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, ch. 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 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., ch. 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., 13.

As stated by counsel, the last vestige of any claim on the part of the gov ernment 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 unconsti tutional, 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.

§ 600. An order of the president for the arrest of a man in a state where the courts are open is not "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 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 every one 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 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." 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

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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 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. 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 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 everything 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 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 be entirely innocent. Foshay v. Ferguson, 2 Den. (N. Y.), 617.

§ 601. The rule as to mitigation of damages.

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 dwellinghouses, 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 kidnaping 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 wrong-doers according to his own notions; that the 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 any one 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 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.

§ 602. The orders of a superior military officer may palliate but cannot justify.

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 posses