INDEMNITY. 



521 



States Circuit Court before judgment. Even if the Su- 

 preme Court of the United States would entertain such 

 a case on appeal, this is no controlling reason why it 

 should, necessarily, be transferred to the United States 

 Circuit Court for adjudication in the first instance. For, 

 the only question to be determined by us on this motion 

 is whether Congress has the power to transfer cases 

 of this description to the Circuit Court of the United 

 States, not whether, ultimately, it may reach the ap- 

 pellate jurisdiction of the United States Supreme Court. 



The act of Congress, passed in 1789, " to establish 

 the judicial courts of the United States," no doubt 

 provides that a final judgment or decree in any suit in 

 the highest court of law or equity of a State, where is 

 drawn in question the validity of a statute of the Unit- 

 ed States, and- the decision is against its validity, may 

 be reexamined and revised or affirmed in the Supreme 

 Court of the United States. But, if it is too clear for 

 controversy that the statute is an outrage on the Con- 

 stitution, if it is palpably usurpation, it it is plain to 

 the most unlettered citizen, that the statute is an at- 

 tempt to subvert all the securities which the founders 

 of the Government have provided for the preservation 

 of personal libertv, and to invest one man with un- 

 limited dictatorial power, and, therefore, that the ap- 

 peal was palpably frivolous, I presume the court would 

 hear no argument on such an appeal, and would, forth- 

 with, affirm the judgment or dismiss the writ. 



Would they, for instance, hearken to an appeal in- 

 volving the validity of an Act of Congress giving the 

 President, or any other member of the Government, 



Eower by coup d'etat, to extinguish the legislative 

 ranch, as Cromwell did the Long Parliament, and 

 substitute a Barebones Legislature in its place. 

 Surely not; if they, too, were not struck down, and 

 were not (if said debasement can be imagined) by 

 force, by fear, or by corrupt appliances or selfish aspi- 

 rations robbed of independence. So that the consider- 

 ation whether the act is not palpably void, must pre- 

 sent itself on appeal as it now presents itself to us 

 on this motion ; and, if it is palpably void, I repeat it 

 would not be treated on appeal as worthy of being for a 

 moment entertained. 



I still consider the defence in this case just as desti- 

 tute of color as the case which I have imagined. 

 Whether, under the pretext of authority from the 

 President of the United States, any one citizen, at his 

 mere will and pleasure, without any intervention of the 

 judicial tribunals, can incarcerate another citizen not 

 subject to military law, in a loathsome dungeon, for 

 many months, or for a day or an hour, cannot, under 

 any circumstances in which the nation may be placed, 

 be treated as a question constituting a case arising un- 

 der the Constitution ; and any statute which declares 

 the contrary is palpably void. The order at Special 

 Term should be affirmed with costs. 



A case arose in Pennsylvania, which, during 

 its progress, illustrated both of the phases which 

 this question of indemnity has assumed. In 

 August, 1861, the " Jeffersonian," a weekly pa- 

 per published at West Chester, Pennsylvania, 

 was seized by United States Marshal Mil ward 

 and his assistants, under an order from United 

 States District Attorney Coffey. The paper 

 was suppressed, and the office closed, and it so 

 remained suppressed and closed until the Oc- 

 tober following, when, in consequence of the 

 district attorney declining to proceed further 

 with the information which he had filed, charg- 

 ing William H. Hodgson, the proprietor of the 

 paper, with aiding and abetting the rebellion, 

 the publication of the paper was resumed. 

 Subsequently Mr. Hodgson instituted a suit 

 against Mr. Milward, the marshal, and William 

 Schuyler and John Jenkins, his deputies, to re- 

 cover damages for losses sustained by reason 



of such seizure. The case in February came 

 on trial before Chief Justice Lowrie, of the Su- 

 preme Court of Pennsylvania, at Philadelphia ; 

 the plaintiff being represented by Wm.B. Reed 

 and George W. Biddle. From Judge Lowrie's 

 charge to the jury we extract as follows : 



The next important element in this cause is the al- 

 leged fact that the act complained of was authorized 

 by the President of the United States, and was exe- 

 cuted by important Federal officers. But this element 

 loses all its legal importance when we consider that all 

 public functionaries in this land are under law, and 

 that none, from the highest to the lowest, are above it. 

 They, as well as we, are under the Constitution and 

 laws of the United States, and sworn to support, pro- 

 tect, and defend them, or take them as their rule of 

 civil and official conduct, and they and we are to be 

 judged by them in our civil and official conduct in all 

 appropriate cases. The acts of the President and of his 

 subordinates are, therefore, without right, unless they 

 are authorized by some article of the Constitution, or 

 of the laws made under it, and consistent with it. He 

 can make no law that can vest in him any new author- 

 ity, or that can protect those who obey his authorized 

 orders. He would not claim that he could. 



The Federal and State Constitutions place the Gov- 

 ernment under just such restrictions as these : It tells 

 the Government how it shall proceed in defending so- 

 ciety and the social organism against all the forms of 

 violence, disorder, and danger to which society is ex- 

 posed. It puts all its functionaries under law, so that 

 they shall not invade the order of society, by taking 

 their own forms and modes of protecting it. When 

 they act without law, they must justify themselves be- 

 fore the law, by showing an emergency that demands 

 their act. If it be not so, they are above law, and not 

 under it. If they may irresponsibly declare the exist- 

 ence of the emergency, and also the acts which it de- 

 mands of them, then, as to them, we have neither Con- 

 stitution nor la\ys. 



Our Constitution was framed when the remembrance 

 of the excitements, suspicions, divisions, disloyalty, 

 and treasons of the Kevolution were yet fresh in the 

 minds of our statesmen, and under the light of all its 

 experience, and they left no gap in it to be supplied 

 by the fears or suspicions of excited times. It is still 

 a sufficient rule of practice for our Government, and 

 it, better than anything else, embodies the settled and 

 sober thought of this people. When we depart from 

 it we expose ourselves to the rule of force, and to in- 

 calculable divisions of opinion, of counsels, and of 

 action. * * * * 



Do the defendants show a warrant issued in proper 

 form by competent authority, that shelters them from 

 responsibility for the act done ? What the law requires 

 in order to justify such an act is written in the Consti- 

 tution, article 4 of the amendments : " The right of 

 the people to be secure in their persons, houses, pa- 

 pers, and effects, against unreasonable searches and 

 seizures, shall not be violated, and no warrant shall 

 issue but upon probable cause, supported by oath or 

 affirmation, and particuarly describing the place to be 

 searched, and the person or things to be seized." A 

 similar law is written in all our fotate Constitutions, 

 and it is simply the written expression of the unwrit- 

 ten or customary law of the people, known to every- 

 body, descended through a long line of ancestry and 

 of popular disturbances, and recognized by everybody 

 in times when a quiet reason holds the control of the 

 passions. 



Another law is to be connected with this one, in or- 

 der that it may be seen how such warrants are to issue. 

 It also is written in the Constitution, where it vests all 

 judicial power in the courts established by law, and 

 requires that no man shall be deprived of life, liberty, 

 or property, except by due process of law. This makes 

 the courts the only authority whence any process can 

 issue for the trials of rights or wrongs. Warrants 

 properly issued by them are a shield to the officer who 



