The weekly north Iowa times. [volume] (McGregor, Iowa) 1857-1867, 1863-11-04
Arbitrary Arrests.

Arbitrary Arrests.
Judge Clerke, Of the Superior court Q
the city Of New York, in which the case q
George w. Jonss %. William II. Sew
ard, an action for alleged false imprison
msnt, Is pending, has rendered an import
ant decision. The question before the cour
arose upon . motion to remove the cas-,
from the state court to the United State!
court for the northern district of New
York.
Judge Clerk, in giving the decision of tho
court, said:
The defendcnt stated in his petition for
this order that the action was 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 the United States, in
causing the plaintiff to be arrested and i'm.
prisoned, or for some other wrong alleged
to have been done to the plaintiff under
such authority during the present rebellion,
and that it therefore comes within the act
of Congress of March Sd, 1868, relating to
the writ of ha5eas corpus by which a case
inay be removed to another court
The question to be determined being
whether the President OF the United States,
during rebellion, can arrest any person
rot subject to military law, without the
process Of some court, this was q question
that would arise under the constitution of
the United states.
1t cannot of course be pretended by the
most ardent advocate Of this high Presi-
dental prerogative that the constitution
confers it in set terms. There Is nothing
IN that instrument that can be tortured in.
to tho confering Of such popsr upon the
President IN has ciuiL capacity, aad this, it
appears to me, plainly disposes of the
question; for it would be asserting the
greatest contradiction and strangcst anon.
ally to say that absolute and unlimited
power, equal to any exercised by Gar or
Sultan. can be implied by q constitution
which gives no power to any department |
that is not specially set forth, except sim.
ply the consequent right to employ all L.
gal means necessary to the execution Of the !
power.
II there is anything beyond all contro-
versy in the constitutional history Of the
nation 1t is that the purpose Of the consti-
tuition and the provisions which it contains
were for considerable time before its
adoption thoroughly discussed by the pcc.
pie and their delegates in convention, and
any man protesting to confer unlimited
power on any department of the govern
ment, on any pretert, tcould not haze been
deened sane After referring to the consti.
tutional history of the United States and
England, the learned Judge remarks:
Could it be supposed that the trainers OF
the constitution intended any such power
as that claimed in the present case, either
express or implied? If they intend dicta.
torship to exist under 0ny emergency, they
would not leave it to the chiefcxecutive to
assume it when he may in his discretion
declare necessity required il, but would
have provided that this necessity should
be declared by congress, and that the legis.
lature alone should select the person who
should exercise it. That the President can
assume such power is an extravagant as.
sumption which cannot be entertained by
any court. No such inquiry can arise un-
der the constitution of the Uuited States.
u does not reach the prs portions or stature
Of a question.
Mr.. Lincoln as q military commander
can possess on greater power than il he
were not President Suppose the constitu.
ton vested the commander. in. chief of the |
army and navy in some person other than |
the Prcsident-coul this functonary sub. |
vert the constitution and laws under the |
plea ofmilitaay necessity Certainly not.
The learned judge thus concludes: