In 1863 Congress passed an act for the protection of military persons against suits for certain acts done by them during the war without authority of law. The fourth section of this law read:

"And be it further enacted, that any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue." 24

There would seem to be little question as to the unconstitutionality of this law, should it be interpreted in as wide a sense as its language permits; for giving to its words the full meaning which they are capable of bearing, they assert the power of the legislature to justify acts of military officers without reference to their necessity, in other words, to substitute a legislative fiat for a justification in fact.

The validity of this act was questioned in the case of Mitchell v. Clark.25 In this case the plaintiff sued the defendant for rent due on a lease of certain warehouses. The defendant, admitting the lease, set up that the rent in question had been paid by him.

23 Law Quarterly Review, XVIII. 152. For an opposite view, see Edinburgh Review, January, 1902. under military orders, to certain military officials, and by them confiscated for the use of the United States. Whether or not this payment by the defendant constituted a payment of the rent due of course depended upon the lawfulness of its confiscation by the military authorities, which in turn depended upon the validity of the act of Congress of 1863. In upholding the potency of the act to legitimize the confiscation, the Supreme Court said:

24 By act of May 11, 1866. this provision was given still wider application.

25 110 U. S. 633; 4 Sup. Ct. Rep. 170; 28 L. ed. 279.

"That an act passed after the event, which in effect ratifies what has been done and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt."

There can be no objection to this statement that Congress, after an event, has the power, by an act of indemnity, to declare that no suit shall be based upon an act which it might have at the time authorized. This, it has been claimed, is all that that case decided.26 It would seem to the author, however, that a broader and more questionable doctrine was necessarily involved, in that, in a loyal State, removed from the seat of active hostilities, the court justified, not upon the basis of necessity, but of legislative sanction, an act of spoliation.27