therefor to the party aggrieved, to be recovered by action in a court of the State having proper jurisdiction, or in a circuit court of the United States for the district in which such further proceedings may have been had, or where the party, officer, or other person so offending shall be found; and upon a recovery of damages in either court, the party plaintiff shall be entitled to double costs.

Now, Mr. President, I am very free to say that if I were a judge in any State I should not feel myself bound to pay any attention whatever to this act; because I do not believe the Congress of the United States has the constitutional authority to pass the act. Suppose a judge of a State court should honestly be of that opinion, and suppose some Secretary of War, or the agent of some Secretary of War, or some Secretary of State, or the agent of some Secretary of State, has caused a citizen within the limits of one of the States to be arrested, and application is made to the State courts for redress, and the State courts believe they have the constitutional authority to afford that redress, notwithstanding the provisions of this act, and shall honestly so decide, your act proposes to punish them in damages for the exercise of an honest judicial opinion. I will not discuss the question, however, Mr. President, but I make the motion to strike out the fourth section of the bill.

insinuates rebellion or a rebellious spirit to me, I have only this to say: that there is nothing in that Senator, mentally, morally, physically, or otherwise, that gives him the right to use insolent language here.

Mr. CLARK. Mr. President, I desire to use no insolent language; I shall not be discourteous, I hope, to the Senator from Delaware or any other Senator. I hope I shall not be discourteous to the Senate of the United States. I hope I shall not be discourteous to the Government of the United States. But when the Senator from Delaware, or any other Senator in this body, shall rise repeatedly, time after time, and say here in the presence of this Senate that he will not obey the authority of the United States, it is time, with due deference to him, that that spirit of the Senator, that that spirit of rebellion which crops out in that way, should be rebuked. I claim nothing morally, I claim nothing physically, I claim nothing mentally, but I do love my country, and, God aiding me, I will stand against rebellion to the bitter end of it, whether in the Senator from Delaware or in him who is now confined in Fortress Monroe.

Sir, we have had too much trouble from this spirit already. If the men who have been engaged in rebellion "accept the situation," let them accept it; but let not the same opposition and spirit be manifested in the Senate of the United States. We owe it to the people of the United States, who have stood by us through all the rebellion, that this Senate should be free from expressions of the kind and from an approval of such expressions; and if the Senator from Delaware rejoices that this rebellion is put down, let him put away the spirit which pro

of the General Government.

Mr. CLARK. I hardly think it is worth while that I should spend much time in answering the Senator from Delaware, and I would not say a word now if this had not been the second time when he uttered words like those which he has now uttered in defiance of the authority of the United States. When the civil rights bill was upon its passage, when the Senate was about to vote on it, the Senator from Delaware, in the spirit that he now shows induced the rebellion, and accede to the authority the Senate, and in the hearing of the people who were here, stood up in the Senate and defied almost the authority of the United States, and said that if he were a judge, or a person acting in that capacity, in the State of Delaware, he would not obey the law. He repeats that same thing to-day. Sir, if it be so that the rebel spirit which defies the nation, in the person of judges and others, has crept into the Senate, and shows itself here, the more the necessity of the bill which we propose to pass. "I will not yield to that authority". -so said the rebel, and that produced the war; and now, when the war is over, the Senator from Delaware stands up and repeats that he will not yield to the authority of the United States. It is time this should be done with. It is time that the Senator should understand that the authority of the United States will be supreme, whether it takes a Senator or the merest rebel soldier. This Government must be obeyed, and it is not worth having if it cannot cause itself to be obeyed. This proceeding, if attempted to be carried on in a State court, in defiance of the United States authority, should be void, and the judge and everybody else who undertakes to set himself up in this way-for it will not be an honest authority-should be punished for so doing. We have had about enough of this State authority to teach it to yield respect and obedience to the laws of the United States.

Mr. SAULSBURY. Mr. President, I cannot possibly imagine anything I have said that should call for the very unbecoming remarks of the Senator from New Hampshire. Who is he, sir, that he should attempt to lecture a Senator in this body? Sir, I assigned the reason why if I were a judge I should not carry out the provisions of this law-because I believe it to be unconstitutional. What did I say about resisting the authority of the Federal Government except in the interpretation of an act of Congress if I were sitting in a judicial capacity? Was there anything discourteous to any member of this body in what I said; anything about resisting the authority of the United States? Sir, the idea did not enter into my mind at the time, but as I stated the fact that, sitting as a judge and believing the act to be without constitutional authority, I should feel myself compelled to execute the law of my State. When the Senator gets up here and

Mr. SAULSBURY. I shall not continue this controversy with the Senator from New Hampshire. I simply rise to repeat, that there was nothing in the remark that I made to cause any member of this body to say that I was opposed to the authority of the Federal Government or of a State government. I said if I were sitting as a State judge and called upon to act, and this act was produced before me, I could not recognize it as a constitutional law. It was simply the expression of an opinion. It never occurred to me that there was an intellect in this whole country so obtuse as for a moment to suppose that there was in that any spirit of defiance to any rightful authority of this Government, State or Federal. The Senator from New Hampshire, to exhibit his own patriotism, has chosen to indulge in language unbecoming this place, and which I trust will not be repeated. Of one thing I will assure the Senator: that while I wish to cultivate kindly relations with every member of this body, both in the Senate and out of it, no imputation upon my just and proper devotion to my Government will be submitted to. I ask the Senator from New Hampshire in future to be more cautious in the use of language. Sir, the time has gone by when sensible men indulge in reflections upon the motives of others, simply because they may differ in their political views, or in their interpretations in reference to a statute, whether State or Federal. I have sought no controversy with that Senator or any other; but hereafter, as in the past, if I believe an act is unconstitutional I will say so; and I have as much confidence in my own judgment in reference to questions of that character as I have in the judgment of the Senator from New Hampshire.

Mr. CLARK. I have heard the Senator's caution; but I do not abate one jot or tittle of what I have said. I meant no disrespect to him personally as a Senator, but to rebuke the spirit which is manifested here; and if I have occasion to say it again, I shall assuredly say it when the occasion calls for it.

Mr. EDMUNDS. I should like to occupy the attention of the Senate for a moment in addressing myself to the pending question rather than to the questions of spirit and feeling which have been discussed between the

Senator from New Hampshire and the Senator from Delaware. The proposition, if I understand it, is to strike out section four. All that section four provides for is the right of the removal of these causes from the State to the Federal courts. Certainly it appears to me that in respect to acts which are done under the authority of the General Government, the authority of the General Government ought to be asserted and it ought to be defended in its own courts; and such, I believe, has been the constitutional practice of the Government from its foundation. Therefore it appears to me that this section, which only provides for enforcing that right of removal to the national tribunals, is perfectly constitutional and perfectly right; and I am opposed to its being stricken out.

Mr. HENDRICKS. I was not able to see that the reply of the Senator from New Hampshire met the point made by the Senator froin Delaware. This bill addresses itself to each one of us as lawyers. It proposes to confer upon the courts of the United States jurisdiction, and to control the proceedings of the State courts in certain causes; and I was not able to see the impropriety on the part of a Senator in saying that if he were a judge in a State court he should disregard the provisions of a law which he thought to be unconstitutional. Sir, it is not clear that this proposed transfer of causes from the State courts to the Federal courts was contemplated by the Constitution; and when a similar provision found its way in what is called the civil rights bill I had the same opinion upon it. Causes such as are not described at all in the provisions of the Constitution, which defines the jurisdiction of the Federal courts, are to be transferred from the State courts to the Federal courts, merely because Congress so provides. I have my doubts whether it can properly be done. When a case is pending in a State court, and an application is made to transfer that cause to the United States court, if the judge in the State court shall be of opinion that under the Constitution of the United States that cause ought not to be transferred, I submit to the judgment of the Senator from New Hampshire, what is the clear duty of the State judge? Ought he to send the cause from his court into a Federal court, contrary to the laws and Constitution of the country? What jurisdiction shall be possessed by the Federal courts is defined in the Constitution of the United States; and I am of opinion that that definition of jurisdiction does not include the cases provided for in this bill.

But, sir, suppose it be proper to transfer these causes from the State to the Federal courts, ought the third and fourth sections of this bill to be as they are? We are all familiar with the act which authorizes the transfer of certain causes from the State to the Federal court. Where a citizen of one State brings a suit against a citizen of another State, in a State court, the act of Congress authorizes the transfer of that cause to the Federal court, upon the application of the defendant; and why? Because the Constitution of the United States provides that litigation between citizens of different States may be heard in the Federal court, which is supposed to be disinterested in judgment and feeling between the parties. But in that act we do not find such extraordinary provisions as are in this bill. In that case the defendant, upon the first day of the term, must come into the State court and make his application for the transfer before he does any act which recognizes the jurisdiction of the State court, and he must give his bond that upon the first day of the next term of the Federal court he will file the papers in the cause in the Federal court, and enter his appearance. That is required of the defendant in a cause where it is clearly proper, within the provisions of the Constitution, to take the case from the State to the Federal court.

Here, however, in a case, to say the least of it, where it is doubtful whether the transfer can be authorized by Congress, it is provided that that transfer may be asked by the defend

ant, after he has entered an appearance in a State court, after he has recognized, by his appearance and pleadings, the jurisdiction of the State court. And, sir, there is very strange language here, which may be construed authorizing the transfer after a judgment has been rendered in the State court. I call the attention of the Senator from New Hampshire to the language found in the third section, commencing in the eighth line, and I ask him to explain to the Senate the meaning of this language:

But nothing herein contained shall be held to abridge the right of such removal after final judgment in the State court; nor shall it be necessary, in the State court, to offer or give surety for the filing of copies in the circuit court of the United States.

Nothing herein contained shall be construed to abridge the right to take the case from the State to the Federal court after judgment rendered. After the defendant has recognized the jurisdiction of the local court, after he has pleaded in that court, after he has submitted to trial by a jury, and after upon the verdict a judgment has been rendered, I want to know of the Senator whether he contemplates that there should be a transfer, and that the judgment of the State court shall be vacated and a new trial had in the United States court.

But, sir, in the existing law which authorizes the transfer of causes to the Federal from the State courts in cases that are clearly within the provisions of the Constitution, is there any provision that if the judge shall be of opinion that the case ought not to be transferred, he shall be liable to punishment, he shall be liable to suit and damages? No, sir. Congress, in the enactment upon that subject, has assumed that the State judge will do his duty. But here, almost for the first time, and I believe for the first time unless a provision like this is found in what is called the civil rights bill, it is provided that if the judge shall deny the transfer, upon the exercise of his judgment, for what Congress may hold to be an error of judgment, he shall be liable to a civil suit and to damages. Are Senators willing to say that the State judges are to be punished by suits and damages for an error of judgment?

defense; and in the course of ten days afterward he discharged a rebel on the ground that his order from the rebel service was a complete defense.

Mr. HENDRICKS. Iam not familiar with the case referred to by the Senator from Massachusetts. If the judge to whom he refers showed partiality, or that he was governed by corrupt motives, I certainly have no apology or defense to make for him. But I had not heard of any refusals by State judges to allow transfers of causes where the cases were properly presented. I know that in the State of Indiana, as far as my practice has extended, there has been no occasion to complain. If a judge has acted in Kentucky as the Senator from Massachusetts understands, then the remedy against him is by impeachment, not by a general provision that for the exercise of his judgment a judicial officer shall be liable to suit and to penalties.

Mr. CLARK. I ask the Senator from Indiana, who is going to impeach him? Perhaps he will say, the Legislature of the State of Kentucky, if he were in Kentucky. A year or two ago the Legislature of Kentucky passed an act, similar in its provisions to the one we now propose, for the rebel soldiers; and when a member of that Legislature a year after presented a resolution of a similar kind for the Union soldiers, they voted it down. They gave the rebel soldier this defense and refused it to the Union soldier. I have a copy here of the resolution which Colonel Johnson, of Kentucky, introduced. It is in these words:

"

Whereas at the last session of the Legislature an act was passed granting general amnesty to all who had been connected with the rebel army; and another which was made pleadable in bar to all indictments, prosecutions, and actions against any of them for acts performed during their said connection with said rebel army: Therefore,

"Be it resolved, That the Legislature is most respectfully requested to extend the same beneficent enactment to the Federal officer and soldier, which is but justly and fairly due to the man to whom that Legislature is now indebted for its very existence."

And they voted it down. Now, talk of an impeachment of a judge in a State like that! Mr. TRUMBULL. What is the date of that?

Mr. CLARK. There is no date upon the paper.

Mr. TRUMBULL. I understand it was offered at the last session of the Legislature.

Mr. CLARK. I have another case in the State of Kentucky which I will bring to the attention of the Senate. I stated here the other day that the judges in Kentucky had decided both ways; had agreed to allow an order of a rebel officer to be pleaded in a prosecution against a rebel soldier, and had held that it was for him a good defense, and had refused it to a Federal soldier. I have the case here of a person named Holland, which I will read:

Holland was indicted by the grand jury of Christian county for stealing some horses, which act he committed under the orders of his superior officer, General S. B. Buckner, of the rebel army, and upon being brought to trial was discharged by Judge Graham, circuit judge of Christian county, on the ground that he could not be punished for an act committed under the orders of his superiors, from which the Commonwealth appealed.

Mr. President, these are very extraordinary provisions, and I am not at all surprised that the Senator from Delaware should express himself upon them very earnestly. The language which he used I did not observe at the time; but I am very free to say to the Senate that if I were a State judge, and I thought the provision of this law was unconstitutional, I certainly should regard the Constitution as a higher law than the act of Congress which, in my judgment, if it should be my judgment, was contrary to the provisions of the Constitution. It presents the question to a judge whether a case can be transferred to the Federal court; and shall he not decide it? If I bring a suit in a State court against a man who has done me a grievous wrong during these four or five years, a wrong perhaps accompanied with violence and malice, and the cause is set down for trial upon an appearance and plea by the defendant, and he then asks a transfer of the cause to the Federal court, and the judge shall say that the case must be heard before him and before a jury in that court, shall that judge, because of the exercise of a sound and honest judgment, be punished by suit and damages? I ask the Senator from New Hampshire if he has known of any cases in which the State courts have refused under existing laws to allow a transfer where a proper case was made for a transfer? I have heard of none. Mr. WILSON. There are a great many cases of that kind. I understand the Legislature of Kentucky has passed a law forbidding the judges of that State to allow these transfers. I understand further that there are over three thousand of these cases in that State. One officer of the Government has thirty-five cases against him. One of the judges of that State, Mr. Andrews, formerly a member of the House of Representatives, would not allow the order of the Government to the officer to be considered as any defense; he said it was no them sentenced to the penitentiary, and but for Gov

"Attorney General Harlan represented the Commonwealth, and Colonel B. H. Bristow represented the prisoner, (Holland.) Judge Robertson delivered the opinion of the court:

The only judicial question presented by this appeal from a judgment of the circuit court discharging the accused on a verdict of acquittal on an indictment for robbery is, whether in a county of Kentucky, occupied and controlled by a confederate army under command of General Buckner, the forcible capture of a non-combatant citizen's horses in conformity with military authority, and in execution of a military order, was a criminal offense cognizable by the civil power of this State, and on this question our opinion is that the act being belligerent in the legal import of that comprehensive term it was not robbery in the technical sense. Argument to prove this would be superfluous, wherefore the judgment is affirmed.""

Upon this a Frankfort correspondent of the Cincinnati Gazette remarks:

"This opinion was delivered on the 21st day of September, 1864, and has just been published by the reporter, Duvall, Notwithstanding this opinion, some three or four thousand Union soldiers have been indicted and tried for similar offenses, and some of

ernor Bramlette's intervention with his pardoning power would now be incarcerated there."

It seems that what is a good defense for a rebel soldier is not a defense for a Federal soldier, and he is cast into prison for doing precisely the same thing for which the rebel soldier is set free. I make no imputation upon the State of Kentucky; I desire to cast no imputation upon her authorities; but if there be this honest difference of opinion in her courts, if they honestly believe that a rebel soldier is to be defended and protected because he has the order of his superior, it is time that we should provide that the Federal soldier should be protected in the same way. I have further testimony; and the Senator from Indiana need not ask me if cases have been refused a transfer. Thousands of them have been, on the very ground which the Senator from Delaware sets up, and which the Senator from Indiana, I understand, has approved, that they declare the act to be unconstitutional. What defense is an act of this kind to a Federal soldier if he goes into the court, and the judge says, "Your act is entirely unconstitutional; I will not regard it for a moment;" and then goes on to try and sentence him and put him in the State prison, or else finds a judgment against him and sends the sheriff to take away his property? There must be some way of remedying this crying evil, and these men who have been engaged in the defense of the country cannot be permitted to be persecuted in this sort of way. Their life becomes hardly worth having, if, after having driven the rebels out of their country and subdued them, those rebels are to be permitted to return and harass them from morning until night and from night till morning, and make their life a curse for that very defense which they have given your country. Sir, it should not be; and if these State judges will not obey the law, if they will not allow the transfer to be made, there should be a penalty annexed which would compel them to obey and transfer the cause.

Mr. HENDRICKS. I do not wish it to be understood that I believe that a State court has authority to punish a soldier for an act done within the lines and within the scope of the war, under the command of his superior officer.

Mr. CLARK. I did not understand the Senator to say any such thing.

Mr. HENDRICKS. I do not want it to be understood by any misunderstanding of the Senator's argument that I believe that. If a soldier in Kentucky should be indicted and arrested upon a charge of robbery for taking horses or any other property in the State of Kentucky, by virtue of a command of one of the United States officers, he being in control and possession of the country at the time, there is no question but what that would be a defense to the soldier. I do not understand whether the Senator approves or disapproves of the decision made by Judge Robertson, of the State of Kentucky; he did not say; but unquestionably that doctrine is the correct doctrine as applied to the troops of the United States. I do not doubt it; but I am not discussing what makes a crime there. I spoke simply of the proposition to transfer this class of cases to the Federal courts from the State courts-civil suits -and to punish by civil suit and damages a judge who, in the discharge of his duty according to his judgment, should refuse the transfer.

Mr. WILLIAMS. I happen to have on my desk the third volume of Story's Commentaries on the Constitution. Since the discussion arose on this fourth section, I have referred to it to see if there was any authority on the ques tion submitted by the Senator from Indiana. I find extracts from an opinion delivered in the case of Martin vs. Hunter, quoted from 1 Wheaton's Reports, page 304, in which the right of Congress to authorize the removal of cases from a State court to a court of the United States is affirmed; and the Supreme Court say:

"If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power; and as Congress is not limited by the Constitution to any particular mode of

time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner must be subject to its absolute legislative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings and give such judgment as its own opinion of the law and justice of the case may warrant. There is nothing in the nature of the process which forbids it from being applied by the Legislature to interlocutory as well as final judgments. And if the right of removal from State courts exist before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment."

And in conclusion the court say:

"It is an historical fact that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases brought from the tribunals of many of the most important States in the Union: and that no State tribupal has ever breathed a judicial doubt on the subject and declined to obey the mandate of the Supreme Court until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts."

I understand that it has been repeatedly decided by the Supreme Court of the United States, so that the question now is regarded as finally settled, that where, in a State court, a party sued makes a defense under the Constitution, laws, or treaties of the United States, he has a right to have that cause removed at any time during its progress from the State court to a court of the United States, and there have the questions involved adjudicated. I think there can be no question, upon this authority, and upon other decisions of a like nature of the Supreme Court of the United States, as to the constitutionality of this section, because it is manifest that a military officer in the discharge of his duty is acting under the law or the authority of the United States.

Mr. DOOLITTLE. I move to amend the pending amendment, which is the proposition of the Senator from Delaware to strike out the fourth section of the bill, by striking out of the seventh line simply the word "judges," and then the section will remain as it now is, declaring that "all parties, officers, and other persons thenceforth proceeding thereunder, or by color thereof, shall be liable," &c. There is no necessity, in order to give full effect to this section, that you should undertake to declare that the judges who act in a judicial capacity shall be made liable. If you declare that all the parties are liable to prosecution, that the ministerial officers who act under it are liable, or any other person that volunteers to do it, you have just as good a remedy for the defense of the person as if you declare that the judges themselves are to be made responsible for what they do in a judicial capacity. It is a novel thing in the history of the United States to make the judges of a State court, who are acting judicially upon their responsibility as judges, and judging upon the validity of laws, responsible. I do not see any purpose in it, and it may make objections to the bill, which otherwise would be removed.

The question may arise, and be seriously considered, whether this bill, making a defense by act of Congress against a claim of an individual for injuries to person or property, making the order of a superior officer a defense in all cases, is or is not constitutional. If that be a question seriously raised, a judge sitting in a State court, just as much as a judge sitting in a Federal court, is called upon to act judicially. He must not act in terrorem; he must not act in fear of an indictment or in fear of a prosecution because he gives judgment one way or the other. Therefore, it seems to me it would be wise to strike out the word "judges," for I do not think it adds any strength to the section. As all the other parties are made responsible, I do not see the necessity of holding the judge personally liable in a matter where he is exercising his judgment in a judicial capacity.

Mr. TRUMBULL. It has been several times stated in the Senate heretofore that it is a novel thing to hold a judge responsible for what he

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it must be done as a commissioner and at chambers, and the "novelty" of the proposition? What further says Kent?

"The habeas corpus act of Mississippi makes the refusal or neglect of any judge or judges to grant the writ a high misdemeanor and an impeachable offense."

Again:

"The habeas corpus act in Illinois 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.'

When a party applies for the writ, and the court or any member of a court decides that he is not entitled to that writ, and if in the State of Illinois he makes a corrupt decision, he is liable to fine and imprisonment. In the State of New York it is not required by the terms of the act that it should be shown that the decision is corrupt, but any court refusing to grant the writ when a party is legally entitled to it is subject to a penalty, and any judge of a court or member of a court who knowingly reimprisons a party who has been discharged on a writ of habeas corpus is liable both to fine and imprisonment, and even to impeachment in the State of Mississippi.

Now, what is the provision in this bill? It is not to imprison the party; but the provision here is that all parties, judges, officers, and other persons thenceforth proceeding with a case, after it has been removed to the United States court, or after the proper steps have been taken for the removal of the cause to the United States court shall be liable. If a State judge undertakes, then, to act and proceed in that case, he acts without jurisdiction and he is made liable by the provisions of the bill, and he ought to be made liable; and my friend from Michigan [Mr. HOWARD] says he would be liable at the common law, too.

Mr. DOOLITTLE. My honorable friend will allow me to say that it is not when the judge acts in a judicial capacity at all. In that case he is acting simply as a commissioner would act in the issuing of a writ, and if he at chambers refuses to issue the writ he is made responsible. But, sir, if the supreme court of Illinois, or of Wisconsin, sitting as a court, on an application for habeas corpus, should judicially refuse it, does the Senator pretend that the court and the judges would be responsible and made liable to fine and imprisonment for refusing it? Not at all. I say that the bill is wholly novel, so far as that provision is concerned, when you apply it to a judge acting in his judicial capacity in a court. It is a different affair when you apply it to a judge at cham-gentlemen suppose. In my opinion, the main bers. He is bound to act like any commissioner of the court to issue the writ.

Mr. TRUMBULL. That is exactly what I mean to say; that when acting as a court, not as a commission and at chambers, the judges are made responsible; and so says Kent. I shall have the volume here in a moment, but while it is being sent for, I will read an extract which I have before me from the volume, and when I read it I hope the Senator from Wisconsin will take back all he has said.

"The penalty of $1,000”—

says Kent

"is given in favor of the party aggrieved, against every officer and every member of the court assenting to the refusal.'

That is, the refusal to grant the writ of habeas

corpus.

Mr. COWAN. That is, to take cognizance of the case at all.

Mr. TRUMBULL. We will see what that is. I read now from page 646, wherein the author is treating upon the writ of habeas corpus, the great writ of right, in which he says:

"The penalty of $1,000 is given in favor of the party aggrieved, against every officer and every member of the court assenting to the refusal, if any court"Is that a judge in chambers?

"if any court or officer authorized to grant the writ shall refuse it when legally applied for."

Is that a commissioner? If the judge refuses the writ when legally applied for, he is subjected to the penalty of $1,000. Now, says the Senator from Pennsylvania, that means when it is not in court. Is it not in court when the application is made to the court? Is not the case there? And for refusing that great writ to a party who is entitled to it, the judge is liable to this penalty. What further does Kent say? In treating still further upon this subject, and wherein he treats upon the rearrest of a party who has once been discharged by writ of habeas corpus, he says:

"And finally, if any person solely, or as a member of any court, or in execution of any order, knowingly reimprisons such party, he forfeits a penalty of $1,250 to the party aggrieved, and is to be deemed guilty of a misdemeanor and liable to fine and imprisonment." Now, what becomes of your proposition that

This law that is proposed here is no such innovation, no such extraordinary provision as some

feature of the statute now proposed is nothing but a declaration of what the law is. A party

is always protected in the discharge of a duty which is put upon him. The United States have authority to carry on war, to raise armies, to appoint officers, to prescribe rules and regulations for the government of the armies. One of those rules and regulations makes the private soldier and the subordinate officer obedient to his superior commander. By law, at the peril of his liberty and of his life, he is required to execute the orders issued by his superior offi

cers.

In the execution of those orders he is to be protected. The common law protects himjust as much protects the private soldier in the State of Kentucky in the execution of the order of an officer, as it protects a constable or a sheriff in the execution of a writ issued by competent authority.

But, sir, some of the State courts in these rebellious States refuse so to understand the law; they say that acts done under military authority afford no protection. Hence we propose to pass this statute declaring that the fact that the act was done by command of the superior officer in the discharge of his duty shall be a defense; and the State courts refusing so to treat it, that the United States court shall have jurisdiction of such cases. It would be the most monstrous proposition ever advocated, and utterly destructive of all government, if the citizen who is required to render obedience to the Government is not to be protected in the acts which he does in rendering that obedience. Can it be possible that the Government of the United States may call into its service and into its armies, in order to maintain the honor of the nation and the integrity of the Union, every citizen in the land, and compel him to serve, and then has no power to protect him against prosecutions for doing the acts which he was compelled by the Government to do? Sir, such cannot be the law.

But I did not rise with a view of arguing the question, but simply to reply to this assumption which has been set up here in the Senate and repeated as if it would seem that those repeating it were getting to believe it, that it was a

novel thing to punish a judge. The Senator from Wisconsin tells you that there is no necessity for it; punish the officer who executes the process; pass a law and put the responsibility upon the subordinate or the officer; let the judge issue an order and let the officer, the subordinate who is to execute it, take the responsibility and decide whether it is lawful or not. Sir, I am for going to the source of iniquity. I would take the head chief who undertakes to persecute Union men for doing their duty. I would take the man who issues the order, if he does it knowingly, as he must do it if he does it after the necessary steps have been taken to remove the case to the Federal courts. I would produce no such confusion into our judicial proceedings as to place upon the subordinate, the officer who is to execute the process, the responsibility of deciding whether it is void or not.

Let the man whom the States place in the judicial office act on his responsibility, and if he acts corruptly or knowingly to oppress the most insignificant Union man that in defense of his country has committed an act for which he is sued, I would hold him responsible.

I say

Mr. DOOLITTLE. Mr. President, my honorable friend from Illinois seems from his tone and manner to think that he has made a very great victory in quoting from Kent, but he has not answered the point that I raised. that in the refusal to issue a writ of habeas corpus the officer or the persons who sit as a court denying it are not acting judicially; there is no judgment given to thein, for there is no cause before them. The question of the issuance of the writ is a mere ministerial act; the law requires it to be done for the purpose of bringing the case before the court; and when the judges act on the question, whether they issue the writ or not, they do not act on any judicial discretion; they act ministerially; they act under statutes positively requiring the writ to be issued; and for what? To inquire and see whether a man is restrained of his liberty or not; and the statutes assume to punish the judges for not inquiring into the case, not for what they do when they do inquire into a case; it is for their refusing to take jurisdiction of a case in order to hear it at all. They do not have any judicial determination on the question whether the individual sits in chambers or in court

Mr. CLARK. What judicial discretion has the judge here when directed to obey an order to transfer the cause to the United States circuit court?

Mr. DOOLITTLE. Suppose the judge sitting as a court, when the the question is argued and heard upon both sides as to the constitutionality of a provision of this bill, believes in his conscience that it is unconstitutional, what shall he decide? That is the question; and if he decides the one way or the other, is he to be made criminally responsible or civilly liable for his judgment? In issuing a writ of habeas corpus, there is no judgment; it is a mere ministerial act done by an officer sitting at chambers or by the judges sitting together in banc. It makes no difference whether the application is made to them in either way; there is no judgment on the question of issuing it. They do not hear any argument, and determine or pass on any question in issuing the writ in the first instance; but after the writ has been issued and the party is brought before the judge or before the court, and they have jurisdiction of the case, they are then called upon to pass judicially upon the questions involved in the habeas corpus. Does the Senator from Illinois contend that they would be liable, or any one of them liable, for proceeding in the case after they had issued the writ?

Mr. TRUMBULL. Do you want an answer? Mr. DOOLITTLE. The Senator can wait until I finish. Now, Mr. President, what I said in the beginning was, that it is a novel proceeding to punish a judge criminally or make him responsible civilly for his judgment where a case is actually before him, a question is raised, and he is called upon as a judge to

decide that question either ay or no; and it is for that reason that I would strike the judges from this bill, because if it is to pass I wish to make it as acceptable and as little objectionable as possible.

Mr. TRUMBULL. A friend just hands me a newspaper to show how common a thing it is for courts to hear writs of habeas corpus and to make orders in regard to them:

"ORDER OF THE COURT.-In the United States circuit court, April term, 1865. In the matter of the petition of Charles D. Coleman for a writ of habeas corpus, This day comes the petitioner by Peter E. Bland and George E. Leighton, his attorneys, who present to the court the petition of said petitioner, this day filed herein, for a writ of habeas corpus to be directed to the warden of the penitentiary for the State of Missouri, for the production of the body of the said Charles D. Coleman before this court, to do, submit to, and receive whatsoever shall be considered by said court in that behalf concerning him, the said petitioner, upon the grounds and for the reasons and causes in said petition set forth; and the court having examined the said petition, and being fully advised of and concerning the same, now orders that said petition be granted, and that a writ of habeas corpus be issued as prayed for therein, returnable forthwith."

That looks a little like an order of the court; it looks a little like a judicial decision. It has that appearance. Attorneys appear in it. The Senator says attorneys never appear and the question is not argued on an application for a writ of habeas corpus.

Mr. DOOLITTLE. I did not say that.

Mr. TRUMBULL. Did not the Senator say that the writ of habeas corpus was a ministerial act, an act where no argument is heard on granting it?

Mr. DOOLITTLE. I did not say that no argument was ever heard on granting it. Sometimes arguments are heard by counsel on both sides.

Mr. TRUMBULL. Then it is a question that is argued before and decided by the court, and not by a judge at chambers. The laws of the United and the laws in my State authorize the courts to issue writs of habeas corpus.

Mr. DOOLITTLE. But it is a question on which they cannot decide judicially; one where there is no judicial discretion.

Mr. TRUMBULL. It is a case upon which they do often refuse the writ of habeas corpus; it is not a matter which they are bound to decide one way, as is shown by the order which I have just read; it does not issue as a matter of course.

Mr. DOOLITTLE. Mr. President

Mr. TRUMBULL. Let me get through. It is a great writ of right, but a party must present a case showing that he is entitled to the writ of habeas corpus.

Mr. DOOLITTLE. He must set out in form what the statute requires.

Mr. TRUMBULL. He has got to set out what the statute requires and such circumstances as will entitle him to the writ. But the Senator says it is a ministerial act for which judges are punished, and that it is a novel thing to punish anybody for a judicial act. I remember the Senator once told an anecdote in this body which ran something like this: that on some occasion a justice of the peace had made a very extraordinary decision, and the attorney adversary to whom the decision had been made took up a volume of Blackstone and read it to the justice of the peace, showing that his decision was in direct conflict with the law as laid down in Blackstone's Commentaries. The justice replied that that was no authority for him.

No," said the lawyer; "I did not read it with the view of changing your opinion, but simply to show what a fool old Blackstone was. [Laughter.] Now, I propose to read a sentence from Kent, not with a view of changing the opinion of the Senator from Wisconsin, for I do not expect to be able to do that, for he says no judge for a judicial act was ever made responsible, but I want to show him what a great fool Chancellor Kent was. [Laughter.]

"This last provision "

Referring to the provision of the New York

law for fining and imprisoning a judge of the court

"is distinguished from that in any former statute on the same subject by applying the penal sanction to the members of any court acting judicially."

"Acting judicially," says Kent. It is distinguished from the former laws of the State of New York by applying the penalties and imprisonment to the judges acting judicially. That is what Kent says. Of course Kent did not understand the law-and of course this is a novel provision, and of course Kent did not know what "judicially" meant, and that this was necessarily a ministerial act and could not be anything else!

Now, I submit to the Senate and to the Senator from Wisconsin, whether he is not mistaken as to the novelty of this provision.

Mr. COWAN. Mr. President, I think it would be better to get back a little on this question behind where the honorable Senator from Illinois is so exceedingly positive about it in his assertion of what the law may be in the premises. This, if I understand it, is the provision upon which the contest arises:

That if the State court shall, notwithstanding the performance of all things required for the removal of the case to the circuit court aforesaid, proceed further in said cause or prosecution before said certificate is produced, then, in that case, all such further proceedings shall be void and of none effect; and all parties, judges, officers, and other persons, thenceforth proceeding thereunder, or by color thereof, shall be liable in damages therefor to the party aggrieved, to be recovered by action in a court of the State having proper jurisdiction, or in a circuit court of the United States for the district in which such further proceedings may have been had, or where the party, officer, or other person, so offending, shall be found; and upon a recovery of damages in either court, the party plaintiff shall be entitled to double costs.

Now, Mr. President, this Government of the United States is a Government of delegated powers.

Mr. HOWE, (laughingly in his seat.) I should like to see the authority for that. Mr. COWAN. I am aware there are a great many people who do not understand that, and who really come here and attempt to be Senators of the United States, and to legislate here upon this floor as if they were members of Parliament, and as if they had omnipotent governmental power over this country. I know such gentlemen sneer; I know they snigger at this doctrine; and I know that a man has a right to snigger at his own disgrace, and at his own ignorance. He has that right, there is no doubt. I know of no provision in the Constitution which prevents a man from being just as big a fool as he pleases. [Laughter.] I do not know of any law to the contrary. But I do know that generally gentlemen and Senators ought to listen calmly and carefully to what is said on the other side, knowing the fallibility and frailty of human judgment, and that there is such a thing possible as that they may be

wrong.

The Constitution of the United States says that this is a Government of delegated powers. What is meant by that? That we have just such power as is given in the Constitution by the several States and the people of the several States who compose this Union; and for fear that we should exercise any other or further powers, when we come here we are called up to your desk, sir, and required to take a solemn oath that we will support the Constitution. I am aware that oaths are used familiarly by dicers; I am aware that in some mouths they are but straws in the fire of the hot blood; but in the mouth of a Senator I suppose they mean something. I suppose that when we come here and take an oath that we will support the Constitution, we are to look to the authority that it confers upon us and will not endeavor to transcend that authority even a hair's breadth. Why? Because to do so is to transcend the will of the American people. When we are to have more authority, let the American people confer it, and then we can legislate in the premises.

Mr. President, what is the judicial authority conferred by the Constitution upon the Government of the United States of America? It

is not all the judicial authority of the land unquestionably. By what warrant does your State court in Rhode Island, sir, [Mr. ANTHONY in the chair,] decide criminal causes in it? By what authority does it convict the thief of lar ceny, the burglar of burglary, the murderer of marder? Is it by virtue of authority derived from the United States? Is it by virtue of authority enjoyed concurrently by the United States with the State of Rhode Island? Not at all. The stupidest citizen you have knows that your State has rights as well as the United States has rights. You have the right in that State to try for offenses committed within it generally. When does the United States try for offenses committed within the State of Rhode Island? Generally? Not at all. Not generally, but particularly, where the authority is given in the Constitution. By what judicial authority do your courts in Rhode Island decide between man and man in Rhode Island? By the authority of the sovereign State of Rhode Island, and by virtue of her reserved rights which were not delegated to the United States in the Constitution. Did you, sir, ever know a man in the State of Rhode Island, did you ever know in any State of the Union two citizens of that State dragged into the United States court for a difference between them? Nobody ever heard of it, and it has remained until this day and this age that these things should be known. As to differences arising between citizens of Rhode Island, unless in the particular cases provided in the Constitution-and in the Constitution the particular cases are provided for -the United States courts have no more jurisdiction than they have over a case in Russia. If a dispute arises between a citizen of Rhode Island and a citizen of Massachusetts, the United States courts determine it; and why? Because the Constitution and the Union were made for the purpose of securing domestic tranquillity, for the purpose of settling disputes between citizens of different States which would otherwise have led to broil and trouble between States.

of Rhode Island brings an action of trespass against another citizen of Rhode Island, for a particular offense committed during the existence of the rebellion, and, if you please, in the act of suppressing the rebellion, the jurisdiction of the courts of Rhode Island shall be pushed aside, set aside, and jurisdiction of that cause given to the United States courts. I am not so dogmatic as to say that perhaps that may not be right. It is not necessary for the purposes of the argument here that I should assume, as if infallible, that that may not be right. I merely suggest a doubt, in order that I may meet the argument to the point of which I shall come directly. But, Mr. President, what I do say is that it is a question, and a question of law, as to whether the jurisdiction of the State of Rhode Island in that case can be ousted and that of the courts of the United States substituted for it. That is a question, a fair question, and I have respect for a man who argues it on this floor fairly. I have no respect for a man who assumes it to be one so exceedingly plain that nobody can mistake it.

A question, then, as I said, comes up between two citizens of this State, and one of them alleges that he was acting under the orders of the United States, that he was in the service of the United States, and that what he did in the premises he did as such servant of the United States. That, it is alleged by this bill, gives to the United States courts jurisdiction. I doubt it very much. Let us see in what cases the United States have jurisdiction; let us read it, because here it is. It is in very small compass, and any man of moderate abilities might, if he were to take the time, ascertain precisely the extent of the jurisdiction of the United States courts; and he could ascertain it from the Constitution itself, without running away to far-fetched analogies which have really no connection with the matters in hand.

"The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting embassadors, other public ministers, and consuls"

A citizen of Rhode Island-and, with your liberty, sir, I will take your State as being one of as small compass, perhaps, as any othercharges upon another citizen of Rhode Island a trespass. Or I might go to the State of the honorable Senator from New Hampshire and take a case from his immense State with the large amount of patriotism and love of country which he professes here, and which he is not willing to allow to my honorable friend from Delaware, a little State, too. I suppose Delaware has just about as much patriotism as New Hampsire, and I suppose, and I have always supposed, that a man from Delaware loves his country as well as the Senator from New Hampshire, although he may perhaps differ from him as to what was the proper way to manifest that love. I am sorry that upon this floor we cannot argue questions and not people. I may imitate to some extent the language of the Senator from New Hampshire when I say that I think we have had too much of that, and I think it is time that the whip had ceased to crack over the heads of the minority here, or persons who do not choose to agree with a dominant tyrannical majority. What do gentlemen suppose they can do? Terrify men into submission to the will of a majority without expressing their opinions?tion of judicial power to the United States is Gentlemen, I tell you when this Senate becomes a place where a man cannot express his opinions freely, you have not restored the Union; you have not preserved your Government; you have destroyed the very essence and the vitals of it while you were pretending to save it; you have introduced a tyranny as detestable as that from which your ancestors rescued you in the Revolution-a tyranny as detestable as prevails anywhere in the world. Let every man in the Senate speak his free thoughts, give his opinions freely, and let no man impugn his motives

Because, you will observe, that when the Union was formed, all connection between the several States and foreign Powers was abandoned and given over to the new creation arising out of the whole

"To all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between

citizens of the same State claiming lands"

You observe it is particular, not general; it only applies to citizens of the same State who are claiming lands under grants from different States," and you see how appropriate that was. If the titles to lands were to be decided in the courts of the State granting one of them, of course the trial would not be very likely to be acquiesced in. Then, in all such cases the United States was to have general jurisdiction for the purpose of public tranquillity, for the purpose of preserving the peace.

upon this floor.

Sir, I come back to the question I put before. What was the judicial authority granted to the United States in the Constitution? This bill provides that when a citizen of the State

"And between a State or the citizens thereof and foreign States, citizens, or subjects."

There is the extent of it. Now, I ask any intelligent man under what part of that delega

claimed the right to decide between two citizens of Rhode Island or two citizens of any other State upon a question of trespass. Is that a plain question? Will any man say that that is a question upon which any man might not blunder, any man might not stumble, any man might not decide it one way or the other? Now, if I understand, what is complained of by my honorable friend from Wisconsin in this bill is, that you punish the judge for deciding that question one way as though it was a criminal offense.

Now, Mr. President, once for all in this body let me ask, is crime a fact or is crime an abstraction? Is crime a thing which has actual, potential existence in the mind of the criminal, or is it a mere creature of statute,

to be made out of that which has no element of crime about it? Clearly not the latter. In order to constitute crime, there must be a criminal intent; in order to constitute a trespass, a violation of the rights of anybody which is remediable by damages there must be an intent in the mind of the person who commits it to do the wrong. You cannot make that wrong which in itself is right and fair and honest by writing it down in a book that it shall be wrong. That will not effectuate your purpose. It is complained here that a judge, honestly deciding the law as he understands it, honestly deciding the question under the Constitution and under the laws taken all together, shall be punished as a criminal. To me that proposition is monstrous; to me it has never had any place in any legislation in civilized countries, within the recent Christian era at least, I think I may say.

But it is said that a judge may be made a criminal because he will not issue a writ of habeas corpus. I am rather inclined to think he should be, but in that case he is not to be a criminal because of his decision of a legal point; it is because of his refusal to do a plain duty laid down before him by the statute. If I go to a judge and demand a writ of habeas corpus, I do not ask him to deliver me a legal opinion on it; if the writ is warranted by the statute and I bring myself within the requirements of the statute I demand it of right, and if he refuses to do it he refuses to do his duty, and that is an offense. If I am detained of my liberty and I appeal to the judge to deliver me and he will not issue the writ, that is an offense and a very high offense. It was an offense as far back as Runnymede, in the great charter. But if he issues the writ and I am brought before him and my case is heard and he decides it, no matter how improperly, how erroneously, there is no guilt in that if he was not moved by an improper purpose, which I must show, not from the statute-book, but I must show as existing in his mind an intent to do the wrong, if I want to mulet him in damages or punish him as a criminal. There is the distinction, a very clear, broad distinction, one that nobody could mistake, between the cases cited here as precedents for this extraordinary exercise of power and this case itself.

Mr. President, it might be well to inquire from whence sprang all this brood of transferring cases from the State courts to the United States courts. How did it happen that there ever was a precedent for that thing? I will try and explain that. Among other powers delegated to the United States was the power of levying taxes, imposts, duties, and so on, or in other words, to enforce a revenue system. In early times in this country there was no act of Congress taking cognizance of that revenue system and providing for the decision of cases under it; and hence, perhaps, thirty-five or thiry-six years ago, about 1830, an act of Congress was passed which provided that whenever a revenue officer in the execution of his duty collecting the revenue shall be involved in law suits with anybody about that subject, those cases should be transferred to the courts of the United States in order that he might be tried there, because the cases arose not under State laws, but under the laws of the United States. That was right and proper. Where the officer was acting under the laws of the United States, where he was executing the laws of the United States, and where the whole subject-matter was within the jurisdiction of the United States, it was eminently proper that the cause should be carried into the United States courts; but that is a very different thing from the application we have made of that rule here, and a very different thing from the later precedent which we have followed. This is not that case. This is a case where prima facie the State courts have not only clear, unques tionable jurisdiction, jurisdiction never before perhaps doubted, but where the United States, by the very terms of the instrument under which we govern the Union, have no such power. Take the Constitution and the judiciary act: