Schuneman v. Diblee

Per Curiam. This verdict is against law and evidence, and there must be a hew trial. It is not pretended that the plaintiff was not legally imprisoned by the order of Colonel Colden, and the only act for which the defendant can be called in question, is the direction given to Captain Schuyler to tie the plaintiff to the guns of the fort, if he refused compliance with the standing rule or order of the garrison, that prisoners committed for custody should perform the fatigue duty of the garrison, such as sweeping the platform, dusting the guns, and washing off the gun carriages. It has been insisted that these orders were unauthorized, and that no services could be required of a prisoner; and that the tying him to the guns was, in itself, a distinct punishment unwarranted by the rules and articles of war. The court are not of the opinion that the rules and articles of war apply to, or affect this case, in any degree. On the contrary, we think that a violation of duty by a soldier, which produces his imprisonment does not exonerate him from the performance of any other duty which, under his restraint, he is capable of performing. Were it otherwise, his criminality would put him in a better situation than that of a soldier who did his duty well. An offence can never confer a privilege to be exempted from all duty; and confinement is a means used merely Co prevent escape ; it certainly does not confer a privilege to be [238] idle. The evidence in the case proves the usage to have beea~ that prisoners were bound to perform such services as were required of the plaintiff, and we concur in the opinion of the judge who presided at the trial, that the whole of the law martial is not written, and that it is composed. in part, of military usage, which usage must govern in all well-organized troops, when it is not unreasonable, or in opposiuon to special enactments. There must exist a right in an officér having charge of a to use his discretion in increasing the rigour of his according to the disposition manifested ; and this as well to military as civil offenders. Suppose a prisoner evinces an intention to escape, may not the officer increase his restraints ? Had the defendant, in the first instance, tied the plaintiff to the guns, by way of securing him, it could not have been pretended that such kind of imprisonment would be illegal. The very facts in the case would have shown the necessity; for it is in proof that the guard-house was insecure, and that prisoners had escaped from it. If, then, the defendant would be justified in ordering the plaintiff to be tied to the guns in the first instance, it will not furnish the ground of an action, as for an assault and battery and false imprisonment, that the plaintiff’s conduct in disobeying his orders, and contemning his authority in a case where the service required was reasonable and proper, induced the defendant to do in the last instance, what he might have done in the first. The defendant’s will and pleasure was his legitimate rule of conduct, where the exercise of it was not in violation of the plaintiff’s rights, nor against law.' New trial granted; the costs to abide the event of the suit.