Evening star. [volume] (Washington, D.C.) 1854-1972, 1864-12-23

been done under the orders Of the Secretary
himself. you believe from the evidence that
the arrest in question was ordered hy the
Solicitor, 1t must be taken to have been ordered
by the Secretary.
But the order Of the Secretary for the arrest
th1s made, would be no justification to the
defendant in tmsking the arrest, inasmuch as
there exists in the case NO evidence whatever
of any special order or authority from the
President for making the arrest; and the COM
mission Of the Secretary OF the Treasury from
the President In case like the present, which
involves the liberty of the citizen cannot be
presumed TO confer any such power by impii-
catics. The presumptions OF law in free
country, are ever on the side of innocence and
liberty.
To the third, which is refused-"That
the acts of the Secretary of War and o.
the Secretary Of the Treasury in this case are
pima face the acts OF the President OF the
United States, and carry with them the iegaI
presumption that they were authorized by
him"-the Judge replies:
The whole executive power of the Govern
ment is by the Constitution vested in the Pres
ident of the United States. whose duty it IS 20
see that the laws are faithfully executed. To
enable the President TO execute the laws sub
ordinate departments and other agencies have
been established by Congress, whose res pective
| powers and jurisdictions are defined by law
For example, the duties Of the Secretary OF the
Treasury are prescribed by act OF Sept. 2, 11S9,
sectlon I'd, (lst Statutes at Large, 65)
AN ACT to establish the Treasury Depart
ment.
| "Sec 2d. And he it further enacted, That IL
shall be the duty of the Secretary Of the Treas.
ury to digest and prepare plans for the im-
pTOyement and management of the revenue,
and for The support OF the public credit; 10 pre-
pare and report estimates of the public re venue
| and The public expenditures; TO superintend
the collection OF the revenue; to decide on the
forms Of keepiDgand stating accounts and ma
king returns. and to grant under limitations
herein established. or 10 be hereafter provided.
all warrants for monies to be issued from the
| Treasury in pursuance OF appropriations by
| law; 10 execute such services relative to the
sale of the bonds belonging 10 the United States
as may be by law required of him; to make re-
port and give information TO either branch OF
| the Legislature in person or in writing Jas he
may be required} respecting all matters re.
ferred TO him by the Senate or House OF Re-
presenatives, or which shall appertain to HIS
Office; and generally to perform all such SER
vices relative 10 the finances as he shall ba di.
rected 10 perform"
Several acts OF Congress have been subse.
quently passed either transferring some OF the
above specified duties from the Secretary OF
the Treas snry to other Secretaries, or adding
new duties to those above enumerated; bnt
none affecting the question now under consid-
Grafton.
All and whatsoever the Secretary may do,
within the scope OF the powers thus granted is
not only presumed to be right, but cOnclusively
binding ON all concerned
But when an act Of Congress conters powers
upon the President EhfCh he may execute or
not execute, according to his own discretion, In
particular cases not ertaining to the office OF
ST scretary OF the Treasury, such powers cannot
De tSeCuteu Dy suCu secretary aS SEX cEStaEE
Much less can the right to exercise them be
presumed, without express orders from the
President. When a Secretary acts within the
limitations prescribed for him by law his acts
are valid. When he ventures beyond those
limitations, his acts are absolutely void. The
law defines and limits mis- powers, and We
know precisely their extent. It is not a case
for prtmd Jdcte evidence and presumption.
The same principles apply to the office OF
Secretary Of War. and the other Executive De-
partments Of the Government.
no fo1Irt t,r0 hafi Sntta ~
the Treasury. heing authorized 10 order the ar
rest, old not object when informed of the de-
fendants intention to make il, and especially
if he counseied and advised with the defend
ant as to the mode OF making it, then the said
Solicitor must be considered as having assent
ed thereto, and his assent was equivalent 10
that order'-Was granted the, Judge remark
ing, however, that at this point Ee would not
say whether that order was q lawful one or
otherwise.
The fifth prayer-"That if the Solicitor af-
ter receiving authority from the Secret ary OF
the Treasury TO order the arrest, was sien
AID made no objection VIXEN informed by the
defendant that he weuid make the arrest, such
silence without objection constituted an ac-
Quiescence in the act and w.s equivalent 10
al OIdeT'-Was granted with the same qualitt-
cation.
The sixth prayer, which is as follows, Is re-
jected So That the written order of the Solic.
itor, by authority or the Secret Try OF The Treas
Dry, dated j an uary 1854, and directing the in
rcelation OF DR.. Gwynne In the Old Capitol
prison, WAS given under the authority of the
President OF the United States, and necessarily
implied an assent 10 and approval of the ar
rest which had taken place the day previous.
and related back to, adopted and justified the
same :"
evidence whatever in this case TO show that
either the first arrest OF DIR. Gwynne by the
defendant, or his commitment TO the Old Cap
itol prison by order Of the Solicitor of the
Treasury on the following day, January 7th,
leGl, was ordered by the President of the
United States or by his authority, or that he
even knew or suspected that such deed was
In contemplation by any sf his subordinates.
Dr.. Gwynne had been a contractor to furnish
membrane paper and machinery for man ufac
turing the fractional currency for the Treasury
department. He was suspected of having
psIpetrated certain frauds under his contract,
either upon the Government or his sub con-
tractors, one or the other. a detective was en-
gaged by the department 10 investigate the
question. After consultation with the Solici.
tor of the Treasury and other officers of that
Department, and with or without their sane
ton for the act, the detective arrested him,
seized his papers, kept him in close confine-
ment in a room for one day and then procured
from the Solicitor an order of commitment to
The Old Capitol prison This was all done
without an affidavit OF any one previously
made or a warrant from any Off GER OF the la
Itwas proceeding certainly without pre-
cedent in this country, and was in clear viola.
uon OF the law of the land, unless it can be
justified under the act Of Congress of 3D. of
III arch, 1868, chapter sI and il is upon the Attn
section Of this act that the defendant now re.
The first section of this law authorizes the
President, during the existence of the present
rebellion, whenever in his judgment the public
safety may require ii, to suspend the privilege
Of the writ of habeas corpus in any case
throughout the United States or any part
thereof. The fourth section provides 'sthat
any order Of the President, or under his au-
thOrity, made at any time during the existence
Of The present rebellion, shall be defense In
all courts 10 any action Or prosecution, civil or
criminal. pending or TO be commenced. tor any
search, seizure, arrest, or imprisonment, made.
done, or committed, or acts omitted to be done,
under and by virtue OF such order, under
color of any la W OF Congress, and such defense
may he made by special plea or under the gen.
era] issue
The instruction asked for assumes that this
arrest W as made under the order OF the Secre-
tsry OF the Treasury, acting through the So
hcitor, and that what the Secretary did must
BE- taken TO have been ordered by the Presi-
dent
The Court has already instructed you as 20
the powers and duties OF the Secretary OF the
Treasury as conferred and limited by law.