of man, I avail myself of this opportunity to put upon the record my protest against such dangerous doctrines, full of heresies towards a republican form of government, tending to consolidation, the ultimate erection of a monarchy, or military dynasty, which history informs us is always a despotism. It will be observed that the judgment in this court, in the case at bar, is based upon the theory of the unjust exercise of force by the military authority, and in the opinion many other instances of a like character are referred to. The opinion then seems to assume, and it appears to me to step aside to assume, that to prevent territorial separation, we concede the necessity of keeping up the army, to whatever improper use it may be put by the administration. This savors more of a political than of a legal proposition, and is, in my view, the illogical part of the argument, is wide of the legal conclusion arrived at, and is, in effect, saying that to part with a portion of the territory is the worst evil that can befall us. Whilst, as a question of policy, all men are equally, perhaps, opposed to any division of territory or separation of states, yet some honestly believe there are greater evils. The framework of our government has not been legally changed since it was first framed as the rule of action to govern some four millions of people, in thirteen states. It was yet the same at the commencement of this rebellion, when it included within its ample folds thirty millions of people in thirty-four states. It was equally well adapted to the larger as well as to the smaller space. It is in point of fact and of law but the same government to-day that it was before the war so far as states where no war exists are interested, for the people, who are by the theory of the government the source of all power, have not changed that form of government. Whether those, who are, for the time being, administering the government, have been guilty of the exercise of powers not granted by the Constitution, is quite another question. The government, as we have seen, was inaugurated to secure to each citizen certain unalienable rights-rights which have not been alienated, or transferred, to Congress, nor to the President, nor to the military commanders; for they could not be so conveyed and the people remain free, and when wrested from them by force they will become mere serfs. If those sacred rights, among which are the liberty of speech, the liberty of the press, and the freedom of elections, which are the three great bulwarks of free institutions, are to be stricken down, permanently destroyed by armed force; or, if that force is not to be used to restore the just authority of our once glorious government, but merely to establish, by wading through seas of blood, a single consolidated government, having for its corner stone certain chimerical ideas of philanthropy, fraternity and equality, social and political, of all races of men, without respect to color, then it might not be so readily conceded that imperative necessity would require that the force should be kept up solely for such purpose. As to the act of Congress, set forth in the opinion, and upon which the decision of the lower court is attempted to be justified, it is necessary, perhaps, for a moment, to advert to the circumstances surrounding those who framed the Constitution of the United States, to fully appreciate the provisions of that instrument, quoted as bearing upon said act. Previous to the revolution, the laws, usages and customs prevailing were, to a great extent, those of the mother country, for the colonies were subject to her control. History shows that in that mother country, instances had occurred of the assumption of unwar ranted power, and the exercise of oppressive acts, by those administering the government, and that to shield themselves from the legal effect of their unjust acts, the oppressors, ministers in power, had procured acts of Parliament exonerating them from liability to the outraged laws and injured citizens. In England such statutes might be held valid, because they have no written constitution, and in their theory of government the Parliament is omnipotent; it has caused princes to be crowned and kings to be beheaded; it is supposed to be the voice of the governing power. In this country the people have said, in effect, by a written constitution: This power we give to the President, this to the Congress, and this to the federal Judiciary. They wrote down the grant of power to each department. Beyond the passage of laws necessary to carry out those powers, Congress cannot rightfully go. All other powers not thus delegated to either or all of these three departments, nor prohibited to the states, are reserved to the states respectively, or to the people. (See 10 amendment.) Not content with this definite grant of powers, and positive reservation of all other powers not so granted, certain stringent prohibitions and restrictions upon the action of the federal government and its departments were inserted. The very first line of guarantee is that "Congress shall make no law", etc., etc. (See 1 amend. Const. U.S.) Then follows, as I understand that instrument, the enumeration of various subjects upon which the Congress shall make no law infringing the rights of the people. Among those rights are life, liberty and the right to possess and enjoy property, of which the citizen can not be deprived without due process of law (5 amendment); and also to be secure from arrests; etc. (4 amendment). Now, it will be observed that in England, by the common law, the individual was, to a certain extent, pro tected in his person and his property. Yet that protection had been repeatedly disregarded by those in power, and the perpetrators of the wrong shielded by acts of Parliament, as before stated. Therefore to prevent such an unjust course of procedure, the Constitution thus expressly sets up a barrier against the passage of a law by Congress authorizing the perpetration of such acts of wantonness by those in authority. Then the simple question is, if the Congress can rightfully pass no law authorizing the perpetration of wrongful acts, as to these reserved rights of the citizen, can it, after they have been committed, shield the offender by saying he shall not be responsible in damages to the sufferer. There is no question as to the pardoning power involved, for Congress possesses no such power. That power is lodged in the President and relates only to "offenses. against the United States", not to damages to one individual by the unlawful and injurious acts of another. (Art. 2, Sec. 2, Const. U.S.) For these reasons, and those of a legal character given in the opinion of the court, the judgment ought to be reversed. Per Curiam. - The judgment is reversed, with costs. Cause remanded. JOHN L. KETCHAM, for the appellant. E. A. DAVIS and T. W. BowLES, for the appellee McCALL vs. MCDOWELL et al. (Deady, 233; 1 Abb. (U. S.), 212; 1 Pac. Law Mag., 360) CIRCUIT COURT, D. CALIFORNIA, APRIL 25, 1865 FEDERAL CASE No. 8,673 This was an action for false imprisonment, and by the stipulation of the parties was tried by the court without the intervention of a jury. The facts in the case are fully stated in the following findings of the court: First. That on June 1, 1865, the defendant, Charles D. Douglas, was a captain in the army of the United States, then serving in the state of California, and that such defendant, as such captain, was then acting as commander at a military post called Fort Wright, in the county of Mendocino and state aforesaid. Second. That on the day and year aforesaid, at Potter Valley, in the day time, in the public highway, in the county and state aforesaid, the defendant, Douglas, did order and cause the arrest and imprisonment of the plaintiff, John McCall, for the space of thirteen days; and that said defendant during the term of said imprisonment did convey and transport the said plaintiff, in close custody, under a military guard, by the usual means of transportation, by land and sea, to the city of San Francisco, in the state aforesaid, a distance of 150 miles. - Third. That the defendant, Douglas, on June 13, 1865, at San Francisco aforesaid, did deliver this plaintiff into the custody of the provost marshal of the United States, where his hands were confined 274 |