26 How. Pr. 33 | N.Y. Sup. Ct. | 1863
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 as secretary of state for the United States of America, under authority derived by him from the president of said United States, in causing and procuring the plaintiff to be arrested and imprisoned, or for some other wrong alleged to have been done to the plaintiff under such authority, during the present rebellion of the so called Confederate States against the government of the United States of America, and that it, therefore, comes within the act of congress passed March 3, 1863, entitled “An act relating to hateas corpus, and regulating judicial proceedings in certain cases,” providing in the 5th section that if any suit has been or shall be commenced against any officer, civil or military, or any other person, for any arrest, imprisonment, trespass or wrong done, or any act omitted to be done, during the present rebellion, “by virtue or under color of any authority derived from or exercised by or under the president of the United States or any act of congress,” the defendant may remove such action into the circuit court of the United States for the district where the suit is brought, on complying with certain requirements stated in the act.
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
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 he 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
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 times 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 by 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, by the people at large and by their delegates in the convention; and, certainly, any man proposing to confer unlimited power on any department of the government, on any pretext whatever, would not have been deemed sane. With far-seeing caution and the most vigorous and deliberate purpose, a constitution for a national government was framed, conferring extremely limited powers, concisely and minutely specified, at the same time providing ample means for self-preservation, and the vigorous exercise of necessary authority under all emergencies. Its authors and the people of the several states had plainly set before them, while it was under consideration, the example and experience of that nation from which their language, their laws, their social customs and political institutions were mainly derived; and they well knew
How, 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 required it, but would at least provide that this necessity should be declared by congress, and, as under the constitution of ancient Borne, that the legislative power alone should select the per
II. It is, however, maintained, if the president does not possess this power in his civil capacity, that he does possess it in his military capacity, as commander in chief of the army and navy of the United States. A commander of an arniy has, of course, within the sphere of his military operations against an enemy, all power necessary 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 to give intelligence to the enemy, or to afford them any kind of aid or comfort, he would have a right to try the offenders, whether civilians or soldiers, by a court martial. But his power does not extend beyond his lines. If a man at Cincinnati has a correspondence with Bragg, giving him intelligence of the plans of Rosecrans, the latter cannot have the offender arrested at Cincinnati, brought within his lines, and tried by a court martial. This man is, indeed, emphatically a traitor; he is guilty of high treason against the United States of America; but he is to be tried by a civil tribunal, according to the course and practice of the established law, on a presentment or indictment of a grand jury. His case has not arisen in the land or naval forces, or in the militia when in actual service in time of war or public danger. (See 5th Amend, of the Const.) Although it indeed affects the operations of a certain portion of the land forces, it is not a military but a civil offense. Neither can even the commander in chief of the army extend martial law beyond the sphere of military operations. If he possessed this power, in time of war or insurrection over the whole extent of the nation, whether
The opinion referred to by the counsel of the defendant, delivered by Chief Justice Taney in Luther v. Borden, (7 How. 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 Rhode 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
The motion is denied, without costs.
Clerke, Justice.]