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officers by reason of any act done by them pending the suspension of the writ, and in pursuance of the law authorizing or providing for such suspension. congress may adopt either of these means, as they may deem best. The constitution commits the choice of means to them, and their decision in that respect is conclusive. In England, as I am advised, it has always been the practice to pass indemnifying acts to protect the executive officers from actions for damages on occasion of suspending the habeas corpus act. 1 Wend. Black.,

137n.

§ 681. but it is held further, that an act suspending the privilege of the writ of habeas corpus is a protection against actions for illegal arrests, without further legislation.

But I am inclined to put the decision of this question upon higher and simpler grounds. It appears to me that these acts of congress are merely declaratory of the law as it resulted from the passage of the act suspending the privilege of the writ, and therefore necessarily constitutional. The suspension being the virtual authorization of arrests without the ordinary legal cause or warrant, it follows that such arrests, pending the suspension, and when made in obedience to the order or authority of the officer to whom that power is committed, are practically legal. They are made in pursuance of law-the law suspending the privilege of the writ. The municipal law declares in advance that homicide is justifiable when committed by an officer in obedience to the judgment of a competent court. In the absence of such a statute provision, what court would hold that such a homicide was illegal and criminal. It seems to result from the nature of things, that what the law commands or permits, so far as the law is concerned, is legal and justifiable.

It only remains to determine whether the defendants are within the provisions of the indemnifying acts. If they are, judgment must be given in bar of the action, and if not, it must go against them for the damages found.

Section 4 of the act of March 3, 1863, makes any order or authority of the president, made at any time during the existence of the present rebellion, a defense to any action for arrest and imprisonment made under and by virtue of such order.

In the case at bar no authority or order of the president is shown for the imprisonment of the plaintiff. It is the order or authority of the president which the act makes a defense to the action. Such order or authority cannot be presumed, but must be proved.

Counsel for the defendants seek to invoke the proclamation of September 24, 1862 (13 Stat., 735), in aid of the defendants in this respect. It may be admitted generally that a proclamation by the president is an order or authority to all whom it may concern or be addressed. Is this proclamation within the act of March 3, 1863?

made at any

That act declares that "any order of the president term during the existence of the present rebellion shall be a defense," etc. Does this include orders made during the existence of the rebellion-as the procla mation of September 24, 1862 - but prior to the date of its enactment? It must be admitted that the language of the statute, taken literally, is broad enough for that purpose. But I do not think it was so intended or should be so construed, and for this reason: Congress was by that act first authorizing the suspension of the privilege of the writ of habeas corpus. It was only as an appropriate means to this end that congress could have made such orders a

defense to an action for imprisonment. Where an act of congress is equally susceptible of two constructions, the court is bound to adopt that one which will make the act harmonize with the constitution.

§ 682. The president has no authority to suspend the privilege of the writ of habeas corpus except as authorized and directed by congress, and hence the proclamation of September 24, 1862, was void.

But, if I am mistaken in this, there is another answer to the proposition, that the proclamation is a defense to the action. That proclamation professes to suspend the writ of habeas corpus and to declare martial law. The expression martial law may be passed over as merely cumulative. It means nothing but the absence of law. But the president of the United States has no authority to suspend the privilege of the writ except as authorized and directed by congress, and at the date of this proclamation no such authority existed. I do not propose to argue this question. There are some things too plain for argument, and one of these is that by the constitution of the United States the president has not the power to suspend the privilege of the writ, and that congress has. The power of the president is executive power-a power to execute the laws, but not to suspend them. The latter is a legislative function, and so far as it exists belongs naturally and by force of the constitution exclusively to congress. See opinion of Taney, C. J., in Ex parte Merryman, 9 Am. L. R., 524.

Whatever may have been the public necessities and motives which led the president to issue this proclamation, and I neither question nor impugn them, I cannot hold that it constitutes a defense to this action, because judicially I know that it was unauthorized and void.

Except as a means to secure the end and purpose of suspending the writ, congress itself could not have authorized the president to make this proclamation, nor do I think they could afterwards sanction it, so as to make it operate as a defense in a private action for an imprisonment made under it.

What is now said applies only to this action or similar ones. The proclamation of September 24, 1862, embraces many subjects and classes of persons. As to some of them, or many of them, the president may have been authorized, as commander-in-chief of the army and navy, to make the orders and directions therein. It declared that all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be "subject to martial law and liable to trial and punishment by courts-martial or military commissions." "The writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison or other place of confinement, by any military authority or by the sentence of any court-martial or military commission."

But if it were admitted that this proclamation was authorized by law and that it contained sufficient matter to justify the defendant McDowell in causing the arrest of the plaintiff as he did, still I do not think it would be a defense to this action, because long before this arrest it was superseded and practically revoked by the proclamation of September 15, 1863 - the one authorized by the act of March 3, 1863.

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§683. A party making an arrest was not protected by the proclamation of 1863, where the arrest was not made pursuant to an order by the president; and so, also, of the act of 1866.

The latter carefully defines the class of persons in relation to which the privilege of the writ was thereby suspended, and who might therefore be arrested and imprisoned without legal warrant or cause. In the absence of particular proof the only general order that the court can take judicial notice of is the proclamation of September 15, 1863. In this I do not find any order directing the arrest of the plaintiff, or that would justify his arrest. It is true that the proclamation suspends the writ as to "aiders and abettors of the enemy." And it is apparent that this language was intended to apply to and include a class of persons whose conduct fell short of that "aid and comfort" to the enemy which the constitution declares to be treason, and which is legally punishable as such.

It is this class of persons that the suspension of the writ is intended to bring within the power of arbitrary arrest for the time being-persons who may be reasonably suspected of complicity with the rebellion or invasion, or who may be known to give it that moral aid and support which is often more effectual than a soldier in arms, particularly in a country governed by public opinion. But while the proclamation suspends the privilege of the writ as to such "aiders and abettors" as a class, does it authorize or order any officer, military or civil, to arrest and imprison any particular person whom he may believe to be such an "aider or abettor," without the special and further order or authority of the president for so doing? I think not.

The language of the proclamation is that "in the judgment of the president the public safety does require that the privilege of the said writ shall be suspended throughout the United States in the cases where, by the authority of the president of the United States, military, naval and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies or aiders or abettors of the enemy," etc. This proclamation is in the nature of a law it has the force of a lawand by it an important provision of the constitution is suspended. It should then be construed and treated as a law — a rule of action. It prescribes the limits within which the writ shall be suspended. As to any of the persons included within these limits, when in the custody of an officer of the United States by the authority of the president, the privilege of the writ is taken away. But I do not see how a person can be said to be in the custody of an officer, by authority of the president, unless the latter has directed or ordered the officer to take him into custody or to keep him in custody after having been arrested in any way. I admit that there is some room for argument upon the language of the proclamation as to whether the instrument itself is to be construed as a general order to every officer of the United States, military, naval and civil, high or low, great or small, to arrest and imprison whomsoever they may believe to be "aiders and abettors of the enemy," or merely a declaration in advance, that whenever such a person is arrested or kept in custody by such officer, upon the order of the president-not the order of the subordinate that as to him the privilege of the writ is suspended. But I think the latter construction altogether the most reasonable, and in accordance with the general spirit and purpose of the instrument. So upon general considerations outside of the language of the proclamation, there are many cogent

reasons why it should be thus construed and applied. The power of arbitrary arrest and imprisonment, though sometimes absolutely necessary to the public safety, is a dangerous and delicate one. In the hands of improper persons it would be liable to great abuse. If every officer in the United States, during the suspension of the habeas corpus, is authorized to arrest and imprison whom he will as "aiders and abettors of the enemy," without further orders from the president, or those to whom he has specially committed such authority, the state of things that would follow can be better imagined than expressed. It only remains to consider what is the effect of section 1 of the act of May 11, 1866. That act, as we have seen, makes the order of "the president or secretary of war," or "any military officer of the United States holding the command of the department, district or place within which" an "arrest or imprisonment was made," a defense to the action.

Under this section there can be no doubt but that the order of Gen. McDowell to Capt. Douglass protects the latter for acting in obedience to it, and is a complete defense to the action so far as he is concerned.

At the same time it is equally apparent that it does not furnish a defense for Gen. McDowell. He is not shown to have acted upon the order of any one. The section proceeds upon the principle, which I have already attempted to show ought to be the law independent of the statute, that a military officer, when acting in obedience to the order of his superior, should not be liable to third persons therefor.

As it nowhere appears that Gen. McDowell was acting under the order of his superior, but rather in obedience to what was deemed public necessity, I must hold him liable to the plaintiff for the damages which the latter has sustained by reason of his unauthorized act.

The good motives of Gen. McDowell, and the necessities of the public when he issued order No. 27, as well as the gross misconduct of the plaintiff, have been duly considered by the court in estimating the damages of the plaintiff. But these alone, however worthy or imperative, do not constitute a defense to the action. The act itself being unauthorized by any order or authority of the president does not come within the scope of the proclamation of September 15, 1863, suspending the privilege of the writ, or the act of March 3, 1863, authorizing such suspension. Neither does it come within the purview of the act of May 11, 1866, as it was not done in obedience to the order of a superior.

§ 684. Congress may relieve a meritorious officer against loss incurred while in the discharge of his duty to the public.

Congress may relieve a meritorious officer against a loss incurred while in the discharge of his duty to the public; but in this tribunal, whose only function is to administer the law as it finds it, the defendant must be held liable for the legal consequences of his act.

Judgment that the plaintiff recover of the defendant McDowell the damages found by the court, and his costs and disbursements, and in bar of the action as against the defendant Douglass.

§ 685. Malice.- Defendant had plaintiff arrested without probable cause. He had no illwill against him nor any desire to vex or annoy him, but had him arrested for the purpose of finding out who had forged a certain note in his name then in plaintiff's possession, and which he claimed to be valid and to have acquired in good faith. Held, that defendant had no right to experiment in that way with the liberty and good name of plaintiff; that the act

was purposely wrong and unlawful and therefore malicious. Johnson v. Ebberts,* 6 Saw., 538.

§ 686. In a suit for malicious prosecution, held, that the failure of the plaintiff to recover, in a suit instituted by him, does not establish the fact that the action was vexatious or unfounded. Ray v. Law,* Pet. C. C., 207.

§ 687. Malice and want of probable cause must concur to sustain an action for malicious prosecution. But malice does not necessarily imply hate or a personal enmity. It may be inferred from an entire want of probable cause. It may also be inferred from gross, culpable negligence in making inquiries and from misstatements of facts. Wiggin v. Coffin,* 3 Story, 1. § 688. Malice is not to be presumed from want of probable cause, but the jury must find malice as a substantive fact in the case. But the want of probable cause is evidence of malice, and, in cases where there is no evidence to the contrary, is sufficient to justify a verdict for the plaintiff. Johnson v. Ebberts, 11 Fed. R., 129.

§ 689. Probable cause What constitutes.- A suit for malicious prosecution lies only in cases where a legal prosecution has been carried on without probable cause. It does not lie for the wrongful imprisonment of a United States marine by the commander of the vessel on which he is serving. Dinsman v. Wilkes, 12 How., 401.

§ 690. The "probable cause " which constitutes a good defense to an action for malicious prosecution is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant the belief that the person accused is guilty of the offense with which he is charged. Munns v. Nemours,* 4 Hall's L. J., 102.

$ 691. Mountford caused plaintiff to be arrested for larceny. An indictment therefor was subsequently thrown out by the grand jury, and then plaintiff sued for malicious prosecution. Plaintiff having ordered goods, upon their delivery to him offered a dishonored promissory note in payment for them, which was refused, and the vendor neither got money nor were the goods returned. Held, that if the jury thought plaintiff's conduct suspicious of a swindle, the prosecution of him would be justified although an actual case of larceny was not made out. Wilmarth v. Mountford,* 4 Wash., 79.

§ 692. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Munns v. Dupont,* 3 Wash., 31.

§ 693. Plaintiff, a stranger, came into the neighborhood of defendants' powder-works to ascertain their processes of manufacture in order to avail of them in a rival factory. He procured interviews with defendants' workmen, tried to induce them to leave defendants and to give him a knowledge of their machinery and processes. He offered one workman a reward to bring him one of defendants' brass pounders or stampers, which was afterward brought, then concealed, the workman secretly absconding. Plaintiff came to Philadelphia, denied his name, knowing that defendants were following him, and when arrested had on him a letter fully developing the objects of plaintiff's visit and making allusions to the brass pounder. Held, that these facts, if proved, established probable cause of plaintiff's arrest by defendants for larceny. Ibid.

§ 694. Malice and want of probable cause must concur.-Where by statute no bond in attachment is required and none given, the defendant, in the absence of legislation giving the right, cannot maintain an action against the plaintiff in attachment by showing merely that the writ was wrongfully sued out, there being no debt due from him, but he must show malice, want of probable cause, and damage, as required by the principles of the common law in actions for malicious prosecution. Preston v. Cooper, 1 Dill., 589.

$695. In suits for malicious prosecution the question to be decided is not whether the plaintit has suffered from a charge of which the defendants were the authors, and which in point of fact was not founded in truth, but whether the charge was made maliciously and without probable cause. Munns v. Nemours,* 4 Hall's L. J., 102.

§ 696. To entitle the plaintiff to relief in an action for malicious prosecution, not only malice on the part of the defendant must be shown, but lack of probable cause also. Ibid.

§ 697. The plaintiff must show both malice and the want of a probable cause and that the defendants knew they had not probable cause. The bill and affidavit, and order of the judge, are prima facie evidence of a probable cause. Zantzinger v. Weightman,* 2 Cr. C. C., 478.

§ 698. In actions for malicious prosecution both malice and want of probable cause should be proved, but if the accusation appear to have been founded upon probable ground of suspicion, the malice is excused by the law. Both must be established, viz.: malice, and the want of probable cause. Of the former the jury are exclusively the judges; the latter is a mixed question of fact and law. What circumstances are sufficient to prove a probable cause must be judged of and decided by the court. But to the jury it must be referred whether the circumstances which amount to probable cause are proved by credible testimony or not. Per Washington, J., in Munns v. Dupont,* 3 Wash., 31.

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