done with the knowledge or approbation of the defendant McDowell; but, so far as appears, it would seem that he did not expect or intend that "political prisoners" should be required to labor while at Fort Alcatraz. The plaintiff was not in the actual custody of the defendant McDowell, but of his subordinate; and his treatment in these respects was the direct act of the latter, and not the former. Yet McDowell, having caused the arrest and imprisonment, ought to be held responsible for whatever injuries and indignities the plaintiff suffered thereby in consequence of his neglect or omission to provide against the same. The provost-marshal and Alcatraz were within the command and under the authority of McDowell, and, having caused the imprisonment of the plaintiff, he should have taken some precaution to prevent his being treated with undue harshness and severity while in custody at these places. In Dinsman v. Wilkes, 12 How., 405, which was an action brought by a marine against Commodore Wilkes for illegal imprisonment in a jail at Honolulu, the supreme court say that "it was his duty, through proper and trustworthy officers, to inquire into his situation and treatment and to see that it was not cruel or barbarous in any respect." It is proper to add that the court held Wilkes to something more than the ordinary responsibility of a commanding officer in that respect, because "he had placed him out of the protection which the ordinary place of confinement on ship-board afforded, in a prison belonging to, and under the control of, an uncivilized people." So it appears to me in this case, the plaintiff being a private citizen, not belonging to the military forces nor under condemnation as a criminal, when the defendant McDowell caused him to be imprisoned with military culprits and persons subject to military law and discipline, it was his duty to provide that the plaintiff should not be confounded with them and treated like them. And although, as I have said, I am satisfied that the defendant McDowell neither expected nor intended that the plaintiff should be subject to any treatment or discipline beyond what was necessary and proper to restrain him of his liberty for the time being, yet, as such treatment and discipline were among the probable consequences of the plaintiff's confinement when and where it took place, if not provided against by the department commander, I think he must be held responsible for it.

§ 675. The gross and incendiary words uttered by the plaintiff on hearing of the assassination of President Lincoln, while they did not justify the arrest, were considered in mitigation of the damages.

In considering the question of damages I have also taken into account the conduct of the plaintiff which directly provoked his arrest. I refer to the gross and incendiary language uttered by him on the public highway on April 20 and 29. Of course I do not mean to assert that the utterance of these words by the plaintiff, as the law then stood and still stands, was technically a crime. Such utterance did not constitute a crime, and therefore was not a legal cause of arrest; yet, in actions for injuries to the person, the misconduct of the plaintiff by which such injury is provoked is always considered in mitigation of damages. 2 Greenl. Ev., § 267. Mere words do not constitute an assault, and therefore will not justify a battery; yet, when the words are calculated to provoke, and do provoke, the battery, they may be given in evidence to mitigate the damages. If one calls another a liar this does not justify an assault by the insulted party; yet, if an assault follow in consequence of the insult, the provocation must be considered in estimating the damages. This rule, it seems to me, may be properly applied in this case. If

the plaintiff had uttered these words in the immediate presence of General McDowell, and the latter had knocked him down on the instant, the law would have allowed the provocation to be shown in mitigation of the damages resulting from the illegal blow. In this case the arrest and imprisonment of the plaintiff, although without authority of law, was, I may say, procured and provoked by conduct on his part at once dangerous and disgraceful, and well calculated at that moment of intense public feeling and anxiety to have brought harm on himself and trouble to the community. Talk and reason as we will about the liberty of speech, something is due to society from every reasonable being who enjoys its protection and privileges. At least, in such an hour of public sorrow and alarm as that which followed the assassination of the president of the republic, during the dangers of a civil war, the plaintiff, whatever his political prejudices or opinions, should have bridled his tongue so far as not to exult at the calamity of the nation, or mock at its fear.

I do not forget that on the trial the learned counsel for the plaintiff questioned the fact whether the plaintiff used the language attributed to him by the witnesses Purcell and Hale. The affidavits of these three persons upon which the arrest was made have been read in evidence, and Hale, the witness to the words uttered on April 20th, comes upon the stand in the presence of the plaintiff and testifies to the same effect as in his affidavit. There was nothing in the appearance or manner of the witness calculated to detract from his credibility. There was no contradictory testimony upon the point, either direct or circumstantial, and the court, sitting as a trier of the fact, could not have found it otherwise. But another circumstance makes it absolutely certain that the plaintiff substantially uttered the words imputed to him by these witnesses, as the court has found. On the trial the plaintiff was in court and was examined as a witness in his own behalf, yet his counsel forebore to interrogate him upon this point. The natural and irresistible inference from this omission is that the plaintiff was conscious of the truth of the charge and was too honest to deny it if he had been examined concerning it.

In a case of so much importance as this, and being tried without a jury, I have deemed it proper and due to myself to submit the foregoing suggestions concerning the conclusions of fact found before proceeding to consider the questions of law arising thereon.

§ 676. A military subordinate is not liable for an illegal arrest, except in a plain case of excess of authority, where at first blush it is apparent to the commonest understanding that the order of his superior is illegal.

This action has been tried upon the assumption that Douglass is equally liable with McDowell for the arrest of the plaintiff. Granting this, his liability cannot be extended beyond the time when he delivered him to the provostmarshal in San Francisco. The imprisonment, so far as Douglass is concerned, then terminated. He did no further act in the premises, and he had no authority over those who did, nor is he, in any sense, responsible for what happened to the plaintiff thereafter. If the plaintiff had been killed by the guard while at Alcatraz, the defendant Douglass could as well be held liable for it as for the imprisonment which the plaintiff suffered there. But I am not satisfied that Douglass ought to be held liable to the plaintiff at all. He acted not as a volunteer, but as a subordinate in obedience to the order of his superior. Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate

when acting in obedience to the orders of his commander. Otherwise he is placed in the dangerous dilemma of being liable in damages to third persons for obedience to an order or to the loss of his commission and disgrace for disobedience thereto. If Douglass is liable to the plaintiff so is every private soldier who constituted his guard from Potter Valley to San Francisco, and even the almost unconscious sentry who stood guard at the prison of Alcatraz. Yet there was no alternative for either Douglass or these soldiers but to do as they did, or refuse obedience to their lawful superiors in a matter of which they were incapable of judging correctly, at the peril of disgrace and punishment to themselves. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as they might consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.

In Martin v. Mott, 12 Wheat., 30, a question arose as to whether the president had authority to call out the militia in a particular exigency. A drafted militia man had refused to be mustered into the service of the United States because, as he alleged, the president had made the order in a case not contemplated by the act of congress under which he professed to act. The supreme court held that the authority to decide whether the exigency had arisen belongs exclusively to the president, and that his decision is conclusive upon all other persons." The reasoning of the court in support of this conclusion is peculiarly in point upon this branch of the case at bar:

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The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to a complete attainment of the object. The service is a military service, and the command of a military nature; and in such cases every delay, and every obstacle to an efficient and immediate compliance, necessarily tends to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If a superior officer has a right to contest the orders of the president upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his defense must finally rest upon his ability to establish the facts by competent proofs. Such a course would be subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the president might decide that there is imminent danger of invasion might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment."

The difference between that case and this is that there the legality of the order depends mainly upon a question of fact, while here it depends upon a question of law. But the reasoning of the court is equally applicable to both, for the same disasters and disorders may be expected if subordinates and sol

diers are allowed to disobey the orders of their superiors upon a difference of opinion upon a question of law. Again, how often would this difference of opinion be a mere pretext to escape the demands of duty? In the war of 1812 the constitutional scruples of the militia men, as to the power of the president to order them out of the United States, led to their refusing to march across the Canada line to the aid of the regulars when the latter were seriously engaged with the enemy, and thus a well-planned enterprise failed, with serious loss to the American forces.

Nor is it necessary to the ends of justice that the subordinate or soldier should be responsible for obedience to the illegal order of a superior. In any case the party injured can have but one satisfaction, and that may and should be obtained from the really responsible party - the officer who gave the illegal order. In civil life the rule is well settled otherwise, and a person committing an illegal act cannot justify his conduct upon the ground of a command from another. But the circumstances of the two cases are entirely different.

In the latter case the party giving the command and the one obeying it are equal in the eye of the law. The latter does not act upon compulsion. He is a free agent, and at liberty to exercise his judgment in the premises.

Personal responsibility should be commensurate with freedom of action to do or refrain from doing. For acts done under what is deemed compulsion or duress the law holds no one liable. In contemplation of law the wife is under the power and authority of the husband. Therefore, for even criminal acts, when done in the presence of the latter, she is not held responsible. The law presumes that she acted under coercion of her husband and excuses her.

If the law excuses the wife on the presumption of coercion, for what reason should it refuse a like protection to the subordinate and soldier when acting in obedience to the command of his lawful superior? The latter may be said to act - particularly in time of war- under actual coercion. As a matter of abstract law it may be admitted that ultimately the law will justify a refusal to obey an illegal order. But this involves litigation and controversy, alike injurious to the best interests of the inferior and the efficiency of the public service. The certain vexation and annoyance, together with the risk of professional disgrace and punishment which usually attend the disobedience of orders by an inferior, may safely be deemed sufficient to constrain his judg ment and action, and to excuse him for yielding obedience to those upon whom the law has devolved both the duty and responsibility of controlling his conduct in the premises. True, cases can be imagined where the order is so palpably atrocious as well as illegal that one must instinctively feel that it ought not to be obeyed by whomsoever given. But there is no rule without its exception. This one is practical and just, and the possibility of extreme cases ought not to prevent its recognition and application by the courts.

Between an order plainly legal and one palpably otherwise — particularly in time of war - there is a wide middle ground, where the ultimate legality and propriety of orders depends or may depend upon circumstances and conditions of which it cannot be expected that the inferior is informed or advised. In such cases justice to the subordinate demands, and the necessities and efficiency of the public service require, that the order of the superior should protect the inferior; leaving the responsibility to rest where it properly belongs, upon the officer who gave the command.

The all-important question in this case yet remains to be considered. The

defendants maintain that the acts complained of in this action are within the purview of the act of congress, entitled "An act relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3, 1863 (12 Stat., 755), and the act supplementary thereto, approved May 11, 1866 (14 Stat., 46), and that these acts furnish a complete defense to this action.

On the other hand, it is contended for the plaintiff that the acts of the defendants are not within the purview of these statutes, and that each of said statutes, in so far as they purport to indemnify or protect officers and soldiers for an arrest or imprisonment made during the suspension of the habeas corpus by the president in pursuance thereof, is unconstitutional and therefore void.

A question of greater importance, both to the government and the citizen — to the maintenance of the authority of the people on the one hand and the preservation of individual liberty on the other was probably never submitted to the determination of a court. Without further apology or preface, and without fear, favor or affection, I proceed to examine and decide it.

The constitution (art. I, § 9, sub. 2) declares: "The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public service may require it." And also (art. I, § 8, sub. 19) that "The congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States or in any department or officer thereof."

§ 677. The act of 1863, authorizing the suspension of the writ of habeas corpus, is unconstitutional.

By the first section of the act of March 3, 1863, congress authorized the president, during the rebellion, " to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof." The constitutionality of the section must be admitted without argument. The clause of the constitution first quoted is a recognition of this power in congress, as well as a limitation upon its exercise to the occasions "when," by reason of the existence of "rebellion or invasion, the public service may require it."

§ 678. Whether "the public service" requires a suspension of the privilege of the writ of habeas corpus is confided to the judgment of congress; and congress may suspend the writ generally, or may limit the suspension to particular cases. They may suspend the writ directly, or commit the matter, within the properly described limits, to the judgment of the president.

When the occasion arises a rebellion or invasion - whether "the public service" requires the suspension of the writ or not is confided to the judgment of congress, and their action in the premises is conclusive upon all courts and persons. Ex parte Merryman, 9 Am. L. R., 527; 2 Story, Com., § 1342. In the exercise of this power congress may suspend the writ generally, or may limit the suspension to particular cases. They may suspend the writ directly, or commit the matter, within the properly described limits, to the judgment of the president.

Section 4 of the act of March 3, 1863, enacts: "That any order of the presi dent, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment, made, done or committed, or acts omitted to be done, under