Bean v. Beckwith

having stated the case, delivered the opinion of the court, as follows:

There is no averment in the pleas that at the time the plaintiff was arrested any rebellion existed in the State of Yermout, against the laws or government of the United States; or that any military operations were being carried on within its limits; or that the courts of justice were not open there, and in the full and undisturbed exercise of their regular jurisdiction; or that the plaintiff was in the military service of the United States, or in any way connected with that service.

Nor is there any averment in the pleas as to the manner in which, or the parties by whom the charges of disloyal practices were made. It is not alleged that they were stated in writing or supported by oath.

*515 Nor do the pleas, whilst asserting that the acts, which are the subject of complaint, were done under the.authority and by the order of the President, set forth any order, general or special, of the President directing or approving of the acts in question.

For this last omission all the judges are agreed, without expressing any opinion, upon the other omissions, that the pleas are defective and insufficient. It is an old rule of pleading, which, in the modern progress of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong, upon the process, order, or authority of another, he must set forth substantially and in a traversable form the process, order, or authority relied upon, and that no mere averment of its legal effect, without other statement, will answer. In-other words, if a defendant has cause of justification for an alleged trespass, and* undertakes to plead it, he must set it forth in its essential particulars, so that the plaintiff may be apprised of its nature and take issue, upon it if he desires, and so that the court may be able to judge of its sufficiency.

The defendants intended by their pleas to rest the justification of théir conduct upon the provisions of the act of March 3d, 1863, entitled “An act relating to Habeas Corpus, and regulating .judicial proceedings in certain cases,” * and of the act of March 2d, 1867, entitled “An act to declare valid and conclusive certain proclamations of the President,, and acts done in pursuance thereof, or of his orders, in the suppression of the late rebellion against the United States.” †

These statutes were enacted, among other things, to protect parties from liability to prosecution for acts done in the arrest and imprisonment of persons dui’ing the existence of the rebellion, under orders or proclamations of the.President, or by his authority or approval, who were charged with participation in the rebellion, or as aiders or abettors, or as being guilty of disloyal practices in .aid thereof, or any *516 violation of the usages or the laws' of war. Assuming for this case that these statutes are not liable to any constitutional objection, they do not change the rules of pleading, when the defence is setup in a special plea, or dispense with the exhibition of the order or authority upon which a party relies. Nor do- they cover all acts done by officers in the military service of the United States simply because they are acting .under the general authority of the President as commander in chief of the armies of the United States. They only cover acts done under orders or proclamations issued by him, or under his authority; and there is no difficulty in the defendants setting forth such orders or proclamations, whether general or special, if any were made, which applied to their case.

The views thus expressed render it unnecessary to consider any other objections taken by the plaintiff to the pleas before us.

The questions certified must be answered in the negative, and the cause

K.EMÁNDED FOR FURTHER PROCEEDINGS.