The question is not whether the fourth section of the act of congress passed March 3d, 1863, affords a valid defense to the action. The true question is this : Is it in the power of congress to give the circuit court jurisdiction of the case ? The constitution extends the judicial power of the Union to all cases in law and equity arising under the constitution, laws and treaties of the United States. The defense in this case arises under the act of congress, and the validity of that act, considered in the light afforded by the constitution, will be one of the principal subjects to be determined at the trial. ■ It has been decided that a case arises, within the meaning of the constitution, as well when the defendant seeks protection under a law of congress as when a plaintiff comes into court to demand some right conferred by law.
It has been objected that the original jurisdiction of all actions may be drawn into the federal courts, by similar enactments of congress,- and that the case arises within the meaning of the constitution, only after a trial and judgment in this court, when the action can be transferred by writ of error or appeal, and brought before the federal courts for review.
The power of transferring causes to the United States circuit in a similar manner, where the question involved was of an appellate and not an original jurisdiction, has long been sustained. Chief Justice Marshall says, in the case of Osborn v. The Bank of the United States, (9 Wheaton, 821,) “ We perceive no ground on which the proposition can be maintained that congress is incapable of giving the circuit courts original jurisdiction, in any case to which the appellate jurisdiction extends.” Congress has enacted that the defendant may interpose in his defense the orders &c. of *273the president, and has directed the transfer of cases involving such a defense, in the manner prescribed, into the circuit court.
According to the statements of the defendant such a case has arisen. We have nothing to do with the validity of the law as a defense to the action. It is sufficient for the state court that the defense involves the construction and effect of a law of congress. The case has then arisen, when the courts of the United States may have jurisdiction, if congress so directs. If the law does not afford a constitutional or valid defense, it cannot now be doubted that the learned justices of the United States courts will so declare it, when the jurisdiction of such cases will remain in the state courts as before the enactment of the law. It is not our duty, therefore, to assert the independence of our state sovereignty and jurisdiction ; for the final construction and effect of all acts of congress may be brought before the United States courts by the express provisions of the constitution. The manner of taking the cause to those courts is of no consequence. The supreme court of the union must be relied on to prevent its jurisdiction from being unlawfully extended by congress. I am of the opinion, therefore, that congress has the power to direct the transfer of such cases.
In my opinion this application was unnecessary in order to vest the United States circuit court with the possession of the action, but the discussion has not been lost, inasmuch as it will be now settled that this court will not in this judicial district take further cognizance of cases which have been transferred under this act of congress. It is very proper that an order be entered transferring the cause to the United States circuit, as it affords the evidence in this court of the disposition made of it. In arriving at my conclusions I have consulted Story’s Com. on the Const, ch. 38, §§ 903, 906, &c., &c., &c.; Martin v. Hunter, (1 Wheaton, 304;) Cohens v. The State of Virginia, (6 id. 264;) Osborn v. The Bank of the United States, (9 id. 738.) As a rule of practice I think the court should not approve any sureties unless the amount *274of the bond is equal to the sum in which the defendant in the action has been held to bail, if bail has been required in the state court. This fact should be made to appear to the satisfaction of the judge to whom the bond is presented for approval.
The decision in this case will also embrace the case of Gudeman v. Wool, argued at the same general term as the present case.
The order appealed from should be reversed, and the motion made below should be granted, without costs.
Sutherland, J. The question is not as to the constitutionality of the fourth section of the act, declaring that the order or authority of the president, during the rebellion, shall be a defense in all courts to any action for arrest, imprisonment, or act done or omitted to be done, under or by color of the president’s order, or of any law of congress ; but the question is as to the constitutionality of the fifth section of the act, authorizing the defendant in any such action to remove the same from the state court to the circuit court of the United States for the district where the suit is brought, for trial, on complying with certain requirements specified in the section ; that is, on entering his appearance; filing his petition stating the facts; offering good and sufficient surety, &c.
The question presented by this appeal is not as to the constitutional power of the president to order the arrest, imprisonment &c. or as to the constitutional power of congress to authorize the president to order the arrest, imprisonment &c.; but the question presented by the appeal is as to the constitutional power of congress to give the circuit courts of the United States primary or original, and, (as to the state courts,) exclusive jurisdiction of the trial of actions for such arrests, imprisonments &c.
’ In determining the question as to the constitutionality of the fifth section of the act we must assume, I think, that the *275trial of this action will involve the determination of the question as to the constitutionality of the fourth section; that congress in passing the act considered that the trials of the actions to be removed to the circuit courts of the United States under it would involve the determination of the question as to the constitutionality of the fourth section, whether tried in the state or United States courts ; and that congress intended by the fifth section to take from the state courts, and give to the circuit courts of the United States, the right and power to determine that question.
Had congress the constitutional power to do this P That is the question. If congress had the power then the order appealed from, denying the defendant’s motion to remove the action and all proceedings therein to the circuit court of the United States for the southern district of Hew York, should be reversed, and, I think, an order made directing such removal. If congress had not the power, then the order appealed from should be affirmed.
If no steps had been taken for the removal of the action from this court, and the action should be tried in this court, and the question as to the constitutionality of the fourth section of the act should be decided adversely-to the defendant by the court of appeals of this state, the supreme court of the United States would have final and conclusive appellate jurisdiction of the question. (Const. U. S. art, 3. Sec. 25 of the Judiciary act. 1 Stat. at Large, 85. Cohens v. Virginia, 6 Wheat. 264. Miller v. Nichols, 4 id. 312.)
Cannot congress give the circuit courts of the United States original jurisdiction in any case to which this appellate jurisdiction extends ? In Osborn v. United States Bank, (9 Wheat. 738,) cited by Judge Leonard, Ch. J. Marshall said he could perceive no ground for saying that congress could not. In that case one of the questions was, whether congress could constitutionally confer on the hank the right to sue and be sued “in every circuit court of the United States." It was held that such a suit was a case arising un*276der a law of the United States; consequently, that it was within the judicial power of the United States, and congress could confer upon the circuit court jurisdiction over it. See also Curtis’ Com. on the Jurisdiction &c. of the Courts of U. S. §§ 12 and 13; the latter section containing a quotation from another portion, (p. 865,) of the opinion of Oh. J. Marshall in Osborn v. The Bank of the United States apparently quite pertinent to the question in this case.
I. concur then in the conclusion of Judge Leonard, that congress had the power to direct. the transfer to the circuit court of the United States. Probably an order of this court directing such transfer is not actually necessary, but to make one would be in accordance with usage in like cases; and besides, such an order would be the best evidence of the determination of this court that it no longer had jurisdiction of the action.
It appearing that the defendant has complied with the requirements of the act for such transfer, the order appealed' from should be reversed, and an order made by this court for the . removal of the action and all proceedings therein to the circuit court of the United States.