Citation Numbers: 17 Abb. Pr. 377
Judges: Clerke, Leonard, Sutherland
Filed Date: 3/15/1864
Status: Precedential
Modified Date: 1/12/2023
This is an action in which the plaintiff claims damages for an alleged false imprisonment. The defendant asks for an order of this court to remove the action, and all proceedings therein, to the next Circuit Court of the United States, to be held in and for the Southern District of the State of Hew York. The defendant states in his petition for this order, that the action is brought for acts alleged to have been done by him
Of course, this act, so far as it directs the transfer of cases from the State to the Federal jurisdiction, if it has any constitutional foundation, is founded upon the third article of the Constitution of the United 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,” &e. 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 question 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. How, 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 capacity, or as commander-in-chief of the army and navy of the United States, can be solved only by consulting and interpreting that instrument. But, to entitle the defendant to
I. It cannot, of course, be pretended by the most ardent advocate of this high Presidential prerogative, that the Constitution confers it in set terms. There is, assuredly, nothing in that instrument which can be tortured 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 anomaly to say, that absolute and unlimited power, equal to any exercised by czar or sultan, can be implied from a Constitution, which avowedly gives no power to any department of the government that is not specifically set forth, except simply the consequent right to employ all legal means necessary to the execution of the power.
It may not, however, be out of place, at a time like the present, to glance at the position which some ardent advocates of Presidential unlimited prerogative, in seasons of war, rebellion, or insurrection, have endeavored to uphold. It is demanded for the President, by these advocates, from the nature and necessities of his office, in time of imminent peril to the very existence of the nation. They have ventured to say, that the authors of this Constitution, could never have intended to deny to him, in such times, all power which may be deemed indispensable for the preservation of the nation, when it is convulsed with civil commotion and threatened with the hostility of foreign powers. But if there is any thing beyond all controversy in the constitutional history of this nation, it is, that the purpose of this Constitution, and the provisions which it contains, were, for a considerable period before its adoption, anxiously and deliberately considered and thoroughly discussed
Now, is it possible that all the passages to which I have referred, in 'the constitutional history of England, and all the solemn and salutary warnings which they convey, were not engraven on the minds of the enlightened men who had the principal share in the formation and adoption of the present Constitution of the United States of America ? Can it be supposed, for a moment, that any implied power, such as the defendant claims for the Presidential office in the present instance, would have been tolerated by those men % If they intended that a dictatorship should exist under any emergency, they would not leave it to the chief executive to assume it when he may, in his discretion, declare necessity requires it, but would at least provide that this necessity should be declared by Congress, and, as under the Constitution of ancient Rome, that the legislative power alone should select the person who should exercise it. That the President can, of his own accord, assume dictatorial power, under any pretext, is an extravagant assumption. The proposition cannot be entertained by any court; no such inquiry can arise under the Constitution of the United States; it does not reach to the proportions or stature of a qxiestion.
The opinion referred to by the counsel of the defendant, delivered by Chief-justice Tanet, in Luther a. Borden (7 How. (U. S.), 1), so far from sanctioning, makes no question of this extension of the military power of the President. An actual insurrection existed in the State of Bhode Island, and military measures to suppress this insurrection were in operation there, by the intervention of the Federal Government, on the application (I forget which) of the Legislature or executive of that State. That commonwealth was in a condition of intestine war; and there, as in Western Georgia and in Tennessee now, the officers engaged in the military service “ might lawfully arrest any one, who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection.”
The formidable power, for which the defendant contends, is plainly not necessary to the safety of the nation, even if the Constitution conferred it when that safety should be endangered. Within the immediate theatre of insurrection or war, the commander-in-chief and his subordinates, where the exigencies of the occasion make it necessary, we repeat, do possess it; beyond it, the ordinary course of proceedings in courts of justice will be sufficient to punish any persons who furnish information or afford any aid or comfort to the enemy, or in any way are guilty of the detestable crime of betraying their country. In sudden emergencies, caused by invasion or insurrection, the power expressly given by the Constitution and the acts of Congress to repel the one and suppress the other, are ample and effective; and it requires no exercise of arbitrary power over the sacred rights of personal liberty to accomplish this purpose. It is as manifest as the day, it is beyond all controversy, that these rights, in war or in peace, during invasion or domestic violence, even during the hideous rebellion which now confronts us, are, except in the cases which I have stated, inviolable. The President, therefore, whether in his civil capacity 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 motion is denied, without costs.
Prom this decision the defendant appealed.
The question is not whether the fourth section of the Act of Congress, passed March 3,1863, affords a valid defence to the action. The true question 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 meaning 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 conferred 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 after 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 Circuit,
Chief-justice Marshall says, in the case of Osborn a. United States Bank (9 Wheat., 738, 821): “We perceive no ground on •which the proposition can be maintained, that Congress is incapable of giving the Circuit Courts original jurisdiction, in any case to which the appellate jurisdiction extends.”
Congress has enacted that the defendant may interpose in his defence the orders, <fce., 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 validity of the law as a defence to the action. It is sufficient 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 jurisdiction of such cases will remain in the State courts, as before the enactment of the law. It is not our duty, therefore, to assert the independence of our State sovereignty and j urisdiction, for the final construction and effect of all acts of Congress may be brought before the United States courts by the express provisions of the Constitution. The manner of taking the cause to those courts is of no consequence. The Supreme Court of the Union must be relied on to prevent its jurisdiction from being unlawfully 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 United States Circuit Court with the possession 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 this Act of Congress. It is very proper that an order be entered transferring the cause to the United States Circuit, as it affords the evidence, in this court, of the disposition made of it.
In arriving at my conclusions, I have consulted Story’s Com. on the Constitution (ch. 38, §§ 903, 906, &c.); Martin a. Hunter (1
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 presented for approval.
The decision in this case will also embrace the case of Grudeman a. Wool, argued at the same general term as the present case.
The order appealed from should be reversed, and the motion below should be granted without costs.
The question is not as to the constitutionality 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 President’s order, or of any law of Congress; but the question 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 Court of the United States for the district where the suit is brought for trial, on complying with certain requirements specified in the section: that is, on entering his appearance, filing his petition stating the facts, offering good and sufficient surety, &c.
-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, &e.; but the question presented 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 constitutionality of the fifth section of the act, we must assume, I think, that the trial of this action will involve the determination of the question as to the constitutionality of the fourth section; that Congress, in
Had Congress the constitutional power to do this? That is the question.
If Congress had the power, then the order appealed 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 constitutionality 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. 3; § 25 of the Judiciary Act; 1 Stat. at Large, 85; Cohen a. State of Virginia, 6 Wheat., 264; Miller a. Nicholls, 4 Ib., 312.)
Cannot Congress give the Circuit Court of the United States original jurisdiction in any case to which this appellate jurisdiction extends?
In Osborn a. United States Bank, 9 Wheat., 738, 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 Congress 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 confer upon the Circuit Court jurisdiction over it.
See also Curtis’s Com. on the Jurisdiction, &c., of the Courts
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 transfer 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 determination of this court that it no longer had jurisdiction of the action.
It appearing that the defendant has complied with the requirements of the Act for such transfer, the order 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.
I see nothing whatever in the arguments of my brethren, or in those of other judges on the same subject, to induce me to recede from the position which I have attempted to maintain at special term. They have all alike, in my very humble judgment, unaccountably overlooked the only point claiming consideration 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 come within the cognizance of their judicial power. It is only necessary to claim that it was committed under color of that authority, and was, therefore, justified by the Constitution, however monstrous and appalling the act may be, to make it, according to this doctrine, a casé 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 palpably manifest may be the conviction that the Constitution no more sanctions such an act, than it sanctions the burning of
But, it is asserted, as the appellate power of the Supreme 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 States Circuit .Court before judgment. Even if the Supreme 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 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 appellate 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 United States, and the decision is against its validity, may be re-examined and reversed 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 Constitution,
The order at special term should be affirmed with costs.
Order reversed.
Present, Leonard, P. J., Sutherland and Clerke, JJ.