Griffin v. Wilcox. correct, because each count presents a distinctive cause of action, and hence the issues in each could not be legitimately the same. Per Curiam.-The judgment is reversed, with costs. B. W. Wilson, for the appellants. John S. Scobey and William Cumback, for themselves. GRIFFIN V. WILCOX. PROVOST MARSHAL-ARREST.-A Deputy Provost Marshal, directed by his superior officer to arrest and punish persons, not connected with the army, for retailing spirituous liquors, at their usual places of doing business, to soldiers, is not protected by such order, from liability to the arrested party, for damages on account of such arrest, because such order is illegal. STATUTES CONSTRUED-CONSTITUTIONAL LAW.-The act of Congress of March 3d, 1863, assuming to indemnify officers for such arrest, is unconstitutional. SAME-DAMAGES.-The right to damages to be recovered in civil actions of false imprisonment, is property, is a chose in action, and passes, in this State, to one's personal representatives at his death. PRESIDENT OF UNITED STATES-HIS POWERS IN WAR.-The President of the United States has a right to govern, through his military officers, by martial law, when and where the civil power is suspended by force; in all other times and places the civil excludes martial law-excludes government by the war power. HABEAS CORPUS, SUSPENSION OF WRIT OF.-Neither the President, nor the Congress, of the United States, can suspend the issue of the writ of habeas corpus by a State Court. APPEAL from the Marion Common Pleas. PERKINS, J.-The following general order was issued: Griffin v. Wilcox. "HEADQUARTERS DISTRICT OF INDIANA AND MICHIGAN, Indianapolis, June 8, 1863. Capt. Wilcox, Provost Marshal, Indianapolis : 66 Captain: You will at once issue an order prohibiting the sale of liquor, by any party, to enlisted men. This order must be rigidly enforced. Any one violating it will be severely punished. I have noticed, with surprise, many intoxicated soldiers in our streets. This evil should and must be stopped. Very respectfully, Your ob't servant, G. COLLINS LYON, Major and Chief Provost Marshal, Capt. Wilcox thereupon issued the following notice: "OFFICE OF PROVOST MARSHAL, Indianapolis, June 8, 1863. "All persons engaged in the traffic and sale of spirituous and intoxicating liquors, within this city, are notified that they are strictly prohibited, from and after this date, from selling the same to any enlisted soldier. A violation of this order, by any person whomsoever, will be visited with severe punishment. By order of FRANK WILCOX, Captain and Provost Marshal." Joseph Griffin was arrested and imprisoned by Capt. Wilcox, for an alleged violation of the foregoing military order and notice. After his release, he commenced this suit in the Marion Common Pleas, against the captain, for false imprisonment. Griffin was licensed to retail to everybody except minors, intoxicated persons, &c., both by the State and the Federal Government. Capt. Wilcox answered the complaint of Griffin by justify Griffin v. Wilcox. ing his arrest and imprisonment under the order and notice above set out; and the Court held the justification sufficient, and a bar to Griffin's suit for damages. Griffin appealed to this Court. Legal authority is a justification to a person in making an arrest. Authority, appearing on its face to be illegal, is not a justification, and will be no protection for making an arrest. This case, it may be remarked, does not involve the question of the right, in any person, or body of men, to suspend the writ of habeas corpus. Griffin did not apply for that writ in order to effect his discharge from imprisonment. He submitted to that, and then sued for damages on account of the imprisonment. And, it may be here observed, that the suspension of the writ of habeas corpus does not legalize a wrongful arrest and imprisonment; it only deprives the party thus arrested of the means of procuring his liberty, but does not exempt the person making the illegal arrest from liability to damages, in a civil suit, for such arrest, nor from punishment in a criminal prosecution. Our attention has been called to the following section of the act of Congress of March 3, 1863. (Acts of 1863, p. 154.) “Sec. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence 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 and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue." This act was passed to deprive the citizens of all redress for illegal arrests and imprisonments; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and im Griffin v. Wilcox. prisonments. The question here arises, then, can Congress enact that the citizen shall have no redress for a violation of his rights, secured to him by the following provisions of the Constitution of the United States, viz: amendments 4 and 5: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated;" "no person shall be deprived of his life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." These sections prohibit the passage of a law by Congress, authorizing the arrest of the citizen, without just cause, because such arrest deprives him of his liberty. They also prohibit the passage of a law depriving him, or authorizing the depriving him of his property, except through a judicial sentence, or upon just compensation. Taylor v. Porter, 1 Hill (N. Y.) R. 140; 1 Kent, 10th ed. 623, note; 2 id. 430, note. The right to damages, to be recovered in a civil action, for false imprisonment, is a chose in action-is property-and passes to one's representatives at death, by the law of Indiana. Gimbel v. Smidth, 7 Ind. 527. Hence it is assignable. Strong v. Clem, 12 id. 37. Patterson v. Crawford, id. 241, lays down the rule that such a right of action for a tort as would survive, is assignable, but overlooks the fact, decided in Gimbel v. Smidth, supra, that the right of action for false imprisonment survives. The above section of the act of Congress can have no greater effect than that of a general pardon; but a pardon reaches the penalty for the crime only, not the civil right of property in damages. The State v. Farley et al., 8 Blackf. 229; Brightley's Dig. p. 7, note. The act of Congress quoted can have no bearing upon this suit. The real question, lying at the bottom of the case, involves the war power of the President of the United States; that is, Griffin v. Wilcox. his power to act upon martial law without its having been first declared by the sovereign power of the State-an authority claimed by some to be a "mysterious power, undefined by law, unknown to the subject, which we must not approach without awe, nor speak of without reverence; which no man may question, and to which all men must submit;" but a power which we think exists only within limits capable of being defined with reasonable certainty. The question is one that we would gladly have avoided deciding; but from which, when legally brought before us, we have no right to shrink. It is one, too, the importance of which demands for it a careful examination before it is decided. And it may be further observed, in passing, that when martial law supercedes the civil, or is exercised concurrently with it, the civil being permitted, by mere military sufferance, or as a matter of convenience, where it does not interfere with, or is subservient to, the war power, the military assume the government of the citizens to just the extent they please. The assuming to prohibit the sale of liquor to soldiers in Indianapolis was upon this theory. So were the military orders prohibiting the sale of arms and ammunition to citizens in contravention of their constitutional right to procure and keep them. So were the arbitrary arrests for pretended disloyal opinions in violation of the constitutional right of freedom of thought and opinion. These, and other acts in disregard of constitutional and legal rights, all rest upon the same principle. If the military could legally arrest and punish Griffin for selling a glass of liquor to a soldier, they could legally arrest and punish him for expressing what they might assume to style a disloyal opinion. If they could not legally punish him for the one, they could not for the other. Could they do either? is the question. This question we propose fully and fairly to examine, simply for the purpose of ascertaining the law. If we can come to the conclusion that the military possess this power, we will |