In the conclusion upon the legal points necessary to be decided in the case at bar, I fully concur; nevertheless certain propositions are advanced in the opinion, by way of argument, which I think are unnecessary and illogical, and, with that part of the argument, I do not agree, and desire to so say, although what I may say can not be strictly called a dissent. There are also some additional and somewhat different reasons which have presented themselves to *393my mind, which I desire to offer, to sustain the conclusion of the Court. The theory upon which the conclusion arrived at is based, and very justly too, is that certain reserved and constitutional rights of a private citizen — the appellant — had been wrongfully wrested from him by the defendant, in the capacity of a military officer, in the face of the Declaration of Independence, and notwithstanding the express guarantees of the constitutions of the United States and of this State. The former is the foundation stone upon which the structure of our government is reared. It declares in emphatic language that men are “ endowed by their creator with certain unalienable rights; that among these are life, liberty and the. pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.” The constitution of the United States was framed to secure these, and provides that the “ trial of all crimes, except in cases of impeachment, shall be by jury; sec. 2, art. 3; and the person of the citizen shall be secure from unreasonable seizures.” 4 Amendment. The sixth amendment reiterates the right of one accused to a speedy trial by a jury. The constitution of the State also guarantees these rights; art. 1, secs. 11,13 and 19; and in express terms declares that the “military shall be kept in strict subordination to the civil power.” Art. 1, see. 33.
In open disregard of all these guarantees, the appellant was seized without a legal warrant and punished, by imprisonment, without a trial. This, punishment was inflicted under the semblance of military authority. The opinion, as prepared by Judge Perkins, is clear and satisfactory to my mind that, no legitimate authority was, under the circumstances, possessed by those who attempted thus to exercise it. If in this we are mistaken, then it follows that in this portion of the country, where no war, insurrection or rebellion exists, the will of a military officer becomes the law; yea, the su *394preme law, by which men may be deprived of property, their liberty, and even their lives; whereas, it is provided that the constitution, and laws passed in pursuance thereof, shall be the rule to regulate men’s actions. Art. 6. I am aware it has become very fashionable for men, who have bestowed but little thought upon this subject, or who are blinded by fanaticism, to express a willingness to set at nought the constitution and the laws, if, in their opinion, they s'tand in the way of the adoption of favorite measures to suppress the rebellion. Believing that a strict adherence to the constitution and the proper enforcement of the laws made in pursuance thereof, would greatly aid in the exercise of the just and sufficient powers of the government, which is the very best ever invented by the wisdom of man, I avail myself of this opportunity to put upon the record my protest against such dangerous doctrines, full of heresies towards a republican form of government, tending to consolidation, the ultimate erection of a monarchy, or military dynasty, which history informs us is always a despotism.
It will be observed that the judgment in this Court, in the case at bar, is based upon the theory of the unjust exercise of force by the military authority, and in the opinion many other instances of a like character are referred to. The opinion then seems to assume, and it appears to me to step aside to assume, that to prevent territorial separation, we concede the necessity of keeping up the army, to whatever improper use it may be put by the administration. This savors more of a political than of a legal proposition, and is, in my view the illogical part of the argument, is wide of the legal conclusion arrived at, and is, in effect, saying that to part with a portion of territory is the worst evil that can befal us. "Whilst, as a question of policy, all men are equally, perhaps, opposed to any division of territory, or separation of States, yet some honestly believe there are greater evils. The frame work of *395our government has not been legally changed since it was first framed as the rule of action to govern some four millions of people, in thirteen States. It was yet the same at the commencement of this rebellion, when it included within its ample folds thirty millions of people in thirty-four States. It was equally adapted to the larger as well as to the smaller space. It is in point of fact and of law but the same government to-day that it was before the war — so far as States where no war exists are interested, for the people, who are by the theory of the government the source of all power, have not changed that form of government. Whether those who are, for the time being, administering the government, have been guilty of the exercise of powers not granted by the constitution, is quite another question. The government, as we have seen, was inaugurated to secure to each citizen certain unalienable rights — rights which have not been alienated, or transfered, to Congress, nor to the President, nor to the military commanders; for they could not be so conveyed and the people remain free, and when wrested from them by force they will become mere serfs. If those sacred rights, among which are the liberty of speech, the liberty of the press, a,nd the freedom of elections, which are the three great bulwarks of free institutions, are to be stricken down, permanently destroyed by armed force; or, if that force is not to be used to restore the just authority of our once glorious government, but merely to establish, by wading through seas of blood, a single consolidated government, having for its corner stone certain chimerical ideas of philanthropy, fraternity and equality, social and political, of all races of men, without respect tomolor, then it might not be so readily conceded that imperative necessity would require that the force should be kept up solely for such purpose.
As to the act of Congress, set forth in the opinion, and upon which the decision of the lower Court is attempted to *396be justified, it is necessary, perhaps, for a moment, to advert to the circumstances surrounding those who framed the constitution of the United States, to fully appreciate the provisions of that instrument, quoted as bearing upon said act. Previous to the revolution, the laws, usages and customs prevailing were, to a great extent, those of the mother country, for the colonies wei’e subject to her control. History shows that in that mother countx’y, instances had occuxu’ed of the assumption of unwarranted power, and the exercise of oppressive acts, by those administering the government, and that to shield themselves from the legal effect of their unjust acts, the oppressors, ministers in powex’, had procured acts of Parliament exhonerating them from liability to the outraged laws and injux’ed citizens.
In England such statutes might be held valid, because they have no written constitution, and in their theory of government the Parliament is omnipotent; it has caused Princes to be crowned and Kings to be beheaded; it is supposed to be the voice of the governing power. In this country the people have said, hi effect, by a written constitution, this power we give to the President, this to the Congress, and this to the federal judiciary. They wrote down the grant of power to each department. Beyond the passage of laws necessary to carry out those powers, Congress can not rightfully go. All other powers not thus delegated to either or all of those three departments, nor prohibited to the States, are reserved to the States respectively, or to the people. See 10 amendment. Not content with this definite grant of powers, and positive reservation of all other powers not so granted, certain stringexit prohibitions and restrictions upon the action of the federal government and its departments were inserted. The very first line of the guarantees is that “ Congress shall make no law,” &c., &c. See 1 Amend. Const. U. S. Then follows, as I understand that instrument, the enumeration of *397various subjects upon which the Congress shall make no law infringing the rights of the people. Among those rights are life, liberty, and the right to possess and enjoy property, of which the citizen can not be deprived without due process of law; 5 amendment; and also to be secure from arrests, &a. 4 amendment. Now, it will be observed that in England, by the common law, the individual was, to a certain extent, protected in his person and his property. Yet that protection had been repeatedly disregarded by those in power, and the perpetrators of the wrong shielded by acts of Parliament, as before stated. Therefore to prevent such an unjust course of procedure, the constitution thus expressly sets up a barrier against the passage of a law by Congress authorizing the perpetration of such acts of wantoness by those in authority. Then the simple question is, if the Congress can rightfully pass no law authorizing the perpetration of wrongful acts; as to these reserved rights of the citizen, can it, after they have been committed, shield the offender by saying he shall not be responsible in damages to the sufferer. There is no question as to the pardoning power involved, for Congress possesses no such power. That power is lodged in the President and relates only to “ offences against the United States,” not to damages to one individual by the unlawful and injurious act of another. Art. 2, see. 2, Const. U. S.
John L. Ketcham, for the appellant. E. A. Davis and T. W. Bowles, for the appellee.Eor these reasons, and those of a legal character given in the opinion of the Court, the judgment ought to be reversed.
Per Curiam. — The judgment is reversed, with costs. Cause remanded.