Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-02-02

| and Coomos for the prosecution
The following opinion, which was delivered
| by Chief Justice Cartier, is concurred in by
Justices Fisher and DIN, but Judge Wylie
| dissents, and read lengthy opinion sustain
ing his views expressed on the trial in the
On the Ath OF December, 1863, the Secretary
of the Treasury addressed to the Secretary OF
War the following note: o.,
TREASURY DEPARTMENT, Dec. %, ls63.-Sir.
Will You oblige me by directing Col Baker to
make such Investigations and arrests and ex-
ercise s--cn custody of persons arrested as
ment Of frauds on the Government commlt,eu
by persons in this Department Yonrs. truly,
| (SignedJ S.P. CHASE.
Hon. Z. NJ. STANTON, Secretary Of War;
| =. S.-Please send me q copy OF Whatever
order you may issue to Col. Baker.
Upon the receipt of this communication.
the Secretary OF War made the following or
der:
Endorsement on the foregoing letter of Sec
retary Chase: "Referred to Mr.. Watson. with
erection to detail Col Baker to report to the
Secretary OF the Treasury for special duty IN
| osr lis directions.
"lS,sced) EDWIN NJ. STANTON"
The ;aefendant, Col. Baker, reported to the
| Secretary a. the Treasury, in pursuance of the
| order Of the secretary of War when the Sec
retary of the Treh 'ury issued to Col. Baker the
| following order: Ma ., ,o.,
| Er xir,ns NJ an order fre,,r the Secretary Of
| War OF this date YOU are hereby directed TO re-
| port to the Solicitor of the Treas ury. ano re-
| Ceiye and recognize such instruct IONS as ne
may from time TO time give you, exec 'iing the
| same with all possible promptness he>pee'
| fully, (Signed SP. CHASE,
| Col. L. q. BAKER, &c, DC, &c.
In pursuance Of these orders and instruc-
| tons, and upon consultation with the Solicitor
OF the Treasury, the defendant BAKER, arrested
Stewart Gwynne, an employee of the Treasury
Department.
Jordan, the Solicitor of the Treasury, testifes
that he did rot give the defendant, Baker, any
express authority to arrest Gwynne; but il is
manifest from his own testimony, to say moth
ing of the evidence of Chittenden, that he con-
as to the best mode OF making it, and by his
directing as to the place OF Gwynne's confine-
ment.
In pursuance OF a report made by Jordan to
the Secretary OF the Treasury, the following
order was made for the Imprisonment and de-
tention OF Gwynne.
Jan. :, le6i-Sir: You will convey to the Old
Capitol prison, there to be kept in separate
confinement until otherwise ordered, DIR. Stu
By order Of the Secretary OF the Treasury.
EDWARD JORDAN,
Solicitor of the Treas ury.
For this arrest and fmpris Col Baker
was indicted by the Grand Jury OF the District
of Columbia on the 10Th of April, 1861, tor
sault and battery and false Imprisonment On
the trial in the Criminal Court, at the Decem-
Der term, 1864, Colonel Baker pleaded not gull
ty, and for his defense relied upon the fourth
section Of the act Of March 3, 1863, chapter 81,
which Divides s'that any order of the Pres-
dent or under his authority, made at any time
during the existence of the present rebellion,
shall be defense liz all courts to any action or
prosecution civil or criminal, pending to be
commenced, for any search, seizure, arrest, or
Imprisonment, made, done committed, or
acts omitted to be done under and by virtue of
such order, or under color of any law OF Con-
eress; and such defense may be made by spe.
cial plea, or under the general issne.''
Justice Wylie who presided on the trial, in.
structed the Jury that the orders OF the 9th Of
December, 1863, Of the Secretaries Of War and
OF the Treasury, under which Colonel Baker
acted were no defense, AID that nothing short
of a written order OF the President would suf-
flee under the act of Congress.
The defendant was found guilty, and he
moved for new trial, upon exceptions to the
ruling OF the presiding justice, and appealed
to this Court.
If it be conceded. that the orders OF the Sec
retaries of War and The Treasury, are in legal
effect the orders OF the President those orders
taken In connection with the 18th section of the
statute above quoted would leave little en-
barrassment as to the conclusion.
The foregoing act provides in clear and ex-
pIicit terms, that If any arrest be made by order
OF the President, or under his authority, it shall
constitute Il full and complete defense for the
person making such arrest.
The question then occurs, was this arrest
made in pursuance OF the order OF the Presi-
dent. 1t was admitted by Justice Wylie,
who tried this cause IN the court below
W,
and that of the Secretary of the treasury made
in this case are to De regarded as the orders of
the President, then the defendant, Baker, proved
or offered to prove on the trial, what would
constitute defense to this prosecution.
Were these orders then, under which the de-
PENDANT assumed to act in making the arrest OF
Gwynpe, in contemplation of law, the orders of
the President! On this question we have no
doubt whatever. 1t was held by the court be-
low that they were not We think that in this
respect the ruling Of the Justice at the trial in
the court below was erroneous, both upon prIn-
ciple and authority. An unbroken series ofdecls.
IONS of the Supreme Court has declared in sub
stance that the acts OF the Secretaries OF the differ
ent departments of the Government respect to
the several duties pertaining to their respec-
tive departments, are in contemplation ef law
the acts of the President.
1t will be observed that the section OF the
act of Congress before quoted does not assume
TO confer upon the President the power to
arrest and imprson suspected persons, but
presupposes the existence OF that power in
the Executive. But whether a power of
this kind be incidental to the CHIEF Execu-
tive be conferred by act Of Congress. it
is manifest that it can only be properly and
vigorously exercised In time Of war through
such agencies or instrumentaities as the
EXECUTIVE may select for that purpose.
To hold that the power OF the President
lin time OF civil war like the presenD to
loyalty other ofense against the United
States, could only be exercised after a lu-
dlciai investigation by the President per-
sonaly, and the issuing a written order for
the arrest, would render the power con-
ceeded to exist worse than useless and nu-
gatory, especially in all that portion OF
the United States where a Justice of the
p ace was permitted to discharge the tunc--
tons of his office. 1t was held IN the Court
below that the orders Of the Secretary Of War
and the Secretary of the Treasury were not the
orders of the President, and therefore could
not be made available as defence IN. this
case-that the only order or authority that
could be made available in justification OF the
arrest and Imprisonment was the written Or
der OF the President. II this decision ba cor
rect it would render the power possessed by
the Executive or con ferred by the act Of Con-
gress useless, and operate practical repeal
of the law, or impose such limitations on the ex-
ercise of the power possessed by the Executive
to render it useless for the exigencies OF this
crisis.
A moments glance at the innumerable duties
imposed upon the President and at the ma.
chinery constituted for the practical working
of the executive department of the Govern
ment, oficered by its seven heads Of depart.