The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1875-10-09
United States Circuit Court.
Hon. NATHANIEL SHIPMAN, judge.
b. B. SMALLEY, clerk.
ID. Il. FIFIELD, district attorney.
GEORGE p. FOSTER, marshal.

l :
The suit was brought in 1865, in The
Orleans county court, and was removed
by the defendantsto the United States cir
cult court Tor trial, the defendants pleaded
in their justification the provisions of the
statutes of the United States of March 3
1868 and March 9, 1867, which enact ii
substance, that no action shall be main
tanned for any act done by any military OIL
naval officer during the rebellion, in pur
suance of any order or authority of the
president, and that any act done by sucf
officer in the suppression of disloyal
practices shall be deemed prima
fdcie to be by the authority of the presi.
dent. The questions arising on these pleas
were carried to the United States supreme
court, and were argued there by Mr..
Phelps for the plaintiff and the United
States solicitor general, Mr.. Phillips, for
the defendants. The question of the con-
stitutionality of the acts, though argued
was not decided, the supreme court holding
that their provisions extended to no trans
actions except those done by the direct au-
thority of the president.
The case now came on for trial Oh the
merits. Messrs. Geo. N. Dale, N. r.
Sheafe and E. j. Phelps were counsel for
plaintiff. Hon, i. p. Poland, Chas. N.
Davenport and b. F. Fifield, United States
district attorney for the defendants. Judge
| Sh;n,,o, ohorood tho irry nc fnlIo,vo
JUDGE sHIPMAN's CHARGE.
Gentlemen of tie JU,y This is an ac-
| ton of trcspass for an alleged assault and
| battery ard for false Imprisonment,
brought by Andrew ]. Bean of Manchester
| in the state of New Hampshire, against
Daniel N. Beckwith and Gilman Henry,
both of whom when the suit was brought
| citizens of this state. The facts in the case
which are not controverted are as follows :
In June, 1864, the plaintiff was a resi-.
| dent of Coaticooke, in the Province of
| Canada. MIR. Henry was provost marshal
and Mr.. Beckwith was deputy provost
marshal of the second congressional district
of this state. Two persons named John
| Guptill and Eden Brown came from Can
ada on June ID, 1864, for the purpose of
enlisting as substitutes into the army of the
/ ullGu DttJtS anu WCIC accompanied ny
the plaintiff and one auckland and Jewell.
| The plaintiff acted at the time as the bro
| ker or party who made the contract be
tween Brown and the person for whom he
was to serve as substitute and for the ser
| vices rendered in such brokerage capacity,
| the plaintiff was to obtain S400 of the
| 5000 which Brown received. auckland
and Jewell, one or both, were brokers for
Guptill.
The two substitutes were duly enlisted
into the service of the United States in the
| second congressional district, by Mr. Beck
with, under the direction of Mr.. Henry,
| and $500 OF the money belonging to them
was left in the custody of Mr.. Beckwith.
In addition to the $500 the principal agreed
to pay and did pay into the hands of the
| two brokers the sum of $500, as the residue
of the contract price for which the substi
| tute agreed to enlist. OF this money $4O0
was received by the plaintiff who returned
to Canada the same or the follow
| ing day. On the night of June
| 18th the two enlisted men deserted
and never returned. The two defendants
| from the circumstances of the case, enter
tanned the opinion that the enlistment and
| the desertion was a precOncerted plan upon
| the part of the five men who came from
Canada, and that Bean and auckland and
Jewell were at least prvy to the escape of
the enlisted men, if they did not aid them
in their desertion and that the receipt of
the $500 was fraud upon the principals
or the United States government. Mr..
Henry thcreupon, as he states, by
verbal direction of General r. j.
Pitcher, issued written order to Mr..
Beckwith to take transportation, arrest
the five men If they could be found, and
upon their arrest to bring them to the head
quarters of Henry or to the headquarters
of Gen. Pitcher at Brattleboro. This
written order cannot now be found, hay
ing, as it is SAID, been sent to Washington.
The plaintiff does not admit that any
written order was then given, but it is not
material whether the order was written or
verbal. Mr.. Beckwith made search for
two or three days without success, and the
active search was abandoned until Noyem-
Der II, 1864, when he accidentally met
Bean in the cars at Wells River junction
and arrested him by virtue of the order
which has been mentioned.
He took him to his house at Sutton, the
next day carried hip to Windsor, the head
quarters of Henry, who ordered HIM con-
fined in the state prison at that place. The
| reasons and fact of the arrest were COM
municated in writing through Major Aus
tine, the successor of General Pitcher, on
| Nov. 20, by Captain Henry in his report
in the following words, g Arrested A. j.
Bean, charged with having taken part of
the money paid for two substitutes, and
then being privy to their deserton, and is
held for the return of the money"
Captain Henry made further full re-
port to Maj. Austine on December 10,
1864 or thcreabouts.
Bean was kept confined at night in an
ordinary cell in the state prison. and was
under constant surveillance during the day
time. He frequently solicited a trial and
finally wrote to the commanding of
iicer of the department of the east, who
communicated reply through Maj. Aus
tine approving of the arrest and informing
Bean that he could be released on the pay
mont of $500.
During the interviews of Capt. Henry
with Bean in the state prison, he was CON
stantly Informed that upon the payment of
this sum and the expenses of his arrest he
could be discharged. Finally on or about
Marc h 2, 1865, the fact and the cause of
Beans detention were brought officially to
the authorities at Washington, who on
April 8, 1865, directed that he be turned
over to the civil authorities of Vermont.
On April 20, 1865, he was released on bail
having been in confinement since Nov. IL,
1864. He was subsequently bound over
for trial by United States commissioner
but If the matter here came before grand
jury. u true bill was not found.
At the time of the arrest no rebellion
existed in the state of Vermont against the
government of the United States and no
military operations were being carried on
within its limits The courts of justice
were open and in the undisturbed exercise
of their regular Jurisdiction. The plain
tiff was not and never had been in the
military service of the United States or in
any way connected with that service No
charges in writing were made against Bean
until December 10, when he was Informed
in writing by Captain Henry of the charges
| mazda auatpat him (Ipdna Sl,ipmau than