I see nothing whatever in the arguments of my brethren, or in those of other judges on the same subject, to induce me to recede from the position which I, have attempted to maintain at special term. They have all alike, in my very.humble judgment, unaccountably overlooked the only point claiming consideration on the great' constitutional subject.
According to.the doctrine upheld by-my brethren, we can scarcely conceive of any act, committed by any officer of the general government, under color of any authority derived from or under. the president, which may not constitute a genuine veritable case arising under the constitution of the United States, and which, therefore, may not rightly come within the cognizance of their judicial power. It is only *277necessary to claim that it was committed under color of that authority, and was, therefore, justified by the constitution, however monstrous and appalling' the act may be, to make it, according to this doctrine, a case arising under that constitution. For, of course, according to the terms of the claim, the claimant appeals, through this remarkable statute, to the constitution for his justification, and, however palpably frivolous such a claim may be, however palpably manifest may be the conviction that the constitution no more sanctions such an act than it sanctions the burning of the capítol, the dispersion of congress, and the shooting, imprisonment or exile of the men of whom it is composed, yet it is claimed to present a question, and, therefore, a case arising under the great charter of constitutional liberty in America; the perpetrator of the outrage making that a question, which is unquestionably no question; and the judicial power of the state is ousted of its legitimate jurisdiction. Thus, this extraordinary statute prescribes not only that the character, but the mere assertion, of the wrongdoer shall determine jurisdiction, and that the subject matter, which has been always held, except in cases affecting ambassadors, other diplomatic ministers and consuls, as alone the criterion of jurisdiction, shall be excluded from consideration. Surely, if this can be done by congress, the government of the United States of America is not, as all men have heretofore supposed, incontestably a government of limited powers and duties, and is, if not one of unlimited powers and duties, nevertheless, of very accommodating expansibility. This is a novel and strange theory of development in America.
But, it is asserted, as the appellate power of the supreme court of the United States extends in certain cases to state tribunals, that this case would after judgment reach the federal jurisdiction, and that, therefore, it may as well be transferred to the United States circuit court before judgment. Even if the supreme court of the United States would entertain such a case on appeal, this is no controlling *278reason why it should, necessarily, be transferred to the United States circuit for adjudication in the first instance. For, the only question to be determined by us on this motion, is whether congress has the power to transfer cases of this description to the circuit court of the United States, not whether, ultimately, it may reach the appellate jurisdiction of the United States supreme court. The act of Congress, passed in 1789, “to establish the judicial courts of the United States,” no doubt provides that a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a statute of the United States, and the decision is against its validity, may be re-examined and reversed or affirmed in the supreme court of the United States. But, if it is too clear for controversy that the statute is an outrage on the constitution—if it is palpably usurpation—if it is plain to the most unlettered citizen that the statute is an attempt to subvert all the securities which the founders of the government have provided for the preservation of personal liberty, and to invest one man with unlimited dictatorial power, and, therefore, that the appeal was palpably frivolous, I presume the court would hear no argument on such an appeal, and would, forthwith, affirm the judgment or dismiss the suit. Would they, for instance, hearken to an appeal involving the validity of an act of congress giving the president or any other member of the government power by a coup d’ etat to extinguish the legislative branch, as Cromwell did the long parliament, and substitute a Barebones legislature in its place. Surely not, if they too were not struck down, and were not, (if such debasement can be imagined,) by force, by fear-, or by corrupt appliances, or selfish aspirations robbed of independence. So that, the consideration, whether the act is not palpably void, must present itself on appeal, and now presents itself to us on this motion; and, if it is palpably void, I repeat, it would not be treated on appeal as .worthy of being for a moment entertained. I still consider the defense in this case just *279as destitute of color as the case which I have imagined. Whether under the pretext of authority from the president of the United States, any one citizen, at his mere will and pleasure, without any intervention of the judicial tribunals,^ can incarcerate another citizen, not subject to military law, in a loathsome dungeon, for many months, or for a day or an hour, cannot, under any circumstances in which the nation may he placed, be treated as a question constituting a case arising under the constitution; and any statute, which declares the contrary, is palpably void.
[New York General Term, February 1, 1864.The order made at special term should be affirmed, with costs.
Leonard, Clerke and Sutherland, Justices.]