Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-03-10

all the purposes of the Constitution, is
as perfect and indissOluble as the union
of the integral parts of the States
themselves; and nothing but a
revolutionary violence can, in either
case, destroy the ties which hold the
parts together. For the sake of human
ity, certain belligerent rights were
conceded to the insurgents in arms.
But the recognition did not extend to
the pretended government OF the
Confederaey. The intercourse was
confined to its military authorities.
In no instance was there intercourse
otherwise than of this character. The
rebellion was simply an armed resist
ance to the rightiul authority of the
sovereign. Such was its character in
its rise, progress and downfall. The
act of the Confederate Congress Gre
ating the tribunal in question Was
void. 1t was as if it were not. The
court was nullity, and could eXer-
else no rightful jurisdiction. The
forms of law with which it clothed
its proceedings gave no protection TO
those who, assuming to be its officers,
were the instruments by which it
acted. In the case before US trespass
would have been the appropriate
remedy, but the authorities are clear
that case also may be maintained.
Bach form of action is governed by its
own principles. 1t is needless to con-
slider them, as none of the exceptions
taken relate to that subject. Our
opinion will be confined to those
which have been specifically men
toned.
l. The court instructed the jury to
acquit the defendants, J. w. Clay and
r. w. COltart.
There was some evidence against
both of them. Whether it was suffi-
cient TO warrant a verdict of guilty
was question for the jury under the
instructions of the court. The learned
Judge mingled the duty of the court
and jury, leaving to the jury no dis
cretion but to obey the direction Of
the court. Where there is no evil
dence, or such a defect in it that the
law will not permit verdict for the
plaintiff to be given, such an instruc-
.ic, ti,,., may be properly demanded, and
it is the duty uf The court to gIVS II; II;
To refuse is error. In this case the
evidence was received without objec-
ton and was before the jury. 1t
tended to maintain, on the part OF
the plaintiff, the issue which they
We're to try. Whether weak or
strong it was their right to pass
upon it. 1t was not proper for the
court TO wrest this part Of the case,
more than any other, from the
exercise of their judgment. The in
structiOn given overlooked the line
which separates two separate spheres
of duty. Though cOrrelative they are
distinct, and it is important to the
right administration of justice that
they should be kept so. 1t is as much
within the province of the jury to de-
eide questions of fact as of the court to
decide questions of law, The jury
should take the law as laid down by
the court and give it full effect. But
its application to the facts-and the
facts themselve5-it is for them to de-
termine. These are the checks and
balances which give TO the trial by
jury itsvalue. Experience has approved
their importance. They are indispen-
sable to the proper efficacy of the sys-
TEN. Such IS the law. We think the
exception to this instruction was well
taken. (Aylwin VS.. Ulmer, Il Mass,
.; n. y. Fire Ins. Co. VS.. Walden,
u J. r., 5l3; Utica ms. Co. VS.. Badg-
er, 3 Wend. 102; Tufts vs.. Seabury, II
Pick, 140; Morton VS.. Fairbanks,
ibid, 368; Fisher VS.. Duncan, Hen.
DE- Munf, 562; Schuchard VS.. Aliens,
Wall, 359.)
2. The other instruction to be con-
sidered was, substantially, that if the
plaintiff had himself been a traitor
he could not recover against those
who had been instrumental in his ar
rest, imprisonment, and trial for trea-
son against the COnfederacy-the trea-
son alleged to consist in the aid which
he had given to the troops of the
United States while engaged in sup
pressing the rebellion. As matter of
law, we do not see any connection |
between the two elements ofthis prop
OsitiOn. Giving aid to the troops OF the
United States, by WhOmSoever given, |
and whatever the circumstances, was
q lawful and meritOriOUs act. If the
plaintiff had before cO-Operated with
the rebels there was a locus Delli-
teltiGe which, whenever he chose to
do so, he had a right to occupy. His !
past or subsequent completely with |
those engaged in the rebellion might |
affect his character, but could not take |
away his legal rights.
1t certainly could not, as a matter |
Of law, give jmpunity 10 those by |
whose instrumentality he was seized, |
and tried upon q capital |
charge for serving his country. Such |
4 justification would be g strange |
anomaly. Evidence of reasonable |
acts on his part against the United |
States was alien to the issue before |
the jury. To admit it was TO put the |
trial as well as the defend |
ants.
The proofs upon the question thus
raised might be more vOluminous than |
hose upon the issue made by the |
pleadings. The trial might be indefi- |
litely prolonged. The minds of the |
ury could hardly fail to be darkened |
and confused as to the real character |
Of the case and the duty they were |
salled upon to discharge. The guilt |
Of the plaintiff, if established, could |
n no wise affect the legal liability of |
he defendants; nor could the fact be
in mitigation of damages.
It is well settled that proof of the bad |
character of the plaintiff is inadmis-
sible for any purpose in actions for
malicious prosecution.-Q GTeenl. |
Ev., 2 55.) All the evidence upon |
his subject disclosed in the bill of ex-
'epti0ns was incompetent, and should |
nave been excluded from going to the
ury.
This instruction also was erroneous.
The Judgment is reversed, and the
,ause will be remanded to the court |
below, with an order to issue Celire
ie moro.
OMINOUS.