Opinion of the Court.

courts, which no subsequent act of congress can take away. The rights of person and property are equally secured by the constitutional provision, borrowed from magna charta, that no person shall be deprived of them without due process of law. That congress has no power, by its own act, to divest these rights, is universally conceded, and we are unable to perceive the difference in principle between an act seeking to divest them directly, and one providing that, where they have been divested by unlawful violence, no remedy shall be had against the wrongdoer. Suppose congress should pass a law that no action should lie against United States marshals for any illegal acts theretofore done by them under color of their office, and a marshal should be sued for having, before the passage of the law, illegally taken the goods of one person under an execution against another. Can it be supposed such an act would be a defense to a suit brought for the trespass? And there is no difference in principle between such legislation and that now under consideration.

In 1862, on the facts disclosed by this record, one citizen of Illinois committed a trespass upon the rights of another for which the laws of Illinois then gave, and now give, a right of action. Since that time, congress has said, the action shall not be maintained. We must respectfully ask, whence comes the power to interfere with the remedies furnished by the State laws, through the State tribunals, for the injury of one citizen by another? There is really nothing to be said in support of this legislation. With all our respect for congress, we must hold these acts beyond its constitutional authority. If they are not so, its power over persons and property is limited only by its own discretion, and constitutional government is merely a theory.

There remains to be disposed of a question of practice. As has been already stated, only a portion of the defendants pleaded' the special pleas. After judgment against the plaintiff had been rendered on the demurrer, and he had elected to abide by his demurrer, the court, against his objections and at the instance of those defendants who had pleaded only the general

Opinion of the Court.

issue, impaneled a jury to try that issue as to them. The plaintiff declined to offer any evidence, and thereupon the jury found a verdict for these defendants. The plaintiff contends that they were not entitled to a trial of this issue, which is final as to them, but that judgment should have been rendered in their favor on the demurrer to the special pleas of their co-defendants, so that in the event the judgment of the court on the demurrer should be overruled, he might then have his recourse against all the defendants. The rule is stated by Tidd, page 895, as follows:

"In actions of tort, as trespass, etc., where the wrong is joint and several, where the plea of one defendant is such as shows the plaintiff could have no cause of action against any of the defendants, it shall operate to the benefit of all the defendants, and the plaintiff cannot have judgment or damages against those who let judgment go by default-but when the plea merely operates in discharge of the party pleading it, then it shall not operate to the benefit of the other defendants."

By this we understand that the defendant who has pleaded the general issue only, may at his option claim the benefit of a judgment on demurrer in favor of his co-defendant who has pleaded specially, if such plea showed the plaintiff could not maintain his action against either. We do not understand, however, that he is obliged to do so. He has the right to insist on a trial of the issue made by his own plea, and the plaintiff cannot compel him to claim any benefit from the judgment on the demurrer.

In the present case the plaintiff, on the trial of the general issue, should have proved the trespass. If, under the rule quoted from Tidd, the defendants had sought to avail themselves of the judgment of the court on the special plea of their co-defendants, and the court had permitted it, the plaintiff could have excepted, and preserved against them in the record the same question raised by his demurrer to the special plea. If they had not sought to do this, but the evidence had failed

Separate opinion by BREESE, J.

to show their participation in the trespass, they would have been entitled to a verdict and judgment.

This judgment must be reversed and the case remanded. In order, however, that our decision may not be misconstrued, we deem it proper to add, that although the matter of the special pleas is not a bar to the action, yet, on the trial, the defendants will be permitted to prove the facts alleged in them in mitigation of damages, and for the purpose of rebutting the presumption of malice. For the purpose of enabling the jury to determine justly the quantum of damages to which the plaintiff may be entitled, the matters set up in these pleas will be, if proved, a proper subject of consideration.

Judgment reversed.

Separate opinion by Mr. JUSTICE BREESE:

I concur in much of the reasoning, and generally, in the conclusions reached in the above opinion. I cordially concur in the sentiment, that the Constitution of the United States was designed by its framers, and has been hitherto so understood by the people, to be the same protecting instrument in war as in peace; that a state of war does not enlarge the powers of any one department of the government established by it, nor has any one of these defendants any right to urge "necessity," or "extraordinary emergencies," as a plea for the usurpation of powers not granted. The first is the tyrant's plea, and the other places the dearest rights of the citizen at the mercy of a dominant party, who have only to declare "the emergency," which they can readily create, pretexts for which, bad men are keen to find and eager to act upon. There can be, and there should be, no higher law for the conduct of the government in its relations to the citizen, than the Constitution of the United States.

I cannot accede fully to the doctrine declared in the last clauses of the opinion. Holding, as we do, that the executive order under which the defendants attempt to justify their conduct, was illegal and void, it ought not to go in evidence for any purpose-it is not in the case. A subordinate ought not

Additional opinion of the Court.

to be permitted to extenuate his offense by the allegation, his superior ordered him to commit it. The marshal was not bound to execute the order, he knowing it was arbitrary and had not the sanction of the law. He should take all the consequences of his obedience.

In these disjointed times, under this ruling of the court, a jury might very easily be impaneled, who would not assess more than nominal damages for one of the greatest outrages ever perpetrated in a country claiming to be governed by a written constitution and having a code of laws.

But I do not suppose pecuniary considerations influenced the plaintiff to bring this action, but rather to vindicate that Constitution and the laws so grossly violated in his person. This he has effectually done, by the unanimous judgment of this court, in holding, that the proceedings of which he complains were without any warrant of law, and in direct and palpable violation of the letter and spirit of the Constitution.

At the September Term, 1867, the appellant entered his motion, that the foregoing opinion of the court be amended, so far as relates to the question of practice therein decided, whereupon the court delivered the following additional opinion:

Per CURIAM: A motion has been made in this case by the appellant, that the court amend the opinion filed herein, so far as relates to the question of practice on the trial of the general issue pleaded by a portion of the defendants. The motion is overruled. The proper practice is correctly stated in the opinion. As therein stated, the defendants who pleaded the general issue had the right to have that issue, as to them, tried, and by insisting on such trial, to disclaim any benefit they might have claimed from a mistaken ruling of the court on the special plea. Their co-defendants had no right, by pleading a defective special plea, to compel them also to rest their defense upon a plea which they did not file, and thus be made liable to be brought again before the court for trial by a reversal of the judgment on the special plea, which might be had at any time

Additional opinion of the Court.

before the statute had barred a writ of error. 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. Counsel for appellant err in supposing they would not have been entitled to a judgment against the defendants who pleaded only the general issue if they had proved the trespass. When these defendants went to trial on that issue, declining to shelter themselves under the judgment of the court on the special plea, the court would have told the jury to find upon that issue only, and to assess the damages if they found the defendants guilty, and on that verdict the court would have rendered judgment. In remanding the case we reverse only the judgment on the demurrer. The judgment upon the verdict, as to those defendants who pleaded the general issue, and which is an entirely distinct and independent judgment, must stand.

We take this occasion to say, that the opinion hitherto filed in this case, in which the court below is directed to receive evidence of the facts set up in the special plea in mitigation of damages and to rebut the presumption of malice, must be construed as referring to vindictive or exemplary damages.

Motion overruled.

DAVID SHEEAN

V.

J. RUSSELL JONES et al.

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

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

Mr. C. BECKWITH, with whom were Messrs. AYER and KALES, for the appellees.