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and read them. Let any man read them and see where he can find the authority there. The nearest he can possibly come to it is that these may be said to be cases arising under the laws of the United States. I am perfectly free to say that an argument may be made there; but I am also perfectly free to say, and I am perfectly sure in saying, that the man who decides that question one way or the other is not on account of that decision to be taken as a criminal or to be mulcted in damages because of any mistake he may make.

As my honorable friend from California [Mr. MCDOUGALL] very often says, the old fathers were wiser than we are; the men who founded this Republic, the men who made its Constitution-and "there were giants in those days"provided much more aptly and quite as fully for this question as it was possible in the nature of things and from the machinery with which we administer our Government could be done. What did they do? They provided that whenever a defendant in any court set up a justification under the laws of the United States or under the Constitution of the United States, and the State court refused that defense, decided against it, decided against the constitutionality of the law under which he set it up, in such case he should have a writ of error to the Supreme Court of the United States. What could be plainer and wiser? If it be true that under the laws of the United States these officers are justifiable in any particular case, where is the objection to their making that defense in the State court, and, if it is not allowed, give them the right to appeal to the Supreme Court of the United States. What can be plainer than that?

I have another word to say about the policy of this law. The danger to the Union, the danger to the existence of this fabric to-day, is quite as great as it ever was, and why? The danger is that the several constituent parts of it will not keep each within its own sphere. The danger is that the States will assume to enlarge their reserved rights, and paralyze the General Government; and on the other hand the danger is that the General Government will encroach, swallow up the State rights, and centralize and despotize-if I may be allowed to make a new word for the occasion-this Government. What is our duty? Our duty is to keep both in the line of their original creation, keep them where the fathers put them. Let the United States be supreme in all that relates to the whole; let it have no concern whatever in that which relates to the particulars. One of the great pervading principles of the Constitution was that whatever a State could do better of itself than could be done by the whole Union was not delegated to the Union; whatever the Union could do better than a single State was delegated to it, and I fancy that everything was delegated which is proper to give the States the advantages of united action. To the United States was delegated the power of making war and of dealing with foreign nations. Why? Because thirteen united weak colonies could transact that business better, and secure the public welfare, and provide for the public defense much better than they could do it separate and apart. That was the reason. Take another instance. The postal communications from one State to another are far better in the hands of the General Government than they would be in the hands of the several States, by which we should have at the present time thirty-six different and distinct post office departments in the Union, and therefore the Post Office was given to the United States. Then the power of passing naturalization laws, of removing the disability which is attendant upon being foreign born, was given to the United States, and why? Because it was a general subject, and could be better administered by them than by any other authority. The right to maintain armies and navies was given alone to the United States, and why? Because they are arms by which the general defense and mutual welfare of the whole are to be protected. And so upon con

sideration of the instrument which created this Government, and a careful consideration of it, it will be found, I think, to be as I have stated it, that wherever the thing to be done is for the general good of the whole, and which can be done better by the united action of the whole, and which cannot be done by the individual action of the States, there the General Government has authority; but wherever the State can administer the law, wherever the State can administer justice between her citizens, there the United States is never allowed to interfere, and she has no machinery by which she can interfere.

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A very forcible illustration of that may be readily given. In order to transact the business of the people, in order to administer justice to the people in the several States, you have to have at least two or three inferior magistrates in every precinct, ward, or township. You have to have an orphans' court, a court of common pleas, a court of oyer and terminer, a court of quarter sessions, and you have sometimes to have courts of equity, in every county in every State. What for? In order that justice may be brought to the doors of the people. Now, think of the madness of executing that great governmental function, which is really and truly the very governmental function, by means of the United States machinery. The United States have no magistrates; that is, they have no justices of the peace, no squires;" they have no county courts; they have no machinery in the world by which they can administer justice among the people except the courts created under the Constitution, one or two in a State. Think of this; and it gives us, above perhaps anything else, a better notion of the extent of the general power of the United States over the people; and when we think of the irritating effects of this kind of legislation protruding itself within the domain of State jurisdiction, where the people have always been accustomed to have justice administered, and where they have always been in the habit of relying on having it administered fairly, the question whether they will submit to it ought to make, I think, any prudent man hesitate. And if we come to reflect for one moment on the extent of the combinations that will be made against it, no matter how salutary it may be, no matter how wholesome it may be, no matter how much you may think it is required, if it is against the genius of our institutions, if it is against that which the people believe in the administration of the laws, your statutes will be wiped out, and they will never be of any avail to anybody.

Now, sir, I am, as I said, in favor by all means of protecting the officer in the honest, conscientious discharge of his duties while in the service of the United States. No man can feel the necessity of that more than I do. No man, I think, is more sensible of the annoyances, of the wrong and injury, that would be done to the faithful servant of the United States if he was to be dragged here and there and subjected to actions for what he did in the honest, conscientious discharge of his duties. At the same time when a man puts on the uniform of the United States, when he accepts her service and marches under her flag, if he is guilty of oppressing the citizen, of gratifying his private malice wantonly and without the welfare of the country constantly in view, then I have no kind of charity for such a man. I think that he is fitly and appropriately the victim of the severest laws that can be made to prevent wrong and oppression.

Sir, what is the mission of this man when he enters our service? It is to defend and protect the people, not to oppress and injure, rob and plunder them. Can anything be plainer? And if he so far forgets himself as to lend himself to wrong and injury and oppression, needlessly, ruthlessly, wantonly, and maliciously, I would have him punished, and punished severely. A double punishment should be his, because he not only shows the depravity of his own nature, but he disgraces the Government under whose

flag he fights and whose commission he carries about with him.

But, Mr. President, that is neither here nor there. I suppose upon these topics nobody will differ; I am not able to see how anybody could differ upon them; but the question is, how are we to make a remedy? What is the remedy to-day? The remedy is just as well settled in the State courts and by the State law, I think, as you can possibly settle it by the United States law. If I sue a man for an act done against me while he is acting under a commission, under authority derived from the law and the Government, he justifies himself by that authority in all cases if the act is warranted by the authority. There can be no difficulty about that. The sheriff's writ is good as a justification for him against a trespass. So the commission of the soldier is good as a justification for him against a trespass. But suppose that he exceeds his authority; if he has authority to take a fort, that gives him no authority to murder prisoners of war; if he has authority to assail a town, it gives him no authority to violate women; if he has authority to march through the country, that gives him no authority to take private property without such an emergency as excuses the act, and when the emergency is an excuse for the act the court is always willing to give him the benefit of it. That is the law now. It is the law everywhere throughout the civilized world, and why? Because it is common sense.

I know that in States where the rebellion has prevailed, and in the border States where the people have been very much excited, and where they have been divided into angry, hostile parties, these actions will be frequent, and a great deal of difficulty and a great deal of trouble will arise out of them. But these are troubles which are not to be cured by legislation; not to be cured even by State legislation. They are the troubles of a community, out of which it must emerge with the trials or punishments which result from them. It must acquire wisdom from experience. After awhile the people will learn that their true interests are not promoted by the gratification of their evil passions and by the forgetfulness of the great laws of charity, man for man; and these things will be avoided; but they are not within the domain of law; they are not curable by legis lation. For instance, it is utterly impossible by legislation here that we should prevent the prejudices of a jury in one section of the country from denying to one man justice and giving an over meed of it to another. We cannot prevent that. It is utterly impossible that we can by legislation here eradicate the prejudices of judges, that we can influence their leanings. We cannot provide for that by statute. That is to be the work of time, and the gradual operation of the good sense of our people who hereafter will no doubt discover the evils and folly which exist in all this, and they will come back to that sensible, wholesome operation of their laws which is the only thing after all that we have to rely upon.

Mr. President, in conclusion I have only to say that I think it is clear, beyond question, that the judges of a court acting under State authority, acting conscientiously in deciding cases, although they may act erroneously, are not for that reason to be made criminals, nor are they to be mulcted in damages for their erroneous judgment. The remedy for that in our jurisprudence is a writ of error. If they refuse to transfer a cause from the State court to the circuit court of the United States when it is the law, and the Supreme Court of the United States shall declare it to be the law that the case shall be transferred, then the case will go there, and it will go there without staining the judge with criminality, without subjecting him as a trespasser for what may have been an honest mistake of judgment on his part.

Mr. DOOLITTLE. Mr. President, I desire to say a few more words to my honorable friend from Illinois on this question of habeas corpus, and I have taken up the book from which my honorable friend read. In the State of Wis

consin, to which he referred, and which he said he presumed authorized judges sitting in term time, if they refused the writ of habeas corpus, to be fined and imprisoned or mulcted in damages for refusing the writ, he is entirely mistaken. In the State of Wisconsin it is as I stated, and as it is in a large majority of the States of this Union; the officer refusing to issue the writ in vacation, and not in term time, is made responsible. The statute of Wisconsin is as follows:

"That if any officer authorized by the provisions of this chapter to grant writs of habeas corpus shall willfully refuse to grant the writ, when legally applied for, he shall forfeit for such offense to the party aggrieved the sum of $1,000."

It is the officer, not the court sitting in term time. How is it in the State of Illinois, where the Senator himself resides, and was himself a judge of the supreme court? If the officer shall "corruptly" refuse to issue the writ he shall then be made responsible in damages.

"The habeas corpus act in Illinois, says Chancellor Kent, confines the liability of the judge to a penalty for refusing to issue a writ of habeas corpus, when legally applied for, to a 'corrupt refusal' "'-not a judicial refusal, not even the decision of a ministerial officer in the refusal of the writ. How is it in the other States of the Union? In Connecticut there is no penalty imposed whatever upon a judge for refusing the writ; it is left to his judicial judgment, and the people of Connecticut and the laws of Connecticut have confidence enough in their judiciary to suppose that they will decide according to the laws of the land and the oaths which they have taken. How is it in Virginia and North Carolina? Their habeas corpus act is a copy of the habeas corpus act of England, from which we have borrowed the common law and the writ of habeas corpus; and how is it there? Are the judges sitting in term time made responsible in damages or by fine or imprisonment? Not at all; it is the judge sitting in vacation at chambers, not as a court, if he refuses the ministerial act, for it is nothing but a ministerial act to issue the writ when the statute requirements are complied with and the petition sets forth what the statute requires. How is it in New Jersey? Precisely the same. In Maryland, I doubt not, it is the same-borrowed from the English statute. There are but two States in the Union that the Senator can point out-and the one is New York and the other Mississippi-where the Legislature has assumed to impose a fine upon judges for refusing to grant the writ in term time; and I now come to the question which originally

arose between the Senator from Illinois and myself: I say the issuance of the writ is not a question of judicial discretion, even by the judges in term time. There is no judicial discretion with them but to look into the petition and see if the petition conforms to the statute; and if it does, they are bound to grant the writ. It is not a discretionary writ; it is a writ of right, to which the party has an absolute right. How is it in the State of Massachusetts? What says Chancellor Kent about Massachusetts on this subject of punishing judges for granting or refusing a writ?

"The Massachusetts habeas corpus act"

And this is Chancellor Kent, living in New York and writing about New York and the statute of New York, comparing the statute of Massachusetts with the statute of New York,

and he says:

"The Massachusetts habeas corpus act, in their revised statutes of 1835, does not contain degrading penalties hanging over the courts and judges." Chancellor Kent, speaking of this statute of New York, which goes on to enact that the judges sitting in term time, if they refuse to grant the writ, shall still be made liable, says it is the first instance in the history of the English or American law in which any such thing has ever occurred; and he speaks of it, when he comes to speak of Massachusetts, as a degrading penalty hanging over courts and judges. But how is it even in New York? It is not an exercise of judicial discretion; and that is just the point I made in the beginning; it is not a

discretionary writ, but a writ of right. What says this same authority, to which my friend referred, speaking of the habeas corpus :

"It is a writ of right which every person is entitled to ex merito justicia; but the benefit of it was in a great degree eluded in England prior to the statute of Charles II, as the judges only awarded in term time, and they assumed a discretionary power of awarding or refusing it."

Because the judges in the time of Charles II assumed to say that the granting or refusing of a writ of habeas corpus was a question of judicial discretion, "the statute of 31 Charles II, c. 2," was enacted, which by its "explicit and peremptory provisions restored the writ of habeas corpus to all the efficacy to which it was entitled at common law," and made it a writ of right, to which a man had a right, whether the court was in favor of it or not. He had only to comply with the statute in reference to the petition which he presented, and the court were to award it; and in order to enforce this right, England provided by statute that judges in vacation who should refuse to award the writ should be liable to be punished, but not the court sitting in term time.

"The penalty for refusal to grant the writ was, by the English statute, confined to the default of the chancellor or judge in vacation time."

Not sitting in court, not sitting in banc, not in term time, but in vacation time; and the only States are New York and Mississippi, which provide that the members of a court sitting in term time shall be liable to a fine for not awarding the writ; and when they sit in term time and pass upon the question they pass upon it as a writ of right upon which they have no judicial discretion any further than to look into the petition which is the basis of the application and determine whether that petition on its face makes out a case for the writ; they inquire into nothing outside of the petition. They can take proof of no fact whatever; they can only look into the petition, and if the petition reads according to the statute, they are bound to issue the writ; they are bound without any judicial discretion to do so. is the very point in the case. What I said in the beginning and assert now is, that it is a novel proceeding to undertake to render a judge responsible in damages for what he may judicially decide.

That

My friend from Illinois will not understand me as being any less desirous of defending those faithful men who, in the midst of this great rebellion, have been acting in the name of the Government of the United States. I wish to defend them; I wish to throw over them the shield of this Government; and where the individual has acted in good faith under the authority of this Government, I would defend him in the name of the Government, openly and frankly, and abide the consequences. I have some serious doubts whether it is within our power to declare, as it is declared in one section of this bill, that a mere order shall constitute a defense in those places where martial law was not declared or where the operations of the Army did not so disturb the administration of the civil law in the State courts and the Federal courts as to prevent justice being done between parties. Where martial law prevails, of course, the order of the military commander is a perfect defense. There is no law where martial law exists but the law of the military power governing the place, and whatever may be done may be justified under military order. But, sir, in those places where civil law has all the while been in full play, where the courts have been open, their proceedings undisturbed by arms. whether in such courts we can by act of Congress go any further than to declare that such a military order shall constitute a prima facie defense, and change the burden of proof, is a very serious question indeed.

But, sir, I will not go into the discussion of that matter now. I only wished to discuss this single question which I have raised, whether the course I have suggested is not wiser, better, more in accordance with the whole history

of legislation in England, and with the history of legislation in this country, the only pretended exception being the case of the State of New York and the State of Mississippi; and these are condemned by Chancellor Kent, the authority which the Senator from Illinois has quoted, who speaks of it as a degrading penalty hanging over courts and judges; who is opposed to it; who declares that the statute of New York is the first in the history of English law or American law which looks in the direction of punishing a judge for what he does or may not do in term time; although the act is not a discretionary act, it is an act which he is bound to do, if the petition complies with the statute, and he has no discretion to refuse the writ. I ask, is it wise to follow that example which is exceptional, contrary to the whole history of English law and American law? Is it wise for us to do it when there is no necessity for it? If the parties are made responsi ble; if the ministerial officers, who do not act judicially, and who always act upon their responsibility, are made liable for the damages resulting from the case being proceeded with in the State court after the removal, why is not our officer perfectly protected? I think that the act which we are about to pass will be just as efficient if we leave out the action of those who act judicially, it will be much less liable to objection in the States where it is to have force; and, in my judgment, it will be more in conformity with the history of the legislation of this country, and of that country from which we derive our laws.

Mr. HOWARD. Mr. President, a very strenuous opposition is made to the fourth section of the bill. The honorable Senator from Delaware has moved to strike it out. Another Senator has moved an amendment to that amendment, to strike out the word "judges" in the seventh line, so as to exempt the judges of the State courts from the damages which are contemplated in the section. I am opposed to both these amendments and in favor of the passage of the bill with the fourth section in it, because I think that section contains a sound principle, and that without it there may be many cases in which great injustice may be done to parties who are brought into the State courts on claims of damages by owners of property taken for the purposes of the war. see no constitutional difficulty whatever in the fourth section. Still I am aware that it comes within that long category of bills which the Senate have passed or endeavored to pass during the late war, which by certain gentlemen in this Chamber have been denounced as flagrantly unconstitutional. Indeed, the honorable Senator from Delaware has gone so far as to say to us that if he were a judge sitting for the purpose of administering justice between man and man in his own State, and this statute, if it should become a statute, should be presented to him, and should be insisted upon by way of defense, he would feel bound to hold it unconstitutional and void, and that he would proceed, notwithstanding this Federal statute, to pass a final judgment in the case which might be before him, and to enforce it.

It is not necessary for me to say that it is the duty of a judge, whether he occupy a high or an inferior position, as such to decide every question of law that may fairly be presented to his consideration. I am not aware that the law exempts any class of judges of courts from this high and solemn duty. Still, it does seem to me that if I were a State judge, and this question were presented to me in the form which he has suggested, certainly if a doubt hung over the question at all, I should feel it my duty to decide in favor of the validity of the statute, leaving the question finally to be determined by the court of dernier ressort, the Supreme Court of the United States, and such, I think, would be felt to be the duty of almost every wellinformed State tribunal.

But, sir. is there anything in thistatute which is in conflict with the Constitution? And does the judicial power of the United States as delegated in the Constitution itself cover the cases

which are contemplated by the section? That is the first and principal point for us to determine. If there be a delegation of power in the Constitution covering these cases, the question of its constitutionality cannot be raised upon that issue. The Constitution declares that "the 'judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States," &c. Are the cases contemplated by section four cases arising under any law of the United States? What are they, and what is their character? It is best illustrated by a single example.

Suppose a private soldier in the State of Kentucky or Delaware, no matter where, received an order in writing, or a mere verbal order, from his superior officer in command and to whom he owed obedience, to proceed and take possession of the horse or any other article of property belonging to a citizen in the neighborhood, property deemed by the superior officer to be essential and necessary in the prosecution of his military operations; or suppose that the same soldier was directed by a similar order to proceed to demolish the dwelling-house of a resident in the neighborhood for the same purpose and under the same necessity. The soldier proceeded and executed the order; he took the horse or any other article of personal property mentioned in his order, or he proceeded and demolished the dwelling house. He is sued in one of the local courts; he is made defendant; he is charged with committing a trespass against the property of the owner of the horse in taking and carrying away the horse, or he may be charged with demolishing the house. He is brought into court by regular appearance process; he pleads to the declaration of the complaint, whatever it may be; and his defense consists in the simple fact that he received from his superior officer a written or a verbal order to do the acts as to which the complaint is made against him. He presents the order, if it be in writing, or he proves or offers to prove the order, if it be a verbal order and not in writing. This is one of the numerous cases that have arisen during the late war. I ask the honorable Senator from Delaware and the honorable Senator from Pennsylvania whether this is not a case arising under a law of the United States. It arises from military necessity; that necessity is adjudged of by the superior officer in command.

Mr. SAULSBURY. Will the honorable Senator allow me to ask him a question?

Mr. HOWARD. Certainly.

Mr. SAULSBURY. I will state to the Senator a case that occurred in my own State, in the county in which I reside, and then I wish to know his opinion whether that arose under the Constitution of the United States, any law, or any treaty of the United States. A Methodist preacher was on the cars. After he left the cars he proceeded to a neighbor's house, and was asked what the news was. It was at the time when the rebels were making an attack on this city. He told them that he did not know, but he had heard a soldier say upon the cars that the report was that Washington had fallen. For making use of that remark a provost marshal visited his house, carried him against his will to the city of Wilmington, and lodged him in a place which they kept for public offenders. He was heard. There was not a particle of proof against the man, but he was made to pay an expense of some twenty or thirty dollars and allowed to return home. Now, sir, suppose that Methodist minister should institute a civil action against that provost marshal, or should cause him to be indicted in the courts of the county in which he resides, would that case arise under the Constitution, the laws, or any treaty of the United States, or would it be for a violation of the public peace of that State?

Mr. HOWARD. I was speaking within the purview of the bill; I was speaking about orders regularly issued by superior officers to inferiors, under which acts alleged to be trespasses may have been committed. That is the

extent of the bill, and that is the whole extent
of the bill. Now, sir, are these acts com-
plained of acts done under a law of the United
States? Certainly the Senator from Delaware
cannot deny it. They were acts committed-

Mr. SAULSBURY. Will the Senator allow
me one moment? I do deny, as far as any
of these acts have been committed in the State
of Delaware, that they have arisen under any
law of the United States.

standing the performance of all things required
for the removal of the case to the circuit court
of the United States, proceed further before
the certificate of removal is produced, then,
and in that case, "all such further proceedings
shall be void and of none effect; and all par-
ties, judges, officers, and other persons thence-
forth proceeding thereunder, or by color thereof,
shall be liable in damages therefor to the party
aggrieved."

Mr. HOWARD. That is not the question.
I am speaking of regular acts of war performed
by inferiors in obedience to the orders of their
superiors. I am not speaking of willful and
wanton trespasses committed by soldiers or
officers without warrant and without order,
because the bill contemplates no such cases,
affords protection in no such cases.
I am
speaking of acts done under regular orders.
Do those acts present cases coming under any
law of the United States? That involves the
question whether the war itself existed in pur-
suance of any law of the United States. If
the war itself was waged in pursuance of law,
if the Congress of the United States, in provid-proceeding further in the case.
ing for its prosecution, did not transcend the
Constitution itself, all these acts of war were
committed under a law of the United States;
and the acts themselves, taken in connection
with the party plaintiff and the party defendant
in the State court, constitute a case at law. A
case at law must have parties; there must be
a fact connected with it, there must be an alle-
gation on one side by one party against the
other in respect to which the plaintiff asks for
relief or asks for judgment. That I under-
stand to be in very brief terms a definition of
a case at law.

Now, what is the theory of the bill? That it is the right of the party sued, the right of the defendant in that particular case, to present his petition to the court, and upon the presentation of such petition showing that the act complained of was done by him under a military order, it shall be the duty of the State court to surcease all its proceedings and pass the case from its own jurisdiction into the hands of the circuit court of the United States. It is in the nature of an injunction against the State court, or more properly speaking, it is in the nature of a writ of prohibition, which forbids and prohibits the court to which it is addressed from

The judicial power of the United States extends to just such cases; that is to say, it reaches them, it covers them. The judicial power of the United States may, if Congress so choose, take these cases and deal with them in any way it sees fit. If the case exists in a State court, being covered by and subject to the judicial power of the United States under the Constitution, it is competent undoubtedly for Congress to provide for the prosecution, trial, and decision of these cases in their own way. That, in brief, is all that is contemplated in this statute. But, sir, if according to the doctrine of some, if according to the teachings of a class of doctors who have been too numerous and whose teachings have been too fatal in this country, it is not competent for the Congress of the United States to wage war, as they say, against a State; if the acts of the United States in the prosecution of this war were according to the doctrines of those teachers, all void and of no effect; if a State ordinance of secession is to be the paramount law of the land, the Constitution of the United States to the contrary notwithstanding, then, sir, I agree that all these cases are not cases arising under any law of the United States, and therefore they cannot be removed from a State court in which they may happen to be brought. But, sir, I do not belong to that school of politics. I reject the whole theory of Mr. Calhoun and all his followers from beginning to end upon the question of the right of a State to secede, or the right of the Government of the United States to wage war for the purpose of putting down a rebellion or an insurrection. I hold all our acts to be perfectly valid and as valid as they

were necessary.

Now, sir, as to the other amendment; it is suggested that the word "judges" should be stricken out of the section. It is alleged that it is a cruel proceeding against a judge to hold him responsible in damages for acts which he may do or assume to do in his judicial capacity. The bill has been much misunderstood; certainly it has been greatly misrepresented during this discussion. Gentlemen have imputed to it the principle that it assumes to punish a judge who proceeds after the case has been removed from him by inflicting a penalty upon him and treating him as a criminal. Not so, sir. The section speaks for itself, and speaks plainly, that if the State court shall, notwith

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What has the judge to complain of? It is said if he proceeds further in the case after the removal papers are presented to him or filed with him he is acting in his judicial capacity, and that it is hard and cruel and disgraceful to punish a man, even in damages, when he is acting in good faith as a judge and deciding a question of law that has come before him. That is not this case. The State judge who had the first jurisdiction of the case has before him (and he alone knows the fact) all the papers to perfect this removal of the case from the State court into the circuit court of the United States. The paper itself is to him an admonition, a perfectly full notice that from the moment he receives it he ceases to have any further jurisdiction or power over the case, and that he must not proceed further with it. It is a plain, distinct, and unmistakable notice operating upon him to divest him completely from that moment of all his jurisdiction over the case. And will Senators say that with this paper before him he can be deceived or misled as to what his duty is? Can it be said that notwithstanding the provision of the Constitution which I have quoted, notwithstanding the existence of the law, notwithstanding the petition which is to be verified by the oath of the applicant setting forth the facts which divest him of the jurisdiction, he may still go on and act in good faith and without guilt and pronounce judgment against the defendant in that case? No, sir. He has no more right in law or equity or in good morals to proceed another inch with that case than has the party who is served with an injunction in a court of equity where the writ has been properly delivered to him and the seal of the court shown him; and we all know how heavy the penalty is, or may be, against a party in a court of equity who disobeys an injunction of the court. The injunction here is the injunction of a law of the United States, which says to the State court, "Stop; go no further; the supreme power of the United States bids you to pause; it interposes its strong arm to protect the soldier or the officer whom you have before you from any judgment which you may see fit to pass upon him, and it transfers him and his case to another and a more impartial and a safer tribunal." Sir, I think there is no ground whatever for the complaints which are made in this Chamber against inflicting punishment upon the judge who persists in his guilty course after this notice has been served upon him and does these acts against his own light and knowledge.

But it is said by the Senator from Wisconsin, spare the judge; let him proceed, notwithstanding the removal of the cause, and adjudicate the case, and send the soldier to jail, and let the soldier in order to seek redress sue, not the judge who has commanded him to go to jail, but the sheriff or the constable to whom the process for his confinement to jail has been delivered. It strikes me that that is

a very singular proposition indeed. Certainly that Senator is well enough acquainted with the principle of law that where a court has no jurisdiction of the subject-matter, but still persists in proceeding to judgment against the party, the law holds that judge responsible in damages, as well as the officer who executes the void process, and a ministerial officer of the court has no protection whatever, unless in cases where the court issuing the process had jurisdiction of the subject-matter. And how in this case, let me inquire of the honorable Senator from Wisconsin, is the ministerial officer to know whether the case has been removed or not? He does not keep the records. He does not inspect the papers. He has no right to look into the question whether or not the party complained against has removed the cause; and although the cause may have been removed in utter ignorance of the fact on the part of the ministerial officer, the tender mercies of the Senator from Wisconsin would go so far as to exempt the guilty judge who had issued the process in that case and punish the innocent ministerial officer for that as to which he had no knowledge and was entirely innocent. Sir, I cannot agree to any such absurdity as that. I hope that this section will not be amended in any respect.

Mr. JOHNSON. Having, as one of the Committee on the Judiciary, by whom this bill was reported, concurred with the committee in the propriety of reporting it, although perhaps there are one or two things in it that I could have wished had been omitted, I rise merely for the purpose of stating very briefly the grounds upon which I suppose we have a right to pass this bill.

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the rightful authority of the Government of the United States maintained. When the case of Martin vs. Hunter arose it was contended by Virginia that in a case instituted in a State court, as that was, where the final judgment had been rendered, the jurisdiction existing of course in the State court to pronounce that final judgment, it could not be carried at allany part of it-to the Supreme Court of the United States by writ of error; not only because, perhaps, it was not involved in the section of the act of 1798, to which I have adverted, but because if it was, Congress had no authority to confer that power.

Upon looking at the decision of the Supreme Court in the case referred to, the Senate will find that the principal difficulty, if they had any difficulty, that the Supreme Court had to encounter was in the existence in the particular case of a final judgment. It was not doubted then, nor as far as I know has it been doubted since, that at any time from the commencement of a suit in the State court up to the rendition of a final judgment, if a question arose which involved the validity of a State law upon the ground of its being in conflict with the Constitution of the United States, or the validity of a statute of the United States upon the ground that it was not authorized by the Constitution of the United States, or the validity of a treaty upon the same ground, or the validity of an authority exercised by any agent employed by the United States under the authority of the United States, it might, antecedent to judg ment, be brought for examination into one of the courts of the United States.

The strict constructionists of Virginia, at the head of whom stood at that time that judicial In every well-regulated Government-and it luminary, as he. may well be called, Judge is as true of a constitutional Government as of Roane, were exceedingly devoted to the docany other-nothing is more evident than that trine of State rights, and they considered the the judicial department should be coextensive twenty-fifth section of the act of 1789 as matewith the legislative; that is to say, the former rially interfering with the wholesome operation department should be able to decide upon all of that doctrine in cases which might be brought questions which may arise upon the legislation into the United States Supreme Court under of the legislative department of the Govern- that section, and as in point of fact inconsistment. The act of 1789, in its twenty-fifth sec- ent with the existence of their State-right notion, was passed for the purpose of guarding tions. The effort of the Supreme Court in the against State decisions which might be found decision, a portion of which has been read by to conflict with the Constitution and laws and my brother from Oregon, [Mr. WILLIAMS,] treaties of the United States, or found to punish quoted in the volume of Story's Commentaries or disregard in any way acts that might be done to which he referred, was to show that the fact by officers of the United States acting under the that the case had gone to judgment did not take authority of the United States. The policy of from the United States the authority to examthat provision at that time was very apparent ine the questions which the case involved, so to the men by whom the act of 1789 was passed, far as those questions included the Constituand that policy has been vindicated by almost tion of the United States, or the laws of the the entire experience of the country from the States, upon the ground that they were not in time it was passed to the present hour. I think accordance with the Constitution or the treaties it is not too much to say that but for that pro- or statutes of the United States. The learned vision our institutions would have failed. They judge, as I think, (independent of all mere would have failed because the rightful author-authority to which the judgment of that tribunal ity of the Government could not have been maintained; and if that authority could not have been maintained, the General Government, without the existence of which the State governments would be comparatively unable to constitute us a happy or a great people, would have been comparatively futile. That section provided that every case which might be instituted in a State court in which should be involved any question respecting the validity of a law of the United States, or the application of a constitutional provision of the United States, or of a treaty adopted under the authority of the United States, in which the decision of the State court was against the provision of the Constitution or the law or the treaty might be carried by writ of error to the Supreme Court of the United States. The effect of that provision was merely to submit to the Supreme Court of the United States the question included within that section and nothing else.

The Senate, and especially the legal members of the Senate, are not to be told that from the act of 1789 to the time when the case of Martin vs. Hunter was decided, reported in 2 Wheaton, the constitutionality of that provision never was questioned, and its wholesome operation, I think, had proved itself to the satisfaction of all those who desired to see

is entitled,) arrives, by reasoning which is not to be resisted, at the satisfactory conclusion that there is as much authority to take a case into a court of the United States after judgment by a State court as there is to take it before judgment is pronounced. I repeat, that the authority to take it in the latter case was an authority that was never disputed.

Now, what does this bill do? We passed the act of 1863, the fifth section of which was intended to protect those who were executing authority under the United States during the rebellion. The whole country was in a state of agitation, such as perhaps no country in the world was ever before subjected to; certainly such as our country, fortunately, was never before subjected to, and I trust in Heaven never will be subjected to again. The language of that section is:

"That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or

prosecution is pending. file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States."

That, as the Senate sees, and as you see, Mr. President, does not provide for the case in which a judgment has been pronounced, and the question, therefore, submitted to the Committee on the Judiciary, and the one upon which my own judgment was exercised as a member of that committee, was whether it was not advisable to make the remedy entirely coextensive with the possible mischief. For aught that we know judgments may be rendered in those cases against a party who has committed the acts, whatever they may have been, under the authority of the United States, without his having had an opportunity to make the application in time according to the provisions of the fifth section of the original act, and he may be punished, unless the case can be brought to a court of the United States, for the faithful discharge of his duty to the United States; he may be punished for having obeyed the order of a commanding officer up to the order of the President, which he had no authority, or supposed he had no authority, to refuse obedience to. It seemed to me, therefore, to be just as proper to give the power to remove a case into a court of the United States after judgment as to give the authority to remove it at any time antecedent to judgment, and that is all that is done by one of the sections of this act.

The authority, therefore, to make such a provision, I submit, with great respect to those who may entertain a different opinion, seems to me to be very clear. It assumes, as you are obliged to assume in the particular case, that the statutes of the United States already upon your statute-book are valid laws; it assumes that your officers, the President of the United States and those acting in subordination to the President of the United States, have done nothing that the laws of the United States or the Constitution of the United States will not protect them in. Assuming that, if the principle be the one which I stated in the beginning of these remarks as a principle necessary to the existence of any Government, that the judicial power of the Government must be coextensive with the legislative power of the Government, it is fit and proper that when the validity of the laws of the United States is questioned, or the validity of any authority exerted under the authority of the United States is questioned, the courts of the United States should have jurisdiction. That, I repeat, is all that is done by the third section of this act.

Now, having the power to pass that section, the next question which presented itself to the committee was, how is the party to be secured in the benefit intended to be conferred upon him by that section? He is sued, and judgment is rendered against him. He has been relying upon the Constitution of the United States; that reliance, so far as the State judiciary is concerned, has proved unavailing. He has been relying upon a law of the United States, or upon the authority of the President; and the State court has decided that his reliance fails him. Now, if we have a right-and that I will not argue again-notwithstanding the judgment, to take the case from the State court, and thereby arrest at once by displacing for a time, or absolutely, the jurisdiction of the State tribunal, the only question is, will you do anything, and if you will do anything, what will you do to render that right effectual?

Then what have we done by the fourth section? We have said that if, after an application is made to remove a case instituted in a State court, in which it is attempted to make responsible an individual for an act done under the authority of the President of the Uni ted States, the State court thinks proper, notwithstanding that removal, or that right to have a removal upon the part of the defendant, to execute the judgment; somebody is to be punished. The only question is to what extent will you carry the punishment, or rather, whom will you embrace in the class of persons who

are to be punished for violating a law of the United States? If the third section is one which we have a right to pass, then the enfor cing of a judgment by the State court, after the case has been taken from the State court under the authority of the third section, is an offense, if we think proper to make it an offense, because it is a violation of the statute of the United States which we have the author

ity to pass. How do you punish the violations of any statute of the United States? How do you punish a postmaster for violating his duty? How do you punish him who interferes with your mail? How do you punish the officers of the land? How do you punish those who interfere improperly, illegally, with your records in your civil tribunals, or with the records of the Executive Departments? And why do you punish? Because, without punishment, provisions of that sort would be practically in many cases nugatory.

Whether it is admissible to do this, is another question. Whether the whole benefit of this act would not be accomplished by omitting the judges from the operation of the fourth section, is another question. But as far as the authority to punish is concerned, why is not the judge to be punished as well as his subordinate officer? If a judge forges his records, you can punish him; if he interferes with the mail, you can punish him; if he is guilty of any corruption in his office, you can punish him, notwithstanding he is a judge. He who commits a crime, or what the law constitutes a crime legally, cannot protect himself upon the ground that he holds an official station under a State government, or under the Government of the United States. That is very clear. A judge, therefore, when a case is removed from his jurisdiction by virtue of a constitutional act of Congress, who thinks proper to enforce a judgment over which his jurisdiction has entirely ceased, is just as much liable to be punished, if the legislative department thinks proper to punish him, as he is liable to be punished if they think proper to punish him for committing any other wrongful act.

It is not the case, according to my view, of an erroneous judgment. It is a violation of a statute of the United States, which, I have a right to assume in this branch of the argument, we have the authority to pass; and, supposing we have the authority to take the case from his jurisdiction, he has no more authority to execute any judgment which he may have antecedently pronounced than he would have authority to do anything else which the laws of his State or his country prohibited him from doing. I agree with my friend from Wisconsin that perhaps it would be advisable, because it would be probably less objectionable to the State tribunals, if this law is objectionable at all-I do not think it ought to be objectionable -if the section was amended in the way proposed by my friend from Wisconsin. I did not understand him as denying that we have the authority to make the act for, which the section as it now stands punishes the judge a criminal offense.

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cle upon the subject, after Mr. Chief Justice Taney had decided that it could not be done except by the authority of Congress, respectfully differing with the judgment of that great jurist; and that opinion was adopted by the Executive. But I may have been wrong. It would be worse than idle, it would be presumption of the highest degree for any man, and especially for one who was brought up almost at the feet of the learned judge to whom I have adverted, and whose excellence as a man, as well as his profound knowledge as a jurist, in common with all who had the same opportunity of knowing him, I acknowledge-to say that my opinion was certainly right, and his opinion was wrong. I do not know how the Supreme Court of the United States, if the question was brought before that tribunal, would decide it now. I think they would decide that the opinion which I gave was a correct one; but they might not hold that opinion. They might yield to the higher authority of the very distinguished man who has pronounced a different opinion in a case before him where the question was fairly presented. What then? Every member of your Government who has been in any way instrumental, or in any way a party in a refusal to obey the writ of habeas corpus, and who thereby defied the State power, or defied the judicial power of the United States, where an attempt has been made to exert it, would be responsible, notwithstanding he may have acted in perfect good faith, and under the honest conviction which I felt at the time-felt because I believed the power existed perhaps, but certainly felt that without the suspension of the writ, it would be exceedingly difficult to put down the rebellion as early as for the good of the country and for the sake of humanity it should be put down.

But that is not all. The President of the United States and persons acting under his authority, have established from time to time military commissions for the trial of citizens not connected with the Army. There is-I forget the particular section-in a section of the act of Congress containing the Articles of War, a provision which, considered by itself, would comprehend all who may do the acts specified in the particular section. My impres sion was, from the first, that that particular article was to be construed in connection with the entire articles, and that it meant only to embrace those who were connected with the Army. The Executive took a different view of it, and they established military commissions. Hundreds have been confined, some are now under confinement, several have been hung, under the authority of those commissions. endeavored to satisfy the military commission by whom those who were charged with the assassination of the late President of the United States were tried that they had no authority to pass judgment at all. I failed. The sentences were executed. Those against whom the punishment of death was not awarded are now in confinement. Those upon whom that punishment was awarded were executed.

I cited a case in the argument to which I advert for the purpose of showing to the commission the peril in which they might place themselves if they executed anybody under that authority, the peril that the President himself and all his officers were involved in who participated in that execution; to show that if it turned out thereafter that the military commission was an illegal tribunal, they might be indicted for murder. I cited a case, never dis

There are many reasons, Mr. President, to which I beg leave very briefly to advert before I conclude, why legislation of this kind is important. I know that many acts of very unnecessary violence, many abuses of authority, many excesses of power have been committed by those in whose hands the management of this rebellion has been placed. I believed from the first, and I believe now, that it might have been suppressed, perhaps just as effectu-puted, in England, which was substantially this: ally, by observing all the limitations to be found in the Constitution upon the authority of the several departments of the Government. I believed, however-and perhaps I may have been induced to that opinion, though I thought not at the time, and have no reason to think now that I was induced to form that opinion by any such consideration-I believed in the beginning of the rebellion that it was all-important that the writ of habeas corpus should be suspended; and at the instance of the then President of the United States I wrote an arti

in one of the islands belonging to England there was a Governor Wall, in whom all power was vested, military and civil. He had some three or four hundred soldiers under his command. He got it into his head that they were about to mutiny. He was about leaving the island for home, and his paymaster was to go with him. The men's pay was largely in arrear, and they were under the impression that they would not be paid if those officers were permitted to leave the island. The result was what Governor Wall supposed, a mutiny, and

he selected the man that he thought was the leader of the mutiny and ordered a drum-head court-martial upon him. The man was brought up and tried at once. Some three or four hundred lashes was the sentence. They were inflicted, and he died in consequence of the punishment. As soon as the news reached England Governor Wall was indicted. He remained away until he thought the whole matter would have been lost to recollection by time, and at the end of twenty years, when Lord Ellenborough, who afterward was at the head of the court of King's Bench, was the Attorney General, he reached England. He was tried upon the indictment for murder, convicted, and, in spite of all interposition, was hung.

Now, Mr. President, that the President of the United States who has ordered military commissions, the officers who have acted as judges in those tribunals, and those who have executed the sentences which the commissions from time to time have awarded, acted honestly, I do not doubt. They thought they had the authority. The Supreme Court has decided that they had not. They held at the last term of the court that the whole proceeding was illegal, that there was no authority either by a court-martial or by a military commission to try a civilian, unless he happened to be a spy, and that brought him within the scope of military law. I am not willing to leave the question as a matter of doubt whether the officers of the Government, high or low, who have honestly discharged their duty under an authority which they believed was ample, are liable to punishment.

Now, how are we to prevent it? Eleven of the States have been in insurrection. I differ with a good many of the members of the Senate, perhaps with most of those to whom I am immediately addressing myself; I believe that the large majority of that people are just as loyal now to the authority of the Government as we are; but there are a good many, perhaps, who are not; and there may be included in that number State judges and State officers, and they may assume jurisdiction-and they have the jurisdiction unless we interfere-to try those parties for some such offenses as these, and they may be disposed to proceed to a final and an adverse result. Now, I ask if it be in our power to avert such an end as that, ought we not to exert the power? That is all that is done by this bill; the third section securing to the party merely the right to have the case remitted to a court of the United States; and the fourth section providing a penalty for proceeding to execute a judgment in a case over which the jurisdiction of the State court has terminated. Whether it is advisable to leave in the bill the particular clause suggested by my friend from Wisconsin is another question. I think the bill would be just as satisfactory, just as productive of good results, practically, without that provision as with it; but whether with or without it, if my opinion is of any avail, I think now, as I thought when the subject was before the Committee on the Judiciary, that the constitutional power to pass it is free of all reasonable doubt.

Mr. CLARK. I desire to say but one word, and that is upon the particular amendment now before the Senate striking out the word "judges" from the section proposed to be stricken out by the Senator from Delaware, the fourth section. I beg the Senate to consider who it is that has the direction of the causes in the State courts, and who it is that when the petition is filed has the power to order a stay of the action. It is the judge. Now, if the action should he stayed, and if the parties should be visited with a penalty if they attempted to proceed, why should not that judge, if he is one of the judges that desire to proceed against the authority of the United States, be visited with the penalty? Why should we make any distinction; and why should we not make a final end of the suit in the State court by enforcing the provision? I hope the amend ment will not be made.

And now one word to my friend from Wis

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