New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-11-12
ruE 1auAR SUIT AGAINST MIR. DANA.

THAT AN ILLEGAL ACT CANNOT BE JUSTIFIED by
suPERoRs oRDER-THE CIRCUMSTANCES OF
MR. IAMAR's IMPRISONMENT.
The case of Gazaway b. Lamar of Savannah,
Ga against Charles A. Dana Assistant Secretary OF
War; came for trial. Yesterday. In the United states
Circuit Court before Judge Nathaniel shpman. AS
was stated Tuesdays TRIBUNE action was brought to
recover 100000 for alleged false imprisonment dur
ING the latter part OF the Rebellion. In his opening
statement, ex Judge william d. shipman, the leading
counsel for the plaintiff spoke substantially as follows
ExJUDGE sHIPMAS's ADDRESS.
Ipropose to depart somewhat from the ordinary prac
ce and TO open this with reference to the ques-
OF law embraced In it, Before doing so. however de-
sire to tell the story Of MI Lamars arrest aud mprsoh
ment Mr.. Danas order for Mr. Lamars arrest was de'
hyercd to Gen. Jeifries-"a very suggestive name IN
connection with the transactOn"on April %, 1862 ana
the General went TO Savannah and kidnapped him. ~
saw kdpapped because il Is the proper word" MT La
mar was then i'll, and Gen. Jeiriess humanity ao"eu
him 10 bring lis daughter with him TO Washington
where he was thrust into prison WHICH was
a disgrace to the country and to humanity "heh
Mr. Dana learned that Mr. Lamars daughter was Win
him TO minister to his wants during bis Imprisonment
he ordered her 10 leave him and TO GO to New-forK
This was done that his imprisonment might DO mauo
ne painful as possible" After three months cohhhe
nent which greatly injured his health, Mr. Lamar was
allowed TO return Savannah where he was kept nuer
guard for a long time. No statement, either ora OF
written OF the OF his arrest was communicated w
him; and no accusation in connection with his arrest was
made against him.
Turning his attention 10 the questions OF law in the
case ex-Judce Shpman continued: In view OF the iac
that the seizure and imprisonment OF ME- l''h 'io
alleged to have been 10 pursuance OF the direction vi
the President it will be necessary TO examine with care
the character Of the laws of the United States botn
organic and statutory which were then In force anu
which are german to the subject
Article OF the Amendments TO the Constitution says
The right of the people TO be secure in their persons
houses and effects against unreasonable searches ana
seizures shall not I've violated and no warrants shall
but upon probable cause supported by oath or
affirmation and particularly describing the place TO be
searched and the persons or things to be seZ,d. 49,
Tho Fifth Amendment provides that no person shal be
held to answer for "a capital otherwise Infamous crime
unless presentmont or Indictment OF Grand jury,
except IN cases arising in the land or naval forces
nor shoIl any person be subject the offense
TO be twice put in jeopardy of life or limb; nor De com
peed in any criminal ease, TO be witness against nm
self nor be deprived OF life liberty, property. without
due process of law shall private property be taken
for public use without just compensation
Tae sixth Amendment says that IN all criminal prose,
cutions the accused shall enjoy the right OF speedy and
public trial by an impartial jury OF the state and dls
iIict wherein the crime shall have been Committed.
which district shall have been previously D
law and to be informed OF the nature aud cause ot
the accusation to confronted with the witnesses
against him, &c.
sons the Constitution binding upon every de-
p.rtment of the NJ and upon the individuals
however exalted as upon citizens private life. In
deed those provisions were egest az snpse me
else OF power by them TO the detrDent OF the czen
sN w and the rigbs thew assure and guard had
been denied and hampered by those IN power IN FORMER
times that those provisions adopted The President,
Whoever he may the time being bound BY those
clauses Just firmly as his lowest Ocldl suOOrulnitc
for There is nothing in part Of the instrument which
exempts hun from their operation. BY his oath OF office
he sWoars that lie will preserve, project and ueied
them as wen as all the other provisions OF the
Ter every citizen from the wanton or mis-
erfy by the agents OF the Government. They
were intended 10 furnish this paintih with complete pro-
lection against the fragrant wrongs committed upon
him for inch he seeks redress IN this action. Now
in the light OF those fundamental provisions OF the
organic law, intended shield for the protection of
life liberty and property. let consider what was
actually done by this defendant in the premises The
very recital OF bis acts and Of those who were, in udg
ment OF law. his abettors or agents. WILL IN this III
stance show their illegal character. The defendant
issued the following order:
WAR DEPARTMENT April %, 1865
You win proceed to savannah ano arrest
separate and close confinement. uosr sire; sad and bring
o oTSe - By order Of tie President.
To Brere Brig Gen n l. Jes Rf. A'''-' '''''' W"
With this document in his hand Jefres executed, not
the law. the will OF this defendant or OF some OF
whom he was the ready ana SaOSe[y9Is instrument
without sense of shame and humiliation is not TO be
Apri o. 1866 than The Supreme Court OF the
United states has ansD ered that question IN er Pare
menting upon the amendments to the Constitution
already cited:
provisions expressed in such plain agh seem tho
sa 70 Sought Be evsG Those great and so4 men G e
saw h1, ,IOa0eo%s times woan ' an. SAsS rulers and people
decisive accomplish ends deemed a aud proper and that
@ b eposeh1Ss law The hs t Of the word bad taught
The Constitution Of tbe United States Law for and people
equally peace and with the shed Of it. protection
cuns.sns No doctrine involving psrou, consequences
suspended during any great of
doctrine LEADS Ss , si Az. OF S TO- eT @ Theory
Constitution powers granted to which necessary
great effort throw OF its just authority.
This is a cogent and authoritative statement OF the
immutabty Of heprovsions OF the Constitution which
the defendant this not merely ignored but
pied under his feet 1t would perhaps, be enough say
the fourth, fifth and sixth amendments which have
been considering But We might partcularze by aver
First That the seizure of the plaintiff sperson, books
and papers unreasonable because all arrests and
seizures are 4" unreasonable" when made without
Secondly: lie was not only seized without any war.
rant founded upon probable cause and supported by
oath Affirmation, but without any warrant at all
derived from court or Judge to take some person
Thirdly: He was deprived Of his liberty without due
Ioirtkiy: He was denied speedy and public trial by
an impartial jury IN the State and district wherein what
acts he had done committed, and dragged
10 q distant district.
Flfhty: He never informed OF the nature OF the
confronted with the witnesses against him.
The seizure OF the plaintiff cannot be justified as q
military arrest under what Is called martial law It was
not military arrest in any acceptation OF that term 1t
did proceed upon any such pretense; neither
was IL done under the pressure OF any necessity pon
which alone martial law can resD by the Mill
tary Commander OF the District, Gen. Sherman
who knew nothing OF It, Again. the plain.
tn not engaged any acts Of hostility TO the Gov.
eminent He had been, and still was resident OF one
OF the socaed Confederate States. He may nave COM
mtted by giving aid and comfort to the enemy
II so, he was liable TO arrest and punishment IN the dis
trict where his Ofense had been cOmuAted There IA
no pretense that he did any act after jan
9. 1855. suljeoting him TO arrest and i'm.
prisOnmcDt. lie had accepted the suggestions In Gen
bhermans proclamation OF Dec 20, 1864, taken the am.
nesty OATH and living peaceaby under such rule as