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and read them. Let any man read them and sideration of the instrument which created this flag he fights and whose commission he carries see where he can find the authority there. The Government, and a careful consideration of it, about with him. nearest he can possibly come to it is that these it will be found, I think, to be as I have stated But, Mr. President, that is neither here nor may be said to be cases arising under the laws it, that wherever the thing to be done is for there. I suppose upon these topics nobody of the United States. I am perfectly free to the general good of the whole, and which can will differ; I am not able to see how anybody say that an argument may be made there; but be done better by the united action of the could differ upon them; but the question is, I am also perfectly free to say, and I am per-| whole, and which cannot be done by the individ- how are we to make a remedy? What is the fectly sure in saying, that the man who decides ual action of the States, there the General Gov- remedy to-day? The remedy is just as well that question one way or the other is not on ernment has authority ; but wherever the State settled in the State courts and by the State account of that decision to be taken as a crim- can administer the law, wherever the State can law, I think, as you can possibly settle it by inal or to be mulcted in damages because of administer justice between her citizens, there the United States law. If I sue à man for an any mistake he may make.

the United States is never allowed to interfere, act done against me while he is acting under As my honorable friend from California (Mr. and she has no machinery by which she can a commission, under authority derived from McDougall] very often says, the old fathers interfere.

the law and the Government, he justifies him· were wiser than we are; the men who founded A very forcible illustration of that may be self by that authority in all cases if the act is this Republic, the men who made its Constitu- | readily given. In order to transact the busi- warranted by the authority. There can be no tion-and “there were giants in those days? ness of the people, in order to administer jus- difficulty about that. The sheriff's writ is good provided much more aptly and quite as fully tice to the people in the several States, you as a justification for him against a trespass. for this question as it was possible in the have to have at least two or three inferior So the commission of the soldier is good as a nature of things and from the machinery with | magistrates in every precinct, ward, or town- justification for him against a trespass. But which we administer our Government could be ship. You have to have an orphans' court, a suppose that he exceeds his authority; if he done. What did they do? They provided that court of common pleas, a court of oyer and has authority to take a fort, that gives him no whenever a defendant in any court set up a jus- i terminer, a court of quarter sessions, and you authority to murder prisoners of war; if he tification under the laws of the United States have sometimes to have courts of equity, in has authority to assail a town, it gives him no or under the Constitution of the United States, every connty in every State. What for? In authority to violate women; if he has authorand the State court refused that defense, de- order that justice may be brought to the doors ity to march through the country, that gives cided against it, decided against the constitu- of the people. Now, think of the madness of him no authority to take private property withtionality of the law under which he set it up, executing that great governmental function, out such an emergency as excuses the act, and in such case he should have a writ of error to which is really and truly the very govern; when the emergency is an excuse for the act the Supreme Court of the United States. What mental function, by means of the United the court is always willing to give him the bencould be plainer and wiser? If it be true that States machinery The United States have efit of it. That is the law now. It is the law under the laws of the United States these offi- no magistrates; that is, they have no jus- everywhere throughout the civilized world, and cers are justifiable in any particular case, where tices of the peace, no “squires;" they have why? Because it is common sense. is the objection to their making that defense in no county courts; they have no machinery I know that in States where the rebellion the State court, and, if it is not allowed, give in the world by which they can administer has prevailed, and in the border States where them the right to appeal to the Supreme Court justice among the people except the courts the people have been very much excited, and of the United States. What can be plainer | created under the Constitution, one or two in where they have been divided into angry, hos. than that?

a State. Think of this; and it gives us, above tile parties, these actions will be frequent, and I have another word to say about the policy | perhaps anything else, a better notion of the a great deal of difficulty and a great deal of of this law. The danger to the Union, the extent of the general power of the United trouble will arise out of them. But these are danger to the existence of this fabric to-day, is States over the people; and when we think of troubles which are not to be cured by legislaquite as great as it ever was, and why? The the irritating effects of this kind of legislation tion; not to be cured even by State legislation. danger is that the several constituent parts of protruding itself within the domain of State They are the troubles of a com

ommunity, out of it will not keep each within its own sphere. | jurisdiction, where the people have always been which it must emerge with the trials or punishThe danger is that the States will assume to accustomed to have justice administered, and ments which result from them. It must acquire enlarge their reserved rights, and paralyze the where they have always been in the habit of wisdom from experience. After awhile the General Government; and on the other hand relying on having it administered fairly, the people will learn that their true interests are the danger is that the General Government question whether they will submit to it ought not promoted by the gratification of their evil will encroach, swallow up the State rights, and to make, I think, any prudent man hesitate. passions and by the forgetfulness of the great centralize and despotize-if I may be allowed And if we come to reflect for one moment on laws of charity, man for man; and these things to make a new word for the occasion--this the extent of the combinations that will be will be avoided; but they are not within the Government. What is our duty ? Our duty is made against it, no matter how salutary it may domain of law; they are not curable by legis. to keep both in the line of their original crea- be, no matter how wholesome it may be, no lation. For instance, it is utterly impossible tion, keep them where the fathers put them. matter how much you may think it is required, by legislation here that we should prevent the Let the United States be supreme in all that if it is against the genius of our institutions, prejudices of a jury in one section of the counrelates to the whole; let it have no concern if it is against that which the people believe in try from denying to one man justice and giving whatever in that which relates to the particu- || the administration of the laws, your statutes an over meed of it to another. We cannot prelars. One of the great pervading principles will be wiped out, and they will never be of vent that.

It is utterly impossible that we can of the Constitution was that whatever a State any avail to anybody.

by legislation here eradicate the prejudices of could do better of itself than could be done by Now, sir, I am, as I said, in favor by all means judges, that we can influence their leanings. the whole Union was not delegated to the of protecting the officer in the honest, conscien- We cannot provide for that by statute. That Union; whatever the Union could do better tious discharge of his duties while in the service is to be the work of time, and the gradual operthan a single State was delegated to it, and I

of the United States. No man can feel the ation of the good sense of our people who herefancy that everything was delegated which is necessity of that more than I do. No man, I after will no doubt discover the evils and folly proper to give the States the advantages of think, is more sensible of the annoyances, of which exist in all this, and they will come united action. To the United States was dele- the wrong and injury, that would be done to the back to that sensible, wholesome operation of gated the power of making war and of dealing faithful servant of the United States if he was their laws which is the only thing after all that with foreign nations. Why? Because thirteen to be dragged here and there and subjected to we have to rely upon. united weak colonies could transact that busi- actions for what he did in the honest, conscien- Mr. President, in conclusion I have only.to ness better, and secure the public welfare, and tious discharge of his duties. At the same time say that I think it is clear, beyond question, provide for the public defense much better when a man puts on the uniform of the United that the judges of a court acting under State than they could do it separate and apart. That States, when he accepts her service and marches authority, acting conscientiously in deciding was the reason. Take another instance. The | under her flag, if he is guilty of oppressing the cases, although they may act erroneously, are postal communications from one State to an- citizen, of gratifying his private malice wantonly not for that reason to be made criminals, nor other are far better in the hands of the General and without the welfare of the country con- are they to be mulcted in damages for their Government than they would be in the hands | stantly in view, then I have no kind of charity erroneous judgment. The remedy for that in of the several States, by which we should have for such a man. I think that he is fitly and our jurisprudence is a writ of error.

If they at the present time thirty-six different and dis- appropriately the victim of the severest laws refuse to transfer a cause from the State court tinct post office departments in the Union, that can be made to prevent wrong and op- to the circuit court of the United States when it is and therefore the Post Office was given to the pression.

the law, and the Supreme Court of the United United States. Then the power of passing Sir, what is the mission of this man when he States shall declare it to be the law that the case naturalization laws, of removing the disability enters our service? It is to defend and protect shall be transferred, then the case will go there, which is attendant upon being foreign born, the people, not to oppress and injure, rob and and it will go there without staining the judge was given to the United States, and why? Be- | plunder them. Can anything be plainer? And with criminality, without subjecting him as a cause it was a general subject, and could be if he so far forgets himself as to lend himself trespasser for what may have been an honest better administered by them than by any other to wrong and injury and oppression, needlessly, mistake of judgment on his part. authority. The right to maintain armies and ruthlessly, wantonly, and maliciously, I would Mr. DOOLITTLE. Mr. President, I desire navies was given alone to the United States, have him punished, and punished severely. A to say a few more words to my honorable friend and why? Because they are arms by which double punishment should be bis, because he from Illinois on this question of habeas corpus, the general defense and mutual welfare of the not only shows the depravity of his own nature, and I have taken up the book from which my whole are to be protected. And so upon con- but he disgraces the Government under whose honorable friend read. In the State of Wis.

as

consin, to which he referred, and which he said | discretionary writ, but a writ of right. What says of legislation in England, and with the history he presumed authorized judges sitting in term this same authority, to which my friend referred, of legislation in this country, the only pretime, if they refused the writ of habeas corpus, speaking of the habeas corpus :

tended exception being the case of the State to be fined and imprisoned or mulcted in dam- It is a writ of right which every person is entitled of New York and the State of Mississippi; and ages for refusing the writ, he is entirely mis- to ex merito justicire; but the benefit of it was in a these are condemned by Chancellor Kent, the taken. In the State of Wisconsin it is I

great degree eluded in England prior to the statute
of Charles II, as thejudges only awarded in term time,

authority which the Senator from Illinois has stated, and as it is in a large majority of the and they assumed a discretionary power of awarding quoted, who speaks of it as a degrading penStates of this Union; the officer refusing to or refusing it."

alty hanging over courts and judges; who is issue the writ in vacation, and not in term Because the judges in the time of Charles | opposed to it; who declares that the statute of time, is made responsible. The statute of II assumed to say that the granting or refus. New York is the first in the history of English Wisconsin is as follows:

ing of a writ of habeas corpus was a question | law or American law which looks in the direc“That if any officer authorized by the provisions of judicial discretion, the statute of 31 tion of punishing a judge for what he does or of this chapter to grant writs of habeus corpus shall willfully refuse to grant the writ, when legally applied

Charles II, c. 2,'' was enacted, which by its may not do in term time; although the act is for, he shall forfeit for such offense to the party ag- "explicit and peremptory provisions restored not a discretionary act, it is an act which he is grieved the sum of $1,000."

the writ of habeas corpus to all the efficacy to bound to do, if the petition complies with the It is the officer, not the court sitting in term which it was entitled at common law,'' and statute, and he has no discretion to refuse the time. How is it in the State of Illinois, where made it a writ of right, to which a man had writ. I ask, is it wise to follow that example the Senator himself resides, and was himself a right, whether the court was in favor of it which is exceptional, contrary to the whole a judge of the supreme court? If the officer or not.

He had only to comply with the stat- history of English law and American law? Is shall "corruptly refuse to issue the writ he ute in reference to the petition which he pre

it wise for us to do it when there is no necesshall then be made responsible in damages. sented, and the court were to award it; and sity for it? If the parties are made responsi“The habeas corpus act in Illinois," says

in order to enforce this right, England pro- ble; if the ministerial officers, who do not act Chancellor Kent, confines the liability of the vided by statute that judges in vacation who | judicially, and who always act upon their rejudge to a penalty for refusing to issue a writ should refuse to award the writ should be lia- || sponsibility, are made liable for the damages of habeas corpus, when legally applied for, to a ble to be punished, but not the court sitting resulting from the case being proceeded with corrupt refusal'”-not a judicial refusal, not in term time.

in the State court after the removal, why is not even the decision of a ministerial officer in the “The penalty for refusal to grant the writ was, by our officer perfectly protected? I think that refusal of the writ. How is it in the other the English statute, confined to the default of the the act which we are about to pass will be just States of the Union? In Connecticut there is chancellor or judge in vacation time."

as efficient if we leave out the action of those no penalty imposed whatever upon a judge for Not sitting in court, not sitting in banc, not who act judicially, it will be much less liable refusing the writ; it is left to his judicial judg- || in term time, but in vacation time; and the to objection in the States where it is to have ment, and the people of Connecticut and the only, States are New York and Mississippi, force; and, in my judgment, it will be more in laws of Connecticut have confidence enough in which provide that the members of a court sit- conformity with the history of the legislation their judiciary to suppose that they will decide ting in term time shall be liable to a fine for of this country, and of that country from which according to the laws of the land and the oaths not awarding the writ; and when they sit in we derive our laws. which they have taken. How is it in Virginia | term time and pass upon the question they Mr. HOWARD. Mr. President, a very and North Carolina? Their habeas corpus act pass upon it as a writ of right upon which they strenuous opposition is made to the fourth secis a copy of the habeas corpus act of England, have no judicial discretion any further than to tion of the bill. The honorable Senator from from which we have borrowed the common law look into the petition which is the basis of the Delaware has moved to strike it out. Another and the writ of habeas corpus; and how is it application and determine whether that peti- Senator has moved an amendment to that there? Are the judges sitting in term time tion on its face makes out a case for the writ; amendment, to strike out the word "judges' made responsible in damages or by fine or im- they inquire into nothing outside of the peti- || in the seventh line, so as to exempt the judges prisonment? Not at all; it is the judge sitting tion. They can take proof of no fact whatever ; of the State courts from the damages which in vacation at chambers, not as a court, if he | they can only look into the petition, and if the are contemplated in the section. I am opposed refuses the ministerial act, for it is nothing but petition reads according to the statute, they to both these amendments and in favor of the a ministerial act to issue the writ when the are bound to issue the writ; they are bound passage of the bill with the fonrth section in statute requirements are complied with and the without any judicial discretion to do so. That || it, because I think that section contains a sound petition sets forth what the statute requires. is the very point in the case. What I said || principle, and that without it there may be

How is it in New Jersey? Precisely the same. in the beginning and assert now is, that it is a many cases in which great injustice may be In Maryland, I doubt not, it is the same-bor- | novel proceeding to undertake to render a judge done to parties who are brought into the State rowed from the English statute. There are responsible in damages for what he may judi- courts on claims of damages by owners of but two States in the Union that the Senator || cially decide.

property taken for the purposes of the war. can point out-and the one is New York and My friend from Illinois will not understand see no constitutional difficulty whatever in the other Mississippi-where the Legislature me as being any less desirous of defending | the fourth section. Still I am aware that it has assumed to impose a fine upon judges for

those faithful men who, in the midst of this comes within that long category of bills which refusing to grant the writ in term time; and great rebellion, have been acting in the nanie the Senate have passed or endeavored to pass I now come to the question which originally of the Government of the United States. I during the late war, which by certain gentlearose between the Senator from Illinois and wish to defend them; I wish to throw over men in this Chamber have been denounced as myself: I say the issuance of the writ is not them the shield of this Government; and flagrantly unconstitutional. Indeed, the hona question of judicial discretion, even by the where the individual has acted in good faith orable Senator from Delaware has gone so far judges in term time. There is no judicial dis- under the authority of this Government, I as to say to us that if he were a judge sitting cretion with them but to look into the petition would defend him in the name of the Govern- || for the purpose of administering justice between and see if the petition conforms to the statute ; | ment, openly and frankly, and abide the con- man and man in his own State, and this statand if it does, they are bound to grant the writ. sequences. I have some serious doubts whether | ute, if it should become a statute, should be It is not a discretionary writ; it is a writ of it is within our power to declare, as it is de- presented to him, and should be insisted upon right, to which the party has an absolute right. clared in one section of this bill, that a mere by way of defense, he would feel bound to hold How is it in the State of Massachusetts? What order shall constitute a defense in those places | it unconstitutional and void, and that he would says Chancellor Kent about Massachusetts on where martial law was not declared or where | proceed, notwithstanding this Federal statute, this subject of punishing judges for granting or the operations the Army did not so disturb to pass a final judgment in the case which inight refusing a writ?

the administration of the civil law in the State be before him, and to enforce it. "The Massachusetts habeas corpus act”

courts and the Federal courts as to prevent It is not necessary for me to say that it is the And this is Chancellor Kent, living in New

justice being done between parties. Where || duty of a judge, whether he occupy a high or York and writing about New York and the

martial law prevails, of course, the order of an inferior position, as such to decide every statute of New York, comparing the statute of

the military commander is a perfect defense. question of law that may fairly be presented to Massachusetts with the statute of New York,

There is no law where martial law exists but his consideration. I am not aware that the and he says:

the law of the military power governing the law exempts any class of judges of courts from "The Massachnsetts habeas corpus act, in their || place, and whatever may be done may be jus- this high and solemn duty. Still, it does seem revised statutes of 1835, does not contain degrading tified under military order. But, sir, in those to me that if I were a State judge, and this penalties hanging over the courts and judges." places where civil law has all the while been question were presented to me in the form which

Chancellor Kent, speaking of this statute of in full play, where the courts have been open, he has suggested, certainly if a doubt hung over New York, which goes on to enact that the their proceedings undisturbed by arms the question at all, I should feel it my duty to judges sitting in term time, if they refuse to whether in such courts we can by act of Con. decide in favor of the validity of the statute, grant the writ, shall still be made liable, says gress go any further than to declare that such | leaving the question finally to be determined by it is the first instance in the history of the Eng- a military order shall constitute a prima facie | the court of dernier ressort, the Supreme Court lish or American law in which any such thing | defense, and change the burden of proof, is a of the United States, and such, I think, would has ever occurred; and he speaks of it, when very serious question indeed.

be felt to be the duty of almost every wellhe comes to speak of Massachusetts, as a de- But, sir, I will not go into the discussion of informed State tribunal. grading penalty hanging over courts and judges. that matter now, I only wished to discuss this But, sir, is thercanything in thistatnte which But how is it even in New York? It is not an single question which I have raised, whether is in conflict with the Constitution? And does exercise of judicial discretion ; and that is just the course I have suggested is not wiser, bet- the judicial power of the United States as delethe point I made in the beginning; it is not a ter, more in accordance with the whole history Il gated in the Constitution itself cover the cases

I am

which are contemplated by the section? That extent of the bill, and that is the whole extent standing the performance of all things required is the first and principal point for us to deter- of the bill. Now, sir, are these acts com- for the removal of the case to the circuit court mine. If there be a delegation of power in the plained of acts done under a law of the United of the United States, proceed further before Constitution covering these cases, the question States? Certainly the Senator from Delaware the certificate of removal is produced, then, of its constitutionality cannot be raised upon cannot deny it. They were acts committed- and in that case, "all such further proceedings that issue. The Constitution declares that the Mr. SAULSBURY. Will the Senator allow shall be void and of none effect; and all parjudicial power shall extend to all cases in law me one moment? I do deny, as far as any ties, judges, officers, and other persons thenceand equity arising under this Constitution, the of these acts have been committed in the State | forth proceeding thereunder, or by color thereof, laws of the United States,"' &c. Are the cases of Delaware, that they have arisen under any shall be liable in damages therefor to the party contemplated by section four cases arising under law of the United States.

aggrieved.'' any law of the United States? What are they, Mr. HOWARD. That is not the question. Now, what is the theory of the bill? That it and what is their character? It is best illus- I am speaking of regular acts of war performed is the right of the party sued, the right of the trated by a single example.

by inferiors in obedience to the orders of their defendant in that particular case, to present his Suppose a private soldier in the State of superiors. I am not speaking of willful and petition to the court, and upon the presentaKentucky or Delaware, no matter where, re- wanton trespasses committed by soldiers or tion of such petition showing that the act comceived an order in writing, or a mere verbal officers without warrant and without order, plained of was done by him under a military order, from his superior officer in command because the bill contemplates no such cases, order, it shall be the duty of the State court to and to whom he owed obedience, to proceed | affords protection in no such cases.

surcease all its proceedings and pass the case and take possession of the horse or any other | speaking of acts done under regular orders. from its own jurisdiction into the hands of the article of property belonging to a citizen in the Do those acts present cases coming under any circuit court of the United States. It is in the neighborhood, property deemed by the supe. law of the United States? That involves the nature of an injunction against the State court, rior officer to be essential and necessary in the question whether the war itself existed in pur- or more properly speaking, it is in the nature prosecution of his military operations; or sup- suance of any law of the United States. If of a writ of prohibition, which forbids and propose that the same soldier was directed by a the war itself was waged in pursuance of law, hibits the court to which it is addressed from similar order to proceed to demolish the dwell- if the Congress of the United States, in provid- proceeding further in the case. ing-house of a resident in the neighborhood || ing for its prosecution, did not transcend the What has the judge to complain of? It is for the same purpose and under the same neces- Constitution itself, all these acts of war were said if he proceeds further in the case after sity. The soldier proceeded and executed the committed under a law of the United States; the removal papers are presented to him or order; he took the horse or any other article and the acts themselves, taken in connection filed with him he is acting in his judicial of personal property mentioned in his order, with the party plaintiff and the party defendant capacity, and that it is hard and cruel and disor he proceeded and demolished the dwelling: in the State court, constitute a case at law. A | graceful to punish a man, even in damages, house. He is sued in one of the local courts; case at law must have parties; there must be when he is acting in good faith as a judge and he is made defendant; he is charged with com- a fact connected with it, there must be an alle- deciding a question of law that has come mitting a trespass against the property of the gation on one side by one party against the

before him. That is not this case. The State owner of the horse in taking and carrying away other in respect to which the plaintiff asks for judge who had the first jurisdiction of the case the horse, or he may be charged with demol- relief or asks for judgment. That I under- has before him (and he alone knows the fact) ishing the house. He is brought into court by stand to be in very brief terms a definition of all the papers to perfect this removal of the regular appearance process; he pleads to the a case at law,

case from the State court into the circuit court declaration of the complaint, whatever it may The judicial power of the United States ex- of the United States. The paper itself is to be; and his defense consists in the simple fact tends to just such cases; that is to say, it reaches || him an admonition, a perfectly full notice that that he received from his superior officer a them, it covers them. The judicial power of from the moment he receives it he ceases to written or a verbal order to do the acts as to the United States may, if Congress so choose, have any further jurisdiction or power over the which the complaint is made against him. He take these cases and deal with them in any way case, and that he must not proceed further presents the order, if it be in writing, or he it sees fit. If the case exists in a State court, with it. It is a plain, distinct, and unmisproves or offers to prove the order, if it be a || being covered by and subject to the judicial | takable notice operating upon him to divest verbal order and not in writing. This is one power of the United States under the Consti- him completely from that moment of all his of the numerous cases that have arisen during | tution, it is competent undoubtedly for Con- jurisdiction over the case. And will Senators the late war.

I ask the honorable Senator from gress to provide for the prosecution, trial, and say that with this paper before him he can be Delaware and the honorable Senator from decision of these cases in their own way. That, deceived or misled as to what his duty is? Pennsylvania whether this is not a case aris- in brief, is all that is contemplated in this stat- Can it be said that notwithstanding the proing under a law of the United States. It ute. But, sir, if according to the doctrine of vision of the Constitution which I have quoted, arises from military necessity; that necessity some, if according to the teachings of a class notwithstanding the existence of the law, notis adjudged of by the superior oflicer in com- of doctors who have been too numerous and withstanding the petition which is to be verified mand.

whose teachings have been too fatal in this by the oath of the applicant setting forth the Mr. SAULSBURY. Will the honorable Sen- country, it is not competent for the Congress facts which divest him of the jurisdiction, he ator allow me to ask him a question?

of the United States to wage war, as they say, may still go on and act in good faith and withMr. HOWARD. Certainly.

against a State; if the acts of the United States out guilt and pronounce judgment against the Mr. SAULSBURY. I will state to the Sen- in the prosecution of this war were according | defendant in that case ? No, sir. He has no ator a case that occurred in my own State, in to the doctrines of those teachers, all void and more right in law or equity or in good morals the county in which I reside, and then I wish of no effect; if a State ordinance of secession to proceed another inch with that case than to know his opinion whether that arose under | is to be the paramount law of the land, the has the party who is served with an injunction the Constitution of the United States, any law, || Constitution of the United States to the con- in a court of equity where the writ has been or any treaty of the United States. A Metho

trary notwithstanding, then, sir, I agree that properly delivered to him and the seal of the dist preacher was on the cars. After he left all these cases are not cases arising under any court shown him ; and we all know how beavy the cars he proceeded to a neighbor's house, law of the United States, and therefore they the penalty is, or may be, against a party in a and was asked what the news was. It was at cannot be removed from a State court in which court of equity who disobeys an injunction of the time when the rebels were making an at- they may happen to be brought. But, sir, I do the court. The injunction here is the injunctack on this city. He told them that he did not belong to that school of politics. I rejecttion of a law of the United States, which says not know, but he had heard a soldier say upon the whole theory of Mr. Calhoun and all his to the State court, Stop; go no further; the the cars that the report was that Washington followers from beginning to end upon the ques- supreme power of the United States bids you had fallen. For making use of that remark a tion of the right of a State to secede, or the to pause; it interposes its strong arm to proprovost marshal visited his house, carried him | right of the Government of the United States tect the soldier or the officer whom you have against his will to the city of Wilmington, and to wage war for the purpose of putting down before you from any judgment which you may lodged him in a place which they kept for public a rebellion or an insurrection. I hold all our see fit to pass upon him, and it transfers him offenders. He was heard. There was not a acts to be perfectly valid and as valid as they and his case to another and a more impartial particle of proof against the man, but he was were necessary.

and a safer tribunal." Sir, I think there is made to pay an expense of some twenty or thirty Now, sir, as to the other amendment; it is no ground whatever for the complaints which dollars and allowed to return home. Now, sir, || suggested that the word “judges' should be are made in this Chamber against inflicting suppose that Methodist minister should insti- stricken out of the section. It is alleged that punishment upon the judge who persists in his tute a civil action against that provost marshal, it is a cruel proceeding against a judge to hold guilty course after this notice has been served or should cause him to be indicted in the courts him responsible in damages for acts which he upon him and does these acts against his own of the county in which he resides, would that may do or assume to do in his judicial capa- light and knowledge. case arise under the Constitution, the laws, city. The bill has been much misunderstood; But it is said by the Senator from Wisconor any treaty of the United States, or would it | certainly it has been greatly misrepresented sin, spare the judge; let him proceed, notbe for a violation of the public peace of that during this discussion. Gentlemeplave im- withstanding the removal of the cause, and State?

puted to it the principle that it assumes to pun- adjudicate the case, and send the soldier to Mr. HOWARD. I was speaking within the ish a judge who proceeds after the case has been jail, and let the soldier in order to seek redress purview of the bill; I was speaking about removed from him by inflicting a penalty upon sue, not the judge who has commanded him to orders regularly issued by superior officers to him and treating him as a criminal. Not so, go to jail, but the sheriff or the constable to inferiors, under which acts alleged to be tres- sir. The section speaks for itself, and speaks whom the process for his confinement to jail passes may have been committed. That is the Il plainly, that if the State court shall, notwith- has been delivered. It strikes me that that is a very singular proposition indeed. Certainly the rightful anthority of the Government of prosecution is pending, filc a pctition, stating the that Senator is well enough acquainted with the United States maintained. When the case facts and verified by affidavit, for the removal of the the principle of law that where a court has no of Martin vs. Hunter arose it was contended

cause for trial at the next circuit court of the United

States.'' jurisdiction of the subject matter, but still per- by Virginia that in a case instituted in a State sists in proceeding to judgment against the court, as that was, where the final judgment

That, as the Senate sees, and as you see, Mr. party, the law holds that judge responsible in had been rendered, the jurisdiction existing of President, does not provide for the case in which dainages, as well as the officer who executes course in the State court to pronounce that a judgment has been pronounced, and the questhe void process, and a ministerial officer of final judgment, it could not be carried at all- tion, therefore, submitted to the Committee on the court has no protection whatever, unless in any part of it-to the Supreme Court of the the Judiciary, and the one upon which my own cases where the court issuing the process had United States by writ of error; not only because, l judgment was exercised as a member of that jurisdiction of the subject-matter. And how perhaps, it was not involved in the section of committee, was whether it was not advisable in this case, let me inquire of the honorable the act of 1798, to which I have adverted, but to make the remedy entirely coextensive with Senator from Wisconsin, is the ministerial offi- because if it was, Congress had no authority the possible mischief. For aught that we know cer to know whether the case has been removed to confer that power.

judgments may be rendered in those cases or not? He does not keep the records. He Upon looking at the decision of the Supreme against a party who has committed the acts, does not inspect the papers. He has no right Court in the case referred to, the Senate will whatever they may have been, under the auto look into the question whether or not the find that the principal difficulty, if they had thority of the United States, without his having party complained against has removed the any difficulty, that the Supreme Court had to had an opportunity to make the application in cause; and although the cause may have been encounter was in the existence in the particular time according to the provisions of the fifth removed in utter ignorance of the fact on the case of a final judgment. It was not doubted section of the original act, and he may be punpart of the ministerial oflicer, the tender mer- then, nor as far as I know has it been doubted || ished, unless the case can be broughtio a court cies of the Senator from Wisconsin would go since, that at any time from the commencement

of the United States, for the faithful discharge so far as to exempt the guilty judge who had of a suit in the State court up to the rendition

of his duty to the United States; he may be issued the process in that case and punish the of a final judgment, if a question arose which punished for having obeyed the order of a cominnocent ministerial officer for that as to which involved the validity of a State law upon the manding officer up to the order of the Presihe had no knowledge and was entirely innocent. ground of its being in conflict with the Consti- dent, which he had no authority, or supposed Sir, I cannot agree to any such absurdity as tution of the United States, or the validity of he had no authority, to refuse obedience to. It that. I hope that this section will not be a statute of the United States upon the ground || seemed to me, therefore, to be just as proper amended in any respect.

that it was not authorized by the Constitution to give the power to remove a case into a court Mr. JOHNSON. Having, as one of the of the United States, or the validity of a treaty

of the United States after judgment as to give Committee on the Judiciary, by whom this bill upon the same ground, or the validity of an the authority to remove it at any time antecewas reported, concurred with the committee in authority exercised by any agent employed by dent to judgment, and that is all that is done the propriety of reporting it, although perhaps the United States under the authority of the || by one of the sections of this act. there are one or two things in it that I could United States, it might, antecedent to judg. The authority, therefore, to make such a prohave wished had been omitted, I rise merely ment, be brought for examination into one of vision, I submit, with great respect to those for the purpose of stating very briefly the the courts of the United States.

who may entertain a different opinion, seems grounds upon which I suppose we have a right The strict constructionists of Virginia, at the to me to be very clear. It assumes, as you are to pass this bill.

head of whom stood at that time that judicial | obliged to assume in the particular case, that In every well-regulated Government-and it luminary, as he. may well be called, Judge the statutes of the United States already upon is as true of a constitutional Government as of Roane, were exceedingly devoted to the doc- your statute-book are valid laws; it assumes any other--nothing is more evident than that trine of State rights, and they considered the that your oflicers, the President of the United the judicial department should be coextensive twenty-fifth section of the act of 1789 as mate- States and those acting in subordination to the with the legislative; that is to say, the former rially interfering with the wholesome operation || President of the United States, have done nothdepartment should be able to decide

upon

all of that doctrine in cases which might be brought | ing that the laws of the United States or the questions which may arise upon the legislation into the United States Supreme Court ander Constitution of the United States will not proof the legislative department of the Govern- that section, and as in point of fact inconsist- tect them in. Assuming that, if the principle

The act of 1789, in its twenty-fifth sec- ent with the existence of their State-right no- be the one which I stated in the beginning of tion, was passed for the purpose of guarding tions. The effort of the Supreme Court in the these remarks as a principle necessary to the against State decisions which might be found decision, a portion of which has been read by il existence of any Government, that the judicial to conflict with the Constitution and laws and my brother from Oregon, (Mr. WILLIAMS,] || power of the Government must be coextensive treaties of the United States, or found to punish quoted in the volume of Story's Commentaries with the legislative power of the Government, or disregard in any way acts that might be done to which he referred, was to show that the fact it is fit and proper that when the validity of the by officers of the United States acting under the that the case had gone to judgment did not take || laws of the United States is questioned, or the authority of the United States. The policy of from the United States the authority to exam- validity of any authority exerted under the that provision at that time was very apparent ine the questions which the case involved, so authority of the United States is questioned, to the men by whom the act of 1789 was passed, far as those questions included the Constitu- the courts of the United States should have and that policy has been vindicated by almost tion of the United States, or the laws of the jurisdiction. That, I repeat, is all that is done the entire experience of the country from the States, upon the ground that they were not in by the third section of this act. time it was passed to the present hour. I think accordance with the Constitution or the treaties Now, having the power to pass that section, it is not too much to say that but for that pro- or statutes of the United States. The learned the next question which presented itself to the vision our institutions would have failed. They judge, as I think, (independent of all mere committee was, how is the party to be secured would have failed because the rightful author- authority to which the judgment of that tribunal in the benefit intended to be conferred upon ity of the Government could not have been is entitled, ) arrives, by reasoning which is not him by that section? He is sued, and judgmaintained ; and if that authority could not have to be resisted, at the satisfactory conclusion ment is rendered against him. He has been been maintained, the General Government, that there is as much authority to take a case relying upon the Constitution of the United without the existence of which the State gov. into a court of the United States after judgment States; that reliance, so far as the State judiernments would be comparatively unable to by a State court as there is to take it before | ciary is concerned, has proved unavailing. He constitute us a happy or a great people, would judgment is pronounced. I repeat, that the has been relying upon a law of the United have been comparatively futile. That section authority to take it in the latter case was an States, or upon the authority of the President; provided that every case which might be insti. authority that was never disputed.

and the State court has decided that his relituted in a State court in which should be in- Now, what does this bill do? We passed ance fails him. Now, if we have a right-and volved any question respecting the validity of the act of 1863, the fifth section of which was that I will not argne again--notwithstanding a law of the United States, or the application intended to protect those who were executing | the judgment, to take the case from the State of a constitutional provision of the United authority under the United States during the court, and thereby arrest at once by displacing States, or of a treaty adopted under the author- rebellion. The whole country was in a state for a time, or absolutely, the jurisdiction of the ity of the United States, in which the decision of agitation, such as perhaps no country in the State tribunal, the only question is, will you do of the State court was against the provision of world was ever before subjected to; certainly || anything, and if you will do anything, what the Constitution or the law or the treaty might such as our country, fortunately, was never will you do to render that right effectual? be carried by writ of error to the Supreme before subjected to, and I trust in Heaven never Then what have we done by the fourth secCourt of the United States. The effect of that will be subjected to again. The language of tion? We have said that if, after an applicaprovision was merely to submit to the Supreme that section is :

tion is made to remove a case instituted in a Court of the United States the question included "That if any suit or prosecution, civil or criminal, State court, in which it is attempted to make within that section and nothing else.

has been or shall be commenced in any State court responsible an individual for an act done unThe Senate, and especially the legal mem

against any officer, civil or military, or against any
other person, for any arrest or imprisonment made,

der the authority of the President of the Unibers of the Senate, are not to be told that from or other trespasses or wrongs done or committed, or

ted States, the State court thinks proper, notthe act of 1789 to the time when the case of any act omitted to be done, at any time during the withstanding that removal, or that right to have Martin rs. Hunter was decided, reported in

present rebellion, by virtue or under color of any
authority derived from or exercised by or under the

a removal upon the part of the defendant, to 2 Wheaton, the constitutionality of that pro- President of the United States, or any act of Congress,

execute the judgment; somebody is to be pun. vision never was questioned, and its whole. and the defendant shall, at the time of entering his ished. The only question is to what extent some operation, I think, had proved itself to

appearance in such court, or if such appearanceshall the satisfaction of all those who desired to see have been entered before tho passage of this act, then

will you carry the punishment, or rather, whom at the next session of the court in which such suit or

will you embrace in the class of persons who

ment.

corpus, and

are to be punished for violating a law of the cle upon the subject, after Mr. Chief Justice he selected the man that he thought was the United States? If the third section is one Taney had decided that it could not be done | leader of the mutiny and ordered a drum-head which we have a right to pass, then the enfor. except by the authority of Congress, respect- court-martial upon him. The man was brought cing of a judgment by the State court, after fully differing with the judgment of that great up and tried at once. Some three or four hun. the case has been taken from the State court jurist; and that opinion was adopted by the dred lashes was the sentence. They were under the authority of the third section, is an Executive. But I may have been wrong. It | inflicted, and he died in consequence of the offense, if we think proper to make it an of- would be worse than idle, it would be presump; punishment. As soon as the news reached Eng. fense, because it is a violation of the statute tion of the highest degree for any man, and land Governor Wall was indicted. Heremained of the United States which we have the author. || especially for one who was brought up almost away until he thought the whole matter would ity to pass. How do you punish the violations at the feet of the learned judge to whom I have have been lost to recollection by time, and at of any statute of the United States? How do adverted, and whose excellence as a man, as the end of twenty years, when Lord Ellenboryou punish a postmaster for violating his duty? | well as his profound knowledge as a jurist, in ough, who afterward was at the head of the How do you punish him who interferes with common with all who had the same opportunity court of King's Bench, was the Attorney Genyour mail? How do you punish the officers of knowing him, I acknowledge--to say that | eral, he reached England. He was tried upon of the land? How do you punish those who my opinion was certainly right, and his opinion | the indictment for murder, convicted, and, in interfere improperly, illegally, with your rec- was wrong. I do not know how the Supreme || spite of all interposition, was hung. ords in your civil tribunals, or with the records Court of the United States, if the question was Now, Mr. President, that the President of of the Executive Departments? And why do || brought before that tribunal, would decide it the United States who has ordered military you punish? Because, without punishment, now. I think they would decide that the opin- | commissions, the officers who have acted as provisions of that sort would be practically in ion which I gave was a correct one ; but they judges in those tribunals, and those who have many cases nugatory.

might not hold that opinion. They might executed the sentences which the commissions Whether it is admissible to do this, is another yield to the higher authority of the very dis- from time to time have awarded, acted honquestion. Whether the whole benefit of this tinguished man who has pronounced a different estly, I do not doubt. They thought they had act would not be accomplished by omitting the option in a case before him where the ques- the authority. The Supreme Court has dejudges from the operation of the fourth section, || tion was fairly presented. What then? Every | cided that they had not. They held at the last is another question. But as far as the authority member of your Government who has been in term of the court that the whole proceeding to punish is concerned, why is not the judge to any way instrumental, or in any way a party in was illegal, that there was no authority either be punished as well as his subordinate oflicer? a refusal to obey the writ of habcas

by a court-martial or by a military commission If a judge forges his records, you can punish who thereby defied the State power, or defied to try a civilian, unless he happened to be a him; if he interferes with the mail, you can the judicial power of the United States, where spy, and that brought him within the scope of punish him; if he is guilty of any corruption an attempt has been made to exert it, would military law. I am not willing to leave the in his office, you can punish him, notwithstand- be responsible, notwithstanding he may have question as a matter of doubt whether the ing he is a judge. He who commits a crime, acted in perfect good faith, and under the hon- officers of the Government, high or low, who or what the law constitutes a crime legally, est conviction which I felt at the time-felt have honestly discharged their duty under an cannot protect himself upon the ground that because I believed the power existed perhaps, | authority which they believed was ample, are he holds an official station under a State gov. but certainly felt that without the suspension liable to punishment. ernment, or under the Government of the Uni- of the writ, it would be exceedingly difficult to Now, how are we to prevent it? Eleven of ted States. That is very clear. A judge, || put down the rebellion as early as for the good the States have been in insurrection. I differ therefore, when a case is removed from his l of the country and for the sake of humanity it with a good many of the members of the Senjurisdiction by virtue of a constitutional act of should be put down.

ate, perhaps with most of those to whom I am Congress, who thinks proper to enforce a judg- But that is not all. The President of the immediately addressing myself; I believe that ment over which his jurisdiction has entirely | United States and persons acting under his the large majority of that people are just as ceased, is just as much liable to be punished, || authority, have established from time to time loyal now to the authority of the Government if the legislative department thinks proper to military commissions for the trial of citizens as we are; but there are a good many, perpunish him, as he is liable to be punished if not connected with the Army. There is—I || haps, who are not; and there may be included they think proper to punish him for committing || forget the particular section--in a section of in that number State judges and State officers, any other wrongful act.

the act of Congress containing the Articles of and they may assume jurisdiction-and they It is not the case, according to my view, of War, a provision which, considered by itself, have the jurisdiction unless we interfere--to try an erroneous judgment. It is a violation of a would comprehend all who may do the acts those parties for some such offenses as these, statute of the United States, which, I have a specified in the particular section. Myimpres- | and they may be disposed to proceed to a final right to assume in this branch of the argument, sion was, from the first, that that particular | and an adverse result. Now, I ask if it be in our we have the authority to pass; and, supposing article was to be construed in connection with || power to avert such an end as that, ought we we have the authority to take the case from his the entire articles, and that it meant only to not to exert the power? That is all that is jurisdiction, he has no more authority to exe- embrace those who were connected with the done by this bill; the third section securing to cute any judgment which he may have ante- Army. The Executive took a different view of the party merely the right to have the case cedently pronounced than he would have au- it, and they established military commissions. remitted to a court of the United States; and thority to do anything else which the laws of Hundreds have been confined, some are now the fourth section providing a penalty for prohis State or his country prohibited him from under confinement, several have been hung, ceeding to execute a judgment in a case over doing. I agree with my friend from Wisconsin

under the authority of those commissions. I || which the jurisdiction of the State court has that perhaps it would be advisable, because it endeavored to satisfy the military commission terminated. Whether it is advisable to leave would be probably less objectionable to the || by whom those who were charged with the in the bill the particular clause suggested by State tribunals, if this law is objectionable at assassination of the late President of the Uni- my friend from Wisconsin is another question. all-I do not think it ought to be objectionable ted States were tried that they had no authority | I think the bill would be just as satisfactory, -if the section was amended in the way pro- to pass judgment at all. I failed. The sen- just as productive of good results, practically, posed by my friend from Wisconsin. I did not tences were executed. Those against whom without that provision as with it; but whether understand him as denying that we have the the punishment of death was not awarded are with or without it, if my opinion is of any authority to make the act for which the section now in confinement. Those upon whom that | avail, I think now, as I thought when the subas it now stands punishes the judge a criminal punishment was awarded were executed. ject was before the Committee on the Judioffense.

I cited a case in the argument to which I | ciary, that the constitutional power to pass it There are many reasons, Mr. President, to advert for the purpose of showing to the com- is free of all reasonable doubt. which I beg leave very briefly to advert before mission the peril'in which they might place Mr. CLARK. I desire to say but one word, I conclude, why legislation of this kind is im- themselves if they executed anybody under and that is upon the particular amendment portant. I know that many acts of very unne- that authority, the peril that the President him- now before the Senate striking out the word cessary violence, many abuses of authority, || self and all his officers were involved in who judges'' from the section proposed to be many excesses of power have been committed participated in that execution; to show that stricken out by the Senator from Delaware, by those in whose hands the management of if it turned out thereafter that the military com- the fourth section. I beg the Senate to conthis rebellion has been placed. I believed mission was an illegal tribunal, they might be | sider who it is that has the direction of the from the first, and I believe now, that it might | indicted for murder. I cited a case, never dis- causes in the State courts, and who it is that have been suppressed, perhaps just as effectu- | puted, in England, which was substantially this: || when the petition is filed has the power to order ally, by observing all the limitations to be found in one of the islands belonging to England a stay of the action. It is the judge. Now, if in the Constitution upon the authority of the there was a Governor Wall, in whom all power the action should be stayed, and if the parties several departments of the Government. I was vested, military and civil. He had some should be visited with a penalty if they atbelieved, however-and perhaps I may have

three or four hundred soldiers under his com- tempted to proceed, why should not that judge, been induced to that opinion, though I thought || mand. He got it into his head that they were if he is one of the judges that desire to pronot at the time, and have no reason to think about to mutiny. He was about leaving the ceed against the authority of the United States, now that I was induced to form that opinion | island for home, and his paymaster was to go be visited with the penalty? Why should we by any such consideration-I believed in the with him. The men's pay was largely in ar:

any distinction; and why should we not beginning of the rebellion that it was all-im- | rear, and they were under the impression that make a final end of the suit in the State court portant that the writ of habeas corpus should they would not be paid if those officers were by enforcing the provision? I hope the amendbe suspended; and at the instance of the then || permitted to leave the island. The result was ment will not be made. President of the United States I wrote an arti. what Governor Wall supposed, a mutiny, and And now one word to my friend from Wis

make

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