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and I am not certain that the amendment of first section, not to provide for the removal of the Senator would not be an improvement in causes of action for trespasses or wrongs, but the expression. I certainly have no objection to provide by a mere enactment a defense ex to the adoption of the amendment, for I think post facto. Now, I should be sorry indeedthe Senator from Michigan will agree that the it is something more than a mere question of words following or any acts done or omitted taste-I should be sorry indeed to set the first to be done” will include everything that could example, I think, in the history of legistation, be done by anybody; so that if the Senator from
of commencing an enactment by admitting Vermont has any choice about it, I am entirely that I had committed or my officer had comwilling that the amendment should be agreed to. | mitted a trespass which in the end I under
Mr. TRUMBULL. The same reasoning took to justify by an arbitrary law. I hope, would strike out all the other words, and you therefore, that the Senate will consent to the might just as well leave out the words " search, erasure of those words, which certainly in my seizure, arrest, or imprisonment made,' and let opinion will not weaken the just force of the the section read:
section. That any acts done or omitted to be done during Mr. IIENDRICKS. I should like to hear the said rebellion by any officer or person, &c.
the amendment proposed by the Senator from But I will state that this section is copied | Vermont read. I believe that is the amendafter a statute already in existence passed some ment before us. years ago, and although the general terms
The Secretary read the amendment, which might embrace all these things, I think it is was in section one, line three, after the word safer to leave these words in. They are in made," to strike out the words “ or other the former act.
trespasses or wrongs, done or committed ;'' so Mr. CLARK. They are in the former act, that the section will read : but they are not in the sections which are
That any search, seizure, arrest, or imprisonment alluded to in this bill. They are in the follow- made, or any acts done or omitted to be done during ing section.
the said rebellion by any otiicer or person, &c. Mr. TRUMBULL. These are the very The amendment was agreed to. words, as I recollect, of the former act.
Mr. CLARK. There is a little amendment Mr. CLARK. They are the very words of
that should be made in the eleventh line of the the former act, but not in this sense or context. first section. The words “done or" should They are in the section following, the seventh erted after the word “so;'' so that it section. I think the Senator will find it on
or any acts were so done or omitpage 755 or 756 of the twelfth volume of the
ted to be done.'' It is an omission in the Statutes. They are in the main immaterial.
printing of the bill. Mr. TRUMBULL. The fifth section of the
The amendment was agreed to. act of 1863 provides :
Mr. HOWARD. I venture to suggest another "That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court
amendment in the thirteenth line of the first against any officer, civil or military, or against any section. The language as it now reads is this : other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or
Or any acts were so done or omitted to be done, any act omitted to be done
either by the person or officer to whom the order is
addressed, or by any other person aiding or assisting Mr. CLARK. This follows the language of him therein, shall be held, and are hereby declared, that section.
to come within the purview of the act to which this Mr. TRUMBULL. Yes, sir
is amendatory. "at any time during the present rebellion, by virtue
I'move to insert after the word 'addressed" or under color of any authority derived from or exer- the words “or for whom it was intended." It cised by or under the President,” &c.
may turn out in some cases that the order was Mr. CLARK. I do not think the amend- misdirected by a mere clerical error, or the ment is material.
person for whom it was intended was misnamed Mr. TRUMBULL. I do not think myself in the orders innocently, and that he acted that it is very material whether the words are under the order nevertheless; but as the secout or in. I suppose you might leave all the tion is drawn, no person can avail himself of words I have suggested out, and I do not know the protection of an order unless it should hapbut it would receive the same construction; pen to be directed to him, although wrongly but there might be a difference of opinion about addressed by a clerical error. It seems to me that. Some courts might hold that the general this amendment will make it more exact and language any act done or omitted to be done" will enlarge the scope somewhat of the clause, would have one construction, and some an- and of the protection intended to be afforded. other. The object of the law certainly should I propose to insert the words, " or for whom it be to protect our officers who, acting in obe- was intended," leaving the matter of intention dience to military authority, committed any as a question of proof to be introduced upon trespasses or wrongs of any kind or made any the trial. seizures or imprisoned anybody when in the Mr. CLARK. It does not occur to me discharge of their duties in obedience to orders that there is any great objection to that. I do for the suppression of the late rebellion. I not now see any objection to the amendment. should myself be quite as well satisfied to let The amendment was agreed to. the section remain just as it is.
Mr. CLARK. The word “is,'' the first word Mr. WILLIAMS. I respectfully suggest to in the thirteenth line, should be changed to the chairman of the committee the substitution 6 was," so as to read 1.
was addressed.'' of the words “ or any injury to property or per- The amendment was agreed to. " Will not that answer every purpose and
Mr. HOWARD. The act to which this is avoid the objection made by the gentleman from Vermont?
an amendment is only referred to in the title Mr. CLARK. That would be about as bad,
of this bill. I suggest to the honorable Senawould it not?
tor from New Hampshire that there should be Mr. EDMUNDS. The previous act, in
a direct reference to it in the body of the bill.
Mr. TRUMBULL. There is a reference to which this same language has been used, uses
it in the first section. it in an entirely different connection.' The
Mr. HOWARD. The act to which this is words are there used in respect to the removal
an amendment is really referred to, if I misof causes from the State courts to the Federal
take not, only in the title of the bill. I sug: courts, and in such an act may perfectly
gest that the title of that act should be inserted proper to characterize the subject of any action
after the word “act” in the serenteenth line; as a trespass or a wrong, because if the Fed. eral officer has comunitted a trespass or a wrong
so that it will read : for which he may be civilly responsible, it is
And within the purview of the fourth, fisth, and
sixth sections of the act entitled "An act relating to perfectly appropriate that the national tribu- lubeas corpus, and regulating judicial proceedings in nals should adjust the differences between him. certain cases," approved March 3, 1863. self and the person whom he has injured ; and It is a mere matter of form, to give the bill hence the old act appropriately enough uses more symmetry.
worth while to repeat the title of that act. The word "said” before the word “act” must refer to the act mentioned in the title of this bill, and nothing else. There is no other act referred to, and there cannot be a mistake about it.
Mr. HOWARD. Suppose we do not adopt the title. The title is no part of the law.
Mr. CLARK. If we amend the title then we can change the bill.
Mr. HOWARD. I will not insist upon the amendment. It is usual, after the recital of the act proposed to be amended in the title of a bill, to make it definite by inserting it in the body of the bill.
Mr. JOHNSON. I suggest to the honorable Senator from Michigan whether it would not be sufficient-it is not at all necessary, because it is stated in the preamble-to add after the word "act” in the seventeenth line the words "of March 3, 1863." That will make it certain.
Mr. HOWARD. That will do just as well, and I will accept that as a modification of my amendment.
The amendment, as modified, was agreed to.
Mr. EDMUNDS. I move further to amend the bill by adding at the end of the twentieth line of the first section the following words :
Or so far as it operates as a defense for any act done or omitted in any State represented in Congress during the rebellion, and in which, at the time and place of any such act or omission, martial law was not in force.
Mr. President, I am not one of that class of persons who are struck with constitutional paralysis on every occasion when some necessary law for the security of the public is about to be enacted; and therefore I am willing to go as far as any reasonable degree of patriotism, or even any reasonable degree of courage, will permit into the debatable land of constitutional doubt in passing acts of this kind, which are really designed for the security of men who have been acting under the orders of the Gov. ernment in enforcing the laws; but it has appeared to me that there are limits beyond which it is not only unsafe, but unwise, for those who represent the people to go, even for the good end in view of reaching so noble a purpose as that of protecting the persons whom it is said have been sued in actions at law for carrying out the orders of the President of the United States, either directly or indirectly.
The act of 1863, to which this bill is an amendment, simply provided that the order of the President of the United States, or the order of any one acting under his authority, should stand as a defense against actions of this description. This bill goes further, and provides that not only the order of the President of the United States or of the Secretary of War, but the order of any military officer of the United States holding the command of the department, the district, or the place within which any search, seizure, arrest, or imprisonment was made, &c., shall stand as a defense in and of itself; so that in States of the Union which have never been in rebellion, in States of the Union where martial law has never been proclaimed, the act of a captain recruiting a company of volunteers is to be by an ex post facto law a complete defense to an action of trespass against him for false imprisonment, or for taking a .horse, or whatever it may be. Certainly it must be an extreme necessity indeed which drives us to such legislation as that. It is the exercise, as it appears to me, in regions where marcial law and rebellion have not prevailed at all, of a power which can nowhere be found in the Constitution, which can nowhere be raised by implication from any of its provisions, and which is contrary to the natural sense of justice which pervades every man's bosom.
I know that there is a precedent for this class, of legislation. In the time of that king who was called, or rather miscalled, the first gentleman in Europe, and who was certainly the worst monarch, and whose fears of assassination and the overthrow of his Government
were such as to drive him nearly crazy, a sub- suits is brought shall, upon proper aslidavit and || sions, that this line should be exactly observed servient Parliament passed an act somewhat | proof of the good faith of the officer, interpose or that these rules should be well known to similar to this, which declared that all arrests in the name of the United States and take those to whom we intrust the protection of the of people suspected of treason which had been | charge of the cause himself; and if any citizen | public interests. Still, at the same time, with made, or which might be made within a cer- has been wronged, let him have his damages, all due regard to the responsibilities which tain limited time, should be regarded as law- and let the public pay them; if any citizen has | attach to these men, and with all proper conful, independent of the question of whether | brought a false and vexatious suit, impose sideration for the situations in which they find there was any ground of suspicion, and inde- double or treble costs upon him as a penalty themselves, it must be confessed that after all pendent of the question what subject of his for bringing such a suit. That is a species of the highest duty is the protection of the citiBritannic Majesty it was who should make the legislation which I am sure would commend zen, and especially the loyal citizen, and I would arrest. But, sir, I have yet to learn that any itself to the country. But there can be cer- say especially the loyal citizen in the rebellious court in Great Britain ever upheld an act of tainly no justice in denying to a man who has district. that description. I believe that no decision been really wronged the privilege of trying his Sir, there is small merit in playing loyal in can be found anywhere in any civilized com- cause in the courts of his country upon the New Hampshire. There is very little merit in munity holding that an ex post facto enactment, | ground that some man who has been vexa- being loyal in Pennsylvania. Any man can declaring, by mere force of the law, that a tiously, in his own opinion, injured, will turn be loyal when the popular sentiment is so past transaction should be guilty or guiltless, l around, and without anthority and without | loyal i hat it would threaten him with a lamphad any force at all except as it fortified mar- right, bring an action which he ought not to post if he were disloyal. But the stern virtue tial law or operated upon districts where civil sustain. Such legislation, as it appears to me, and the stubborn fidelity to the laws and to law was not in force. Therefore it has ap- will reach a much more beneficent end, not the Constitution, which marks the loyal man peared to me, not, as I have said before, as only for the reputation of the country and for in a rebellious community, is above all others one of those persons who are delighted to find
and repose, but for the personal pro- that which should be protected. It is for those constitutional objections to everything which tection and the personal advantage of the class men that I would now speak. It is for those is proposed in the disturbed state of the country, of persons whom we are all so desirous to men that I would now vindicate the justice of but rather as one of those who desire to use protect.
the Government. It is for those men that I that noble instrument to its fullest extent, and Mr. COWAN. I have been very forcibly | would now vindicate the justice of the Amerinot to abuse its powers, that it is unwise as impressed with the remarks of the honorable can people. I say that where a loyal man in well as illegal to pass a law of this description, Senator from Vermont; and I would hope that a rebellious district has been maltreated by an which operates upon districts of the country some heed be given to this subject.
officer of the United States Army, or by any where there has been perfect repose, and where very well aware of the difficulty that we now person in the service of the United States, the mantle of the civil law has been unfolded have in dealing with this subject as it should be such a man is above all others entitled to the day by day in the courts of justice.
dealt with. I am very well aware of the diffi- protection of the United States Government. Now, if I correctly understand public law, || culty there is in protecting an officer who acted Who can gainsay this? I know that the tend(and I do not claim any great familiarity with in the conscientious discharge of his duties, ency in the minds of men is to generalize. It it,) where martial law does prevail, the order of while at the same time we protect the rights is much more easy to generalize than it is to parthe commanding officer, the order of his sub- and liberties of the citizens who were the vic- ticularize. It is much more easy to throw your ordinate traced down through to the smallest tims of those who abused their official position, | drag.net around a community or a State than it is corporal that carries a musket, so that it ema- often for tlie purpose of inflicting wrong, and to pick out the individual criminals and punish nates from headquarters, as all proper discipline for the purpose of gratifying private malice them. It is much more easy for an officer in makes orders emanate, is a defense, independ- || against their victims. It is therefore that I the execution of his duty, and especially one ent of enactments and independent of any spe- would fain hope that this bill will have the best so delicate as that of putting down a rebellion cial statute on the subject. There is no mean- consideration that the Senate can give it. That has always been, to treat all the people, irreing which can be attached, in my judgment, to the loyal citizen should have no remedy and spective of the circumstances which surround the term "martial law, except
it has the no redress against the tyranny and oppression them, as guilty, than it is properly to separate force of law; and therefore, if there were any of those who for the time were clothed with a the one from the other and iet his hand be felt sections of this country where martial law bras little brief authority, is too monstrous to con- as the circumstances require. prevailed and where these arrests and imprison- | template in a Government which professes, like How are we to do this, Mr. President? Does ments and seizures have been made, whether ours, to be a Government of law. That the this bill do this? Will this bill enable an officer right or wrong, so that they were made by officer who, honestly, in the performance of his of the United States, or one in its service who authority of the superior commander, that very duty, executed the orders of his superior, should has wantonly, maliciously, and without any law itself furnishes the justification, and it needs be subjected to actions and liable to damages probable cause, invaded the rights of the citizen, no act of Congress to confirm it. At the same in the civil courts, is equally to be deprecated the loyal citizen, to escape from the punishment time I am willing, if it be thought that an act hy every good man. But the dilliculty is to which the laws ought to inflict in such cases? of Congress will make it stronger, to acquiesce know where to draw the line. How to pass an Does this bill do that thing? If it does, this in that opinion. But when you ask me to go a act of oblivion by which those things which Senate of the United States of America, the step further, and into regions where peace and were proper to be done, and which were right- / greatest Republic upon the earth, ought to be repose have prevailed continually, and martial || fully done, should pass away and be forgotten, the last place where it should find favor. In law has not existed, and where no foe has raised is one question. It is another to take care that the United States of America, where, above all his banner anywhere, and to say that the order the citizen be shielded, even though he may other places upon the earth, an insult offered of the President of the United States, or the have been unfortunate enough to live in a dis- to the meanest citizen of the Republic is to be order of any other person professing to act trict pervaded by these troubles, and where his taken as an insult to the Republic itself, wrong under his authority, however remote, is to be life and his property, perhaps, were in jeopardy and outrage are not to be sanctioned by the held as a defense in a court of law, then I am from those who were either ignorant of their || laws. At the same time I wish it to be discompelled to disagree, because it invades wliat proper duties, or who, in disregard of them, || tinctly understood that I am as much in favor have always been considered the fundamental were disposed to violate them maliciously. of a law to protect the officer in the discharge private rights of every member of organized Mr. President, the boast of the American of his duty, in the fair, honest, conscientious society.
citizen, and his pride heretofore, has been that | discharge of the obligations imposed upon him Where is the necessity of it? If any of these this was a Government of law, rather than that in putting down this rebellion; I would protect arrests and seizures and imprisonments were of any individual or aggregate number of rulers ; him as far as any man.
Does this bill do so; made in regions where civil law prevailed, and and it was supposed that we had so perfected and if it does so, does it protect him alone? Í were rightfully made, can they not be de- | the system that nothing could be done lawfully have not been concerned in the fabrication of fended? If they have been wrongly made, without law; or, in other words, that nothing this bill; but I have thought that it would be ought they to be defended by an enactment of could be done in this country, either in peace far better-and I throw this out for the suggesthis kind, after the fact, which, without inquiry or war, which was not warranted by the laws of tion of the committee who have brought the bill into the circumstances of the wrong, blindly | the land. I am very free to confess that I was here-instead of a sweeping enactment of this declares that the wrong shall not be redressed? one of those who so believed. I supposed that kind to provide that no action should be mainI am sure not. Therefore it has appeared to war had its laws as well as peace. I supposed tained against any person for wrongs or injuries me that every good end which this bill has in that the officer of the Army was as much bound done under pretense of an authority from the view-and I agree it has good ends in view- || by the law as the civil officer, the captain as United States in putting down the rebellion, is reached by adopting the amendment which much as the magistrate, the colonel as much unless the plaintiff should show certain things, I have proposed.
as the judge, and the general as much as the || which, as the usual rule, are not cast npon him The usual course, and in my judgment the Governor. I had supposed that in time of war
Where is the difficulty in requir. right one, and the course which ought to be that part of the law of nations which treats of | ing the plaintiff to prove that the person who pursued even in those regions where rebellion war and which provides for war would be the coinmitted the wrong and the outrage upon him and martial law have prevailed, and the one guide of the soldier, as the municipal law in did so without authority, that he did so wanwhich will be most effectual for the protection time of peace is the guide of the civil magis- tonly and maliciously? If you do that, you do of those persons who are sued, is a bill of in- trate. But, sir, I am very well aware that in a not alter the frame and the texture of your demnity rather than an edict of defense. Let | proud and fierce democracy such as ours, it is laws, you preserve their harmony, and you preus declare that the United States district | perhaps impossible, in times of great commo- serve what is more, the administration of justice attorney for every district where any of these Il tion, of great excitement, and of civil dissen- Il pure; you throw the onus or burden of proof
as a burden.
on the plaintiff. What is to prevent you from please unnecessary manner as it regards him; pose of enabling a man to go into court who enacting that the plaintiff shall not maintain put the plaintiff to show that with or without has no lawful defense, and to make one? Then his action unless he shows that the person did orders the act of the defendant was not justified the question arises, how is that best to be done? the outrage, committed the wrong without hav- either by the municipal law or by the laws of Is the defendant to make the defense, or is the ing the public good in his eye rather than the
plaintiff to make the case? If the plaintiff gratification of his own personal malice against Mr. TRUMBULL. Is that not all there is sues the officer in a particular character, if he the individual wronged or the individual com- here? Would not any officer be liable still, alleges that the wrong was done under color plaining? I suggest whether this would not be notwithstanding this bill, for an excess of au- of some special authority, is he not cither to better; would it not be safer for everybody? | thority just as a sheriff or anybody else would? show that that authority itself is unlawful or Then you put the burden upon the plaintiff to This is only a protection for a man who does that the defendant transcended it while he preshow the gravamen of his charge, because if the an act under and by virtue of an order. That tended to be acting under it? I say it is a matperson was really clothed with authority from is the extent of this bill; it goes so far and no ter of grave consideration for us, and that we the United States, then the old maxim with further. For acts wantonly and maliciously ought not in this especial juncture to be liasty regard to officers that everything they do is done this bill would not protect him.
about this; that we conceive of some plan by presumed to be rightly done would be still Mr. COWAN. Then, Mr. President, the which the officer or the soldier as well as the preserved, and the plaintiff would have his bill is much more limited in its terms and the citizen may be protected. remedy over and above that.
construction which the honorable chairman of Mr. President, I am very certain that outside If a man clothed with authority commit an the Judiciary Committee would put upon it
of the defined limits of the rebellion, as we act of this kind, I think it is perfectly clear than I have supposed.
defined them, that which I have stated is the that it would be required on the part of any. Mr. TRUMBULL. I submit to the Senator law of the land. Within the limits of the body charging him with either misfcasance or to read it himself, and I ask him as a lawyer rebellion and where martial law might be lawmalfeasance in office that it be shown. If on whether he would put any other construction fully declared, I am not so certain. Martial the other hand a person not clothed with this upon it. It professes to protect persons for law, as I understand it, is the will of the comauthority should commit these wrongs, let him acts done “ under and by virtue of any order, mander, in the absence of any other law. Varbe put upon the footing of other citizens; let written or verbal, general or specia!,'' issued tial law exists in the paramount necessity of him have no advantage, even though he pre- by proper officers. Now, I ask him as a law- the case; or in other words, it is that case tended that he had authority.
yer and as a Senator if he would hold that where the commander is obliged to administer Then, Mr. President, there is another sug. that protected a man for doing anything he what in one sense may be said to be martial gestion that I bave to make. Is this bill to might do, whether the order covered it or not. law, but in another is simply his own will, beextend everywhere, or is it to extend only to I apprehend no court would give it such a con- cause there is no law and no other means of those portions of the Union where rebellion struction, and I submit to the candor of the administering any other law in the premises. has prevailed? Or are we to establish the prin- | Senator himself if in arguing it it is fair to It arises where leges silent inter arma. Where ciple that when rebellion prevails in any por- assune that it is obnoxious to the objection the courts are open, where the laws may be tion of the United States, that of itself operates that he makes.
administered, the will of the commander canto create a dictatorship in the Executive? Is Mr. COWAY. I perhaps might agree that not be substituted in the room and stead of that the suspension of the privilege of the writ of if the order was specific and to be strictly con- law, and his machinery for the execution of habeas corpus to be taken to mean that the strued, then there would be no mischiet' here, his arbitrary will can in no case supersede the Executive or his oflicers may arrest everybody, but if so there would be no remedy here. If proper tribunals of the country. To allow that right or wrong? If that is to be the construc- yon propose only to protect the oilicer or the for an instant is to allow that we are the viction put upon it, it is a new construction, and soldier where he can cover himself with a lit- tims of a tyranny against which the world has one which has never prevailed. If when the eral order to do the act that he has done, then struggled during the historic era. There is not writ of habeas corpus is suspended I am ar- I am free to say that your act of oblivion will a page of our history-I mean the history of rested and denied the privilege, I am not thereby go for nothing. Largeallowance must be made Englishmen and the history of Americansdebarred of my action for redress. The officer in the construction of these orders. The order that is not pregnant with lessons for our inis still responsible, responsible not only for his || is to do a particular thing. Well, as to that par- struction upon this very point. malice, but for his blunders; and it behooves ticular thing, nobody will be complained of. The law, as I said before, is. supreme; the him, before he exercises this extraordinary | The order is to take the Senate Chamber; but will of the whole people embodied in the Conpower put in the hands of the magistrate under the order will not warrant the slaughter of the stitution or the statutes is what we obey: Who these circumstances, to know well upon whom honorable Senator from New Hampshire after obeys any other sovereign? Do you, sir? Do he exercises it.
he has surrendered. But is not the intention I? Is any Senator here willing to take the I know that an impression prevails in some of this bill to cover that by the “ order?” Is will of one man, or a dozen men, and put it places that when you suspend the privilege of it not intended to say that when the Senate is in the place of the American people, and dig. the habeas corpus, all people, innocent and taken and when the soldiery are excited and nify it with the name of law of any kind? If guilty, without any difference or distinction, when blood is hot, this is under the order? If so, such man or such a Senator is unworthy may be arrested and may be held until the it is not, what is it? My objection to it is that of a place upon this floor and is unworthy of supposed danger is over, without any remedy it reverses the usual order. For an outrage the name of American citizen. This is a Goron the part of those innocently arrested. Mr. done to the Senator from New Hampshire under ernment of law, and not of men, and therein President, I take it, that is not the law, and if circumstances of that kind, I would require is its great characteristic; and it is prescribed it were the law, no republic could long exist, him to show that the outrage committed upon law, published law, law that men may read and because it is well known that the Chief Magis- him was wanton and malicious and unneces- know, law the penalties of which cannot be trate, the Executive of the nation, is the proper sary in the execution of the order. Is not that incurred while it is locked up in the brain of a judge of the time and of the circumstances the usual course of courts? The plaintiff must tyrant, or when it is posted upon the top of when it becomes necessary for him to exercise make out his case; the burden of it rests on high posts where the people cannot read it, as this extraordinary power, and I have only to him, and he is required to make it out, and to Caligula prescribed his laws. refer to the cases of some South American make out a complete case, even if the defend- Then, I say, where the law is in force, where republics where this very principle was made ant himself be not present and defending. the will of the American people is the rule of fatal and destructive to republican institutions | Clearly that is the case where men sue for torts. men's action, where the American people by altogether. If you give the Chief Magistrate The prisoner in criminal prosecutions was not their Congress have not displaced that law and of the Union the right to decide when the con- allowed to make any defense in ancient times, subjected themselves to the will of a military tingency happens, and upon whom he shall and why? Because the King was bound to make commander, there this bill can have no place. exercise this extraordinary power, then free out a case of guilt to the exclusion of every At the same time, sir, as I said before, where institutions are at an end, then a rebellion, other hypothesis, or in other words to render they have declared the inhabitants of a certain which of itself is not dangerous, will be a pre- unnecessary or impossible any defense. definite, limited, bounded district in rebellion, text of a very great danger to you, sir.
I think that is a clear, distinct, and plain and where that district is under the arbitrary Mr. President, I would be glad to see this principle of the law, and I think it would afford will of the commander, which is martial law, bill so well considered as that no innocent man a far better protection to United States officers there, and there only, is an act of oblivion or should be deprived of his remedy, and I would than simply to declare that they shall not be indemnity such as this is at all to be entertained be glad to have it so weil considered, too, that liable for certain acts done.
for one moment. That changes the presump: no officer or other person in the service of the And, Mr. President, apart from this bill is tions; that is all. When a district was declared United States, honestly in the discharge of his not the law so at any rate? Is it not the law of by Congress to be in a state of rebellion, and duty, should be liable to be harassed in the the country to-day that whoever complains of our officers were sent there to suppress that State courts and mulcted in damages for an the act of an officer of the United States must rebellion, the presumption is in their favor that honest and fair performance of his duty, and in show either that he had no authority, or that they did that which was right and proper to my judgment that can be only attained by the he transcended his authority, or that the act suppress the rebellion; if they did not, it is for rule which I have laid down. Put the plaint. || that he did was not warranted by any law, mu- the plaintiff who undertakes to arraign them at iff to make out his case; put the plaintiff to nicipal or international? Is not that the law the bar of the civil tribunal after the suppresshow that the defendant acted without orders, to-day? What is this bill for? Is not the very sion of the rebellion to show it. if you please; put the plaintiff to show that the object of this bill to relieve against the law? But it is not for this Congress, nor for any defendant, if he had orders, executed them in Is it not to cover, shield, and protect men who other Congress, to declare by one sweeping act a wanton, malicious, and injurious, and if you have violated the law? Is it not for the pur- that nothing done in the suppression of the
rebellion underauthority and by virtue of orders put the rebellion down, and, strange to say, in and do so and so. What shall he say? “I shall give to any person injured an action for that State some of the courts have declared that will not do it, sir.' Then he is court-mardamages on account of it. That is a very dif- an order given by a Union officer to his subor- tialed or put in the guard-house at once. He ferent thing. Require your plaintiff to make dinate was no defense, but if given by a rebel | obeys; he cannot well do otherwise; and then his case; but do not undertake by one great it was a defense, and the man set free. That because he is in a loyal State he is not to have act of-I hardly know what to call it; I will
the protection of the Government, forsooth! say dispensation, because it is to say that the Mr. JOHNSON. How is it proved? I should Mr. TRUMBULL. The Senator from Verlaws which are the sovereign, and which we all like to know.
mont was the author of the law of 1863. aduit we are willing to obey, shall for this turn, Mr. CLARK. I have it from the member Mr. CLARK. I understand that the old pro híc rice, have no place, that for a given of Congress who was in the court when it was Senator from Vermont was the author of that time the people of this country, owing to the done.
law, and I did not know that the Senator from rebellion, shall be taken to have had no law. Mr. JOHNSON. One of the superior courts? Pennsylvania indorsed it. That, I think, Mr. President, we are not pre
Mr. CLARK. One of the courts of one of Mr. COWAN. I did indorse it; and if the pared now to do. I hope we are not prepared the States. I do not know whether it was the Senator from New Hampshire does not know to do it. I would the rather suppose that in superior court, but it was one of the courts it, I can tell him that I myself was the author the restoration which we contemplate, and in which had cognizance of the thing:
of some of its provisions. bringiug back the country to its old harmony Mr. JOHNSON. A justice of the peace, Mr. CLARK., I am glad to hear him say and fraternal relations, it would be well to pre- perhaps.
so, for I have had it my mind, somehow or serve as near as possible all of our laws and Mr. CLARK. Not a justice of the peace, other, that the Senator from Pennsylvania had all of the spirit of those laws under which we but somebody who had jurisdiction of the cause; been changing around; now he has indorsed have succeeded for about three quarters of a and it becomes absolutely necessary that there the contrary: century as well as it was possible, and that we should be some act to protect the men who Mr. COWAN. A very intimate friend of should not introduce into our code and make have been fighting our battles for us and put- mine was supposed at the time that will was part of our system anything which was not ting this rebellion down. How long ago was passed to be in some trouble in this particular consistent with it and which was not based it that General Terry came here from Rich- direction; and I am not so certain whether the upon the fundamental principles which have mond in the pursuit of his ordinary business, honorable Senator from New Hampshire, who heretofore characterized that law and given it and was prosecuted here in this District for is generally exceedingly captious and exceedits high character among us.
something he had done somewhere in the de- ingly tart, did not somewhat reflect on me at The PRESIDING OFFICER. The ques. partment of Virginia? And so on through the that time because I was constructing that bill tion is on the amendment moved by the Sena
land. No longer ago than last evening I read in order to shield my friend; but we did not tor from Vermont.
an account from a North Carolina paper that make it go beyond the order of the President Mr. CLARK. I hope this amendment will all through that State, since the rebellion has or his authority at that time. not be agreed to by the Senate. The scope of been subdued, and the rebels are returning, Mr. CLARK. The Senator from Pennsylit, I understand, is to limit the effect of the bill || suits are springing up from one end to the other; vania is entitled to the benefit of that acknowlto those States in which martial law has been and these rebel courts are ready to decide against | edgment that he voted for the law to shield a declared, or rather where the habeas corpus your Union men and acquit the rebel soldier. friend. Has anybody else got a friend that has been suspended and to leave these men If the Governor of one of those States had not wants to be shielded? These men were solwho were commanded to do certain things in interfered with his pardon, men would have | diers of a common country, and if the Senator Siates where the habeas corpus has not been | gone to the State prison in that State for doing from Pennsylvania will not shield them, the suspended, by their military superiors, to take acts in pursuance of putting down the rebel- country should. their chances with a suit at law. The bill is lion. And now the Senator from Vermont Now-and I am going to confine myself to in amendment of an act passed March 3, 1863, moves that this bill shall not apply to a loyal || this amendment-it is admitted that this is "relating to habeas corpus and regulating State, but shall be confined to States where the necessary in the rebel States, if you permit me judicial proceedings in certain cases,' habeas corpus has been suspended. I must to call them so, or in the seceded States. But the fourth section of that act provided : say I was surprised that the amendment should
suppose a case occurred in the State of New "That any order of the President, or under his come from the Senator from Verinont; but I York. I think it was in 1863 when the riots authority, inade at any time during the existence of was not at all surprised that it should be in- || occurred in the city of New York, and it was the present rebellion, shall be a defense in all courts
dorsed by the Senator from Pennsylvania. to any action or prosecution, civil or criminal, pend
necessary to have a force there to maintain ing or to be commenced, for any search, seizure,
Mr. CONNESS. That was as natural as order. Suppose General Butler had said to arrest, or imprisonment, made, done, or committed. could be.
one of his inferior officers, “You must do so or acis omitted to be done, under and by virtue of such order, or under color of any law of Congress;
Mr. CLARK. Perfectly natural.
and so," and he went and did it in pursuance and such defense may be made by special piea, or Mr. EDMUNDS. I hope the Senator from of keeping the peace there and maintaining the under the general issue."
New llampshire will not dishonor the paper, if || authority of the Government, is not that man You will bear in mind, Mr. President, that it is good, on account of the poorness of the to be shielded? Suppose you follow it down this section provides that any order of the indorsement. (Laughter.]
from soldier to soldier, if you follow the order President or under his authority shall be a Mr. CLARK. Certainly I would not, but I from one grade to another, so long as the man defense. In the course of this rebellion a great will say that if the Senator had been with us acts under the order, so long should he be many things have been done by other officers here during the rebellion, he would not have than the President of the United States, and signed that paper.
I agree entirely with the Senator from Illiwhere you cannot trace the act directly back to Mr. COWAN. I hope that the honorable nois, that if a man has an order of this kind the authority of the President; as, for instance, Senator may allow me to indorse that paper. and with that order in his possession he ahuses a general in command would order a certain Mr. NYE. Will it improveitany? [Laugh- the order and does what he is not required by thing to be done, and the officer under him, the ter.]
the order, he cannot protect himself under the inferior officer or the soldier, would go and do Mr. COWAN. I think it would. I am pretty order. Does the Senator from Vermont think it; and so the act of March 3, 1863, was no well satisfied that if the Senator from Nevada that he would be able to do so? If an officer protection either to the officer or the man under had a good deal of his indorsed in the same by virtue of a writ should go and attempt to do him who did the act, because he could not trace way it would improve it.. [Laughter.] But 1 certain things not commanded in the writ, and his authority back to the President. This bill have been in the habit of indorsing paper from then should try to protect himself by the writ, goes on to provide further, that if these acts the same State from which the honorable Sen- it would be at once said, “You did what you were done by any oflicer or person under and ator [Mr. EDMUNDS) hails, and I am proud to need not do and what the writ did not comby virtue of any order written or verbal”– see that the place of a Senator and a lawyer mand you to do." Suppose a man comes upon it happens sometimes that the order was verbal, who formerly distinguished these Halls by his my ground; I put him off; and in putting him there was no written order, and it was diffi- presence, (Mr. Collamer,) and with whom I off, without any necessity I kick him and abuse cult to be proved in this respect general or had the honor to agree, I think, much oftener him, and he sues me in court, and I plead that special, issued by the President or Secretary than the honorable Senator from New Hamp- | he was on my ground and that I put him off. of War, or by any military ollicer of the United shire, is filled by one who offers paper that can “Ah! but,” says he, "you not only put me States holding the command of the department, || again be indorsed by me.
off, but you kicked me;' then it would not district, or place within which such seizure, Mr. CLARK. I have no doubt in the world defend me; there could be no pretense that search, arrest, or imprisonment was made, that the honorable Senator from Pennsylvania it would defend me. So, if a man was comdone, or committed ;'' that order shall be a is glad to see a bit of paper of this kind from manded to go and take a horse and impress defense.
Vermont, it is so unusual ; and I knew as well him into the Army, and he went and robbed a Now, it so happens, as the rebellion is pass- when it was offered that he would indorse it house, the order would not protect him; or if ing away, as the rebel soldiers and officers are as I did after he put his name without recourse he went and stole a pig, the order would not returning to their homes, that I may say thou- on the back of it.
protect him. It is what he is commanded to sands of suits are springing up all through the
Now, Mr. President, what is the reason why do by the order that the order protects him land, especially where the rebellion prevailed, we undertake to shield these men in a case of against; and it should protect him against that. against the loyal men of the country who en- this kind? First, because they are in pursuit He must follow the line of his orders or he deavored to put the rebellion down. In one of a worthy cause in putting down the rebel- cannot be protected. sin le State, and that a State which neyer se- lion ; and secondly, because when a soldier is Mr. EDMUNDS. Does the Senator from coled, I ain told there are three thousand of these commanded to do a thing he cannot resist it. New Hampshire mean to contend that an exsuits against the loyal men who attempted to The soldier has the order of his superior to go cess in degree in the execution of one of these
orders, and not in kind, can be made the sub- one of these men is to be protected in Ken- I am speaking of the cases where an act which ject of an action under this statute?
tucky, he shall not be protected in Ohio, was wrongful in itself has been committed, and Mr. CLARK. I suppose it would be in that Indiana, and Illinois. Did we not have John where, therefore, the person who was wronged case exactly as in other cases parallel to it, Morgan in Indiana ? Did we not have various has as much right to claim our protection as the that if that excess in degree showed that the disturbances in Illinois? Did we not have John person who wronged him, whether he acted man was wreaking his vengeance and doing Morgan in Ohio? And shall not the man who under orders or whether he did not. mischief instead of fairly following his order, fought John Morgan in Ohio and Indiana and Now, I undertake to declare with the little it would not protect him.
was obliged to seize a horse to follow him or knowledge which I have on subjects of this Mr. EDMUNDS. Leaving aside the ques- seize a boat by order of his commander, be description, and to defy contradiction, that tion of motive, if there was in fact an excess protected ? Mr. President, the shield of my there is not an instance in the history of legisin degree, what then?
patriotism is broader, longer, every way larger; || lation which has been practically followed and Mr. CLARK. I suppose the question of it covers these men wherever they are found | justified in law, that went beyond simply this: motive must be left to the jury who try the case. who have been true to the Government. providing an indemnity, as I said a little while
Mr. EDMUNDS. But suppose, leaving The Senator from Pennsylvania would find ago, by way of securing to the party accused, aside the question of motive, they find that in out some different and some better mode of whether in a criminal information or in a civil point of fact the act was in degree excessive. doing this; and that has always been the ob- suit, for a wrong done, the benefit of an impar
Mr. CLARK. Who decides the question of jection; when a measure has not been liked it tial trial in the courts of the country, as this motive?
has been asked, “Cannot you find some better | bill very properly provides, providing that he · Mr. EDMUNDS. Suppose we leave that way?'' I do not know any better way than to shall be defended at the public expense, and if aside altogether, and find that in point of fact go directly at it, say what we mean to do, and it happens that in the execution of his duty he there is an excess in degree in the execution do it, and I do not care a copper whether the has invaded private rights, let the public, for of the act to be done.
burden of proof is on the plaintiff or on the whose sake and at whose command he has Mr. CLARK, That would be a question for defendant, provided the defendant be protected, invaded them, foot the bill. That is the way the court entirely and the jury as to the excess, and protected by the strong arm of the Gov- to defend a loyal soldier in my judgment, and because if there was great excess you would ernment. This bill comes to us from the House I do not care to have my patriotism impugned infer from that a bad motive.
of Representatives. They framed it; they said because I think it the better way than it is to Mr. EDMUNDS. Suppose there was not it was the one they thought adapted to the pur- enact a nugatory law to protect him. great excess, but merely some excess?
pose, and they sent it for our approval. The Mr. NYE. Can the public go to prison for Mr. CLARK. Then it seems to me if there Committee on the Judiciary have taken the bill him? was a little excess, and he did not intend it, and examined it, and reported it back to you
Mr. EDMUNDS. They ought to go to prison and you lay the motive aside, it should protect with one amendment and asked that it may be for him. him, and there is no great complaint of a thing I passed. Some verbal and other amendments Mr. NYE. They cannot very well. of that kind; it is not worth complaining of; have been made to it, which perfect the bill; Mr. EDMUNDS. If he goes to prison, it is it is a distinction without a difference almost. and I ask now that this bill shall not go on one only as a consequence of the criminal procedure, Mr. COWAN. That is minimis.
leg in the rebel States, and on a crutch in the which the public of course by a pardon can at Mr. CLARK, (to Mr. Cowan.) I know, non loyal States.
any time dispense from. And it is open to a curat.
Mr. EDMUNDS. Mr. President, it has little doubt whether this act applies to criminal The PRESIDING OFFICER. Senators will always appeared to me in the brief experience cases at all. It ought to apply to them. It' it address the Chair
I have had in this world, that in the long run, is a civil case, certainly the public can stand Mr. COWAN. It was Latin.
passionate legislation, if I may so describe it, between the officer and all harm by paying the Mr. CLARK. I do not understand that Latin comes back to plague those who enact it, and damages which the law declares in favor of the is without the order of the Senate. What we it has generally happened in the history of party whose private rights have been invaded. desire is protection to these men in acts of this civilized communities, that legislation which There are two classes of people in this country kind. We do not desire to shield anybody who has been enacted under the influence of feeling, to be looked at in this matter. There are the solhas been guilty of doing what ought not to be no matter how pure, under the influence of diers who must be protected, and there are the done, or who has under such an order under- passion, no matter how complete and perfect citizens who must be protected. They must both taken to wreak his vengeance or do mischief, might be the beauty of the object of it, re. be protected in the exercise of their rights. It but it is provided for the loyal men of the coun- turned futile and nugatory upon the heads of is the right, as it is the duty, of the soldier to try who liave been engaged in putting down this those who undertook to carry it through. obey the commands of his superior officer, and rebellion; and if in the great struggle that we Now, sir, I do not yield to the Senator from he must be protected in doing so. It is the have been obliged to make some men have done New Hampshire in my devotion to the interests right of the peaceable citizen in a loyal comacts that were wrongful and we are obliged to of the loyal men who have fought the battles munity where civil law prevails to be secure excuse them to protect the great mass, we had of the country. Where I am known it would from search, seizure, arrest, or imprisonment, better do it than let the servants of the Republic not be necessary for me to justify myself on except by due process of law or the judgment be tormented as they are in the courts.
as that. I do not yield to any inan of his peers. One right is as sacred as the Mr. CONNESS. Will the Senator permit || in my desire, to use the language of my friend
other, and therefore in our hasty zeal to prome a word? I desire to suggest to the Senator from New Hampshire, to protect the soldier tect one class of the community let us not do that we are every day granting amnesty to rebels who has fought the battles of the country, it at the expense of another who equally for the highest crimes known to the law. Who whether in Illinois, or Ohio, or Kentucky, or deserve protection, but let us so adjust our is against granting amnesty to some loyal men South Carolina. And it is because I desire to
legislation by way of indemnity, rather than of who have been fighting the battles? That is the || protect him that I am desirous that this bill | arbitrary edict, as to provide for both. suggestion I desire to make.
should be put in such a shape that it will stand Mr. IÍOWARD. I do not rise to detain the Mr. CLARK. It is a very pertinent sugges- the searching investigation of a court of law. Senate on the question of this amendment. tion. Those men, who have been pursuing our I do not think he can be accounted the true Mr. HENDRICKS. If the Senator does not soldiers and murdering them everywhere they friend of the soldier who holds out to him the desire to go on to-night I will inove an adjourncould find them almost, are coming here to the ashes of disappointment in a species of legisla- ment. President of the United States, to those having tion which, while it looks well, will not bear Mr. IIOWARD. I shall occupy but a few power, and imploring pardon for all their acts. the test of actual experiment. My way of pro- minutes. The effect of the amendment of the Mr.'CONNESS. And they get it.
tecting the soldier is to give him a protection | honorable Senator from Vermont will be to Mr. CLARK. And they get it. But in re. which will be real, to hold up to him a security withdraw the protection afforded by this bill gard to these Union soldiers who have come at which is something more than a mere fulmina- from all persons who have committed any of your call, and marched under your orders, and tion, and which shall answer to him with the the acts contemplated by the bill in any State preserved your Government, men cavil if even certainty of a positive defense. How is that to where martial law has not been proclaimed. I the Senate and House of Representatives pro- be done? That is the question.
so understand the amendment of the honorable
I know the Senator from Pennsylvania says the best way to do it is to go directly at it, as transfer of the cause to the Federal courts,
fore justified. That is all there is in this act. the question of removal?
such a point