Setting Up an Immunity Defense
In Mitchell v. Clark, 110 US 633, 637-8 (1884) the Court describes the setting up of an “immunity” defense, the first time I’ve ever seen this, saying:
“The first of these defences is intended to assert the validity of the military order by which defendants under compulsion of that order paid the rent which as tenants of Clark they then owed to him, into the military chest of General Schofield, and that said order being lawful and valid is a full protection to them and a bar to this action.
“We shall not undertake to decide in this case whether General Schofield had such authority as would make that payment a discharge of the debt or not.
“The third plea, conceding that the order of General Schofield may not of itself be a sufficient defence to the action, invokes the aid of the fourth section of article eleven of the Constitution of the State of Missouri as making the facts set out in the first plea a good defence.
“The language of this section is as follows:
“638*638 "No person shall be prosecuted in any civil action or criminal proceeding for or on account of any act by him done, performed, or executed after the first day of January, 1861, by virtue of military authority vested in him by the government of the United States or that of this State to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall heretofore have been or shall hereafter be instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof."
“This constitutional provision was adopted in 1865, and was clearly intended to protect the military officers or those acting under them from liability, civil or criminal, for acts done under their orders. Whether it covers the present case or not is not a question within our province to decide. The plea is made in a State court and sets up a defence under the State law, and however much the party may be aggrieved by that court's decision he in that plea sets up an immunity under a State law and not under the law of the United States. Of such matter this court has no jurisdiction, and we consider it no further.”
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