# Dow v. Johnson/Dissent Miller

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Clifford Miller
United States Supreme Court
100 U.S. 158
Dow v. Johnson
MR. JUSTICE MILLER.
Concurring with my brother CLIFORD that this court is without jurisdiction, because the amount in controversy does not exceed $5,000, I am content to rest that point on what he has said.
I also believe that the judgment of the Circuit Court should be affirmed, for a single reason, which I will state in as few words as possible.
It is apparent that, very soon after the capture of New Orleans by our forces, the administration of justice as between individuals was remitted to the civil courts. The proclamation of General Butler shows that it was his purpose that such rights as required for their determination judicial proceedings should be asserted in the ordinary tribunals, with as little interruption and as little interference by the military authority as possible. Evidence of this is to be found in the fact that, without any change in the judge, who had taken the oath of allegiance, the Sixth District Court of New Orleans was continued in the exercise of all its functions, which, under the proclamation, included the adjudication of 'civil causes between party and party.' It exercised jurisdiction both by the general law of Louisiana and the express proclamation of the commanding general. The locality was a part of the United States. The parties were citizens of the United States. No active military operations were then carried on within that city or against it; and for the very reason that its possession had been perfectly secured by the loyal forces, the civil courts were restored to the exercise of their ordinary functions in cases between man and man, or, as the proclamation expresses it, between party and party. The condition, therefore, was very different from that when military forces invade and occpy a foreign country, which, before any treaty of peace, or the declaration of any purpose to annex it to the territory of the conqueror, is held in armed hostility to its former sovereign, and solely by the strong hand. In such a case, submission of the inhabitants can only be maintained by the military power; and to subject that power to the jurisdiction of the courts of the subjugated country is to abdicate all control over it.
But in New Orleans it was far otherwise. Our military forces were rightfully there, and in their own country, among citizens of the United States, subject to the same paramount authority, and owing allegiance to the same government. Those citizens had been only a few months in insurrection, and they were invited to submit themselves again to the same laws, and to have their contested rights decided by the same courts, and, in this case, by the same judge.
In this condition of affairs, Johnson, who was a resident and citizen, against whose loyalty no charge is made, filed in that court his petition, indue form of law, setting forth that certain persons had, with force and violence, committed a trespass on his home, and taken therefrom personal property of the value of several thousand dollars, and charging Dow with being guilty of this trespass.
The usual process of summons was personally served on Dow, and on his failure to appear or answer, either by himself or attorney, a default was entered, and a judgment rendered for the value of the property taken. This judgment remaining in full effect, the plaintiff, to enforce the payment of it, brought the present suit in the Circuit Court of the United States for the District of Maine, where Dow resides.
The defence-the only defence which could be relied on-is the alleged total and absolute want of jurisdiction in the Sixth District Court over the case.
But surely that court did have jurisdiction of an action of trespass. The plaintiff was not only competent to sue, but entitled to a remedy in that court, if the cause of action was such as he declared. It is not denied that the trespasser, had he not been a member of the military forces of the United States, would have been liable to suit, and bound to answer. But it is said that because Dow was an officer of those forces he was not bound to answer.
When a proper plaintiff brings an actionable case before a court which has jurisdiction of it, and due service of process is made, I hold it to be a principle of universal prevalence that the question of the defendant's personal exemption from such process or jurisdiction must, by plea or some other appropriate mode, be brought before the court. I know of no exceptions to this rule, which is laid down by all the works on pleading, from Chitty to the present time. There is no other way in which the court can know of the exemption if it be not unnecessarily stated in the plaintiff's pleading. The court, as the case satands, has jurisdiction, and must pronounce the judgment of the law. If the party sued deems proper for any reason to stay away or remain silent, he does so at the peril of having a judgment rendered against him which cannot be assailed collaterally.
Much is said of the evil of dragging military officers into the courts under such circumstances. But the military power can make such general orders as will protect itself against an abuse of the right which it has expressly recognized. So, the idea that Dow ought not to have been compelled to leave his post at Fort St. Philip, to defend this suit in New Orleans, is of little force. If he had to be found at the fort for service of process, he could easily have employed a lawyer to put in his plea in abatement that he was acting under military authority, and therefore not liable to the suit.
Every man is liable to be sued wrongfully or without cause, but he is, by the very genius of our laws, bound to submit to this evil and make defence. Why should not this class of men, who of all others possess most despotic power, be required to show the authority by which they exercise it?
If I am not mistaken in these principles, I see no escape from their controlling influence in the case before us. It is too well settled to admit of controversy, that a judgment rendered by a court, having jurisdiction of the parties and the subject-matter of the suit, can only be impeached by some direct proceeding to avoid it, and that when an action on it is brought in any other court, no defence can be interposed which should have been made in the former suit. General Dow could not, therefore, set up in the Circuit Court as a bar to the judgment the same matters that he should have pleaded in the court which rendered, and was bound to render it.
It is impossible in discussing this matter that memory should fail to recall a very famous case of historical interest, involving many of the same principles, which occurred about half a century before this, and of which the same city was the theatre.
During what has been called the siege of New Orleans, at the close of the last war with Great Britain, the commanding general of our forces declared martial law in that city. This was unpleasant to many citizens, and to others who claimed to be foreigners domiciled there at the time. Some of these becoming restive under its restraints, made publications of a seditious character in the newspapers, for which they were arrested by order of General Jackson. When Judge Hall, of the proper civil court, issued a habeas corpus for their release, the general tore up the writ and sent the judge by force beyond his lines. Within a very few days after this, the victory of the 8th of January, 1815, was achieved, and on the receipt of the news of the treaty of peace the declaration of martial law was revoked. Judge Hall, on resuming his judicial functions, issued a process against General Jackson for contempt of court in his action in reference to the writ of habeas corpus.
That distinguished man, though in the midst of the adulation consequent on the great victory, did not act as the defendant in this case did, by paying no attention to the process, but came to the court in citizen's dress, attended only by a single member of his military family and with his legal adviser. He offered to read the same paper which his counsel had read against issuing the process for contempt, and when the court declined to hear it, submitted himself to its judgment. At this there was such a demonstration of ill-feeling in the crowded court-room that the judge said he could not proceed, and would adjourn the court. But the noble defender of the city declared that he was equally ready to defend the court, and begged that the judge would proceed without fear to do what he might think his duty required. A fine of $1,000 was entered up against the general, which he paid at once, and used his authority, which was needed, to disperse the mob, who were inclined to violence against the judge.
I confess I have always been taught to believe that Judge Hall was right in imposing the fine, and that General Jackson earned the brightest page in his history by paying it, and gracefully submitting to the judicial power. Such I believe is the judgment of history and of thoughtful judicial inquirers; though a grateful country very properly refunded to her favorite general the sum he had paid for a necessary but unauthorized exercise of military power. I have no doubt that General Dow had good reasons for all he did, and I think he would have acted more wisely if, respecting the courts in the proper exercise of their functions, he had made his defence at the right time before the appropriate tribunal.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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