to act as Franks did was not such an unreasonable command as that a soldier of common sense would feel authorized to refuse to obey. But be this as it may, conduct like this is such an intolerable invasion of private rights, and so at war with the principles set forth in the Bill of Rights, that "the people shall be secure in their person, houses, papers, and possessions from unreasonable search and seizure" (section 10), that we cannot consent that all military orders, however reasonable they may appear, will afford protection in the civil or criminal courts of the state. We have in this state an elaborate system of common and statute law, intended to, and that in fact does, meet every requirement of an orderly and well-regulated society. There is no interference with the peace or quiet of the citizen or molestation of his person or property that under these laws may not be punished. All these offenses against law and order have been carefully created and defined, and it cannot be seriously insisted that the mere dictum of a military officer may supersede the lawmaking department of the government, or that a soldier of his own will can convert into offenses against the peace and dignity of the commonwealth acts that the Legislature in its wisdom did not deem proper to so denominate. This condition can only exist when the civil law has been supplanted by the military, and the soldier is greater than the magistrate. As said by the Supreme Court of Illinois in Johnson v. Jones, 44 Ill. 142, 92 Am. Dec. 159: "The right of the citizen to his personal liberty, except when restrained of it upon a charge of crime and for the purpose of judicial investigation or under the command of the law pronounced through a judicial tribunal, is one of those elementary facts which lie at the foundation of our political structure. The cardinal object of our Constitution, as it is the end of all good government, is to secure the people in their right to life, liberty, and property. The more certainly to attain this end the framers of our Constitution not only proclaimed certain great principles in the Bill of Rights, but they distributed governmental power into three distinct departments, each of which, while acting in its proper sphere, was designed to be independent of the others. To the legislative department it belongs to declare the causes for which the liberty of the citizen may be taken from him; to the judiciary department, to determine the existence of such causes in any given case; and to the executive, to enforce the sentence of the court. If a citizen can be arrested except upon a charge of violated law, and for the purpose of taking him before some judicial tribunal for investigation, then it is plain that the executive department has usurped the functions of the other two and the whole theory of our government so far as it relates to the protection of private rights is overthrown. * * *As no charge is made, no judicial investigation had, it is left entirely to the caprice of the government to determine what persons shall be seized. The power to thus arrest being once conceded, every man in the state, from the Governor down to the humblest citizen, would hold his liberty at the mercy of the military officer in command." If, then, the soldier is not protected, from suit or prosecution by his military orders, the inquiry naturally suggests itself, What can he do to save himself from punishment for refusing to obey the command of his superior officer, from liability in a civil action by the person he has

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wronged, or from criminal proceedings on the part of the commonwealth? This embarrassing position in which the soldier finds himself is well treated in the Law of the Constitution by Dicey, p. 281, where he says: "A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than any civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to orders of the commander in chief. Hence, the position of a soldier may be both in theory and in practice a difficult one. He may, as it has been said, be liable to be shot by a court-martial for disobedience of orders, or to be hanged by a judge and jury if he obeys it. What is, from a legal point of view, the duty of a soldier? The matter is one which has never been absolutely decided. The following answer given by Mr. Justice Stevens is, it may be fairly assumed, as nearly correct a reply as the state of the authorities make it possible to provide: "The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds for giving. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of a double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.' While, however, a soldier runs no substantial risk of punishment for disobedience to orders which a man of common sense may honestly believe involve any breach of law, he can under no circumstances escape the chance of his military conduct becoming the subject of inquiry before a civil tribunal and cannot avoid liability on the ground of obedience to superior orders for any act which a man of ordinary sense must have known to be a crime." To the same effect is Medley's Constitutional History, p. 481.

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In Hare's American Constitutional Law, vol. 2, c. 41, p. 906, this learned writer lays it down that: "When a riot assumes such proportions that it cannot be quelled by ordinary means, and threatens irreparable injury to life or property * * * arms may be used as in battle to bear down resistance, and if loss of life ensues the circumstances will be a justification. The measure does not however cease to be civil, or fall beyond the rules which apply when a house is entered in the night by burglars, or a traveler shoots a highwayman who demands his money. Nor will it change its character because the military are called in and the sheriff delegates his authority to the commanding officer. As Lord Mansfield showed in the debate on the Lord George Gordon riots, in 1780, soldiers are subject to the duties and liabilities of the citizens, although they wear a uniform and may like other individuals act as special constables or of their own motion for the suppression of a mob, and if the staff does not suffice, employ the sword. The intervention of the military does not introduce martial law in the sense in which the term is understood under despotic governments and even been by some distinguished jurists, because agreeably to the same great magistrate and the settled practice in England and the United States they are liable to be tried and punished for any

MIL.L.-17

excess or abuse of power, not by the martial code, but under the common and statute law."

Running through these authorities, and others that we have examined, will be found the principle that the soldier is amenable to the civil authorities for his acts in violation of law; but that "yet a soldier runs little risk in obeying any order which a man of common sense so placed would regard as warranted by the circumstances. And if the circumstances are such that the command may be justifiable, he should not be held guilty for declining to decide that it is wrong with the responsibility incident to disobedience unless the case is so plain as not to admit of a reasonable doubt." Hare's Am. Con. Law, vol. 2, c. 41, p. 920; Dicey, Law of the Con., p. 285; Commonwealth v. Shortall, 206 Pa. 165, 55 Atl. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759; Luther v. Borden, 7 How. 45, 12 L. Ed. 581; Mitchell v. Harmony, 13 How. 115, 14 L. Ed. 75; Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281; McCall v. McDowell, 1 Abbott (U. S.) 212, Fed. Cas. No. 8,673; United States v. Clark (C. C.) 31 Fed. 710; Riggs v. State, 3 Cold. (Tenn.) 85, 91 Am. Dec. 272; Christian Co. Court v. Rankin, 2 Duv. 502, 87 Am. Dec. 505; Hogue v. Penn, 3 Bush, 663, 96 Am. Dec. 274.

With the liability of the soldier under the military law for refusing to obey the orders of his superior officer we are not much concerned in disposing of the matter before us. Whether the military law can punish him or not for disobedience of an order that if executed would involve him in civil or criminal liability, is a question that it is well to postpone answering until it comes up. But, what orders of his superior a soldier may obey and be exempt from civil liability, and what orders his obedience of will subject him to suit, are before us and must be disposed of. Upon this point, after mature consideration, we have reached the conclusion that any military order, whether it be given by the Governor of the state or an officer of the militia or a civil officer of a city or county, that attempts to invest either officer or private with authority in excess of that which may be exercised by peace officers of the state is unreasonable and unlawful; and if it is obeyed, the officer or private giving obedience subjects himself to such punishment and liability as the penal and civil laws of the state might inflict against a private individual guilty of similar transgression of the law or the rights of the citizen. We feel at liberty to thus define the limits within which soldiers may lawfully act, because all the authorities agree that the courts may at the instance of any person who has been aggrieved or on behalf of the commonwealth inquire into their acts and doings and determine whether or not they have been guilty of any conduct that would subject them to liability or punishment. The only difference between our ruling and that obtaining in the authorities cited is that we define more precisely than they do what orders a soldier is justifiable in executing, and hold as a matter of law that these orders are confined to such as a peace officer in the discharge of his duty might execute. In respect to these orders, the powers of the military and local - civil officers of the state are identical. What one cannot do, neither can the other; what one may do, so may the other. The soldier has the same measure of protection and is subject to the same liability, whether he is acting under the orders of a military officer, independent

of the local civil authorities, or is acting under immediate direction of these authorities. Neither has the right to give any orders or directions except those that a peace officer of the state might rightfully execute; and if the soldier does only what a peace officer may do, then he is entitled to the immunity afforded peace officers in the performance of their duty. This rule of conduct is of course not free from objection, but upon the whole we think it furnishes a reasonable guide for the militia, and describes with as much accuracy as conditions will permit the lines within which they may act with safety and beyond which they may not go without peril. Its observance will protect the quiet and orderly citizen from disturbance, and arrest and leave the lawbreaker to be dealt with as his conduct deserves.

Let us now see what the military can do surrounded by this limitation upon its power, and whether or not it can be an efficient force in every emergency that may require its assistance. In treating this aspect of the case, we shall not undertake to go into details concerning what a peace officer may or may not lawfully do. Cases presenting this question come up in so many different forms that, excepting some general principles that are applicable to all, each case must be adjudged by the facts it presents, and it would be outside the scope of the matter before us to undertake any discussion of this feature. It has been treated of in numerous opinions of the court. We are chiefly interested in the inquiry whether or not if the power of the militia is confined to . the doing of those things that a peace officer may rightfully do, will its operations be so embarrassed that it cannot successfully master any conditions that it may be called on to deal with. Under section 26 of the Criminal Code of Practice sheriffs, constables, coroners, jailers, marshals, and policemen are peace officers; and other officers are so designated by various sections of the statute. Section 36 of the Criminal Code of Practice provides that "a peace officer may make an arrest, without a warrant, when a public offense is committed in his presence or when he has reasonable grounds for believing that the person arrested has committed a felony"; and in other sections of the Criminal Code and statute and under the common law there are provisions further defining the powers and duties of peace officers in cases of riots, routs, unlawful assemblies, or when two or more persons have confederated or banded together for the purpose of intimidating, threatening, alarming, disturbing, or injuring any person or molesting or destroying any property. Under the common law and these various statutes the military acting as peace officers would have the right to arrest any person who had committed a felony, or was committing in their presence an act that constituted a public offense under the statute or at common law, and the right to disperse, control, and suppress riots, routs, unlawful assemblies or bodies of men acting in concert for the purpose of intimidating, threatening, alarming, disturbing, or injuring any person or molesting or destroying property, with all the means and force necessary to accomplish these ends. Ela v. Smith, 5 Gray (Mass.) 121, 66 Am. Dec. 356; Russell on Crimes, vol. 1, pp. 266–289; Blackstone's Com. vol. 4, p. 143. This statement does not of course describe all the conditions under which the military acting as peace officers may make arrests or disperse disorderly or other gatherings. It

is only intended in a general way to illustrate that when the militia is armed with the power and authority of peace officers, under the statute and at common law, there need be no apprehension that they cannot effectively control any situation demanding their presence. The militia of the state are in truth peace officers. The purpose of their existence is to preserve the peace and quiet of the state in its broadest sense, and when this has been done, the life and property of the citizen is secure.

It results from what we have said that the conduct of Franks and his associates in arresting Smith was indefensible. He had not committed any act that would justify a peace officer in arresting or detaining him. Gans and McFarland participated in his detention and so were equally liable with the others, but no appeal is prosecuted against them.

It is said that the verdict against Franks is excessive, but we are not disposed to disturb it on this ground.

Wherefore the judgment is affirmed.

3. GOVERNMENT'S CIVIL LIABILITY FOR CONTRACTS AND TORTS BY MILITARY PERSONS

1. UNITED STATES v. McLEMORE.

(Supreme Court of the United States, 1846. 4 How. 286, 11 L. Ed. 977.)

This was an appeal from the Circuit Court of the United States for the District of Middle Tennessee, sitting as a court of equity.

It is unnecessary to recite all the circumstances which led to the filing of the bill in equity, as it was dismissed for the want of jurisdiction in the Circuit Court. The facts in the case are summarily stated in the opinion of the court.

Mr. Justice McLEAN delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court of the United States, for the district of Middle Tennessee.

The bill was filed by McLemore and Cantwell, surviving executor of Robert Searcy, deceased, and surviving executor of George M. Deoderick, deceased, representing that a judgment was obtained by the United States against the executors of Searcy, for the sum of seventeen thousand and twenty-eight dollars and forty-one cents. That various payments had been made on the judgment until the whole or nearly the whole had been paid. That the last execution on the judgment was issued the 10th of January, 1842, for a balance claimed on the judgment of two thousand eight hundred thirty-two dollars and thirty-seven cents. And they state that their payments were made to different persons named, who succeeded each other in the office of District Attorney of the United States for Middle Tennessee; and that by the absence and death of a part of them it is difficult to show the sums paid. That the money was principally collected by the district attorneys on notes handed them for collection, the proceeds of which, when received, were to be applied to the discharge of the judgment. That this arrangement was sanctioned by the treasury depart