The New York herald., 1863-10-01

The Action Against the Secretary OF
State for False Inx,rison nt-Jones
versus sewnrd-Arguments OF Counsel
Important Issues, sc.

state for False InHprisOn n t-Jones
versus acknowledgements OF Counsel
Important Issues, sc.
SUPREME couRr-- srEcrAL TERN.
Peiore Judge tle, ke
Sspr. 3o.-Colonel Gerye ". Jones v. William II.
Seoard. Secretary Of Sal AT the sitting Of the Court
this morning the OF Jones against Seward par
tculars Of which appeared in yesterdays HERALD was
again brought up motion or Mr. James T. Brady for
its removal to the United States Circuit Court
Mr.. Mceon. counsel for paiotif insisted that the pe.
on for the removal Of this action to tho United States
Circuit Court should have been more full In stating tho
particulars Of plaintiffs arrest. He also contsnded that
the State Courts could by Of Congress bo dvcsted
Of their power to take cognizance Of ko this II
this could be done the President would DO endowed with
absolute power and unlimited discretion in regard to
arress
MIR. Brady counsel for the government said there
class OF persons tho community who seemed TO think
that in time Of the government had everything
cept power and could obtain anything except aud
money Tho defendant was here asking only what he
entitled 70 by the constitutions which declared that
the judicial power Of the United States embraced all cases
arising under the constitution and laws Of tho Union
ss,,sS sna % as ws as me rules 10
the decisions OF the federal courts conclusive
In IKE manner the Supreme Court OF the United States
had held that on all questions to the validity and
structon OF State the decisions Of
were binding The judicial powor OF the nation would bc
OF no avail N State could determine for itself uron
tho questions arising under tho federal constitution II
the views OF the plaintiffs counsel maintained,
then in the event OF the Union being restored every
person taken prisoner in Southern staein South Caro-
lima for exampe-could support an action for false i'm
the arrest unconstitutional The petition
trey correct and full as the law required The Congress
Of 1858 had done no moro than that Of 1888, when
nullifcaton occurred. All nctions against
officers the United States bo transferred to the
federal courts under the act Of 1888 No complained
hat
the right OF removal to under the Presi
dents authority All the suggestions about the danger
investing the President with such large powers were
answered by Chief Justice fancy Luther vs.
Borden, where during the norr rebellion mau's house
cion that the plaintiff was engaged In the rebellion and
would be found within the house. The de'endant did not
ask that the constitution should be SUSPENDED In
but on the contrary that II should be enforced both
peace ana He was perfectly prepared TO the
plaintiffs and Mr. Brady undertook say that tho
jury who tried the action would give verdict for the do
fendant
Mr.. Brady then went to argue his at length
and made the following POINTS,
II may be coptended that this case does not arise
under the constitution Of the United Statcs any law
OF the United States therefore Congress could
not invest the Circuit Court Of the United States with
jurisdiction over It, But the papers in the oceeding
show that the acts complained Of by the plaintiff were
done by the defendant rs Secretary Of State n the United
Stacs during rebellion by authority OF the consiu-
on and Of the President One question at the trial will
Secretary ofSate mad right to order the
Of the plaintiff The fourth section OF tho act Of March
authority at any time during tho existence the
beIion ga defence in all courts 10 any acion for any
under by the PRESIDENTS ORDER or OF any law
OF Congress- The learned counsel for the plaintiff
tends that this act Is iepugnant TO the constitution OF
the United States being he Alleges retroactive and
operating to divest rhts which had become vested
fore It's enactment When. therefore, the action tried,
and the defendant seeks to justify under this act OF Con-
gress its will be most important Ques
tion in the case. Thut appears that the
case " one arising under the constitution and
laws OF the United States. and a. such il EN-.
braced within the judicial power Of the United States.
The plaintiff is said have been arrested BY the dc.
fendant Secretary under an order IN writing
signed BY him, and dated in recember, 1891. This
done uode, % the authority o. the President The Supreme
Petew. 49s, say;-"Ths President acts in many
through the hands Of departments. and tho socre-
tary OF War having directed Sc tion OF land TO
sumed il 70 have been done BY direction Of the
In MaIbury Madison, Cranch. 1877 AZ is held that
"the Official acts Of the heads Of the executive dspart
nature and rest In executive discretion are not within
judicial cognizance" The plaintiff alleges that the
that question now. The morss Of the case are TO oe con
sdered hereafter when the conduct Of the plaintiff will be
Clearly shown to have fully warranted the action Of the
government. The arrest was made when the writ OF
habeas corpus mad been suspended under the power do
when n cases ot rebellion o. invasion the public safety
Much hns been said tn popular way about arbitrary
Arrests but when The complaints Of the persons arrested
them OF this truth at least. that tho power 10 withhold
from citizen the writ OF habcas In the pre-
scribod BY the constitution intended TO prevent the
discharge by tho judiciary Of parties arrested during
rebellion OF invasion although authority for arrest
times Of pesse The proprety o Investing the govern
mont with the power 70 suspend the writ 10 any case was
States adopted but was nevertheless conferred
BY foreathers for which they deemed ample
and conclus,ve Amongst tho abess opponeuts Of the
power was Thomas jefferson; BIT bis arguments were
not deemed sufficient TO prevent It's being delegaed
Storys Comms Sd Vel So 1885, 1887 1641 Same LIST VOL
(0fnm
fuckers Blackstone, App 291, 292 II II intended
tha, citizen snoudfeven during rebe,a inv sion,
be arrested only for such cause and In such manner
would justify his arrest when neither rebellion nor nva
sion existed no power to suspend tho babeas corpus
would have been left to apply toll casee so that
other than strictly legal arrests could be made
and Chief Justice Iancy) after declaring that
In the Of sovereign Stale In this Union well as in
regard TO foreign nation he governments acknowledged
by the President always rc"gpi7ed 10 the courts OF
JUSTICE" he remarks-"It il SAD thin this power In tho
President Ia dangerous 70 liberty, and may bc abused.
All power nay DO abuscd placed In unworthy hands F"
"1he ordinary course OF proceedings In courts
OF justice would be utterly UNIT for tho crisis. And the
elevated Office OF The President chosen he Is by the
people the United States and the high responsibility
he could fail to feel when acting OF much
moment appear 10 furnish strong safeguards against
wifu abuse Of power as human prud and foresight
could well provide At oil events u Is conferred upon
him by the constitution and laws Of the unhed staes
therefore respected and enforced IN its Judi
cia tribunals" In that Luther sought to
damages for breaking open and searching his house with
the military service Il tho State, martial law having
been declared. The Chief Justice Says:
| state may its military power 10 put down
armed nsurrecon too strong 10 be controlled by the
civil authority The power 10 essential 10 the exsience
every government essential TO the prcserva alton OF
order and free Institutions and Is necessary tho
states OF this Union TO any other government The
State itself must determine what degree Of force the
| crisis demands n
state Of war the established resorted to
the rights and usages Of 10 maintain Itself aud TO
tho unlawful opposition. Aud In that state Of
things the officers engaged In is military service might
lawfully arrest any one Who from tho Information before
them, they had reasonable grounds 10 believe was en-.
gagged In the nsurrcctiou and might order house be
fociby entered and searched when there were reason
able grounds for supposng he might be there concealed
without the power 70 do this, martial law and the mill.
tary array Of tho government would Be mere parade,
aud rather encourage attack than rcpel II. No more
force however, be used than necessary accom-
plish tho object And the power n exercised for the
purpose OF oppression, or any Injury wuy done per-
property the party BY whom by whose order n
| 10 committed would undoubtedly be answerabe"
In that GAIA the Judgment for the defendants he
Chief Justice treating OF insurrection state
His observations apply In respects 10 rebellion againas
the national authority The idea that because New York
"a In ehn n sho -