Opinion of the Court.

"No person shall be prosecuted in any civil action or criminal proceeding for or on account of any act by him done, performed, or executed after the first day of January, 1861, by virtue of military authority vested in him by the government of the United States or that of this State to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall heretofore have been or shall hereafter be instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof."

This constitutional provision was adopted in 1865, and was clearly intended to protect the military officers or those acting under them from liability, civil or criminal, for acts done under their orders. Whether it covers the present case or not is not a question within our province to decide. The plea is made in a State court and sets up a defence under the State law, and however much the party may be aggrieved by that court's decision he in that plea sets up an immunity under a State law and not under the law of the United States. Of such matter this court has no jurisdiction, and we consider it no further.

The second and fourth pleas both set up the act of March 3d, 1863, 12 Stat. 755, as a defence; the second plea relying upon the fourth section of the act as a full defence to any suit at all in such case as the present, and the fourth plea setting up the specific defence of the statute of limitation found in the 7th section of that act.

The fourth section is as follows:

"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."

And the seventh section declares:

"That no suit or prosecution, civil or criminal, shall be main

Opinion of the Court.

tained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to have been done; Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or pros ecution until two years from and after the passage of this act."

The act of May 11th, 1866, to amend this act, 14 U. S. Stat. 46, by its first section declares that the benefit of this defence shall extend to any acts done or omitted to be done during said rebellion by any officer or person, under and by virtue of any order, written or verbal, general or special, issued by the President or Secretary of War, or by any military officer of the United States holding command of the department, district or place within which such acts were done or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended.

The act of 1863 also makes elaborate provision for the removal of this class of cases, including any act done under color of authority derived from the President, from a State court into a Federal court, which provision is also made more effectual by the act of 1866.

It is not at all difficult to discover the purpose of all this legislation.

Throughout a large part of the theatre of the civil war the officers of the army, as well as many civil officers, were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be non-combatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the Union.

Opinion of the Court.

For this state of things Congress had provided no adequate legislation, no law by which the powers of these officers were so enlarged as to enable them to deal with this class of persons dwelling in the midst of those who were loyal to the govern

ment.

Some statutes were passed after delay of a general character, but it was seen that many acts had probably been done by these officers in defence of the life of the nation for which no authority of law could be found, though the purpose was good and the act a necessity.

For most of these acts there was constitutional power in Congress to have authorized them if it had acted in the matter in advance. It is possible that in a few cases, for acts performed in haste and in the presence of an overpowering emergency, there was no constitutional power anywhere to make them good.

But who was to determine this question? and for service so rendered to the government by its own officers and by men acting under the compulsory power of these officers could Congress grant no relief?

That an act passed after the event, which in effect ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires it.

In the legislation to which we have referred in the act of 1863, and the amendatory act of 1866, Congress seems to have well considered this subject. By the fourth section of the act of 1863 it undoubtedly intended to afford an absolute defence, as far as it had power to do so, in this class of cases.

By sections five and six it was enacted that the person sued for any of this class of acts, performed or omitted under orders of officers of the government, even when there was only color of authority, could, instead of having his case tried in a State court, where both court and jury might be prejudiced against him, remove his case into a court of the United States for trial.

Opinion of the Court.

That this act is constitutional, so far as it authorizes this removal, was settled in the case of The Mayor v. Cooper, 6 Wall. 247.

The defendant, however, for some reason did not attempt to remove this case into the Circuit Court of the United States, probably because the Supreme Court of the State had decided in the case of the State v. Gatzweiler, 49 Mo. 17, that the limitation clause of the act of Congress was valid and was binding on the State court.

The third measure of relief which those statutes provided for said case was this statute of limitations, found in the seventh section of the act of 1863.

This limitation of the right of action, like the right of removal, did not depend by the terms of the statute on the validity of the authority set up by the party. In one case it is obvious that that question must be inquired into after the removal. In the other, if the action had not been brought within two years, it was immaterial; for the plaintiff could not recover, however void the authority under which defendant acted.

Had Congress power to pass such a law? The suit being one which, under the act of Congress, could be removed into the courts of the United States, Congress could certainly prescribe for it the law of limitations for those courts. If for such actions in those courts, why not in all courts? Otherwise there would be two rules of limitation of actions in different courts holding pleas of the same cause.

But there are other considerations which lead to the conclusion that Congress must have the right to prescribe the rule of limitations for all courts in this class of cases.

The act complained of is done for the benefit of the government by one of its officers, or by his imperative orders, which could not be resisted. If done under a necessity or a mistake, the government should not see him suffer. In such a case as the present, where the money collected went into the military chest, and was either turned over to the treasury or used to pay the military expenses of the United States, the government is bound in equity, if not legally, to repay the defendant,

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if judgment goes against him, what it received, with interest and costs. It has a right to say in such cases that the suit, which is to establish this liability, must be brought within reasonable time in whatever court it is brought, and to determine what is that reasonable time. The government which thus exposes its officers and others, acting under its compulsory exercise of power, to be sued, while not denying redress for the illegal exercise of such power, must have the authority to require that suits brought for such redress shall be commenced within reasonable time.

The question in all such cases is one that arises under the Constitution and laws of the United States, because the act questioned is one done or omitted under color of authority claimed to be derived from the government, and, therefore, involves the consideration whether such authority did in fact, or could in law, exist. It is one, consequently, that falls within the constitutional jurisdiction of the judicial power of the United States. Hence it follows that Congress might vest that jurisdiction exclusively in the courts of the United States, and might regulate all the incidents of suits brought in any jurisdiction authorized to entertain them.

It is upon this principle that the case of Arnson v. Murphy, 109 U. S. 238, was decided. The question there was whether the statute of limitations of the State or of Congress should govern, the suit having been brought to recover for duties illegally assessed. And though the action was one properly brought originally in the State court, and which might have been tried there, it was held that as the money collected by the collector had been paid into the treasury, and the United States was responsible for the judgment which might be recovered against him, and Congress having also modified the right of action which plaintiff had at common law, the provisions of the act in regard to time of commencing the action governed the case, and that they were necessarily exclusive.

The Supreme Court of Missouri in the case of The State v. Gatzweiler, 49 Mo. 17, held that the seventh section of the act of 1863 is not only valid, but is binding on the State courts. Quoting from the case of Clark v. Dick, 1 Dillon, 8, it concurs