INDEMNITY. 



exercises them. Warrants issued by others have no 

 further authority than is contained in the emergency 

 on which they are founded. If the circumstances 

 the pressing nature of the emergency justify the act, 

 they justify the warrant, but not otherwise. It is not 

 usual to call such orders warrants, and they are not 

 properly so called. They are merely orders of a supe- 

 rior to a subordinate officer to do a special duty which 

 usually he ought to do without such order. 



When a great conflagration or a violent mob is rag- 

 ing, or a vessel is attempting to transgress the reve- 

 nue laws or the laws of war, and to escape, there is no 

 time for warrants, and the necessary work must be 

 done without them. But then it is always done under 

 responsibility to law through the courts of justice. If 

 the occasion and the law of the land justify what ia 

 done, then the want of a warrant is excused. 



We understand now the case we have before us. 

 The defendants had no such warrant as is required by 

 the Constitution. It was an order of " request," not 

 issued by any judicial officer, and was not founded on 

 the oath of any one, and there is no pretence that any 

 such violent outrage on social order had been commit- 

 ted, and no such pressing and urgent emergency ex- 

 isted -as to justify the seizure without warrant, and 

 therefore no justification is made out. 



There is nothing in the act of Congress of the 6th 

 of August, 1861, that justifies it. It requires the Pres- 

 ident, in certain cases, to cause certain property "to 

 be seized, confiscated, and condemned ; " but this 

 means by due process of law. It is not to be done by 

 the President himself, but by due process of law, by 

 the proper functionaries, and. he is to see that they do 

 their duty. These defendants undertook to do this act 

 without warrant, and without any proper occasion 

 shown to us, and therefore they are mere trespassers. 

 They are trespassers from the beginning to the end ; 

 and the first step in the matter being unjustified, no 

 subsequent and unsuccessful proceeding under the act 

 of 1861 can shelter them from liability for compensa- 

 tion. They would have been liable for a malicious 

 prosecution without probable cause, if the act had 

 been under a writ apparently valid. The plaintiff is en- 

 titled to full compensation for all he has lost by this act. 



Is the plaintiff entitled to exemplary damages? 

 Yes, in so far as their act was inspired by mere wan- 

 tonness ; but exemplary or punitive damages are usu- 

 ally allowed rather for the moral than for the legal 

 wrong that accompanies such acts. For the legal 

 wrong, compensation is the measure of redress. For 

 the moral wrong, the recklessness of the act, the per- 

 sonal malice with which it is done, the violence and 

 outrage attending it, for this you are authorized to al- 

 low exemplary damages ; such as are reasonable under 

 all the circumstances. You must judge how far the 

 defendants are guilty of any moral wrong, beyond the 

 legal wrong in the act complained of. * * * 



If the law of the land is the sober and abiding 

 thought of the whole people, that lives through all dis- 

 orders and excitements, and survives and judges them 

 all the great ocean undercurrent of thought to which 

 waves, and storms, and tempests do not reach then 

 what I have said is the law still. I know of no other 

 law for this case. This is the law and the plaintiff is 

 entitled to damages compensative if the defendants 

 acted in good faith and under a mere mistake of au- 

 thority; and exemplary if there was any bad faith, 

 recklessness, and oppression intended in their acts. 1 



The jury returned a verdict in favor of plain- 

 tiff for $512. 



Judgment having thus heen rendered for the 

 plaintiff, a motion was made to remove the 

 cause to the ^United States Circuit Court, in 

 accordance with the provisions of the Indem- 

 nity Act. Judge Strong, of the Supreme 

 Court of Pa., in granting the motion says: 



Clearly the right to remove does not depend up- 

 on the extent of progress which the cause has 

 made in the State Court when the removal is at- 



tempted. To my mind it is plain that Congress in- 

 tended, at the instance of a defendant, to transfer from 

 the State to the Circuit Court any suit or prosecution 

 of the nature described, at any stage of its progress. 

 No matter in what condition it may have been when the 

 act of Congress was passed, if commenced before, and 

 an appearance had been entered, a petition for its re- 

 moval was authorized at the next session of the court, 

 or, if judgment had been obtained, an appeal was al- 

 lowed^ during the term at which it was signed, or a 

 writ of error within six months after its rendition. 

 Such is the letter of the act, as well as its clear spirit, 

 and, like every other act, it must be construed so as to 

 carry out its spirit. 



It was also urged in the argument that the 

 case sought to be removed did not belong to 

 the class of cases for which provision was made 

 by tho act of Congress of March 3d, 1863. 

 Judge Strong said, in reply to this objection : 



The record in this case shows that they acted under 

 an order or warrant from the district attorney, which re- 

 quested them to seize the property for confiscation and 

 condemnation, according to the provisions of the act 

 of August 6th, 1861 ; and the warrant also asserted 

 authority from the President of the United States. It 

 was signed by the district attorney as such, and it was 

 directed to William Millward, Marshal. If this was 

 not color of authority, both of an act of Congress and 

 of the President's order, what would be ? Color is an 

 apparent or prima facie right. It may have no sub- 

 stance, but if there be an appearance of right or author- 

 ity, it is colorable. This authority, real or colorable, 

 the defendants pleaded at the trial, and its efficacy is 

 one of the main points in controversy. I am not called 

 upon to express any opinion upon the question whether 

 the act of the defendants was, in fact, authorized by the 

 President of the United States. There is evidence on 

 our record that it was, but it is sufficient that when 

 the act of which the plaintiffs complain was done, there 

 was in the hands of the defendants an apparent author- 

 ity from the President, and that the seizure was made 

 under the asserted warrant of an act of Congress, assert- 

 ed by the district attorney, whose duty it was, under 

 the act, to attend to the seizure and condemnation of 

 the property which it was the intention of Congress 

 should be confiscated. I am clearly of opinion that 

 the case is one of those embraced in the provisions of 

 the act of Congress of March 3d, 1863. 



In regard to the constitutionality of the 

 which was brought in question, the judge said : 



I do not perceive that this act is a clear violation of the 

 Constitution. The third article of the Federal Consti- 

 tution declares that the judicial power shall extend to 

 all cases in law and equity arising under this Constitu- 

 tion, the laws of the United States and treaties. Then, 

 if the cases provided for in the act of Congress of 

 March 3d, 1863, are such as arise under the Consti- 

 tution, or under the laws of the United States, or un- 

 der treaties, jurisdiction over them may be lawfully 

 conferred upon the Federal courts, as it was in another 

 class of cases, by the 12th section of the Judiciary Act 

 of 1789. . If, then, the judicial power of the Federal 

 Government, as conferred by the Constitution, extends 

 to the adjudication of such cases, the right of Congress 

 to provide for the removal of them from the State to 

 the Federal courts is not to be doubted. It is a right 

 which was exercised in the Judiciary Act of 17sy, ami 

 it has been acted under ever since, without being call- 

 ed in question. 



The order for removal was allowed. 



The case being certified into the Circuit 

 Court of the U. S., a motion was made before 

 Judge Grier to remit the record on the allega- 

 tion that the case did not come within tho pro- 

 visions of the act. The judge denied the mo- 

 tion, delivering the following opinion : 



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