INDEMNITY. 



519 



cases from the State to Federal jurisdiction, if it haa 

 any constitutional foundation, is founded upon the 

 third article of the Constitution of the Unitea States, 

 defining the extent of the judicial power delegated by 

 the States to the Federal Government, and particularly 

 upon that part of section 1 of said article, which says 

 that " the judicial power shall extend to all cases in 

 law and equity, arising under this Constitution," etc. 

 The defendant in this application maintains that the 

 defence which he intends to set up in this action arises 

 under the Constitution of the United States the ques- 

 tion to be determined being whether the President of 

 the United States, during a rebellion or insurrection, 

 can arrest or imprison, or authorize another to arrest 

 or imprison, any person not subject to military law, 

 without any order, writ, precept, or process, of some 

 court of competent jurisdiction, Now, we assume that 

 this question, if a question at all would arise under the 

 Constitution of the United States that is, whether the 

 President possesses this power, either in his civil ca- 

 pacity or as Commander-in-Chief of the army and 

 navy of the United States can be solved only by con- 

 sulting and interpreting that instrument. But to enti- 

 tle the defendant to this order, and to give the courts 

 of the United States jurisdiction of this action, there 

 must be some appearance or color of substance in it. 

 It must have some speciousness, some seeming of 

 plausibility, and must not be palpably devoid of any 

 ground of doubt. Can it, then, be a question present- 

 ing any appearance of substance or color 01 doubt, 

 whether the Constitution of the United States of Amer- 

 ica has invested its chief executive officer with power 

 to arrest or imprison, or to authorize another to arrest 

 or imprison, any person not subject to military law, at 

 any time or under any exigency, without some order 

 or precept, or process of some civil court of competent 

 jurisdiction ? 



It cannot, of course, be pretended by the most ar- 

 dent advocate of this high presidential prerogative that 

 the Constitution confers it in set terms. There is as- 

 suredly nothing in that instrument which can be tor- 

 tured into the conferring of such a power on the 

 President in his civil capacity ; and this, it appears to 

 me, plainly disposes of the question ; for it would be 

 asserting the grossest contradiction and strangest an- 

 omaly to say that absolute and unlimited power, equal 

 to any exercised by c_zar or sultan, can be implied 

 from a constitution which avowedly gives no power to 

 any department of the Government that is not special- 

 ly set forth, except simply the consequent right to 

 employ all legal means necessary to the execution of 

 the power. 



The judge then proceeded to review at con- 

 siderable length the arguments of counsel, and 

 continued : 



It is, however, maintained, if the President does not 

 possess this power in his civil capacity, that he does pos- 

 sess it in his military capacity, as Commander-in-Chief 

 of he army and navy of the United States. A command- 

 er of an army has, of course, within the sphere of his 

 military operations against an enemy, all power neces- 

 sary to insure their success. General Rosecrans had a 

 right, I have no doubt, the other day to destroy all 

 property which caused any obstacles to his operations 

 against Bragg, and if he discovered any plots to mar 

 those operations or give intelligence to the enemy, or 

 to afford them any kind of aid or comfort, he would be 

 right to try the offenders, whether civilians or soldiers, 

 by a court-martial. But his power does not extend 

 beyond his lines. 



He concluded a very able and elaborate 

 opinion by stating : 



The President, therefore, whether in his civil ca- 

 pacity or as Commander-in-Chief of the army and 

 navy of the United States, has unquestionably no 

 power to authorize the act of which the plaintiff 

 complains. The ground upon which this applica- 

 tion is made has no color of right. It cannot, in my 



opinion, be entertained as a question in any State or 

 United States court. The only questions in this action 

 worthy of consideration, and wnich can be entertain- 

 ed, do not arise under the Constitution of the United 

 States, but are fitly within the jurisdiction of this 

 court. The motion is denied, without costs. 



An appeal was taken by the defendant to 

 the General Term, where the order at Special 

 Term was reversed. The opinion of the court 

 was delivered by Judges Leonard and Suther- 

 land. Judge Clerke, however, maintained his 

 former opinion : 



LEONARD J. The question is not whether the fourth 

 section of the act of Congress, passed March 3d, 1863, 

 affords a valid defence to the action. The true ques- 

 tion is this : is it in the power of Congress to give the 

 Circuit Court jurisdiction of the case? 



The Constitution extends the judicial power of the 

 Union to all cases in law and equity arising under the 

 Constitution, laws, and treaties of the United States. 



The defence, in this case, arises under the act of 

 Congress, and the validity of that act, considered in 

 the light afforded by the Constitution, will be one of 

 the principal subjects to be determined at the trial. It 

 has been decided that a case arises within the mean- 

 ing of the Constitution as well when the defendant 

 seeks protection under a law of Congress, as when a 

 plaintiff comes into court, to demand some right con- 

 ferred by law. 



It has been objected that the original jurisdiction of 

 all actions may be drawn into the Federal Courts, by 

 similar enactments of Congress, and that the case 

 arises within the meaning of the Constitution only af- 

 ter a trial and judgment in this court, when the action 

 can be transferred by writ of error or 'appeal, and 

 brought before the Federal Courts for review. The 

 power of transferring causes to the United States Cir- 

 cuit in a similar manner, where the question involved, 

 was of an appellate and not original jurisdiction, has 

 long been sustained. Chief Justice Marshall says, in 

 the case of Osborn vs. The Bank of the United States 

 (9 Wheaton, 821) : " We perceive no ground on which 

 the proposition can be maintained, that Congress is 

 incapable of giving the Circuit Courts original juris- 

 diction, in any case to which the appellate jurisdiction 

 extends." 



Congress has enacted that the defendant may inter- 

 pose in his defence the orders, &c., of the President, 

 and has directed the transfer of cases involving such a 

 defence, in the manner prescribed, into the Circuit 

 Court. 



According to the statements of the defendant such a 

 case has arisen. We have nothing to do with the va- 

 lidity of the law as a defence to the action. It is suffi- 

 cient for the State Court that the defence involves the 

 construction and effect of a law of Congress. The case 

 has then arisen when the Courts of the United States 

 may have jurisdiction, if Congress so directs. If the law 

 does not. afford a constitutional or valid defence, it 

 cannot now be doubted that the learned justices of the 

 United States Courts will so declare it, when the juris- 

 diction of such cases will remain in the State Courts, 

 as before the enactment of the law. It is not our duty 

 to assert the independence of our State sovereignty 

 and jurisdiction ; for the final construction and effect 

 of all acts of Congress may be brought before the U. 

 S. Courts by the express provision ot the Constitution. 

 The manner of taking the cause to those Courts is of 

 consequence. The Supreme Court of the Union must 

 be relied on to prevent its jurisdiction from being un- 

 lawfully extended by Congress. I am of the opinion, 

 therefore, that Congress has the power to direct the 

 transfer of such cases. 



In my opinion this application was unnecessary in 

 order to vest the U. S. Circuit Court with the posses- 

 sion of the action, but the discussion has not been lost, 

 inasmuch as it will be now settled that this court will 

 not, in this judicial district, take further cognizance of 

 cases which have been transferred under thia act of 



