Syllabus.

3. In time of war, any soldier has the right to arrest a belligerent engaged in acts of hostility toward the government, and lodge him in the nearest military prison, and to use such force as may be necessary for that purpose even unto death. This is the law of war.

4. But the status of any person, as to the question of belligerency, depends upon his citizenship or nationality. A belligerent is a subject of the hostile power, and his character, in that regard, depends upon that of the community to which he belongs.

5. So in the late war of the rebellion, the people of the rebel States were recognized as belligerents, but the citizens of the loyal States, resident and remaining therein, and not engaged in the war, were not belligerents or subject to arrest as prisoners of war, notwithstanding they may have been domestic plotters against the government, in full sympathy with the rebels and rendering them their moral co-operation and aid.

6. Military law, as distinguished from martial law, consists of the rules prescribed for the government and discipline of troops, which apply only to persons in the military or naval service of the government, whereas martial law, when once established, applies alike to citizen and soldier.

7. But martial law is in truth and reality no law, but merely the will of the military commander, to be exercised by him only on his responsibility to his government or superior officer.

8. Martial law must be permitted to prevail on the actual theater of military operations, in time of war, as an unavoidable necessity. So, if a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army.

9. But, beyond the enforcement of martial law on the actual field of military operations, and its establishment in districts which, though remote from the seat of war, are yet so far in sympathy with the public enemy as to obstruct the administration of the laws through the civil tribunals, and render a resort to the military power a necessity, as the only means of restraining disloyalty from overt acts, and preserving the authority of the government, there seems to be no ground upon which it can be properly exercised. A state of war does not, of itself, suspend, at once and everywhere, the constitutional guaranties of the liberty of the citizen.

10. And, though the government be engaged in war, in the suppression of a rebellion in certain parts of the country, in those portions not engaged in the rebellion, where the civil courts, in the midst of loyal communities, are in the undisturbed exercise of their ordinary jurisdiction, martial law cannot properly exist, and the federal executive has no power to cause the arrest of citizens in such communities, for alleged disloyal practices therein, under his authority as commander-in-chief, and as incident to a state of war, and any person making such arrest by direction of the President, must respond in damages to the party so illegally deprived of his liberty.

Syllabus.

11. POWER OF CONGRESS over rights in the States. Congress has no power to interfere with the remedies furnished by State laws, through State tribunals, for the injury of one citizen by another.

12. So where a person was illegally deprived of his liberty, under an order of the President of the United States, the remedy given by the laws of the State, in favor of the injured party against the person making the arrest, cannot be taken away by any subsequent act of congress.

13. MITIGATION OF DAMAGES —in trespass for an illegal arrest and false imprisonment. In an action of trespass against a civil officer for illegally arresting and imprisoning the plaintiff, while it is no bar to the action for the defendant to plead that the arrest was made under the order of the President, in time of war, for alleged disloyal practices of the plaintiff, yet such alleged facts may be proved in mitigation of vindictive or exemplary damages, and for the purpose of rebutting the presumption of malice. Mr. Justice BREESE dissenting.

14. PRACTICE-where a part of several defendants in trespass plead specially -rights of the other defendants. An action of trespass is several as to each defendant, and each has a right to make his own defense and to have it tried without being compelled to rely upon a defective defense made by a co-defendant.

15. Where one of several defendants in such action pleads specially such matter as shows the plaintiff cannot maintain his action against either, and the other defendants plead the general issue only, upon a demurrer to the special plea being overruled, and the plaintiff abides by his demurrer, — the defendants pleading the general issue have their option, either to claim the benefit of the judgment on demurrer in favor of their co-defendant, or to insist on a trial of the issue made by their own plea.

16. If the defendants who plead the general issue only, seek to avail themselves of the judgment of the court on the special plea of their co-defendant, and the court permits it, the plaintiff can except, and preserve against them in the record, the same question raised by his demurrer to the special plea.

17. But, if those defendants pleading the general issue insist upon a trial of that issue as to them, notwithstanding the ruling upon the demurrer to the special plea of their co-defendant, then, on such trial, a verdict and judgment may be had according to the proof.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

The opinion of the court contains a statement of the case.

Mr. M. Y. JOHNSON and Mr. DAVID SHEEAN, for the appellant.

Opinion of the Court.

Mr. C. BECKWITH, with whom were Mr. B. F. AYER and Mr. F. H. KALES, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of trespass brought by Madison Y. Johnson against J. Russell Jones, Elihu B. Washburne, John C. Hopkins, Oliver P. Hopkins and Bradner Smith. The declaration alleges that on the 28th day of August, 1862, in the county of Jo Daviess, and State of Illinois, the defendants with force and violence assaulted and arrested the plaintiff, and conveyed him on board the railway cars; that they transported him by the cars to Chicago, where they restrained him of his liberty for the space of two days; that they then conveyed him by force to the city of New York; that he was there imprisoned in Fort Lafayette for the space of two months; that he was then taken to Fort Delaware, in the State of Delaware, where he was imprisoned for the further space of three months, when he was set at liberty without trial or examination or any offense being charged against him.

All the defendants pleaded not guilty. The defendants Jones, Hawkins and Hopkins also filed special pleas, in which they set up the then existence of the rebellion, and aver that the plaintiff was an active member of a disloyal secret society known as the "Knights of the Golden Circle;" that this society was in league and sympathy with the rebels, and was a co-operating branch of the rebellion in the northern States, and plotting with the rebels for the overthrow of the government; and that said plaintiff was deeply engaged in aiding said society in their treasonable purposes, and was in fact levying war against the United States. The pleas further aver that the defendant Jones was at that time United States marshal for the northern district of Illinois, and that said defendants Hawkins and Hopkins were his deputies; that as such marshal he was ordered by the President of the United States to arrest said plaintiff, as a measure proper for the suppression of the rebellion, and convey him to Fort Lafayette; and that he did so arrest him and convey him to said fort in a comfortable 10-44TH ILL.

Opinion of the Court.

manner, and there delivered him to the custody of the officer in command of said fort, after which time the plaintiff was not in the custody of the defendant.

Another plea sets up the issuance of the President's procla mation of July 4, 1862, calling for three hundred thousand volunteers, and avers that the plaintiff was actively engaged in discouraging and preventing volunteering.

To these special pleas the plaintiff demurred. The demurrer was overruled, and, the plaintiff abiding by it, the court rendered final judgment on the demurrer in favor of the defendants who pleaded specially. The court then, on motion of those who had only pleaded not guilty, and against the objection of the plaintiff, impaneled a jury to try the issue made by that plea, and, the plaintiff offering no evidence, a verdict and judgment were given for those defendants. The plaintiff has brought the record to this court.

It will be observed that, when the arrest was made for which this suit was brought, there had been no general suspension of the writ of habeas corpus. We are not, therefore, under the necessity of considering the effect of a suspension of that writ upon the right of the government to make military arrests a subject upon which eminent jurists have widely differed. This plaintiff was arrested on the 28th of August, 1862. The first proclamation of the President applicable to the State of Illinois, and to all persons anywhere arrested by the military authorities, was issued September 24, 1862. Doubts having been expressed as to the power of the President to suspend the writ without the authorization of congress, that body, on the 3d of March, 1863, passed an act authorizing the President to suspend it wherever, in his judgment, the public safety should require it. Acting under this authority, the President issued his second proclamation of the 15th of September, 1863. We refer to these historical facts, merely for the purpose of showing that the present case must be adjudged without reference to the question of what power the President had to make arrests during the late rebellion after the writ had been suspended.

Opinion of the Court.

Do these pleas, as above set forth, justify the alleged trespass? That the President of the United States has the rightful power, in time of peace, to cause a marshal to arrest a citizen of Illinois, without process, and without any charge of crime legally preferred, and convey him to a distant State, and there imprison him, without judicial writ or warrant, in a military fortress, is a proposition which no one would have the hardihood to assert. That such power, in a season of peace, cannot be safely intrusted to any government by a people claiming to be free, is a political truism lying beyond the domain of argument. The right of the citizen to his personal liberty, except when restrained of it upon a charge of crime, and for the purpose of judicial investigation, or under the command of the law pronounced through a judicial tribunal, is one of those clementary facts which lie at the foundation of our political structure. The cardinal object of our Constitution, as it is the end of all good government, is to secure the people in their right to life, liberty and property. The more certainly to attain this end, the framers of our Constitution not only proclaimed certain great principles in the bill of rights, but they distributed governmental power into three distinct departments, each of which, while acting in its proper sphere, was designed to be independent of the others. To the legislative department it belongs to declare the causes for which the liberty of a citizen may be taken from him, to the judicial department to determine the existence of such causes in any given case, and to the executive to enforce the sentence of the court. If a citizen can be arrested, except upon a charge of violated law, and for the purpose of taking him before some judicial tribunal for investigation, then it is plain that the executive department has usurped the functions of the other two, and the whole theory of our government, so far as it relates to the protection of private rights, is overthrown.

But on this question we are not left merely to arguments drawn from the general spirit and object of our Constitution. Our forefathers had fresh in their memory the struggles which it had cost in England to secure those two great charters of