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therefor to the party aggrieved, to be recovered by insinuates rebellion or a rebellious spirit to Senator from New Hampshire and the Senator action in a court of the State having proper jurisdic
me, I have only this to say: that there is noth- from Delaware. The proposition, if I undertion, or in a circuit court of tho United States for the district in which such further proceedings may have
ing in that Senator, mentally, morally, phys- stand it, is to strike out section four. All that been had, or where the party officer, or other per- ically, or otherwise, that gives him the right section four provides for is the right of the son go ofronding shall be found; and upon a recovto use insolent language here.
removal of these causes from the State to the ery of damages in either court, the party plaintiff shall be entitled to double costs.
Mr. CLARK. Mr. President, I desire to Federal courts. Certainly it appears to me Now, Mr. President, I am very free to say
use no insolent language; I shall not be dis- that in respect to acts which are done under
courteous, I hope, to the Senator from Dela- the authority of the General Government, the that if I were a judge in any State I should not
ware or any other Senator. I hope I shall not authority of the General Government ought to feel myself bound to pay any attention what
be discourteous to the Senate of the United be asserted and it ought to be defended in ever to this act; because I do not believe the
Stateş, I hope I shall not be discourteous to its own courts; and such, I believe, has been Congress of the United States has the consti- the Government of the United States. But the constitutional practice of the Government tutional authority to pass the act. Suppose a when the Senator from Delaware, or any other
from its foundation. Therefore it appears to judge of a State court should honestly be of
Senator in this body, shall rise repeatedly, time me that this section, which only provides for that opinion, and suppose some Secretary of
after time, and say here in the presence of this enforcing that right of removal to the national War, or the agent of some Secretary of War,
Senate that he will not obey the authority of tribunals, is perfectly constitutional and peror some Secretary of State, or the agent of
the United States, it is time, with due defer- fectly right; and I am opposed to its being some Secretary of State, has caused a citizen
ence to him, that that spirit of the Senator, stricken out. within the limits of one of the States to be that that spirit of rebellion which crops out in
wir. HENDRICKS. I was not able to see arrested, and application is made to the State courts for redress, and the State courts believe | morally, I claim nothing physically, I claim
that way, should be rebuked. I claim nothing hat the reply of the Senator from New Hampthey have the constitutional authority to afford | nothing mentally, but I do love my country,
shire met the point made by the Senator froin
Delaware. This bill addresses itself to each that redress, notwithstanding the provisions of this act, and shall honestly so decide, your act
and, God aiding me, I will stand against rebel. one of us as lawyers. It proposes to confer
lion to the bitter end of it, whether in the Sen- upon the courts of the United States jurisdicpropnses to punish them in damages for the
ator from Delaware or in him who is now con- tion, and to control the proceedings of the State exercise of an honest judicial opinion. I will fined in Fortress Monroe.
courts in certain causes; and I was not able to not discuss the question, however, Mr. Presi- Sir, we have had too much trouble from this dent, but I make the motion to strike out the spirit already. If the men who have been en
see the impropriety on the part of a Senator in
saying that if he were a judge in a State court he fourth section of the bill.
gaged in rebellion “accept the situation,'' let should disregard the provisions of a law which Mr. CLARK. I hardly think it is worth
them accept it; but let not the same opposi- he thought to be unconstitutional. Sir, it is while that I should spend much time in answer- tion and spirit be manifested in tho Senate of not clear that this proposed transfer of causes ing the Senator from Delaware, and I would the United States. We owe it to the people of from the State courts to the Federal courts was not say a word now if this had not been the the United States, who have stood by us through contemplated by the Constitution; and when a second time when he uttered words like those
all the rebellion, that this Senate should be free similar provision found its way in what is called which he has now uttered in defiance of the
from expressions of the kind and from an ap- the civil rights bill I had the same opinion authority of the United States. When the civil
proval of such expressions; and if the Senator upon it. Causes such as are not described at rights bill was upon its passage, when the Sen- from Delaware rejoices that this rebellion is put all in the provisions of the Constitution, which ate was about to vote on it, the Senator from down, let him put away the spirit which pro- defines the jurisdiction of the Federal courts, Delaware, in the spirit that he now shows in duced the rebellion, and accede to the authority are to be transferred from the State courts to the Senate, and in the hearing of the people of the General Government.
the Federal courts, merely because Congress who were here, stood up in the Senate and Mr. SAULSBURY. I shall not continue so provides. I have my doubts whether it can defied almost the authority of the United States, this controversy with the Senator from New properly be done. When a case is pending in and said that if he were a judge, or a person | Hampshire. I simply rise to repeat, that there à State court, and an application is made to acting in that capacity, in the State of Dela- was nothing in the remark that I made to cause transfer that cause to the United States court, ware, he would not obey the law. He repeats any member of this body to say that I was if the judge in the State court shall be of opinthat same thing to-day. Sir, if it be so that opposed to the authority of the Federal Gov- ion that under the Constitution of the United the rebel spirit which defies the nation, in the ernment or of a State government. I said if I States that cause ought not to be transferred, person of judges and others, has crept into the were sitting as a State judge and called upon I submit to the judgment of the Senator from Senate, and shows itself here, the more the to act, and this act was produced before me, New Hampshire, what is the clear duty of the necessity of the bill which we propose to pass, I could not recognize it as a constitutional State judge? Ought he to send the cause from "I will not yield to that authority?'--so said law. It was simply the expression of an opin- his court into a Federal court, contrary to the the rebel, and that produced the war; and now, ion. It never occurred to me that there was laws and Constitution of the country? What when the war is over, the Senator from Dela- an intellect in this whole country so obtuse jurisdiction shall be possessed by the Federal ware stands up and repeats that he will not as for a moment to suppose that there was in courts is defined in the Constitution of the Uniyield to the authority of the United States. It is
that any. spirit of defiance to any rightful ted States; and I am of opinion that that defitime this should be done with. It is time that anthority of this Government, State or Federal. nition of jurisdiction does not include the cases the Senator should understand that the author- The Senator from New Hampshire, to exhibit provided for in this bill. ity of the United States will be supreme, whether his own patriotism, has chosen to indulge in But, sir, suppose it be proper to transfer it takes a Senator or the merest rebel soldier.
language unbecoming this place, and which I these causes from the State to the Federal This Government must be obeyed, and it is trust will not be repeated. Of one thing I will courts, ought the third and fourth sections of not worth having if it cannot cause itself to be assure the Senator: that while I wish to cul- this bill to be as they are? We are all familiar obeyed. This proceeding, if attempted to be tivate kindly relations with every member of with the act which authorizes the transfer of carried on in a State court, in defiance of the this body, both in the Senate and out of it, no certain causes from the State to the Federal United States authority, should be void, and imputation upon my just and proper devotion court. Where a citizen of one State brings a the judge and everybody else who undertakes to my Government will be submitted to. I ask suit against a citizen of another State, in a to set himself up in this way--for it will not be the Senator from New Hampshire in future State court, the act of Congress authorizes the an honest authority-should be punished for to be more cautious in the use of language. transfer of that cause to the Federal court, so doing. We have had about enough of this Sir, the time has gone by when sensible men upon the application of the defendant; and State authority to teach it to yield respect and indulge in reflections upon the motives of why? Because the Constitution of the United obedience to the laws of the United States.
others, simply because they may differ in their States provides that litigation between citizens Mr. SAULSBURY. Mr. President, I can. political views, or in their interpretations in of different States may be heard in the Federal not possibly imagine anything I have said that reference to a statute, whether State or led- court, which is supposed to be disinterested should call for the very unbecoming remarks eral. I have sought no controversy with that in judgment and feeling between the parties. of the Senator from New Hampshire. Whois Senator or any other; but hereafter, as in the But in that act we do not find such extraordihe, sir, that he should attempt to lecture a Sen- past, if I believe an act is unconstitutional I nary provisions as are in this bill. In that case ator in this body? Sir, I assigned the reason will say so; and I have as much confidence in the defendant, upon the first day of the term, why if I were a judge I should not carry out my own judgment in reference to questions of must come into the State court and make his the provisions of this law, because I believe it that character as I have in the judgment of the application for the transfer before he does any to be unconstitutional. What did I say about Senator from New llampshire.
act which recognizes the jurisdiction of the resisting the authority of the Federal Govern- Mr. CLARK. I have heard the Senator's State court, and he must give his bond that ment except in the interpretation of an act of caution; but I do not abate one jot or tittle of upon the first day of the next term of the FedCongress if I were sitting in a judicial capa
wliat I have said. I meant no disrespect to eral court he will file the papers in the cause city? Was there anything discourteous to any him personally as a Senator, but to rebuke the in the Federal court, and enter his appearance. member of this body in what I said; anything spirit which is manifested here; and if I have That is required of the defendant in a cause about resisting the authority of the United | occasion to say it again, I shall assuredly say where it is clearly proper, within the provisStates? Sir, the idea did not enter into my when the occasion calls for it.
ions of the Constitution, to take the case from mind at the time, but as I stated the fact that, Mr. EDMUNDS. I should like to occupy
the State to the Federal court. sitting as a judge and believing the act to be the attention of the Senate for a moment in Here, however, in a case, to say the least of without constitutional authority, I should feel addressing myself to the pending question it, wlicre it is doubtful whether the transfer myself compelled to execute the law of my rather than to the questions of spirit and recl- can be authorized by Congress, it is provided State. When the Senator gets up here and Il ing which have been discussed between the that that transfer inay be asked by the defendant, after he has entered an appearance in a defense; and in the course of ten days after- ernor Bramlette's intervention with his pardoning State court, after he has recognized, by his ward he discharged a rebel on the ground that
power would now be incarcerated there." appearance and pleadings, the jurisdiction of his order from the rebel service was a complete It seems that wbat is a good defense for a the State court. And, sir, there is very strange defense.
rebel soldier is not a defense for a Federal sollanguage here, which may be construed author- Mr. HENDRICKS. Iam not familiar with dier, and he is castinto prison for doing precisely izing the transfer after a judgment has been the case referred to by the Senator from Mas- the same thing for which the rebel soldier is rendered in the State court. I call the atten- sachusetts. If the judge to whom he refers set free. I make no imputation upon the State tion of the Senator from New Hampshire to showed partiality, or that he was governed by
of Kentucky; I desire to cast no imputation the language found in the third section, com- corrupt motives, I certainly have no apology upon her authorities; but if there be this honmencing in the eighth line, and I ask him to or defense to make for him. But I had not est difference of opinion in her courts, if they explain to the Senate the meaning of this lan- heard of any refusals by State judges to allow honestly believe that a rebel soldier is to be guage :
transfers of causes where the cases were prop- defended and protected because he has the But nothing herein contained shall be held to erly presented. I know that in the State of order of his superior, it is time that we should abridge the right of such removal after final judgment in the Stato court; nor shall it be necessary, in
Indiana, as far as my practice has extended, provide that the Federal soldier should be prothere has been no occasion to complain. Ifa
tected in the same way. the State court, to offer or give surety for the filing
I have further testiof copies in the circuit court of the United States. judge has acted in Kentucky as the Senator mony; and the Senator from Indiana need not
Nothing herein contained shall be construed from Massachusetts understands, then the rem- ask me if cases have been refused a transfer. to abridge the right to take the case from the l| edy against him is by impeachment, not by a
Thousands of them have been, on the very State to the Federal court after judgment ren- general provision that for the exercise of his | ground which the Senator from Delaware sets dered. After the defendant has recognized || judgment a judicial officer shall be liable to up, and which the Senator from Indiana, I unthe jurisdiction of the local court, after he has suit and to penalties.
derstand, has approved, that they declare the pleaded in that court, after he has submitted Mr. CLARK. I ask the Senator from Indiana, act to be unconstitutional. What defense is to trial by a jury, and after upon the verdict a who is going to impeach him? Perhaps he will an act of this kind to a Federal soldier if he judgment has been rendered, I want to know say, the Legislature of the State of lientucky, || goes into the court, and the judge says, “Your of the Senator whether he contemplates that if he were in Kentucky. A year or two ago the
act is entirely unconstitutional; I will not rethere should be a transfer, and that the judg. | Legislature of Kentucky passed an act, similar | gard it for a moment;", and then goes on to ment of the State court shall be vacated and a in its provisions to the one we now propose, for try and sentence him and put him in the State new trial had in the United States court. the rebel soldiers; and when a member of that prison, or else finds a judgment against him But, sir, in the existing law which author- || Legislature a year after presented a resolution
and sends the sheriff to take away his property? izes the transfer of causes to the Federal from of a similar kind for the Union soldiers, they There must be some way of remedying this the State courts in cases that are clearly within voted it down. They gave the rebel soldier | crying evil, and these men who have been the provisions of the Constitution, is there any this defense and refused it to the Union sol- engaged in the defense of the country cannot provision that if the judge shall be of opinion dier. I have a copy here of the resolution be permitted to be persecuted in this sort of that the case ought not to be transferred, he which Colonel Johnson, of Kentucky, intro- way.
Their life becomes hardly worth having, shall be liable to punishment, he shall be liable duced. It is in these words :
if, after having driven the rebels out of their to suit and damages? No, sir. Congress, in " Whereas at the last session of the Legislature an
country and subdued them, those rebels are to the enactment upon that subject, has assumed act was passed granting general amnesty to all who be permitted to return and harass them from that the State judge will do his duty. But
had been connected with the rebel ariny; and an- morning until night and from night till morning, here, almost for the first time, and I believe for
other which was made pleadable in bar to all indict-
and make their life a curse for that very defense the first time unless a provision like this is for acts performed during their said connection with which they have given your country. Sir, it found in what is called ihe civil rights bill, it said rebel armıy: Therefore,
should not be; and if these State judges will
Be it resolved, That the Legislature is most respectis provided that if the judge shall deny the fully requested to extend the same beneficent enact
not obey the law, if they will not allow the transfer, upon the exercise of his judgment, ment to the Federal officer and sobilier, which is but transfer to be made, there should be a penalty for what Congress may hold to be an error of
justly and fairly due to the man to whom that Legis- annexed which would compel them to obey and
laturo is now indebted for its very existence.' judgment, he shall be liable to a civil suit and
transfer the cause. to damages. Are Senators willing to say that
And they voted it down. Now, talk of an Mr. HENDRICKS. I do not wish it to be the State judges are to be punished by suits
impeachment of a judge in a State like that! understood that I believe that a State court has and damages for an error of judgment?
Mr. TRUMBULL. What is the date of
authority to punish a soldier for an act done Mr. President, these are very extraordinary that?
within the lines and within the scope of the war, provisions, and I am not at all surprised that
Mr. CLARK. There is no date upon the under the command of his superior officer. the Senator from Delaware should express paper.
Mr. CLARK. I did not understand the Senhimself upon them very earnestly. The lan
Mr. TRUMBULL. I understand it was ator to say any such thing. guage which he used I did not observe at the
offered at the last session of the Legislature. Mr. HĚNDRICKS. I do not want it to time; but I am very free to say to the Senate
Mr. CLARK. I have another case in the be understood by any misunderstanding of the that if I were a State judge, and I thought the
State of Kentucky which I will bring to the Senator's argument that I believe that. If a provision of this law was unconstitutional, I attention of the Senate. I stated here the other
soldier in Kentucky should be indicted and certainly should regard the Constitution as a day thatthe judges in Kentucky had decided both
arrested upon a charge of robbery for taking higher law than the act of Congress which, in ways; had agreed to allow an order of a rebel
horses or any other property in the State of my judgment, if it should be my judgment,
officer to be pleaded in a prosecution against | Kentucky, by virtue of a command of one of was contrary to the provisions of the Constia rebel soldier, and had held that it was for
the United States officers, he being in control tution. It presents the question to a judge | him a good defense, and had refused it to a and possession of the country at the time, there whether a case can be transferred to the FedFederal soldier. I have the case here of a
is no question but what that would be a defense eral court; and shall he not decide it? If I person named Holland, which I will read:
to the soldier. I do not understand whether bring a suit in a State court against a man who
· Holland was indicted by the grand jury of Chris- the Senator approves or disapproves of the has done me a grievous wrong during these
tian county for stealing some horses, which act he
decision made by Judge Robertson, of the State four or five years, a wrong perhaps accom- General S. B. Buckner, of the rebel army, and upon
of Kentucky; he did not say; but unquestionpanied with violence and malice, and the cause being brought to trial was discharged by Judge Gra- ably that doctrine is the correct doctrine as is set down for trial upon an appearance and
ham, circuit judge of Christian county, on the ground plea by the defendant, and he then asks a
that he could not be punished for an act cominitred I applied to the troops of the United States. I under the orders of his superiors, from which the
do not doubt it; but I am not discussing what transfer of the cause to the Federal court, and Coinmonwealth appealed.
makes a crime there. I spoke simply of the the judge shall say that the case must be heard
"Attorney General Harlan represented the Commonwealth, and Colonel B. II. Bristow represented
proposition to transfer this class of cases to the before him and before a jury in that court, shall the prisoner, (Holland.) Judge Robertson delivered l'ederal courts from the State courts-civil suits that judge, because of the exercise of a sound the opinion of the court:
-and to punish by civil suit and damages a and honest judgment, be punished by suit and
*The only judicial question presented by this appeal from a judgment of the circuit court dischar
judge who, in the discharge of his duty accorddamages? I ask the Senator from New Hamp- ging the accused on a verdict of acquittal on an indict- ing to his judgment, should refuse the transfer. shire if he has known of any cases in which ment for robbery is, whether in a county of Kentucky, Mr. WILLIAMS. I happen to have on my the State courts have refused under existing
occupied and controlled by a confederate army under laws to allow a transfer where a proper case cominand of General Buckner, the forcible capture
desk the third volume of Story's Commentaof a non-combatant citizen's horses in conforinity
ries on the Constitution. Since the discussion was made for a transfer? I have heard of none. with military authority, and in execution of a mili- arose on this fourth section, I have referred to Mr. WILSON. There are a great many
tary order, was a criminal offense cognizablo by the it to see if there was any authority on the ques.
civil power of this Statc, and on this question our cases of that kind. I understand the Legisla- opinion is that the act being belligerent in the legal tion submitted by the Senator from Indiana. ture of Kentucky has passed a law forbidding | import of that comprehensive term it was not rob- I find extracts from an opinion delivered in
bery in the technical sense. Argument to prove this the judges of that State to allow these transfers. I understand further that there are over would be, superfluous, wherefore the judgment is
the case of Martin vs. Hunter, quoted from 1 affirmed.""
Wheaton's Reports, page 304, in which the three thousand of these cases in that State. One officer of the Government has thirty-five
Upon this a Frankfort correspondent of the right of Congress to authorize the removal of
cases from a State court to a court of the Unicases against him. One of the judges of that
ted States is attirmed; and the Supreme Court
"This opinion was delivered on the 21st day of State, Mr. Andrews, formerly a member of the September, 1861, and has just been published by the House of Representatives, would not allow the reporter, Duvall. Notwithstanding this opinion, some "If, then, the right of removal be included in tho order of the Government to the officer to be
three or four thousand Union soldiers have been appellate jurisdiction, it is only because it is one modo considered as any defense, he said it was no ll them sentenced to the penitentiary, and but for Govindicted and tried for similar offenses, and some of of exercising that power; and as Congress is not lim
ited by the Constitution to any particular mode or
time of exercising it, it may authorize a removal does as a judge. I have replied to that, and I it must be done as a commissioner and at chameither before or after judgment. The time, the process, and the manner must be subject to its absolute
have read the authority in Kent, and from the bers, and the “novelty" of the proposition ? legislative control. A writ of error is, indeed, but a
statutes of more States than one, making a What further says Kent? process which removes the record of one court to the judge of a court responsible for an act done by "The habeas corpus act of Mississippi makes the possession of another court, and enables the latter to inspect the proceedings and give such judgment as
him as a judge; and why it should be repre- refusal or neglect of any judge or judges to grant its own opinion of the law and justice of the case may sented here that this is a novel provision I am
the writ a high inisdemeanor and an impeachablo
offense." warrant. There is nothing in the nature of the pro- at a loss to know. I refer again, as I have it eess which forbids it from being applied by the Legis.
Again: lature to interlocutory as well as final judginents.
before me, to the authority as given by Kent in And if the right of removal from State courts exist the first volume of his Commentaries, page 616.
"The habeas corpus act in Illinois confines the liabil
ity of the judge to a penalty for refusing to issue ab before judgınent, because it is included in the appel- Mr. DOOLITTLE. About embassadors? writ of habcas corpus when legally applied for to a late power, it must, for the same reason, exist after judginent.”
Mr. TRUMBULL. No, sir, it has nothing corrupt refusal.' And in conclusion the court say:
to do with embassadors. There is a law of the When a party applies for the writ, and the
United States making judges responsible for "It is an historical fact that the Supreme Court of
court or any member of a court decides that the United States have, from time to time, sustained
issuing writs against embassadors when they | he is not entitled to that writ, and if in the State this appellate jurisdiction in a great variety of cases do it in their judicial capacity. But there is a of Illinois he makes a corrupt decision, he is brought from the tribunals of many of the most im- law in the State of New York, and I doubt not liable to fine and imprisonment. In the State portant States in the Union; and that no State tribupal has ever breathed a judicial doubt on the sub
in the State of Wisconsin-I have not looked of New York it is not required by the terms of ject and declined to obey the mandate of the Supreme into the acts of Wisconsin, but I presume it is the act that it should be shown that the decisCourt until the present occasion. This weight of con
so there; if it is not, it ought to be; it is so in || ion is corrupt, but any court refusing to grant temporaneous exposition by all parties, this acquiescence of enlightened State courts, and these judicial | Mississippi, and I presume it is generally so in the writ when a party is legally entitled to it is decisions of the Supreme Court through so long a all the States--that makes a judge of a court subject to a penalty, and any judge of a court period, do, as we think, place the doctrine upon a while acting as a court responsible in damages or member of a court who knowingly reimprisfoundation of authority, which cannot be shaken without delivering over the subject to perpetual and
and to imprisonment when he refuses to issue ons a party who has been discharged on a writ irremediable doubts."
a writ of habeas corpus, or when he imprisons of habeas corpus is liable both to tine and imI understand that it has been repeatedly a man by judicial act who has been discharged prisonment, and even to impeachment in the decided by the Supreme Court of the United on a writeof habeas corpus.
State of Mississippi. States, so that the question now is regarded as Mr. DOOLITTLE. My honorable friend Now, what is the provision in this bill? It finally settled, that where, in a State court, a will allow me to say that it is not when the is not to imprison the party ; but the provision party sued makes a defense under the Consti- || judge acts in a judicial capacity at all. In that here is that all parties, judges, officers, and tution, laws, or treaties of the United States, case he is acting simply as a commissioner | other persons thenceforth proceeding with a he has a right to have that cause removed at would act in the issuing of a writ, and if he at case, after it has been removed to the United any time during its progress from the State court chambers refuses to issue the writ he is made States court, or after the proper steps have to a court of the United States, and there have responsible. But, sir, if the supreme court of been taken for the removal of the cause to the the questions involved adjudicated. I think Illinois, or of Wisconsin, sitting as a court, on United States court shall be liable. If a State there can be no question, upon this authority, an application for habeas corpus, should judi- || judge undertakes, then, to act and proceed in and upon other decisions of a like nature of the cially refuse it, does the Senator pretend that that case, he acts without jurisdiction and he Supreme Court of the United States, as to the the court and the judges would be responsible | is made liable by the provisions of the bill, and constitutionality of this section, because it is and made liable to fine and imprisonment | he ought to be made liable; and my friend from manifest that a military officer in the discharge for refusing it? Not at all. I say that the bill | Michigan [Mr. Howard] says he would be of his duty is acting under the law or the au- is wholly novel, so far as that provision is con- liable at the common law, too. thority of the United States.
cerned, when you apply it to a judge acting in This law that is proposed here is no such innoMr. DOOLITTLE. I move to amend the lis judicial capacity in a court. It is a differ- vation, no such extraordinary provision as some pending amendment, which is the proposition ent affair when you apply it to a judge at cham- | gentlemen suppose. In my opinion, the main of the Senator from Delaware to strike out the bers. He is bound to act like any commissioner feature of the statute now proposed is nothing fourth section of the bill, by striking out of the of the court to issue the writ.
but a declaration of what the law is. A party seventh line simply the word "judges," and Mr. TRUMBULL. That is exactly what I || is always protected in the discharge of a duty then the section will remain as it now is, declar- mean to say; that when acting as a court, not which is put upon him. The United States have ing that “all parties, officers, and other per- as a commission and at chambers, the judges authority to carry on war, to raise armies, to sons thenceforth proceeding thereunder, or by || are made responsible; and so says Kent. I appoint officers, to prescribe rules and regulacolor thereof, shall be liable," &c. There is shall have the volume here in a moinent, but tions for the government of the armies. One no necessity, in order to give full effect to this while it is being sent for, I will read an extract of those rules and regulations makes the private section, that you should undertake to declare which I have before me from the volume, and soldier and the subordinate oflicer obedient to that the judges who act in a judicial capacity when I read it I hope the Senator from Wis- his superior commander. By law, at the peril shall be made liable. If you declare that all consin will take back all he has said.
of his liberty and of his life, he is required to the parties are liable to prosecution, that the “The penalty of $1.000"
execute the orders issued by his superior offiministerial officers who act under it are liable,
In the execution of those orders he is to or any other person that volunteers to do it,
be protected. The common law protects himyou have just as good a remedy for the defense is given in favor of the party aggrieved, against every officer and every member of the court assent
just as much protects the private soldier in the of the person as if you declare that the judges ing to the refusal."
State of Kentucky in the execution of the order themselves are to be made responsible for what That is, the refusal to grant the writ of habeas of an officer, as it protects a constable or a they do in a judicial capacity. It is a novel corpus.
sheriff in the execution of a writ issued by comthing in the history of the United States to Mr. COWAN. That is, to take cognizance | petent authority. make the judges of a State court, who are act- of the case at all.
But, sir, some of the State courts in these ing judicially upon their responsibility as judges, Mr. TRUMBULL. We will see what that is. rebellious States refuse so to understand the and judging upon the validity of laws, respon- I read now from page 646, wherein the author | law; they say that acts done under military sible. I do not see any purpose in it, and it is treating upon the writ of habeas corpus, the authority afford no protection. Hence we promay make objections to the bill, which other- great writ of right, in which he says:
pose to pass this statute declaring that the fact wise would be removed.
"The penalty of $1,000 is given in favor of the party that the act was done by command of the supe. The question may arise, and be seriously con- aggrieved, against every officer and every member rior officer in the discharge of his duty shall sidered, whether this bill, making a defense by of the court assenting to the refusal, if any court"
be a defense; and the State courts refusing so act of Congress against a claim of an individ- Is that a judge in chambers?
to treat it, that the United States court shall ual for injuries to person or property, making if any court or officer authorized to grant the writ have jurisdiction of such cases. It would be the order of a superior officer a defense in all shall refuse it when legally applied for.”
the most monstrous proposition everadvocated, cases, is or is not constitutional. If that be a Is that a commissioner? If the judge refuses and utterly destructive of all government, if question seriously raised, a judge sitting in a
the writ when legally applied for, he is sub- the citizen who is required to render obedience State court, just as much as a judge sitting in | jected to the penalty of $1,000. Now, says the
to the Government is not to be protected in a Federal court, is called upon to act judi
Senator from Pennsylvania, that means when the acts which he does in rendering that obecially. He must not act in terrorem; he must
it is not in court. Is it not in court when the dience. Can it be possible that the Governnot act in fear of an indictment or in fear of || application is made to the court? Is not the
ment of the United States may call into its a prosecution because he gives judgment one case there? And for refusing that great writ service and into its armies, in order to mainway or the other. Therefore, it seems to me it to a party who is entitled to it, the judge is tain the honor of the nation and the integrity would be wise to strike out the word “judges,' liable to this penalty. What further does Kent
of the Union, every citizen in the land, and for I do not think it adds any strength to the || say? In treating still further upon this sub
coinpel him to serve, and then has no power section. As all the other parties are made re
ject, and wherein he treats upon the rearrest to protect him against prosecutions for doing sponsible, I do not see the necessity of holding of a party who has once been discharged by the acts which he was compelled by the Gov. the judge personally liable in a matter where writ of habeas corpus, he says:
ernment to do? Sir, such cannot be the law. he is exercising his judgment in a judicial "And finally, if any person solely, or as a member But I did not rise with a view of arguing the
of any court, or in execution of any order, knowingly Mr. TRUMBULL. It has been several times rcimprisons such party, he forfeits a penalty of $1,250
question, but simply to reply to this assumption to tho party aggrieved, and is to be deemed guilty of
which has been set up here in the Senate and stated in the Senate heretofore that it is a novel a misdemeanor and liable to fine and imprisonment. repeated as if it would seem that those repeatthing to hold a judge responsible for what he Now, what becomes of your proposition that lling it were getting to believe it, that it was a.
S novel thing to punish a judge. The Senator | decide that question either ay or no; and it is law for fining and imprisoning a judge of the from Wisconsin tells you that there is no neces- for that reason that I would strike the judges courtsity for it; punish the officer who executes the from this bill, because if it is to pass I wish to "is distinguished from that in any former statute on process; pass a law and put the responsibility make it as acceptable and as little objection- the same subject by applying the penal sanction to upon the subordinate or the officer; let the able as possible.
the members of any court acting judicially." judge issue an order and let the officer, the Mr. TRUMBULL. A friend just hands me "Acting judicially," says Kent. It is dissubordinate who is to execute it, take the re
a newspaper to show how common a thing it tinguished from the former laws of the State sponsibility and decide whether it is lawful or
is for courts to hear writs of habeas corpus and of New York by applying the penalties and imnot. Sir, I am for going to the source of in- to make orders in regard to them:
prisonment to the judges acting judicially, iquity. I would take the head chief who under
That is what Kent says.
Of course Kent did "ORDER OF TIIE COURT.-In the United States circuit takes to persecute Union men for doing their court, April term, 1865. In the matter of the petition
not understand the law and of course this is duty. I would take the man who issues the of Charles D. Coleman for a writ of hunbeas corpıls. a novel provision, and of course Kent did not order, if he does it knowingly, as he must do This day comes the petitioner by Peter E. Bland and
know what "judicially" meant, and that this
who present to it if he does it after the necessary steps have
George E. Leighton, his nationer, this day filed
was necessarily a ministerial act and could not been taken to remove the case to the Federal | herein, for a writ of habeas corpus to be directed to be anything else! courts. I would produce no such confusion the warden of the penitentiary for the State of Mis
Now, I submit to the Senate and to the Sensouri. for the production of the body of the said into our judicial proceedings as to place upon Charles D. Coleman before this court, to do, submit
ator from Wisconsin, whether he is not mistaken the subordinate, the oflicer who is to execute to, and receive whatsoever shall be considered by as to the novelty of this provision. the process, the responsibility of deciding petitioner, upon the grounds and for the reasons and said court in that behalf concerning him, the said
Mr. COWAN. Mr. President, I think it whethe is void or not. Let the man whom causes in said petition set forth; and the court hav
would be better to get back a little on this the States place in the judicial office act on his ing examined the said petition, and being fully ad- question behind where the honorable Senator responsibility, and if he acts corruptly or know
vised of and concerning the same, now orders that
from Illinois is so exceedingly positive about it ingly to oppress the most insignificant Union corpus be issued as prayed for therein, returnable
in his assertion of what the law may be in the man that in defense of his country has com- forthwith."
premises. This, if I understand it, is the promitted an act for which he is sued, I would That looks a little like an order of the court; vision upon which the contest arises : hold him responsible.
it looks a little like a judicial decisione It has That if the State court shall, notwithstanding the Mr. DOOLITTLE. Mr. President, my hon- that appearance. Attorneys appear in it. The
perforinance of all things required for the removal of orable friend from Illinois seems from his tone Senator says attorneys never appear and the
the case to thecircuit court aforesaid, proceed further
in said cause or prosecution before said certificate is and manner to think that he has made a very question is not argued on an application for a produced, then, in that case, all such further proceedgreat victory in quoting from Kent, but he has writ of habeas corpus.
ings shall be void and of none effect; and all parties, not answered the point that I raised. I say Mr. DOOLITTLE. I did not say that.
judges, officers, and other persons, thenceforth pro
cceding thereunder, or by color thereof, shall be liablo that in the refusal to issue a writ of habeas Mr. TRUMBULL. Did not the Senator say in damages therefor to the party aggrieved, to be corpus the officer or the persons who sit as a that the writ of habeas corpus was a ministe- recovered by action in a court of the State having court denying it are not acting judicially; there rial act, an act where no argument is heard on
proper jurisdiction, or in a circuit court of the United
States for the district in which such further proceedis no judgment given to thein, for there is no granting it?
ings may have been had, or where the party, officer, cause before them. The question of the issu
Mr. DOOLITTLE. I did not say that no
or other person, so offending, shall be found; and ance of the writ is a mere ministerial act; the
upon a recovery of damages in either court, the party argument was ever heard on granting it. Somelaw requires it to be done for the purpose of
plaintiff shall be entitled to double costs. times arguments are heard by counsel on both bringing the case before the court; and when sides.
Now, Mr. President, this Government of the the judges act on the question, whether they Mr. TRUMBULL. Then it is a question
United States is a Government of delegated issue the writ or not, they do not act on any that is argued before and decided by the court,
powers. judicial discretion ; they act ministerially; they and not by a judge at chambers. The laws of
Mr. HOWE, (laughingly in his seat.) I act-under statutes positively requiring the writ the United and the laws in my State authorize
should like to see the authority for that. to be issued; and for what? To inquire and
Mr. COWAN. I am aware there are a great the courts to issue writs of habeas corpus. see whether a man is restrained of his liberty Mr. DOOLITTLE. But it is a question on
many people who do not understand that, and or not; and the statutes assume to punish | which they cannot decide judicially; one where
who really come here and attempt to be Senathe judges for not inquiring into the case, not there is no judicial discretion.
tors of the United States, and to legislate here for what they do when they do inquire into a
Mr. TRUMBULL. It is a case upon which
upon this floor as if they were members of case; it is for their refusing to take jurisdic
Parliament, and as if they liad omnipotent govtion of a case in order to hear it at all. They ll they do often refuse the writ of habeas corpus;
ernmental power over this country. I know do not have any judicial determination on the it is not a matter which they are bound to de
such gentlemen sneer; I know they snigger at question whether the individual sits in chamcide one way, as is shown by the order which
this doctrine; and I know that a man has a bers or in courtI have just read; it does not issue as a matter
right to snigger at his own disgrace, and at his of course. Mr. CLARK. What judicial discretion has
Mr. DOOLITTLE. Mr. President
own ignorance. He has that right, there is no the judge here when directed to obey an order
Mr. TRUJIBULL. to transfer the cause to the United States
Let me get through.
doubt. I know of no provision in the Consti
tution which prevents a man from being just as circuit court? It is a great writ of right, but a party must
big a fool as he pleases. [Laughter.] I do not Mr. DOOLITTLE. Suppose the judge sit
present a case showing that he is entitled to
know of any law to the contrary. But I do ting as a court, when the the question is argued
know that generally gentlemen and Senators
He must set out in and heard upon both sides as to the constituform what the statute requires.
ought to listen calmly and carefully to what is tionality of a provision of this bill, believes in
said on the other side, knowing the fallibility his conscience that it is unconstitutional, what
Mr. TRUMBULL. He has got to set out and frailty of human judgment, and that there shall he decide? That is the question; and if
what the statute requires and such circum- | is such a thing possible as that they may be he decides the one way or the other, is he to be stances as will entitle him to the writ. But
wrong made criminally responsible or civilly liable the Senator says it is a ministerial act for
The Constitution of the United States says for his judgment? In issuing a writ of habeas
which judges are punished, and that it is a that this is a Government of delegated powers. corpus, there is no judgment; it is a mere min
novel thing to punish anybody for a judicial isterial act done by an oflicer sitting at chamact. I remember the Senator once told an
What is meant by that? That we have just bers or by the judges sitting together in banc. anecdote in this body which ran something the several States and the people of the several
such power as is given in the Constitution by It makes no difference whether the application like this: that on some occasion a justice of
States who compose this Union; and for fear is made to them in either way; there is no the peace had made a very extraordinary
that we should exercise any other or further judgment on the question of issuing it. They decision, and the attorney adversary to whom do not hcar any argument, and determine or the decision had been made took up a volume
powers, when we come here we are called up
to your desk, sir, and required to take a solemn pass on any question in issuing the writ in the of Blackstone and read it to the justice of
oath that we will support the Constitution. I first instance; but after the writ has been issued the peace, showing that his decision was in and the party is brought before the judge or direct conflict with the law as laid down in | dicers; I am aware that in some mouths they
am aware that oaths are used familiarly by before the court, and they have jurisdiction of Blackstone's Commentaries. The justice re
are but straws in the fire of the hot blood; but in the case, they are then called upon to pass plied that that was no authority for him.
the mouth of a Senator I suppose they mean judicially upon the questions involved in the "No," said the lawyer; “I did not read it habeas corpus. Does the Senator from Illiwith the view of changing your opinion, but
something. I suppose that when we come here
and take an oath that we will support the Connois contend that they would be liable, or any simply to show what a fool old Blackstone
stitution, we are to look to the authority that it one of them liable, for proceeding in the case
[Laughter.] Now, I propose to read
confers upon us and will not endeavor to tranafter they had issued the writ? a sentence from Kent, not with a view of
scend that authority even a hair's breadth. Mr. TRUMBULL. Do you want an answer? | changing the opinion of the Senator from
Why? Because to do so is to transcend the Mr. DOOLITTLE. The Senator can wait Wisconsin, for I do not expect to be able to
will of the American people. When we are to until I finish. Now, Mr. President, what I
do that, for he says no judge for a judicial act said in the beginning was, that it is a novel was ever made responsible, but I want to
have more authority, let the American people
confer it, and then we can legislate in the proceeding to punish a judge criminally or show him what a great fool Chancellor Kent
premises. make him responsible civilly for his judgment
Mr. President, what is the judicial authority where a case is actually before him, a question
"This last provision”
conferred by the Constitution upon the Govis raised, and he is called upon as a judge to Referring to the provision of the New York ernment of the United States of America ? It
is not all the judicial authority of the land un- of Rhode Island brings an action of trespass to be made out of that which has no element questionably. By what warrant does your State against another citizen of Rhode Island, for a of crime about it? Clearly not the latter. In court in Rhode Island, sir, [Mr. ANTHONY in particular offense committed during the exist- order to constitute crime, miere must be a the chair,] decide criminal causes in it? By ence of the rebellion, and, if you please, in criminal intent; in order to constitute a treswhat authority does it convict the thief of lar- the act of suppressing the rebellion, the juris- pass, a violation of the rights of anybody ceny, the burglar of burglary, the murderer of diction of the courts of Rhode Island shall be which is remediable by damages there must murder? Is it by virtue of authority derived pushed aside, set aside, and jurisdiction of that be an intent in the mind of the person who from the United States? Is it by virtue of cause given to the United States courts. I am commits it to do the wrong.
You cannot authority enjoyed concurrently by the United not so dogmatic as to say that perhaps that may make that wrong which in itself is right and States with the State of Rhode Island ? Not not be right. It is not necessary for the pur- fair and honest by writing it down in a book at all. The stupidest citizen you have knows poses of the argument here that I should'assume, that it shall be wrong. That will not effectthat your State has rights as well as the United as if infallible, that that may not be right. Í uate your purpose. It is complained here that States bas rights. You have the right in that merely suggest a doubt, in order that I may a judge, honestly deciding the law as he underState to try for offenses committed within it meet the argument to the point of which I shall stands it, honestly deciding the question under generally. When does the United States try come directly. But, Mr. President, what I do the Constitution and under the laws taken all for offenses committed within the State of say is that it is a question, and a question of law, together, shall be punished as a criminal. To Rhode Island? Generally? Not at all. Not as to whether the jurisdiction of the State of me that proposition is monstrous; to me it generally, but particularly, where the authority | Rhode Island in that case can be ousted and has never had any place in any legislation in is given in the Constitution. By what judicial that of the courts of the United States substi- civilized countries, within the recent Christian authority do your courts in Rhode Island de- tuted for it. That is a question, a fair ques- era at least, I think I may say. cide between man and man in Rhode Island? || tion, and I have respect for a man who argues But it is said that a judge may be made a By the authority of the sovereign State of Rhode on this floor fairly. I have no respect for a criminal because he will not issue a writ of Island, and by virtue of her reserved rights man who assumes it to be one so exceedingly
I am rather inclined to think which were not delegated to the United States plain that nobody can mistake it.
he should be, but in that case he is not to be a in the Constitution. Did you, sir, ever know a A question, then, as I said, comes up be- criminal because of his decision of a legal point; man in the State of Rhode Island, did you ever tween two citizens of this State, and one of it is because of his refusal to do a plain duty know in any State of the Union two citizens of them alleges that he was acting under the or- laid down before him by the statute. If I go that State dragged into the United States court ders of the United States, that he was in the to a judge and demand a writ of habeas corpus, for a dillerence between them? Nobody ever service of the United States, and that what he I do not ask him to deliver me a legal opinion heard of it, and it has remained until this day I did in the premises he did as such servant of on it; if the writ is warranted by the statute and this age that these things should be known. the United States. That, it is alleged by this and I bring myself within the requirements of As to differences arising between citizens of
the Rhode Island, unless in the particular cases tion. I it very Let us see fuses to do it he refuses to do his duty, and that provided in the Constitution—and in the Con- what cases the United States have jurisdiction ; is an offense. If I am detained of my liberty stitution the particular cases are provided for let us read it, because here it is. It is in very and I appeal to the judge to deliver me and he --the United States courts have no more juris- small compass, and any man of moderate abil. will not issue the writ, that is an offense and a diction than they have over a case in Russia. If ities might, if he were to take the time, ascer- very high offense. It was an offense as far back a dispute arises between a citizen of Rhode Isl- tain precisely the extent of the jurisdiction of as Runnymede, in the great charter. But if and and a citizen of Massachusetts, the United the United States courts; and he could ascer- he issues the writ and I am brought before him States courts determine it; and why? Because tain it from the Constitution itself, without run- and my case is heard and he decides it, no the Constitution and the Union were made for || ning away to far-fetched analogies which have matter how improperly, how erroneously, there the purpose of securing domestic tranquillity, | really no connection with the matters in hand. is no guilt in that if he was not moved by an for the purpose of settling disputes between
"The judicial power shall extend to all cases in
improper purpose, which I must show, not from citizens of different States which would other- law and equity arising under this Constitution, the the statute-book, but I must show as existing wise have led to broil and trouble between laws of the United States, and treaties made or which in his mind an intent to do the wrong, if I want States.
shall be madounder their authority; to allcases affect-
to mulct him in damages or punish him as a A citizen of Rhode Island-and, with your
criminal. There is the distinction, a very clear, liberty, sir, I will take your State as being one of as small compass, perhaps, as any other
Because, you will observe, that when the
broad distinction, one that nobody could misUnion was formed, all connection between the
take, between the cases cited here as precedents charges upon another citizen of Rhode Island a several States and foreign Powers was aban
for this extraordinary exercise of power and trespass. Or I might go to the State of the hon
this case itself. doned and given over to the new creation arisorable Senator from New Hampshire and take ing out of the whole
Mr. President, it might be well to inquire a case from his immense State with the large
from whence sprang all this brood of transfer
" To all cases of admiralty and maritimo jurisdicamount of patriotism and love of country which tion; to controversies to which the United States
ring cases from the State courts to the United he professes here, and which he is not willing to shall be a party; to controversies between two or States courts. How did it happen that there allow to my honorable friend from Delaware, a more States; between a State and citizens of another
ever was a precedent for that thing? will Stato; between citizens of different States; between little State, too. I suppose Delaware has just citizens of the same State claiming lands”.
try and explain that. Among other powers about as much patriotism as New Hampsire, and I suppose, and I have always supposed, that
You observe it is particular, not general; it
delegated to the United States was the power
of levying taxes, imposts, duties, and so on, or a man from Delaware loves his country as well only applies to citizens of the same State who
in other words, to enforce a revenue system. as the Senator from New Hampshire, although are claiming lands under grants from differ
In early times in this country there was no act he may perhaps differ from him as to what was
ent States," and you see how appropriate that
of Congress taking cognizance of that revenue the proper way to manifest that love. I am
system and providing for the decision of cases sorry that upon this floor we cannot argue in the courts of the State granting one of them,
under it; and hence, perhaps, thirty-five or questions and not people. I may imitate to some of course the trial would not be very likely to
thiry-six years ago, about 1830, an act of Conextent the language of the Senator from New
be acquiesced in. Then, in all such cases the Hampshire when I say that I think we have had United States was to have general jurisdiction
gress was passed which provided that when
ever a revenue officer in the execution of his too much of that, and I think it is time that for the purpose of public tranquillity, for the
duty collecting the revenue shall be involved the whip had ceased to crack over the heads purpose of preserving the peace.
in law suits with anybody about that subject, of the minority here, or persons who do not "And between a State or the citizens thereof and those cases should be transferred to the courts choose to agree with a dominant tyrannical || foreign States, citizens, or subjects.”
of the United States in order that he might be majority. What do gentlemen suppose they can There is the extent of it. Now, I ask any tried there, because the cases arose not under do? Terrify men into submission to the will of | intelligent man under what part of that delega- State laws, but under the laws of the United a majority without expressing their opinions? || tion of judicial power to the United States is States. That was right and proper.
Where Gentlemen, I tell you when this Senate becomes claimed the right to decide between two citi- the officer was acting under the laws of the a place where a man cannot express his opin- zens of Rhode Island or two citizens of any United States, where he was executing the ions freely, you have not restored the Union; other State upon a question of trespass. Is laws of the United States, and where the whole you have not preserved your Government; you that a plain question? Will any man say that | subject-matter was within the jurisdiction of the have destroyed the very essence and the vitals that is a question upon which any man might United States, it was eminently proper that the of it while you were pretending to save it; you not blunder, any man might not stumble, any cause should be carried into the United States have introduced a tyranny as detestable as that man might not decide it one way or the other? courts; but that is a very different thing from from which your ancestors rescued you in the Now, if I understand, what is complained of the application we have made of that rule here, Revolution—a tyranny as detestable as prevails | by my honorable friend from Wisconsin in this and a very different thing from the later preanywhere in the world. Let every man in the bill is, that you punish the judge for deciding cedent which we have followed. This is not Senate speak his free thoughts, give his opin- that question one way as though it was a crim
This is a case where prima facie ions freely, and let no man impugn his motives inal offense.
the State courts have not only clear, unguesupon this floor.
Now, Mr. President, once for all in this tionable jurisdiction, jurisdiction never before Sir, I come back to the question I put be body let me ask, is crime a fact or is crime perhaps doubted, but where the United States, fore. What was the judicial authority granted an abstraction? Is crime a thing which has by the very terms of the instrument under which to the United States in the Constitution? This actual, potential existence in the mind of the we govern the Union, have no such power. bill provides that when a citizen of the State ll criminal, or is it a mere creature of statute,
Take the Constitution and the judiciary aet