Obrazy na stronie


consin, who says that the provision to proceed || good legislation to stand upon the statute- late-courts, and finally, on an appeal, in the against a judge is a novel provision, something book when the hour of passion has passed, I | Supreme Court of the United States, inasmuch new; and I think he said it was unknown or think it is by far better that we leave out the as the validity of this law, an act of Congress, new either in this country or in that country | judges.

would be in question. from which we derive our laws. I have before Mr. STEWART. How would you reach a Mr. STEWART. But suppose the judge me a statute made as long ago as 16 Charles case like this? An indictment has been found goes on and convicts the man and sends him I, in the year 1640, two hundred and twenty. | against one of our officers and it is before the to the penitentiary, he must lie there until the six years ago, which contains this remarkable || judge. How will you prevent his having the case can be heard in the Supreme Court, three provision:

suit prosecuted ? In most of the States a or four years hence. "And be it further provided and enacted, That if nolle prosequi cannot be entered without the Mr. DOOLITTLE. How can he send him any lord chancellor, or keeper of the great seal of England, lord treasurer, keeper of the King's privy

consent of the judge. He has a right, after the to the penitentiary? No oflicer is allowed to seal, president of the council, bishop, temporal lord, suit has been brought and an indictment found, do it.

Will the judge put him there himself? priry counselor, judge or justice whatsoever, shall to order the prosecution to proceed. How will Mr. STEWART. The judge can order the offend, or do anything contrary to the purport, true intent, and meaning of this law, then he or they shall

you prevent him, except by a law of this officer to put him there. for such offense forfoit the sum of £500 of lawful kind? It is in his hands alone.

Mr. DOOLITTLE. What if he does if the Mr. DOOLITTLE. I understand the effect officer cannot put him there? If every officer It was at the time when the English Parlia- of the third section is to remove the cause into to execute a decrec of the court is made responment undertook to break up the Star Chamber the circuit court of the United States, and the sible, how can the judge do it? which had been derogatory to the liberties of circuit court which has the cause can by man- Mr. STEWART. The judge has jurisdiction the country. They feared that they should not damus or certiorari

over the officer, and he can order him to do it, be able to enforce the provisions of this act Mr. STEWART. Suppose the judge refuses and if he does not do it the judge can call upon without a penalty, and they made a provision to remove the case at all from under his juris- the power of the State if he has jurisdiction. that if any of those judges attempted to pro- diction. How will you reach him?

Mr. CLARK. I desire to make but one sugceed and to do what theretofore the court had Mr. DOOLITTLE. The third section re- gestion in answer to the Senator from Wiscon- . done, they should be liable to that penalty. moves the cause.

sin, and that is one of fact. He says

if it were Now, we desire to break up this practice of Mr. STEWART, But he has jurisdiction, necessary that these judges should be proceeded prosecuting Union men for attempting to pre- and he says that this act is unconstitutional, against he would not object. I hold in my hand serve the Government. Why should it not be and the case shall not be removed.

a communication from a member of the other done? Everybody, I think, agrees that it is Mr. DOOLITTLE. The third section of House from Kentucky, in which he says that desirable. The Senator from Wisconsin agrees the bill removes the cause. It is the authority all the judicial districts of Kentucky, with the that it is desirable. Then if these judges will of the Government in the enactment of this exception of one, are in the hands of sympaproceed in the face of the law of Congress, section that does it.

thizing judges. They entirely disregard the direct and peremptory, why should they not Mr. STEWART. How will you got a certi- act to which this is an amendment. They refuse be punished ? If they do not do it, if they | fied record? He denies the constitutionality to allow the transfer, and proceed against these yield obedience to the law, they will not be of your act to remove the cause from the State men as if nothing had taken place. Here is visited by the punishment; but if they will act jurisdiction, and that is what you are going to not the assumption that these judges will not in the face and eyes of the law, why should punish him for. He has it under his control do this; here is the fact that they do not do it, they not, as well as the parties and officers exclusively.

and it is necessary that these men should be and other persons offending, be visited with Mr. DOOLITTLE. It is not necessary that | protected. the punishment? I hope we shall retain the you should have a certified record in order to Mr. SAULSBURY. It is about the hour word “judges," and that we shall say to them remove the cause, because by virtue of the act, of adjournment, and I move that the Senate that they are amenable, as well as other par- | when the proceedings are complied with, the adjourn. ties, to the law of_Congress and to this pen- cause is transferred to the circuit court.

Several SENATORS. Let us take a vote. alty.

Mr. STEWART. Suppose, then, that the Mr. SHERMAN. There are other bills Mr. DOOLITTLE. I think we ought to judge will not give up his record, and goes on behind this which it is important for us to act presume that the judge of a State, in his judi- with the trial notwitlistanding. You say it is upon, and we ought to dispose of this bill cial office, who by the Constitution of the Uni- removed. He says, “It is not; I have got to-night. fed States is bound to take an oath that he jurisdiction, and I will continue to have the Mr. SAULSBURY. I will not insist on the will support the Constitution of the United

cause tried ; I will not allow a nolle prosequi, motion. States, and all laws inade in pursuance thereof, even if the district attorney is willing; it is

The PRESIDING OFFICER, (Mr. Anthony anything contained in any State constitution under my control exclusively;" and it is. I in the chair.). The question is on the amendor law to the contrary notwithstanding, will not submit, when an indictment is found the judge ment of the Senator from Wisconsin, to strike violate his oath of office. It is not necessary, may proceed with it in any State. He can out the word “judges,” in the fourth section in order to secure the rights proposed to be disregard your entire law unless you punish of the bill. secured by the bill. There can be no proceed- || him for it.

The amendment was rejected. ing against an individual if there is no party Mr. DOOLITTLE. The third section pro- The PRESIDING OFFICER. The question to it against him; and if the party who is seek. vides:

now is on the amendment proposed by the ing his redress against the Union officer is That the right of removal from the State courtinto Senator from Delaware, to strike out the fourth restrained, if he is made liable; it is not neces- the circuit court of the United States, provided in the section. sary to presume in the law of Congress that fifth section of the act to which this is amnendatory, may be exercised after the appearance of the delend

The amendment was rejected. the judge will commit a crime. Why is it ant and the filing of his plea or other defense in said

Mr. EDMUNDS. I hope I shall not be necessary to put it in your statute ?

court, or at any term of said court subsequent to the Mr. STEWART. If the Senator will allow term when the appearance is entered, and before a

thought hostile to this bill by offering one me, I will ask, might not the State become a

jury is impaneled to try the sanre; but nothing more amendment, which is to add to the first

herein contained shall be held to abridge the right party, and make it a prosecution on the part

section the following words, which I will read: of such removal after final judgment in the State of the State? Many of these cases are prosecourt, &c.

And in any suit or prosecution to which the pro

visions of this act or the act to which this act is an cnted in behalf of the State.

The removal of the cause is independent of amendment apply, it shall be the duty of the SecreMr. DOOLITTLE. I believe in what is the judge or the court. The court cannot pre

tary of War to assume and carry on the defense said by Judge Kent, the authority cited by vent its removal.

thereof, at the expense of the United States, and to

indemnify and save harmless any defendant or rethe Senator from Illinois. He says, in speak- Mr. HENDRICKS. I suggest that the fifth spondent therein from all damages, fines, costs, and ing of this very thing in the statute of the State section provides for the very case that the Sen- expenses arising therefrom. of New York, which was to defend the liberty ator from Nevada speaks of, where the clerk I hope that this will commend itself to the of every citizen ; speaking of the writ of habeas refuses to give a record, that the party shall || good sense of the Senate as an appropriate corpus as a writ of right; speaking as a citizen appear in the court of the United States, and amendment, because it secures to the soldier of New York, who had been a distinguished | if the plaintiff refuses to prosecute the case, who, in obedience to orders, has done his duty, judge of New York in the supreme court and the case shall be dismissed, and that shall be that protection which we all believe he is enchancellor of the State, he speaks of that pro

titled to, the protection not only of the word vision as a degrading provision in reference to Mr. STEWART. But suppose the clerk has and of the law of the Government, but the the judges. He says Massachusetts imposes | given a certificate; suppose all that has been protection of its arms and its pocket, in relievno such degrading penalties upon her judicial done, and still the judge holds that he has the ing him from litigation which, even if successofficers. None of the States do it, it seems, exclusive jurisdiction. Suppose that there is ful, to him in the end would be almost as but New York, and Mississippi, who followed an indictment in a State court, and the judge ruinous as defeat. perhaps the example of New York. I would says he has jurisdiction, and he is going on to Mr. SHERMAN. I should like to have the agree with the Senator from New Hampshire, if try it. Who has the control of it except the amendment read at the desk. it were necessary in order to defend the Union || judge after the indictment? Suppose he says The Secretary read it. officers, to presume that these judges would, that this bill does not operate as a removal? Mr. SHERMAN. I am sure my friend from in violation of the law, be guilty of this pro- Mr. HENDRICKS. “The Senator as a law- Vermont could not have understood the effect ceeding of which he speaks. I do not ques- yer knows that this will be the effect of it: if of such a provision upon the financial condi, tion the constitutionality of our including the the application takes away the jurisdiction of tion of the country, If the United States may judges as well as including the officers or the the State courts then the remedy, of course, if be sued in the United States courts, there will parties; but as a question of good policy and the plaintiff persists in the case, is in the appel. ll be people who will sue the United States when they would not bring suits against individuals. go by default or without making the necessary people to see that the soldier and the officer The effect of this amendment is to enable any. defense.

a bar.

go scot free from trouble and expense, as well body to sue the United States for any transac- It seems to me that if an officer honestly and as from litigation. tion that has occurred during the recent war, fairly defends himself in a suit of this descrip- Mr. GUTHRIE. Mr. President, the first because, although John Doe, or Richard Roe, tion and he fails, and judgment is rendered section of this bill proceeds upon the predicaor some nominal defendant, may be made the || against him, upon an application to Congress tion that every individual who was engaged in party defendant, yet, if the United States is to he will obtain relief. I believe it is the prac. the Army, and acted under orders of his supeassume beforehand to conduct the deiense of tice of Congress, where an oflicer, either civil rior was acting in the line of his duty, and actall suits that may be brought against these per- or military, undertakes faithfully to discharge ing innocently, and is entitled to protection, sons for any acts done during the war, and the duties of his office, and is subjected to and we interpose it by this section, carrying it then the United States is not only to pay the expense in consequence of his efforts, to indem, further than we did in 1863, for then we only expense of defending the suits, but to pay the nity that officer upon special application; and made it a protection to the President and judgments of the courts in all the various suits, upon such an application the facts can be some of the principal officers. Now we proit would be necessary for us to consider this examined. But to assume beforehand, while pose to protect those who did any act under bill in the Committee on Finance a little while this litigation is threatened, that the United the order of any military officer of the United and to provide ways and means to meet the States in every case will pay the judgment that States holding the command of any military judgments that may be rendered in cases of may be recovered and assume the defense department, district, or place in which any this kind. It seems to me we had better leave of the action, it seems to me, is putting the Seizure, arrest, or imprisonment was made, done, the defendant upon his trial, giving him the finances of the country to some extent into

or comunitted, or any acts were so omitted to be done,

either by the person or oficer to whom the order is privilege of taking the case to the United States the hands of private speculators and persons

addressed, or by any other person aiding or assisting courts, there to be tried. There may be cases who might expect to make gain by these trans- him. where the United States may, by appropria- H actions.

You grant the protection of the Government tions to be hereafter made, indeninify the de- Mr. HOWE. For a part of this amendment, to all individuals who obeyed their superior fendant; but it seems to me we ought not to it seems to me, I should vote with a good deal | officers; you interpose that order as a protecinvite that kind of litigation. It is well known of pleasure. I do think that the Government, tion to them, as a defense for the acts for which that if the United States is a defendant in a if it undertakes to protect these parties, should they may be sued. If it so chances that they suit, even an honest jury will give a much make that protection eflicient; I do think the had no such orders, or that they did the acts larger verdict against the United States than Government should undertake the defense of complained of willfully and maliciously, and it as against an individual. At any rate, it seems the class of cases which are provided for in is so proved to a jury, there will be verdicts to me a proposition of this kind to assume tho this first section; and if it stopped there, if, | against them, I have no doubt. defense of all these cases and to guaranty be- instead of directing the Secretary of War, it Now, I think we have carried this a little forehand the judgment that may be rendered directed the Attorney General to assume the too far; we have made it broader than we need in them, would be rather an expensive opera- defense of these cases, leaving the respondents do. That is my principal objection to the bill. tion.

in them to apply to Congress for the payment While this excmption was contined to the higher Mr. EDMUNDS. I do not know but that it of the judgment, if a judgment was recovered, officers and the military policy of the Governwould be an expensive operation. The putting it seems to me I should vote for it. I do not ment, as proclaimed and ordered to be carried down a rebellion and sustaining the Govern- see any objection to that. I think the Attorney out by them, I thought it was fair enough and ment of the country is always an expensive | General is the oflicer who should direct the right enough. But after you have interposed operation; but I had supposed, from the course defense rather than the Secretary of War; and these orders as a justification for your officers, of this debate, that the question under con- I think as far as we ought to go now is to lend and yet on trial they are convicted, I am not sideration was, the protection of the officers the aid of the prosecuting officer of the Gov- for paying the expenses of trial nor for paying of the Government at whatever cost, irre. ernment to the respondent in managing the the verdicts out of the Treasury; and I do not spective of any question of finance or of mere defense, but to leave the question of paying want it to be held out that any other Congress pecuniary policy. We have gone upon the any judgment, if a judgment is recovered, to may be appealed to to pay those judgments. theory, and the correct theory, that it is a posi- the future consideration of Congress.

That is not a principle that I wish to establish tive and solemn duty imposed upon the Con- Mr. EDMONDS. Mr. President, if it is on the heel of this civil war; and I hope that gress of the United States to protect the offi- right for us, as it seems in the judgment of the the amendment now pending will not be adopted. cers and men who have executed its authority. Senate to be right, to declare in advance by a I think we are not prepared for it. I am perIf that theory is correct, and in my judgment | decree of the Senate that the commission of fectly certain that there are a great many places it is correct, then most certainly we ought to any of these acts which have been performed in the United States where there would be heavy make that protection something more than a is lawful, and therefore in effect to declare that verdicts against the officers if it was understood delusion and show. We cannot logically or the United States adopts and justifies every one that the Government would pay them; and the justly stop by merely declaring that the man of these acts over which the bill reaches, then plaintiffs and defendants would understand each on his own account, who has obeyed our author- where is the middle ground upon which we can other before they got through with these matity, shall defend himself in years of litigation rightfully pause and say, that having adopted | ters. I have no doubt about that. at his own expense. It is not his duty to do these acts as our own, having justified them by It is a question with me whether without this it. If he has obeyed our orders and has exe- our enactment, we will still turn the poor sol- act it is not a defense that the thing complained cuted our will, is it not our duty, above all con- dier over to the tender mercies of his own of was done under the authority of the order siderations of cost, to defend him? Do we ability to carry on his lawsuit and leave him

of a superior and that it was necessary to be defend him when we merely impose upon him to appeal to some future representatives of the done under that authority. I am sure that our the obligation of defending himself? We have people, whose opinions toward him may not district judge in Kentucky would hold it a destopped his pay; we have discharged him from be so favorable as our own, for his final recom- fense that it was done in pursuance of orders the Army; we bave driven him to rely upon pense? It appears to me that we cannot rightly of a superior. Judge Graham has been rehis own exertions to obtain his livelihood, and do it. It appears to me that in the case of a ferred to as having decided that the confedhave left him in the excess and magnificence soldier or an oflicer who is brought to answer erate soldiers who seized property under the of our gratitude a lawsuit as a pension. I

in a tribunal of a State or in a tribunal of the order of General Simon Bolivar Buckner were am not disposed to stop there. I agree that United States, when we justify his act and make protected by that superior order, and Judge the question which my friend from Ohio has it our own, we ought to defend that act at our Robertson, of the supreme court of Kentucky, raised is serious; but I do not believe that own expense, and if it turns out that the act affirmed the decision, which is now before the because it is serious we onght to shirk upon was an invasion of private rights, so that the Supreme Court of the United States, and he some future Congress, whose opinions upon | private citizen is lawfully entitled to redress is one of our ablest jurists. I am sure le this question we cannot forecast, the responsi- | therefor, it is we, and not the soldier or oflicer, would not have confirmed Judge Graham's bility at last of doing the soldier justice. Let | who ought to make the compensation; and we decision unless he had believed there was full us do it now, when we have the power. ought logically and rightly, when we create the foundation in law for it, and I do not believe

Mr. WILLIAMS. I wish to make one or defense, to provide the means now and here either of them would allow a recovery where two suggestions on this proposed amendment. of making that defense effectual.

the party had the orders of a superior officer It seems to me that its tendency would be to The officer or the soldier may succeed in his | in the Federal Army. I think a man in the encourage litigation, and to induce persons defense; but how does he succeed, and at service of his country, and bound to obey, is who suppose they have claims growing out of what expense? At the expense of years of protected by the order of his superior oflicer, the war to prosecute those claims with the litigation, at the expense of a ruin to him and cannot be held either criminally or civilly assurance that any recovery would be settled which is almost as complete as would be the responsible for it. He ought not to be, and by the United States because the United States ruin of defeat. Now, can we not trust the war that is the justification of this act. makes itself responsible to the claimants. I branch of the Government, charged with the Kentucky is a fruitful place for precedents, think, in the second place, that there is dan- || department of military affairs, in whose rec- as I find here. I did not know when I left ger that there may be collusion between the ords is to be found the authority for these home that there was a single solitary suit of this plaintiff and defendant. If it is understood very acts, and under whose supervision and character in the city of Louisville. I have heard that any judgment that may be recovered by control every one of them has been performed? | of some suits in other parts of the State, and a party when he sues another that has acted I ask, can we not trust such a Department with there have been some criminal suits. · The conas an officer will be paid by the United States, || the supervision of this defense, and leave it to federate soldiers came in and they took horses there is danger that there may be collusion that Department to exercise the duty, asit ought and they alleged that they were sent in by their between the parties, and judgment suffered to to be the pleasure, of the Government and the Il superior officers; and in some parts of the State we iudicted them for stealing, and convicted should like to have him do so; if not I will Mr. DOOLITTLE. I deem this proposition them, and sent them to the penitentiary. Our move it as an amendment to his amendment: of my colleague an important one, and there Executive released all that class of men on the

And in any suit or prosecution to which the pro

is an amendment which I myself wish to proprinciple that they had acted under orders, visions of this act or the act to which this act is an pose to the first section, which I think is very whether right or wrong.

We had both armies,

amendment apply, it shall be the duty of the Attor-
ney General and of the several district attorneys of

important; and the question now is, shall we as you all know, there; the confederate army the United States in the several districts, at the re- go on with the discussion, or shall we adjourn was upon us, and the Federal army was upon quest of the respondent, to assume and carry on the and take up the question hereafter? us, and we were pretty unceremoniously treated

defense of such action, after such action shall be Several SENATORS. Let us finish it now. by both sides. Then we have had guerrillas. removed into any of the courts of the United States.

Mr. DOOLITTLE. This proposition of my Our people like to fight out their rights in the Mr. EDMUNDS. I cannot accept the modi- colleague has a very great deal of importauce, old way, and they love a lawsuit, I believe, for fication proposed by my friend from Wisconsin, in my judgment. It does not merely concern the excitement and the luxury of it, [laughter,] | because it fails to come up to the logical and the States that have been in rebellion, but it and we would get all right if you would just | just consequences of the bill which we are about concerns our own States, our own provost margive us back the courts and let us fight it out to pass ; it only goes half way.

It admits our shals, and the men who have acted all over our in the tribunals. We will never get right short obligation to protect this man, but says we will States. I speak now of the States of Iowa, of them, and I do not believe the United States only protect him at half expense ourselves and | Wisconsin, and all the States of the North. will get right until we restore the writ of habeas halt expense to him, as we propose to remedy || Our provost marshals are being sued, a great corpus, restore the right of suits for all wrongs the cases of the iron-clad operations. I do not many suits are being instituted against them, that infringe a man's personal rights or his want to meet them in that way. Therefore I and it is going to be the ruin of those men who property. But I am decidedly against this shall not accept the modification.

have been acting on behalf of the Government amendment, tacking this system of expendi

Mr. HOWE. I move this as an amendment

for them to go on simply with the defense of ture at the close of the war on the finances of to the amendment. ["No!” “No!''] Very these suits. They have not the means to do the country,

well, at the suggestion of the Senators, I will it and attend to them, and there ought to be Mr. EDUNDS. I have only this to say in let the votc be taken on the amendment of the

some kind of provision by which the Attorney reply to the honorable Senator from Kentucky:

Senator from Vermont, and if that be rejected il General of the United States and the district that I think from what I understood of his re- I shall offer this.

attorneys, or somebody in behalf of the Govmarks that he misapprehends the scope of the

The PRESIDING OFFICER. The ques- ernment, should take hold of the defense of amendment which I had the honor to offer. tion is on the amendment offered by the Sena- these actions that are now pending. Several That amendment is confined literally and extor from Vermont.

actions are pending in the county where I live, actly to the scope of the enacting section of the The amendment was rejected.

against the provost marshal of the district and bill, if I may so term it, and it pledges the faith Mr. HOWE. Now, I offer this to come in the officers who have acted under him, and it of the Government to defend only those acts at the same place:

is no small matter whether we give over these which are provided for in the first section,

And in any suit or prosecution to which the pro

men to these harassing prosecutions, and leave and which the friends of this bill declare, and visions of this act, or the act to which this act is an

them to defend themselves as best they may. I hope rightfully declare, are only those acts amendment apply, it shall be the duty of the Attor- I do not say that it would be wise for us to which were lawfully done pursuant to lawful

ncy General and of the screral district attorneys of
the United States in the several districts, at the re-

announce, unqualifiedly and in advance, that we authority. My amendment, therefore, only goes quest of the respondent, to assume and carry on the

should defend all cases and pay all judgments to the same extent that the billitself goes, and defense of such action after such action shall be that may be recovered against them. That that is to provide for the payment of whatever removed into any of the courts of the United States.

might not be wise for us now to announce; but may be necessary to protect the officer or the Mr. SHERMAN. If this amendment be | I think we should assume this matter of the soldier in the discharge of his duty, and not to adopted, the effect will be that if the defend. defense under some limitations. It may be that provide for payment or indemnity to the oflicer ant in any suit asserts that he did the act com- in addition to what my colleague's amendment or the soldier who exceeds his duty; and unless plained of under or by virtue of an order of proposes we might provide that the cause, on the first section has a construction much broader an officer, that will compel the United States being transferred to the circuit court, should be than that which has been claimed for it, the to assume the defense of that suit, whether the presented to the district attorney of the United amendment which I proposed has only the con- allegation be true or false. It seems to me we States, and if he should be satisfied that there struction which I give to it. That is the whole lought not to do so. A mere allegation before- was a bona fide defense he should then go on of the story. This amendment is conceived for hand of a fact of that kind, which may be false, with the suit. There might be some qualificathe purpose, and it will answer the purpose, may be known to be false, and shown to bé tion of that sort. and in my judgment no other part of this bill false, ought not to compel the United States to But, Mr. President, in addition to that which will answer the purpose, of fulfilling the duty assume the defense of that person.

my colleague proposes, I have an amendment which this Government owes to its executive Mr. HOWE. No, Mr. President, the Sen- which I shall offer to the first section of the agents, who in pursuance of its authority and not ator from Ohio misunderstands the effect of bill which I deem very important. It is not in excess of its authority have executed its will. the amendment. The question, whether the precisely like the amendment which was offered

Mr. HENDRICKS. I hope we shall have particular cause comes within the purview of by the Senator from Vermont, and in reference a vote on this bill to-night, and therefore I do the first section is determined before the cause to this matter of making a law of Congress an not intend to occupy the attention of the Sen- gets into the circut court of the United States. absolute defense against a wrong to person and ate for more than a moment. Though I have Mr. SHERMAN. No; if the defendant property absolutely and unqualifiedly in States not considered the subject very carefully, I like claims that what he did was under or by virtue where there has been no rebellion, no martial the purpose of the amendment proposed by 1 of an order, that authorizes the transfer of the law, and where the courts have been continuthe Senator from Vermont. I do not think it suit to an impartial tribunal; but his mere ally open, that is further than I am prepared would be safe to adopt this amendment. I claim to have done the act under the order of to go. Upon that subject I have drawn an think a proposition so important in its effects an officer ought not to require the United States || amendment which meets my views and which upon the Treasury of the country ought to be to step forward and assume before the claim is I desire to have acted on, and I deem it very very carefully considered by some proper com- settled the expense of the trial.

important. mittee of the body, and therefore, although I

Mr. HOWE. The United States assume no Several SENATORS. Read it. might approve of the purpose of the mover, I expense wlfatever, except it loans the profes- Mr. DOOLITTLE. As I am upon the cannot vote for an amendment coming before sional services of their oflicers in making the floor us under circumstances that prevent our con- defense after the case gets into the Federal · Mr. CONNESS. I rise to a question of order. sidering it with that care with which it ought courts. I cannot see any objection to that. I hope the Senator will allow us to get a vote to be considered. Therefore I shall not vote Mr. GRIMES. I suggest that as this bill on the pending amendment, and then of course for the amendment.

comes from the Committee on the Judiciary, he will have the opportunity to offer and discuss But there is this view to be taken: if the offi- a committee in whom we have the utmost con- his amendment. cer acts under an order which is legal and right, fidence, is reported to us without any clause Mr. DOOLITTLE. I am speaking on the that is a defense to him. If he acts under an of this description, they not deeming that it | pending amendment, and my amendment goes order which was not legal and not right, then was necessary that there should be such a pro- right in with it, and I suppose qualifics that secthe man who is injured by this wrongful act vision in the bill, and this amendment not being tion also, so that we may see how the whole ought to have some remedy; and if the officer printed, and nobody exactly understanding its | section will read when we get these amendin executing the order has acted in good faith full scope and effect, the Senate had better pass ments in. The amendment which I intend to he ought to be protected. Now, protected by the bill without the amendment, and if it be whom? Protected at the expense of the hon- necessary to adopt such a provision as this as

And such orderest citizen who is wronged, or protected at the an independent measure, let it be so presented,

Referring to the order which is to be the expense of the Government, for whose benefit and let it be printed, and let us see what it is.

defensehe honestly and in good faith did the act? I Mr. HOWE. The proposition of the Senathink at the expense of the Government, and tor from Iowa may be a very plausible one, but

Shall constituto in thosc States and Territories

where martial law has not been declared, or where therefore I am inclined to agree with the Sen- I think I can defend myself against the charge the administration of the civil law by the State and ator from Vermont, in his purpose; but I can- of interfering with the jurisdiction of the Judi- Federal courts has not been interrupted by the lato

rebellion, a prima facie defense; and in caso it shall not vote for the amendment under the circum- ciary Committee, when I state the simple fact not be made to appear that such person acted under stances.

that this amendment was drawn up by a mem- such order maliciously, corruptly, or oppressively, Mr. HOWE. If the Senator from Vermont. ber of the Judiciary Committee. I plead that

such defense shall be conclusive as to such person. will accept this in lieu of his amendment, I ll in bar. [Laughter.]

I want something that really is going to apply 39Tu Cong. 1st Suss.--No. 130.

propose is :

and nays.

inserting with malice." "The "amendments Mr. CHANDLER, I move that the Senate

now reads 6.

to the States where there has been no martial law. tion about it thereafter, he proposed the law; A joint resolution (H. R. No. 115) for the Although this section of the statute will have therefore, he said that the veto of the Presi- relief of John Wells & Sons, of Baltimore. validity, I have no doubt, in all those sections dent ought to be overruled. Now, sir, I say The message further announced that the where martial law has prevailed, and where the that it is not altogether clear. Does Congress | House of Representatives had passed the bill courts have been overturned and military law intend to defend men who have gone on under (S. No. 150) for the relief of Theodore G. has prevailed, and operate as a good defense; orders of superior officers and done things | Eiswald. yet, when you come to apply it in those States cruelly and with unnecessary severity? Do you

ADJOURNMENT TO MONDAY. where the courts have been open all the while, | intend to step between the injured man and the

On motion of Mr. CLARK, it was and declare that it is to be a perfect and com- wrong-doer when he pretends to defend him

Ordered, That when the Senate adjourn to-day it plete defense independent of whether the act self under an order of a superior oflicer, if he

be to moct on Monday next. is done corruptly, maliciously, or oppressively, || has executed that order with cruelty and unne

REGISTERS TO VESSELS. [ have very serious doubts as to the constitu- cessary severity ? Although the law may postional power to do it. I want to have it so sibly be construed, as the Senator says, yet Mr. CHANDLER. I move to take up Senthat the effect will be to defend our officers in there is no objection to saying so.

It will not ate bill No. 89, returned from the House of Wisconsin. It is an additional provision which cost so much to print these words, if the Sen- Representatives with an amendment. I wish to add to the first section, so as to apply ate wants them in the bill. I call for the yeas The motion was agreed to; and the Senate in California and Wisconsin as well as in the

proceeded to consider the amendment of the States where they have been acting under mili- The yeas and nays were ordered.

House of Representatives to the amendment tary orders in the rebellion.

Mr. JOHNSON. Before the vote is taken of the Senate to the bill (S. No. 89) to issue Nr. CONNESS. I feel under great obliga- I would suggest to the Senator from Indiana American registers to the steam vessels Michitions to the honorable Senator from Wisconsin that his amendment perhaps only covers per:

gan, Despatch, and William K. Muir. for taking care of California, of course, but I

sonal wrongs.
I should like him to amend it

The amendment of the House of Representa. thought I was right when I rose before, and so as to comprehend also property.

tives was in line four of the Senate amend. that the Senator did not intend to ask' for a

Mr. BUCKALEW. Insert "maliciously or." ment to strike out the words “now called the vote on his amendment now as a question pend

I modify it by

Roamer.” ing. It is easily understood, and does not require a discussion by legal gentlemen. We have

nor for any act done with malice, concur in that amendment. listened here all day to a discussion of legal || cruelty, or unnecessary severity.

The motion was agreed to. questions. It has been of great interest, but The question being taken by yeas and nays,

IIOUSE BILLS REFERRED. there is no legal question involved in the propo- resulted

d-yeas 18, nays 16; as follows: sition that is before the Senate now, and I trust

The following bills and joint resolution from YEAS-Messrs. Buckalew, Doolittle, Edmunds, we shall have a vote upon that, and then for

the House of Representatives were severally Guthrie, Henderson, Ilendricks, liowe.pohnson, one I am ready to vote upon the proposition Lane of Indiana, Morgan, Norton, Poland, Ram- read by their titles, and referred as indicated. of the Senator from Wisconsin.

sey. Saulsbury, Sprague, Van Winkle, Willey, and below:

Yates-18. The PRESIDING OFFICER. The ques

A bill (H. R. No. 500) making appropriaNAYS-Messrs. Anthony, Chandler, Clark, Contion is on the amendment offered by the Sen- ness, Cragin, Foster, Iloward, Kirkwood, Nye, Pom- tions to supply deficiencies in the appropria ator from Wisconsin, [Mr. Howe.]

eroy, Sierrart, Sumner, Trumbull, Wade, Williams, tions for the public printing for the fiscal year

and Wilson--16. The amendment was rejected. ABSENT-Messrs. Brown. Cowan, Creswell, Davis,

ending June 30, 1800-to the Committee on Mr. HENDRICKS. I offer the following Dixon, Fessenden. Grimes, Ilarris, Lane of Kansas,

Finance. McDougall, Morrill, Nesmith, Riddle, Sherman, and A bill (H. R. No. 504) for the relief of amendment, to come in at the close of the first Wright-15.

Ishmael Day--to the Committee on Claims. section:

So the amendment was agreed to.

A joint resolution (H. R. No. 115) for the Nor for any act done with cruelty or unnecessary Mr. DOOLITTLE. That amendment, I relief of John Wells & Sons, of Baltimore-to severity.

think, substantially covers the same point the Committee on Claims. I do not think that I need explain this amend- which was embraced in the amendment I


Mr. SPRAGUE. I move that the Senate ment. The chairman of the Committee on the || posed to offer; so I shall not offer mine. do now adjourn. Judiciary thinks that the class of cases contem

The bill was reported to the Senate as The motion was agreed to; and the Senate plated by my amendment will not be included | amended; and the amendments were con- adjourned. within this bill, anyhow; but it is well enough curred in and ordered to be engrossed, and to make it certain. If this amendment be the bill to be read a third time.

HOUSE OF REPRESENTATIVES. adopted, it will make the last clause of the

The bill was read the third time. section read : Mr. SAULSBURY and Mr. HENDRICKS

Friday, April 20, 1866. But no such order by force of this act, or the act called for the yeas and nays on the passage of

The House met at twelve o'clock m. Prayer to which this is an amendment, shall be a defense to any suit or action for any act done or omitted to be the bill; and they were ordered.

by Rev. GEORGE F. Magoun, President of Iowa done after the passage of this act, nor for any act The Secretary proceeded to call the roll.

College. done with cruelty or unnecessary severity.

Mr. SPRAGUE, (when the name of Mr.

The Journal of yesterday was read and Mr. CLARK. I doubt the propriety of adopt- LANE, of Kansas, was called.) The Senator approved. ing this amendment here, as it refers to the act from Kansas, who sits next to me, desired me

The SPEAKER stated as the regular orthat we passed in 1863 as well as to this. I to say that he is paired off with the Senator der of business the calling of committees for think that is the meaning of the law, that a

from Delaware, [Mr. Riddle.) If present, reports of a private nature, commencing with court would not hold a man to be exculpated he would vote in favor of the passage of this

the Committee on Mines and Mining. under an order of that kind if he exercised bill.

ADDITIONAL CLERK. unnecessary cruelty. I think it had better stand Mr. JOHNSON. I was requested by the Senator from California (Mr. McDougall] to

Mr. ROLLINS, from the Committee of AcMr. TRUMBULL. I think the Senator from say

that if he were here to vote he would vote

counts, offered the following resolution: New Hampshire is entirely right. If we now in the negative.

Resolved, That the Sergeant-at-Arms be allowed to say that the law shall not apply to this, another

The result was announced-yeas 30, nays 4;

employ an additional clerk in his office during the

present session of Congress at a salary of $125 per Senator may propose tirat it shall not apply to as follows:

month, some other thing, and so on. Of course it will YEAS -- Messrs. Anthony, Chandler, Clark, Con- Mr. CONKLING. What is the occasion of not apply to such a case as is supposed. This

ness, Cragin, Doolittle, Edmunds, Foster, Henderson,
Howard, Howe, Johnson, Kirkwood, Lane of In-

this resolution? law, like all others, is to receive a reasonable diana, Morgan, Norton, Nye, Poland, Pomeroy, Ram

Mr. ROLLINS. This resolution was referred and fair construction ; and no court would hold scy, Sprague, Stewart, Sumner, Trumbull, Van Win- to the Committee of Accounts several weeks that a man is to be protected in excessive cru

kle, Wade, Willey. Williams, Wilson, and Yates-30. elty in the execution of an order. That is not

NAYS--Messrs. Buckalew,Guthrie, Ilendricks, and

ago, and after careful examination the commitSaulsbury-4.

tee came to the unanimous conclusion that it a fair meaning of the law. None of us would ABSENT-Messrs. Brown, Cowan. Creswell, Davis, was best that the allowance should be made of justify such things. If we commence making Dixon, Fessenden, Grimes, Harris, Lane of Kansas,

an additional clerk during the present session. McDougall, Morrill, Nesmith, Riddle, Sherman, and this class of exceptions, I do not know where Wright-15.

He asked for an annual appointment, but the it will stop. I think the amendment had better

So the bill was passed.

committee recommend it only during the presnot be adopted.

ent session, which will be for a very short time. Mr. HENDRICKS. I think it had better be


I have a letter from the Sergeant-at-Arms, adopted. The other day the Senator from Illi- A message from the House of Representa- which I will send to the desk and have read. nois made a very able argument to the Senate, tives by Mr. LLOYD, Chief Clerk, announced Mr. UPSON. When does the clerkship assuming, in the first place, that the law of the that the House had passed the following bills commence ? land was as he proposed to declare it, and yet and joint resolution in which it requested the Mr. ROLLINS. During the present sesbecause it was not entirely clear, because there concurrence of the Senate:

sion. was some difference of opinion upon it, he pro- A bill (H. R. No. 500) making appropria- Mr. UPSON. At the beginning of it, or posed to declare what the law was. tions to supply deficiencies in the appropriations

now? in relation to the citizenship of the colored peo- for the public printing for the fiscal year ending Mr. ROLLINS. Let the resolution be read. ple of this country. He admitted that ihey || June 30, 1860;

The resolution was again read. were citizens already, but there was a dispute A bill (H. R. No. 504) for the relief of Mr. ROLLINS. I will modify it by having about it, and so that there should be no ques- Ishmael Day; and

it read “ from and after the 1st of April."

as it is.

That was

The Clerk read the letter, as follows: to any furtherdiscussion of other matters. Ifany | part of the Sergeant-at-Arms. During the last SERGEANT-AT-Arus's Office,

gentleman has any remarks upon this resolu- session, before the matter of mileage was prop; HOUSE OF REPRESENTATIVES,

tion I will yield. WASHINGTON, D. C. March 7, 1866.

erly adjusted, the Sergeant-at-Arms advanced SIR: I have the honor to subinit the following

Mr. ANCONA. I would inquire of the Chair || mileage to various members, trusting to cirreasons why the resolution introduced by Hon.

how this resolution came before the House. cumstances for his pay. I move the previous G. W. ANDERSON, chairman of the Committee on The SPEAKER. . It was reported regularly question. Mileage, and referred to your committee, authoriz

from the Committee of Accounts when it was ing the cmployment of an additional clerk in my

On seconding the previous question, there office, should receire the favorable consideration of called in its order.

were-ayes 51, noes 33; no quorum voting. the committee and of the House:

Mr. ROLLINS. The resolution was intro- The SPEAKER, under the rule, ordered The clerical labor incident to the present system of keeping deposit accounts with each member, with

duced, I believe, by the gentleman from Ken- tellers; and appointed Messrs. Rollins and the necessary checks and daily balance-sheets, and tucky, [Mr. SMITH,) and referred by order of ANCONA. the collection and payment of the internal revenue the House to the Committee of Accounts. After The House divided; and the tellers reported tax, has more than doubled since the passage of the revenue law,

a careful examination by the committee they || -ayes 66, noes 30. In addition to the above increased labor at the have reported unanimously in favor of the res- So the previous question was seconded. present time, an examination of former "mileage olution as modified. The duties imposed upon The main question was ordered; which was reports" and routes, in order to enable the committee to equalize the mileage lists, has thrown so much

the clerk of the Sergeant-at-Arms, as stated in upon the adoption of the resolution. additional labor upon this office that the present force

the letter he has submitted to the committee, Mr. FINCK called for the yeas and nays. of one clerk and one messenger cannot properly do are nearly double, in my judgment, what they The yeas and nays were not ordered. the work. I would therefore earnestly request that I may be

formerly were. And all who are familiar with Mr. MINCK called for tellers on ordering the allowed one additional clerk, with a salary of $1,500

the duties devolved upon that clerk will readily yeas and nays. per annum. This increased expenditure will amount come to the conclusion, I think, that this request Tellers were not ordered. to but little more than the percentage allowed to collectors on the same amount of revenue that is colis just.

The resolution was adopted. lected and paid into the Treasury from this office, for

Mr. FINCK. I am opposed to the passage Mr. ROLLINS moved to reconsider the vote which I cannot by law receivo any compensation, of this resolution ; I do not believe that there || by which the resolution was adopted; and also Very respectfully, your obedient servant,


is any necessity whatever for the appointment || moved that the motion to reconsider be laid on Sergeant-at-Arms House of Representatives, of an additional clerk in the Sergeant-at-Arms's

the table. Hon. E, H, RollixS,

office. It is known to the members of this The latter motion was agreed to. Chairman of Committee of Accounts.

House that the duties of the Sergeant-at-Arms's Mr. RANDALL, of Pennsylvania. I have | office, ever since its organization, have been car

MESSENGER IN HOUSE LIBRARY. no particular objection to the passage of this ried on with the same force that it has at pres- Mr. ROLLINS, from the Committee of resolution for the employment of this additional ent. The Sergeant-at-Arms of this House has Accounts, reported the following resolution: officer, provided that it is necessary, but I wish been favored with the services of an assistant Resolved, That the pay of William H. Smith, mesto bring to the attention of the House the fact of the highest business character and qualifi

senger in the Ilouse library, be, and the same is that there is now employed, or rather engaged,

hereby, increased to $2 50 per day, beginning Februcations. He keeps the books and the accounts

ary 1, 1866. in the post office, a lad who is very efficient and of the members. And if another clerk is added

Mr. WASHBURNE, of Illinois. I ask the industrious, working from early morning till he will not aid the clerk now there in any gentleman from New Hampshire to yield to late at night, and there is no provision, I un- respect whatever. derstand, for his payment. I desire, therefore,

me, that we may do an act of justice to a col

It is very well known to this House that knowing the services of this lad, having it during the Thirty-Eighth Congress no more

ored boy connected with the bathing-room who directly under my own observation, to add an

faithfully waits upon all the visitors there. force was in the office of the Sergeant-at-Arms Mr. ROLLINS. 1 yield to the gentleman amendment that the postmaster be authorized, than there is there at present. Now, from my from this date until otherwise ordered, to pay

for the purpose of offering an amendment. observation of that office, and the business conthat lad the wages of a page upon the floor of nected with it, I have no hesitation in stating | amend the resolution by adding the following:

Mr. WASHBURNE, of Illinois. I move to this House. Mr. WASHBURNE, of Illinois. I would | all the duties of that office. If they do not that the present force is sufficient to discharge

And that Sandy Bruce, jr., be allowed at the rato

of $150 per day for his services in the bath-room, like to know the circumstances under which now receive suflicient compensation, then bring commencing with the present session. this lad is employed.

in a proposition to give them a greater com- Mr. ROLLINS called for the previous quesMr. RANDALL, of Pennsylvania. By no pensation. But if you appoint an additional tion. authority, as I understand; but he is the son clerk for this session of Congress, he will be The previous question was seconded and the of the postmaster of the House, and the em- continued during the next session, and it will main question ordered; and under the operaployés not being equal to the service required, be followed as a precedent hereafter. I hope | tion thereof the amendment was agreed to. this lad volunteered to assist. He takes a deep || the resolution will not pass.

The resolution, as amended, was adopted. interest in the discharge of the duties, and is Mr. RANDALL, of Pennsylvania. I desire

Mr. ROLLINS moved to reconsider the very faithful. to say a word or two in reply to what has been

vote by which the resolution was agreed to; Nr. CONKLING. What does he do? said by my colleague, [Mr. STEVENS.] I desire

and also moved that the motion to reconsider Mr. RANDALL, of Pennsylvania. He de- to say to him that two wrongs do not make a

be laid on the table. livers the mail at my house every morning, and right. Because this clerk, Mr. Tudge, was re

The latter motion was agreed to. he is engaged during the day every thirty min- || moved, that is no reason why this boy should utes in carrying the mails out from this office not be paid. I joined with others in the rec

ISII MAEL DAY. to the sub-offices in the city.

ommendation that Mr. Tudge should be re- Mr. WARD, from the Committee of Claims, Mr. CONKLING. I should not like to say | tained; perhaps that was one reason for his to whom was referred the petition of Ishmael anything

by way of complaint of the post office, || removal; I do not know how that is. But here Day, praying compensation for the destruction or of anybody who delivers the mail. But if is a boy employed, and I ask simply that he of his property by rebel raiders on the 12th the person to whom the gentleman from Penn- shall be paid for his services the same wages of April, 1864, reported a bill for the relief sylvania [Mr. Randali) refers as delivering that are given to our pages.

of Ishmael Day; which was read a first and his mail is the same who delivers, or omits to Mr. ROLLINS. I will suggest to the gen- second time. deliver, my mail, I hope that a very moderate | tleman that he can best accomplish his object The bill, which was read, provides that, as compensation will be fixed.

by introducing an independent resolution, and a recognition of the heroism of Ishmael Day, Mr. RANDALL, of Pennsylvania. I would having it referred to the committee.

of Baltimore county, Maryland, and as cominquire of the gentleman from New York (Mr. Mr. RANDALL, of Pennsylvania. Very | pensation for the loss of all his property in CONKLING) if it is a boy who delivers his mail. well; I withdraw my amendrnent.

defending the national flag from an attack by Mr. CONKLING. I am sure I do not know. Mr. ROLLINS. I believe it is necessary rebel raiders on the 12th day of July, 1864, It must be a very small boy that delivers it for the proper management of the affairs of the there be paid to Ishmael Day, annually from sometimes, so small that with the naked eye office of the Sergeant-at-Arms that he should July 12, 1864, during his life, the sum of we have very great difficulty in finding him. have this additional assistance.

$421 50, to be paid in semi-annual payments. Mr. STEVENS. I do not know anything Mr. SMITH. I do not wish to have attrib- The report, which was read, states that the about this small boy that is spoken of as being uted to myself anything that belongs to another, || petitioner, aged seventy-two years, and loyal in the post office of this House. But I do know and especially Lio not wish to steal the thunder to the Government of the United States, had that we had there one of the best men I ever of the gentleman from Missouri, [Mr. ANDER- his property, consisting of a dwelling-house, knew, by the name of William Tudge; and I son.] He, not I, introduced this resolution. out-houses, and personal property, to the value know that alınost every member of this House Mr. ROLLINS. Yes, the gentleman from of $7,025, burned and destroyed on July 12, signed an application to the postmaster of this | Missouri, (Mr. Anderson,] the chairman of 1864, under the following circumstances: House to continue him in that office.. And I the Committee on Mileage, introduced the Early on the morning of that day, as was know that the postmaster in place of that turned resolution.

his custom, he elevated and unfurled the flag him out. Now, I would like to have some bet- Mr. ANDERSON. I desire that the


of the United States in front of his door-steps ter reason assigned for giving additional force sage of this resolution shall not be affected by as an insignia of his principles. Soon there. to the postmaster, before I give any more the indorsement of the gentleman from Ken- after, while it was waving there, one hundred patronage to a man who thus abuses it. tucky, [Mr. Smith.] [Laughter.]

and fifty of Gilmore's raiders approached the Mr. ROLLINS. It is evident that members Mr. ROLLINS. "I wish to state also for the premises, while two of the men in advance of Want to discuss everything but the resolution consideration of the House, that the matter of the main squad of the enemy, seized the fag. pending before the House. I decline to yield II mileage has occasioned additional labor on the staff and jerked it down, cursing and calling

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