# Mitchell v. Clark/Dissent Field

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* Dissenting Opinion Field
United States Supreme Court
110 U.S. 633
Mitchell v. Clark
FIELD, J., dissenting.
I cannot agree with my associates in the judgment in this case. I know of no law that was ever enacted in the United States, which would justify a military officer in enforcing the payment to him of a debt due from one loyal citizen to another loyal citizen, neither being in the military service, or residing in a state declared to be in insurrection, or in which the courts of law were not open and in the peaceful exercise of their jurisdiction. Such a law, in my opinion,-I say it with respect,-would dishonor the statute books of the United States; and that which has never been enacted by legislative power can never be rightly adjudged to exist by a judicial tribunal. The averment of the answer that the payment was enforced as a means of carrying on military operations by the United States we know to be untrue. At that time the government appropriated the requisite funds to prosecute the war, and our legislation and history show that no plundering of loyal citizens in loyal states, nor any forced contribution from them, was ever ordered or sanctioned by public authority. The enforced payment in question could, therefore, be no defense to the claim of the plaintiff; and it is difficult to understand how the act of congress of March 3, 1863, or the amendatory act of May 11, 1866, fixing a limitation to actions against military officers for certain acts done by them during the war, or against parties acting under their direction, can be invoked in this case. 12 St. 755; 14 St. 216. The fourth section of the act of March 3, 1863, makes the order or authority of the president a defense only to actions '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.' It has reference to acts affecting the person or such property as is subject to physical seizure. It does not apply to actions for breaches of contract between citizens in loyal states, or to any questions arising out of such contracts. Debts, being intangible things, were incapable of seizure in any proper sense of that term; and the debtors were not discharged from liability because of an unlawful exaction from them of equivalent sums. What was thus exacted could under no circumstances be regarded as anything more than a forced loan. By no possible alchemy could it be converted into the payment of their debt to another. Its effect upon others was not a matter which concerned the military officer. His object, according to the defendant's theory, was to raise funds for military operations; if so, the relations of debtor to creditor were not affected by his exaction from one of them. Williams v. Bruffy, 96 U.S. 187. The debt of the defendants to the plaintiff was not thereby discharged; it is still owing. It can only be discharged when paid to him or to others by his direction.
Independently of this consideration, the statute cannot be construed to give protection to any one in the commission of unlawful acts. Neither the president nor congress can confer immunity for acts committed in violation of the rights of citizens. An army in the enemy's country may do all things allowed by the rules of civilized warfare, and its officers and soldiers will be responsible only to their own government. But in loyal states, or in such parts as are not in insurrection, or declared to be so, and in which the courts are open, the rights of citizens are just as much under constitutional security and protection in time of war as in time of peace. Because civil war was raging in one part of the country the constitutional guaranties of the rights of person and property were not suspended where no such war existed. We sometimes hear the opposite doctrine advanced; but it has no warrant in the principles of the common law or in the language of the constitution. As I observed on a former occasion, our system of civil polity is not such a rickety and ill-jointed structure that when one part is disturbed the whole is thrown into confusion and jostled to its foundation. The existence of insurrection and war in other states than Missouri, or in parts of that state distant from St. Louis, did not suspend the constitution or any of its guaranties in that city. No proclamation of the president had ever declared Missouri to be in a state of insurrection, and it is a matter within our judicial knowledge that St. Louis, so far from being the theater of actual warfare, was a city where supplies were collected for military operations in other quarters, and where the courts were in the undisturbed exercise of their jurisdiction. It is true that where rebellion exists, and the public safety requires it, the privilege of the writ of habeas corpus may be suspended, and to that extent one of the safeguards of the right of personal liberty may be withdrawn, but this suspension in no respect affects the claims of private citizens against each other arising out of contracts between them or the means of their enforcement. The constitution does not forbid, during such suspension or by reason of it, the institution of suits for such claims, or authorize congress to forbid it. Congress may provide for indemnifying those who, in great emergencies, acting under pressing necessities for the public, in vade private rights in support of the authority of the government; but between acts of indemnity in such cases and the attempt to deprive the citizen of his right to compensation for wrongs committed against him or his property, or to enforce contract obligations, there is a wide difference, which cannot be disregarded without a plain violation of the constitution.
As the fourth section of the act of 1863 refers only to seizures, arrests, and imprisonments committed, or acts omitted by order or authority of the president, or under color of an act of congress, it has no bearing upon actions for breaches of contract between citizens. The seventh section, fixing a limitation to actions for such arrests, imprisonment, and other trespasses, does not, therefore, apply to the case before us. And the amendatory act of 1866 only extends the benefit of the limitation to actions for similar acts or omissions when committed by a person acting under the order of the president or the secretary of war, or of a military commander. It does not, any more than the act of 1863, govern actions for breaches of contract between private parties. Could it be construed to embrace a case like the present it would clearly be unconstitutional. The right of a lessor to sue his lessees for breach of contract is in no way dependent upon any act or authority of congress. It is a matter purely of state concern, and congress can no more declare within what time he shall sue for his rent than it can prescribe the court in which the action shall be brought, or the form of the proceedings by which it shall be conducted. Its power to fix a limitation to actions can apply only to such as are in the first instance brought in the courts of the United States, and to those wherein the right or interest claimed depends upon a law of congress. If such a law gives the right or interest claimed, it may prescribe the time in which it shall be asserted, but not otherwise. It would hardly be pretended that congress can enlarge the time prescribed by the state for bringing in her courts actions upon contracts; and if it cannot enlarge, how can it limit the time? Indeed, it cannot be held that, congress may interpose a limitation to the right of enforcing in the courts of a state debts existing between her citizens, unless it be also held that, as to all actions in state tribunals, it can say when they may and when they may not be brought. It will be long, I trust, before the states will become thus helpless to enforce in their own tribunals contracts between their own citizens.
The argument of the court, in its opinion, is substantially this: An action in which a defense under an act of congress is set up may be removed from a state court to a federal court; therefore congress may prescribe the law of limitation for it in the latter court; and if in that court, it may in all courts, as otherwise there would be two rules of limitations of actions in different courts holding pleas of the same cause. It is easy to see that this mode of reasoning would necessarily lead to the conclusion that congress may prescribe the limitation to all actions in state courts between citizens, because actions commenced there may be removed to a federal court when they are between citizens of different states; and, on the assumption of the argument, congress may prescribe the law of limitation for such cases in the federal court; and if in that court, it may, says the opinion, in all courts, as otherwise there would be two rules of limitation of actions upon the same causes in different courts-one if the action remain in the state court, and another if it be removed to the federal court. The length to which the argument leads proves the error of the assumption on which it is founded. The true doctrine is the reverse of this; the limitation of actions in the state courts for the enforcement of rights which are not dependent upon acts of congress or upon the constitution, is a matter purely of state regulation, which the federal courts must follow when such actions are transferred to them. The object of the constitution in extending the judicial power of the United States to controversies between citizens of different states was to avoid, what was at the time of its adoption apprehended, the existence of state attachments and state prejudices, which might injuriously affect the administration of justice in the state courts against non residents. To carry out this purpose the judiciary act provides for the removal to a federal court of actions commenced in a state court involving such controversies. It has no other object; and the removal in no respect affects the rights of the parties, either the claims on the one hand or the defenses on the other. Only the tribunal and, in some respects, the modes of procedure are changed. The limitations prescribed by the state law govern in both tribunals.
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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