was able and willing to
furnish; that his father made eleven journeys from the northern
part of Vermont to Windsor, Brattleboro', &c., for that
purpose; that among other efforts, he addressed to Major General
Dix, then in command of that department, the following letter:"
"WINDSOR STATE'S PRISON"
"Jan. 21, 1865"
"Maj Gen. J. A. Dix:"
"SIR -- I am told by one Daniel Beckwith, a deputy provost
marshal here, by whom I have been committed here on a charge (of
which I am entirely innocent) of aiding or being privy to the
escape of two substitutes who had received $800 paid them by one
Stevens, and that you have ordered my imprisonment here till I pay
the $800 and expenses."
"If I am guilty of aiding a soldier to desert, I ought to be
punished, and I cannot see, sir, how (I say it respectfully) you
have any right to order my imprisonment for any indefinite time
without giving me an opportunity to prove my innocence."
"I ask nothing but what is right, and the right of every citizen
of the United States; that is, a trial. "
Page 98 U. S. 308
"I do not believe, sir, that you have made any such orders, but
the fact is I am kept in prison ever since Nov. 11, 1864, my family
suffering and my character defamed, and a trial denied me."
"I am told, sir, there is a United States attorney in Vermont
whose duty it is to investigate such matters, and I respectfully
ask, sir, if the matter is within your jurisdiction, that he be
directed to bring me to trial, and if the government is not ready
for trial, I can find any number of respectable people who will
become my bail until such time as the government is ready to try
me."
"Again, sir, I ask you candidly and respectfully to order a
complaint to be made against me, and, if proved guilty, I must
suffer the consequences."
"Yours respectfully,"
"ANDREW J. BEAN"
"That said Bean obtained the intercession at Washington of Mr.
Baxter, a member of Congress from Vermont."
"His evidence further tended to show that he learned early in
April of an order for his release having been sent from Washington,
and made, as did his father, urgent efforts to obtain his release,
as his wife was then about to be confined; that he did not succeed,
though repeated applications were made to Henry, until the 26th of
April, and after the confinement of his wife, when Henry brought
him before a justice of the peace of Windsor, who took bail for his
appearance before a United States commissioner when called on."
[
Footnote 1]
As the statement contained in the opinion of the majority does
not give any detailed account of the "circumstances of humiliation
and severity" mentioned, to which the plaintiff was subjected, an
extract from the record showing them is annexed to this opinion. No
adequate statement of the case can be made which does not
substantially embody the entire bill of exceptions.
[
Footnote 2]
The charge to the jury which the court was requested by the
defendants to give was that the facts which their evidence tended
to establish, if believed,
"constituted under the aforesaid acts of Congress a full and
complete justification for each and both the defendants for the
acts complained of. And in the absence of all evidence to prove
whether the President issued any order, general or special, for the
arrest and detention of the plaintiff, the jury were not only at
liberty but were bound to presume that he did; that such was the
presumption of law, under the Act of March 2, 1867, and that such
presumption must prevail in this case, as there is no evidence to
rebut it."
[
Footnote 3]
Letter to the Sheriffs of Bristol.
[
Footnote 4]
The record reads as follows:
"The said three depositions were offered for the purpose of
satisfying the jury of the guilt of Bean by evidence which was not
known to, or did not come to the knowledge of, the defendants prior
to said release."
"The court excluded said depositions upon the ground that the
guilt or innocence of said Bean was not a question for the
determination of the jury, but that all the facts and circumstances
which were known to the defendants, or with which they in any way
became acquainted prior to the imprisonment, could be admitted for
the purpose of rebutting malice and showing that they acted in good
faith, but that they could not give in evidence circumstances of
which they had never heard until after the commencement of this
suit."