The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1875-10-09

| With such brevity and plalness, that they
may be readily comprehended.
shall first consider the principles, apart
from the statutes which have been referred
to and as though they did not exist. This
| government is one of law, and of law en-
| written constitution. Nobody can be le-
gally arrested and imprisoned except 1t be
in accordance with the known and estab-
| lished principles of law of some kind.
| Three kinds or classes of law in regard to
| the administration of criminal justice are
| recognized in the constitution of the United
States, military law-martial law, and
the law under which civil courts ordinarily
act which l shall denominate the common
law.
Military law is only applicable to persons
in the army or navy of the United States
or in the military, when in actual service
in time of war or public danger. "The dis
cipline necessary to the efficiency of the
army and navy required other and swifter
modes of trial than are furnished by the
common law courts and in pursuance of
the power conferred by the constitution.
Congress has declared the kinds of trial and
the manner in which they shall be con-
Quoted, for offenses committed while in the
military or naval service. Every one con-
nected with these branches of the public
service Is amcnable TO the jurisdiction
which congress has created for their gov
ernment." Omitted States VS.. Mlligan, 4
Wall p. No other persons, citizens of the
state where the courts are open are amen
able to military law which is administered
by courts called court martial. To take n
simple illustration, Guptill and Brown
were soldiers of the army of the United
opI fHhpu
liable to arrest and to trial by military law.
The order for their arrest was valid order,
and is they had been arrested they could
properly have been tried and sentenced by
military court.
Martial law Is the system of rules and
regulations proclaimed by military author
tiles and enforced by military power in
country which is in a state of actual war and
Is held by force OF arms, when the civil
courts are closed and there are no existing
civil tribunals for the preservation of order.
Martial law in such u case and for the
time being exists from necessity but "never
exists where the courts are open and in the
proper and unobstructed exercise of their
jurisdiction. 1t is also confined to the To-
cality of actual war;
The remaining kind OF law Is the law
under which civil courts act and is that
system of legal proceeding which has been
established for the protection of private
rights of persons, and which IN this part of
the country is derived from the common
law of England as modified by the statutes
of the states and the decisions of the civil
courts.
Martial law did not exist in this state 10
the year 1864 and 1865, Mr.. Bean was not
member Of the army and was not subject
m tr,ilt fnrx l.,,,
prisonment only in accordance with the
rules OF the common law.
One of these rules which is expressly
embodied in the constitution ia that n } per
son shall be deprived of liberty without
due process OF law. Not to dwell upon
the abstract question OF what due process
of law is, but combining myself to the cir
cumstances of the case, 1t is sufficient Tor
me to say that due process of law is not
the arrest and imprisonment by mere mill
tary order of citizen for an offence cog
nizable by civil courts, in state which is
at peace-that such an order to arrest and
confine In Jail citizen residing in state
not in rebellion, is an Illegal order, and not
justification of any officer who acts un-
der it, An illegal or void warrant is no
justification for the acts of any person
who executes such void warrant. The
person who executes an illegal order is
justly visited with the consequences
of his acts. 1t follows, then,
apart from the statutes that nei-
ther of the defendants had any right to
imprison the plaintiff. But the defendants
say that, admitting these maxims to be
true, they are fully and completely justi-
fled by two statutes of the United States,
one of March 3, 1868, and the other of
March 2, 1867 The last act is an en-
largement of the former act 1t is earnest
ly contended that this arrest and imprison-
ment is directly validated by the act which
is not applicable to this case, and if appl-
cable the statute is VOID by.reason of It's
unconstitutionaliiy. Two questions then
arise First, does the arrest and impris.
onment of Bean come within the provis.
ions of either act of 1868, or the act of
1867 If so, is the statute valid 1.-THE
statute only covers acts done under orders
or proclamations issued by the president,
or under his authority. 1t does not cover
oil acts done by officers in the military SER
vice of the United States simply because
they are acting under the gen.
eral authority Of the president as
commander In chief" The valuation of
acts of military officers is confined to acts
done in pursuance of or in aid of proca-
nation or order OF the president, or by his
authority or with his approval. No such
proclamation or order has been called to
the attention of the court j, is virtually
conceded that none exists. The approval
or authority of the president is not shown,
it is not claimed that any approval or au-
thority was actually given, but it is claimed.
First-That the authority of General
Pitcher has in law, the authority and ap
proval of the president. Such a PROPOSE
ton is not well founded.
Second. That the acts of the defendants
are, by the statute, held p,ina tacie to have
been authorized by the government. AS
Stunning that the construction which is
placed DO the defendants upon the statute
is correct, and that from the commission
of an act the presumption is that it was
authorized by the president and that such
presumption must be rebutted, yet, after
all the testimony in this case, it is too plain
for contradiction that such presumption,
if it ever technically existed no longer cX-
lists. 1t has been proved who alone did
make, issue or authorize the order under
which the act was done. All the persons
who made the order or who executed it
have been witnesses and. do not claim that
any uuluciltJ was up
proval was given by the president
1t is, therefore, my duty to say to you
that no justification exists forthis imprison-
ment, but that it was entirely unwarranted
by law.
Your only question ia in regard to the
amount of damages. The simple arrest of
this man was comparatively of little con-
sequence. If he had been arrested and
taken to headquarters, and then sent Off it
would have been an illegal net, but one
which would have called for very small
damages. If he had been arrested without
warrant, and taken before U. s. court it
might have been technically an illegal act,
but of no great moment. The impor-
lance of this case consists in the imprison-
ment, and in the purpose of the imprison-
ment. The imprisonment is the gist of
this action. The first written statement