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[409] made, done, or committed, or any acts omitted to be done, under or by virtue of such order, or under color of any law of Congress. The act further provided that all actions against officers and others for torts in arrests might be removed for trial to the next Circuit Court of the United States held in the district, and said:
It shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged.

It will be noticed that by the terms of this act the case could be removed to the Circuit Court when the defendant ‘filed a petition stating the facts verified by affidavit.’ Thus the jurisdiction of all the courts of the state of New York was made to terminate and cease upon the simple word of the defendant accompanied by an affidavit. But these courts were instituted by the consent of the governed, for the protection of the personal freedom of the citizen; yet in the cases brought before them they ordered the removal on the ground that they involved the question of the constitutionality of an act of Congress, over which the courts of the United States had a jurisdiction. The absurdity of this plea is manifest; it is founded on the presumption that the question, whether, under authority from the President of the United States, anyone, without intervention of the judicial tribunals, can incarcerate a citizen, is a question which can be treated as constituting a case arising under the Constitution of the United States. Any statute authorizing such acts is palpably void, and not entitled to be a ground for a hearing under an appeal.

The subjugation of the government of the state of New York was made in another section of the same act of Congress of March 3, 1863. It declares:

That during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.

Let us turn to the words of the Constitution of the United States which are contained in the grant of powers to Congress:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

It will be seen that two facts are required to exist before the Congress of the United States can suspend the privilege of this writ. Congress must, therefore, determine the existence of these facts before it has power constitutionally to act. If it finds either fact to exist and not the other, it has no power to suspend the privilege of the writ. There must

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