520 



INDEMNITY. 



Congress. It is very proper that an order be entered 

 transferring the cause to the U. S. Circuit, as it affords 

 the evidence in the court of the disposition made of it. 



In arriving at my conclusions I have consulted Sto- 

 ry's Com. on the Constitution, chap. 38, 903, 906, 

 <c., &c.;l Wheat., Martin vs. Hunter; 6 Wheat., Co- 

 hen vs. The State of Virginia; 9 Wheat., Osborn vs. 

 The Bank of United States. 



As a rule of practice I think the court should not 

 approve any sureties unless the amount of the bond is 

 equal to the sum in which the defendant in the action 

 has been held to bail, if bail has been required in the 

 State Court. This fact should be made to appear to 

 the satisfaction of the judge to whom the bond is pre- 

 sented for approval. 



SUTHERLAND, J. The question is not as to the con- 

 stitutionality of the fourth section of 'the act, declaring 

 that the order or authority of the President, during 

 the rebellion, shall be a defence in all courts, to any 

 action for any arrest, imprisonment, or act done, or 

 omitted to be done, under or by color of the Presi- 

 dent's order, or of any law of Congress; but the ques- 

 tion is as to the constitutionality of the fifth section of 

 the act, authorizing the defendant in any such action 

 to remove the same from the State Court to the Circuit 

 of the United States for the district where the suit is 

 brought- for trial, on complying with certain require- 

 ments specified in the section ; that is, on entering his 

 appearance, filing his petition stating the facts, offer- 

 ing good and sufficient surety, Ac. 



The question presented by this appeal is not as to 

 the constitutional power of the President to order the 

 arrest, imprisonment, &c., or as to the constitutional 

 power of Congress to authorize the President to order 

 the arrest, imprisonment, &c. ; but the question pre- 

 sented by the appeal is, as to the constitutional power 

 of Congress to give the Circuit Courts of the United 

 States primary or original, and (as to the State 

 Courts) exclusive jurisdiction, of the trial of actions 

 for such arrests, imprisonments, &c. 



In determining the question as to the constitution- 

 ality of the 5th section of the act, we must assume, I 

 think, that the trial of this action will involve the de- 

 termination of the question as to the constitutionality 

 of the 4th section ; that Congress in passing the act 

 considered tbfat the trials of the actions to be removed 

 to the Circuit Courts of the United States under it 

 would involve the determination of the question as to 

 the constitutionality of the 4th section, whether tried 

 in the State or United States Courts ; and that Con- 

 gress intended by the 5th section to take from tho 

 State Courts and give to the Circuit Courts of the 

 United States the right and power to determine that 

 question. Had Congress the constitutional power to 

 do this ? That is the question. 



If Congress had the power, then the order ap- 

 pealed from, denying the defendant's motion to remove 

 the action and all proceedings therein to the Circuit 

 Court of the United States, for the Southern District 

 of New York, should be reversed, and I think an order 

 made directing such removal ; if Congress had not the 

 power, then the order appealed from should be affirmed. 



If no steps had been taken for the removal of the 

 action from this court, and the action should be tried 

 in this court, and the question as to the constitution- 

 ality of the fourth section of the act should be decided 

 adversely to the defendant by the Court of Appeals of 

 this State, the Supreme Court of the United States 

 would have final and conclusive appellate jurisdiction 

 of the question (Const. U. S. Art. 8 ; 25 of the Judi- 

 ciary Act ; 1 Statutes at Large, 85 ; Cohen vs. Vir- 

 ginia (6 Wheaton), 264 ; Miller vs. Nicholls, 4 Whea- 

 ton, 811). 



Cannot Congress give the Circuit Court of the Unit- 

 ed States original jurisdiction in any case to which this 

 appellate jurisdiction extends? 



In Osborn vs. United States Bank, 9 Wheaton, cited 

 by Judge Leonard, Chief Justice Marshall said he could 

 perceive no ground for saying that Congress could not. 



In that case one of the questions was, whether Con- 

 gress could constitutionally confer on the Bank the 



right to sue and be sued " in every Circuit Court of 

 the United States." 



It was held that such a suit was a case arising under 

 a law of the United States, consequently that it was 

 within the judicial power of the United States, and 

 Congress could not confer upon the Circuit Court juris- 

 diction over it. 



See also Curtiss's Com. on the Jurisdiction, &c., of 

 the Courts of the United States, sections 12 and 13 ; 

 the latter section, containing a quotation from another 

 portion (p. 865) of the opinion of Chief Justice Mar- 

 shall in Osborn vs. The Bank of the United States, is 

 apparently quite pertinent to the question in this case. 



I concur, then, in the conclusion of Judge Leonard, 

 that Congress had the power to direct the transfer to 

 the Circuit Court of the United States. 



Probably an order of this court directing such trans- 

 fer is not absolutely necessary, but to make one would 

 be in accordance with usage in like cases ; and besides 

 such an order would be the best evidence of the deter- 

 mination of this court, that it no longer had jurisdic- 

 tion of this action. 



It appearing that the defendant has complied with 

 the requirements of the act for such transfer, the or- 

 der appealed from should be reversed, and an order 

 made by this court for the removal of the action and 

 all proceedings therein to the Circuit Court of the 

 United States. 



CLERKE, J. I see nothing whatever in the arguments 

 of my brethren, or in those of other judges on the same 

 subject, to induce me to secede from the position which 

 I have attempted to maintain at Special Term. They 

 have all alike, in my very humble judgment, unac- 

 countably overlooked the only point claiming consid- 

 eration on this great constitutional subject. 



According to the doctrine upheld by my brethren, 

 we can scarcely conceive of any act committed by any 

 officer of the General Government under color of any 

 authority derived from or under the President, which 

 may not constitute a genuine, veritable case arising 

 under the Constitution of the United States, and which, 

 therefore, may not rightly co_me within the cognizance 

 of their judical power. It is only necessary to claim 

 that it was committed under color of that authority, 

 and was, therefore, justified by the Constitution, how- 

 ever monstrous and appalling the act may be, to make 

 it, according to this doctrine, a case arising under that 

 Constitution. 



For of course, according to the terms of the claim, 

 the claimant appeals through this remarkable statute 

 to the Constitution for his justification, and however 

 palpably frivolous such a claim may be however 

 manifest may be the conviction that the Constitution 

 no more sanctions such an act than it sanctions the burn- 

 ing of the Capitol, the dispersion of Congress, and the 

 shooting and imprisonment or exile of the men of whom 

 it is composed, yet it is claimed to present a question, 

 and therefore a case arising under the great charter of 

 constitutional liberty in America, the perpetrator of 

 the outrage making that a question which is unques- 

 tionably no question, and the judicial power of rfhc 

 State is ousted of its legitimate jurisdiction. 



Thus this extraordinary statute prescribes not only 

 that the character, but the mere assertion of the wrong 

 doer shall determine jurisdiction, and that the subject 

 matter, which has been alwavs held, except in cases 

 affecting ambassadors, other diplomatic ministers and 

 consuls, as alone the criterion of jurisdiction, shall be 

 excluded from consideration. Surely if this can be 

 done by Congress, the Government of the United 

 States of America is not, as all men have heretofore 

 supposed, incontestable a Government of limited pow- 

 ers and duties, and is, if not one of unlimited powers 

 and duties, nevertheless of very accommodating ex- 

 pansibility. This a novel and strange theory of devel- 

 opment in America. 



But it is asserted, as the appellate power of the Su- 

 preme Court of the United States extends in certain 

 cases to State tribunals, that this case would, after 

 judgment, reach the Federal jurisdiction, and that. 

 therefore, it may as well be transferred to the United 



