The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-07-16

military order, is a mode of discharging
obligations which, however convenient, Is
not reconcilable with the principle OF the
constitution. The constitution confides to
congress only Legislative power, and that to
be exercised only for specific purposes
When, therefore, il undertook to determine,
in 1868 and 1866, that no injury to per-
son or property, committed prior to
| that time, gave to the injured party a
vested right of action, If committed under a.
military order, it assumed a judicial function
which it is authorized to perform. Whether
| this plaintiff was illegally arrested and i'm
prisoned in 1862, depends solely upon the
acts done and the laws in force at that time,
and these are facts to be determined by judi
cial investigation, and facts which no act of
congress can change. If his personal liberty,
or his property, was illegally taken from him,
| there at once occurred to him q right to re-
dress in the courts, which no subsequent acts
of congress can take away. The rights of
persons or property are equally secured by
the constitutional provision, borrowed from
magma chdrtG, that no person shall be de-
prived of them without due process of law.
That congress has no right, Ivy its own acts,
to divest theserights is universally conceded,
and we are unable to perceive the difference,
in principle, between an act seeking to divest
them directly and one proyiding that, when
they have been Invested by unlawful violence,
no remedv shall be had against the wrong
| doer. Suppose congress should pass a law
| that no action should lie against United States
| marshals for any illegal acts heretofore done
| by them under color of their Office, and a
| marshal should be sued for having, before
passage of the law, illegally taken the goods
| of one person nnder an execution against
| another. Can it he supposed such an act
| would be defence to a suit brought for the
| trespass? And there is no difference, in
| principles, between such legislation and that
now under consideration.
| In 1862 on the facts disclosed by this rec
/ ord, one citizen of Illinois committed tres
pass upon the rights of another, for which
| the laws of Illinois then give, and NOW give,
a right of action, Since that time congress
has said that the action shall not be main
| tanned. We must respectfully ask, whence
comes the power to interfere with the ,geme-
dies furnished by the state laws, through the
state tribunals, for the injury of one citizen
by another. There is really nothing to be
said in support of this legislation. With all
| our respect for congress, we must hold these
acts beyond its constitutional authority. II
they are not so, its power over persons and
property is limited only by its own discretion
and constitutional government is merely a
theory. .....
There remains to be disposed of ques
ton of practice. As has been already stat
ed, only portion of the defendants pleaded
special pleas. After Judgment against the
plaintiff had been rendered on the demurrer
and he had elected to abide by his demurrer
the court, against his objections and at the
instance of those defendants who had plead
ed only the general issue, impaneled jury
to try that issue as to them. The plaintiff
declined to offer any evidence, and thereupoi
the jury found verdict for these defend
ants. The plaintiff contends that they were
| not entitled to a trial of this issue, which i;
final as to them, but that Judgment should
!, have been rendered in their favor on the de
murrer to the special pleas of their code
PENDANTS, so that, in the event the iudgmen
of the court on the demurrer should be over
ruled, he might then have his recourS.
} ed by Tidd, page S95, as follows:
"In actions of tort, &C., where the wrong i
: joint and several, where the plea of one defend
ant is such shows the plaintiff could have n,
, cause of action against any of the defendants i
shall operate TO the benefit of the defendants ant
| the plaintiff cannot have judgment damage
| against those who let Judgment go by default
but when the plea merely operates in discharge o
the party pleading 1t, then il shall not operate t
, the benefit of the other defendants"
By this We understand that the defendant
who has pleaded the general issue only, may
at his option, claim the benefit of a iudg
f ment, on demurrer in favor of his co-defend
ant who had pleaded specially, If such Pile
showed the plaintiff could not maintain hi
t action against either. We do not under
stand, however, that he is obliged to do sc
t He has the right to insist on a trial of tn
: issue made by his own plea, and the plaintiff
r cannot compel him to claim any benefi
from the Judgment on the demurrer.
In the present case the plaintiff, on tn
trial of the general issue, should have proves
: the trespass. If, under the rule quoted from
Tidd, the defendants had sought to avai
} themselves of the judgment of the court OF
the special plea of their co-defendants, an
the court had permitted it, the plaintiff coul
have excepted, and preserved against then
in the record the same question raised b
5 his demurrer to the special plea. If the
had not sought to do this but the evidenc
: had failed to show their participation in tn
= trespass they would have been entitled to
f verdict and Judgment. 49,
y This Judgment must be reversed, and tn
Y case remanded In order, however, that on
decision may not be msconstrued, we deer
E it proper to add that, although the matter Q
r of the special pleas Is not a bar to the al
;. ton, yet, ON the trial, the defendants will b
e permitted to prove the facts alleged in ther
: in mitigation of damages, and for the pu
j. pose of rebutting the presumption of mahc'
t For the purpose of enabling the jury to d.
e termine justly the guantsim Of damages
2 which the plaintiff may be entitled, the ma
: tiers set up in these pleas viii be. if proves
r, proper subject of consideration.
# Reversed and remanded.