Year: 1863

Action Against the Secretary OF Statt
for False lmprIsonment-M0tion ca
Remove the Trial to the Fedora
Courts Denied-The Court 10 or Opin-
ION that che President Has NO Power Z.


Authorize the Act Complained OF, 80.
SUPREME COUkr-sPEOIAL TERN.


Before Judge Clerke:


OCr 19-Jones WiI.am H. SsOard, Secretary Of
Hate.-This is action In which tho plaintiff claims
damages for an alleged false imprisonment. The dc.
tendant for order Of this Court to remove h,
action and all proceedings therein the next Circuit
Court Of the United States to be held in and for the
Southern district OF New York The defendant states In
his petition for this order that the action brought for
alleged to have been done by him Secretary OF
State for the United States OF America under autho.
rity derived by him from tho President OF
the United States, In causing and procuring the
plaintiff TO be arrested and imprisoned, or for
wrong alleged have been done to the plain
t under such authority during the present rebellion OF
the called edsrate States against government
OF the United States OF Amerca and that II therefore
comes within the act OF Congress- passed March 3,
jud ca proceedings In certain cases. providing In the


Nth section, that II any suit has been or shall be


menced against any officer, civil military any other
person. for any Imprisonment trespass wrong
done any omitted TO be done during the present
rebellion by virtue under color OF any authority de-
rived from exercised by under the President Of the
United States any act OF Congress- the defendant may
action Circuit Court OF United
for the district the suit Is brought, COM
plying with certain requirements stated In the act.


OF this act far directs the transfer Of
from the State to federal Jurisdiction, II It has any
constitutional foundation Is founded upon the third ar


Gle OF the constitution the United States defining the
the judicial power delegated by the States TO
the federal and particularly upon that part
Of section Of said article which says that the judi
s shall extend 20 q. IN S law snd ssy
this application maintains that the defence which he In
tends toset up in this action arises under the consttu
e,nn <E ITnSsAA Geata thA IN HAn
determined being whether the President Of the
United States during rebellion or insurrection
imprson any person subject to military law, without
any order writ preoep or process OF some court Of COM
Il question ali would arise undSr the constitution Of
the United Staes-that Is, whether the President pos
sesses this power either In hs civil capacity Or a. Com


mander In Chief OF the Army and Navy OF the United
Staescan be solved only BY consulting and interpreting
that instrument But 70 eote the defendant TO this
States Jurisdiction OF this action, there must
be some appearance or color OF substance In II
II have specioususs some seeming Of pausi
biy and must be psipably devoid Of any ground
doubt Can II hcn be question: presenting any appear
tuition OF the United States Of America has invested ts
chief executive officer with to arrest mprison
or 10 authorize ano'her 10 arrest or person
not subject 10 military law at tmelor under any oxi
geDcy without order pFccep process OF
/ ciy.. court Of competent jurisdictoni


advocate OF this high Presidential prerogative that the
constitution confers II in There s assuredy
nothing In that Instrument which can Dc tortured INTO
the comforting OF such power the President In bis
civil capacity and this II appears 10 me- plainly disposes
OF the question: for would DO asserting the grossest
contradiction and strangcst anomaly 70 say that absolute
and unlimited powe equal 70 any exercised by Gar or
Sultan be implied from constitution which avowsd


" gives power any department OF the government
that specifically set FORTH except simply the conse
quent right To employ oil legal means necessary TO the
execution OF the power
The Judge then proceeded to review at considerable
length the arguments Of counsel, and contuuod- ID
however maintained n the President does not possess
this In his civil capacity that he does possess In
his military capacity Commander In Chief OF the Army
and Navy Of the United states. commander OF au
army has Of curse. within the sphere OF his military


operations against enemy all necessary TO insure


their General Rosecrans had right, have nc


day TO destroy all property which caused


any obstacles 10 his operations against Bragg and be
discovered plots to mar those operations or give In


teigence to the enemy to afford them any kind OF aid
or comfort, he would be right TO try the offenders


whether civilians soldiers, by court martial. But
his powor does not extend beyond his lines.


Judge Clerke concludes very able and elaborate
opinion BY statingThe President therefore, whether In
his civil capacity Commander In Chief of the Army
and Navy of the United States has unquestionaby nc
power authorize the act OF which the plaintiff com
pans The ground upon which this application In made
has no color OF right cannot IN my opinion be cnter


tanned rs question in any State United States couvt


The only questions In this action worthy of consideration


and which can be entertained do not arise under the
constitution Of the United states but are ty within tht
Jurisdiction Of this Court The motion denied, without