legislation, may order, in the first instance, all the cases which may, under the provisions of the Constitution, go into the Circuit Court, to be removed there whenever they are commenced in a State court. It is quite obvious, from the reading of the Constitution, that if you could order one of these forms removed, you could the other. I have a precedent for this. I am not going now merely by my own speculations and conjectures. I have a full precedent for it.

"Now, what is the object of getting a case into the Circuit Court, of the United States ? Is there any great purpose in it? We cannot but know that these very provisions of the Constitution were intended to be provided for a great occasion of this kind. The Constitution contemplates that the State courts, in great emergencies, and in relation to subjects which concern the Government of the United States, are not safe for the Government of the United States always to trust. Suits may be brought against those who have arrested and imprisoned men under the order of the executive, in various States. They may be brought before a justice of the peace, before a county court, before a circuit court, according to the various provisions of the different States as to their jurisdictions. The great question arises before them, was the President authorized to make the order on which the defendant relies? Did the Constitution authorize it? That is important, not merely to the individuals sued, but to the nation; because it is most clear, as I take it, that if the President and his subordinates, and the individuals to whom his authority has been deputed, have acted in good faith in this period of trial, at least we must indemnify them. We therefore have a pecuniary interest; and thus it becomes quite important to have some sort of check as to the measure of damages that shall be awarded, if the court should find these proceedings to be irregular. According to common-law principles, in such a case, the court should tell the jury, in my humble judgment, if they rejected the man's defence, if he presented the order of the executive under which he acted, and the court should decide that it did not constitute a legal defence, yet, after all, the court should tell the jury: 'If you find that, though this was a mistaken authority, the man acted in good faith, or if there was a probable cause in law for making the arrest, the most you can do is to give the defendant actual damages. You will give no exemplary damages; you will give nothing by way of what is commonly called smart money; you will give nothing for attacks through the individual upon the vitals of the Constitution, or all that. These people have acted in good faith; and if in your verdict you go beyond simply paying the man the damage sustained by him by reason of his confinement for the time he was actually confined, the court will set aside your verdict.' But do we know that these State judges will do this? Have we any good

reason to have confidence in their holding over the jury the proper judicial influence to keep them in potent control? I am afraid of them. I do not like to leave our citizens and officers in their hands. I desire that the cases may be carried into our courts, into the United States Circuit Courts, in order to avail the defendants of all the advantages and protections under our Constitution which those courts give."

Mr. Collamer closed by introducing a substitute for the House bill, p. 241, which was referred to the Committee on the Judiciary, p. 256.

On the 27th of January, the Committee on the Judiciary reported this bill with an amendment striking out all after the enacting clause and substituting Mr. Collamer's bill.

Mr. Harris, of New York, moved to amend by inserting the words "civil or criminal," after the word "prosecution."

Mr. Trumbull, of Illinois, suggested numerous objections. He said: "The amendment of the committee which we are considering provides for the transfer of suits, commenced against the officers of the Government who have acted under the authority of the President in making arrests and doing other things during this rebellion, from the State courts in which they may be commenced, into the United States courts, I think that may be done. The amendment proposed by the senator from New York is to extend this to criminal prosecutions. Now, let us take a case. Suppose that a postmaster in the State of Illinois, acting, as he contends, under the authority of the Government, should get into a wrangle and kill a man, if you please; I put an extreme case to test the principle which it is sought to incorporate into this bill. That is an offence against the peace of the people of the State of Illinois; it is no offence against the United States. He is indicted by the grand jury of the proper county of the State of Illinois for murder. He files his petition stating that he was acting under the color of authority derived from the President of the United States through the Postmaster-General; that case is thereupon transferred into the United States court, and it is to proceed there in the same manner as in the State court. When you get it there, can the United States court administer the law of the State of Illinois? It is no offence against any law of the United States for one man to kill another in the State of Illinois, unless it be in the military service; unless it be in a place where the United States have jurisdiction, in some fort or arsenal. Could the United States court go on with the trial and convict him, in case it should turn out that he acted maliciously in the killing; and if convicted, could it sentence him to be hung? Who would have the pardoning power in such a case? Could the President pardon the offender?"

Mr. Harris, of New York, replied: "Mr. President, this power to transfer a cause from a State court to the United States courts, falls within the appellate jurisdiction of the Federal

courts, and since the senator from Illinois has been speaking on this question my eye has rested on the language of Chief-Justice Marshall, as quoted by Judge Story in his Commentaries on this question, and it presents in a very few words an answer to his difficulty. This is the language of Chief-Justice Marshall:

This power of removal is not to be found in express terms in any part of the Constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language, an exercise of original jurisdiction; it presupposes an exercise of original jurisdiction to have attached elsewhere.

"In the State courts.

The existence of this power of removal is familiar in courts, acting according to the course of the common law, in criminal as well as in civil cases; and it is exercised before as well as after judgment.

"That is precisely what is proposed here. But this is always deemed, in both cases, an exercise of appellate, and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power; and as Congress is not limited by the Constitution to any particular mode, or time of exercising it, it may authorize a removal either before or after judgment.

Mr. Powell, of Kentucky, strongly opposed the amendment, saying: "I hope the amendment of the senator from New York will not prevail. It has been decided by the Supreme Court that no jurisdiction over crimes against the United States has been delegated to the State courts, and by parity of reasoning, it would certainly be held by any enlightened court that crimes committed against the States cannot be transferred to the jurisdiction of the United States courts. The scope and object of this bill is to prevent those who have been injured in their persons and their property from having redress in the courts. It is astonishing to me that so distinguished a senator as the senator from Vermont should ever have produced such a bill. Alfred the Great has received more approval and won more distinction for having brought justice to the door of every Englishman than for fighting a hundred pitched battles. But here, sir, we find the Senate of the United States engaged, by its legislation, in preventing those who have been injured by the minions of power from having redress in the courts of justice; and it is now proposed to insert a clause that criminals who have violated the criminal laws of the country shall have their cases transferred to the courts of the United States. Sir, suppose you do it; you try a man in the Federal court-you convict him. I ask you, if he is tried for an infraction of the criminal laws of a State, has the President of the United States any power to pardon him? None. The Governors of the States alone have the right to pardon for criminal offences against the criminal codes of the States. The amendment of the senator, in my judgment, is clearly unconstitutional."

Mr. Collamer, of Vermont, in answer to Mr. Powell, said: "This bill the senator seems to think is a perfect outrage upon all men's rights. I do not want to argue it, but there is a precedent for it. The case occurred in the days of Mr. Madison. Chief-Justice Marshall says, in relation to these questions over which the United States courts have jurisdictionthat is, questions arising on the construction of the Constitution and the United States laws that by statute made for that purpose they may be removed into the courts of the United States for their decision."

Mr. Bayard, of Delaware, followed in opposition to the bill: "I believe the honorable senator from New York proposes to insert in the third line of the substitute, after the word 'prosecution,' the words 'civil_or_criminal.' The effect of that is intended to be, I presume -it certainly will be-the assumption, by the authority of Congress, of the power of removing from a State court the exercise of its criminal jurisdiction. It is perfectly clear, and has been frequently decided, that the criminal laws of the United States cannot be enforced in the State courts; nor can the criminal laws of the State courts be enforced in the courts of the United States. If a party is indicted in a criminal prosecution in a State court for an offence, it must be an offence against the laws of the State. Does this Congress mean to pass a law which shall authorize offences against the laws of the States to be tried in the Circuit Court of the United States on appeal? When I pursue the substitute farther, it seems that it would not only give the power to appeal before trial, but, after judgment in a criminal case, to carry the case into the Circuit Court of the United States to rehear it on the law and the facts.

"Sir, I cannot believe that that is within the intent of the Federal Constitution. I cannot believe it is within your powers in any way whatever. I can easily see that it must lead necessarily to the entire destruction of the power of the States as regards their own criminal jurisprudence. It tends to a system of centralization which must subvert and break down this Government, if carried out."

The substitute was subsequently accepted. Yeas, 27; nays, 15.

The point, however, came up again for discussion under other amendments.

Mr. Browning, of Illinois, said: "Mr. President, I had intended to move to strike out this portion of the bill, with a view to hear the views of senators upon it, from the word 'and,' in the thirty-fourth line, to the word 'court,' in the seventy-second line, inclusive-all that portion of the bill which relates to annulling or avoiding judgments after they shall have been rendered in the State courts. That is going very far. I do not know of any precedent for taking a case from the State courts to the Circuit Court of the United States after it has been tried and judgment pronounced. In a class of cases provided for by the statute upon

the subject, the judiciary law, appeals or writs of error may be taken from the final judgment of the State courts to the Supreme Court of the United States; but this portion of the bill contemplates an abrogation of the judgments of the State courts, or some sort of appeal from the State courts to the Circuit Court of the United States. The portion of the bill which I move to strike out has no connection whatever with, and no pertinence to, the removal of actions that have been commenced and are pending in the State courts, where the defence intended to be made in them may arise under the Constitution or laws of the General Government, or under the authority of the executive head of the General Government; but it relates totally and entirely and exclusively to cases that have been already adjudicated, and in which final judgment has been pronounced. I should like to hear the reasons for that."

Mr. Collamer, of Vermont, stated that the provisions of the bill were copied from the act of 1815. He further said: "It is no innovation at all. It is the reënactment of that act in the very words. The occasion which called for that law was the passage of the non-intercourse law, which had occasioned a great deal of difficulty, and gave rise to claims for suits; but when it was understood that the actions which had been or should be commenced might be carried into the Circuit Court of the United States, they ceased. It was a law of peace." Mr. Bayard, of Delaware, asked if it applied to "criminal" cases?

Mr. Collamer replied: "It does not use the word 'criminal,' but I have copied the mode of removing causes, word for word, from that

act.

"It is provided here, in the first place, that when a man is sued or prosecuted for an act of the kind stated in the bill, he may, at the first term, have it removed to the Circuit Court of the United States. In his application he states that such a question arises; that is, that he acted in the manner charged against him, be it what it may, under the authority of the executive, or under the authority of a law of the United States, under which he claims protection. That is his petition; that is what he states as the cause of the removal; and then he gives bail, and the case is removed. When that case comes before the Circuit Court, if it appears that in point of fact that was not the question which arises in the case, the court will turn the case out, and send him back to the State court.

"Again: suppose a judgment has been rendered before he can get this removal. In that contingency, I have followed the statute which was passed in 1815, for the removal of the case at that stage of the proceedings. That bill provided, then, for carrying it by appeal into the Circuit Court. I have followed all the machinery provided in that law, and I propose to allow the defendant to carry the case to the circuit court of the United States by way of appeal, on the ground that the question arising

is his right to be protected under the laws of the United States, or the authority of the executive of the United States. If the case does not contain any such question, the court will say it is improperly brought there, and it will be remitted, remanded to the court from which it came."

Mr. Browning, of Illinois, said: "Now, sir, if judgments have been rendered, if judgments should be rendered before the passage of this bill, there is already provision for prosecuting appeals. The parties may take an appeal from the Circuit Court of the State where the case is tried, and where the judgment is rendered, to the Supreme Court of the State; and there are already provisions existing and means provided for prosecuting an appeal from the judgment of that final tribunal of the State to the Supreme Court of the United States, in the event of any question arising, as I have said, under the Constitution, laws, treaties, or authority of the United States. I think the case is already provided for so as to give the right of appeal. They have the unquestionable right of appeal to their own State tribunal, the court of ultimate resort there; and already the provisions are such, I think, as to warrant the prosecution of an appeal or writ of error from the decision of the ultimate tribunal in the State to the Supreme Court of the United States. I do not feel as if I can go any farther."

Mr. Harris, of New York, replied: "The provision which is now objected to provides that after a trial shall have been had in a State court, either party, not simply the party that is charged with the violation of the law, but either party who shall prove unsuccessful, the plaintiff as well as the defendant, if he shall appeal, may remove the cause to the Federal courts, and have a second trial. I see nothing alarming in that provision; on the contrary, it secures to the unsuccessful party what the legislatures of the different States have thought a beneficial thing, a second trial; and in that. certainly, there can be no harm. Whether the proceeding may be a civil or criminal proceeding, what harm or danger can there be in allowing the unsuccessful party to try the cause over again?"

Mr. Browning said: "I desire only to suggest to the senator from New York that he is mistaken in one of the provisions of the bill, I think. This is not a mutual right; it is a right restricted to one of the parties and denied to the other; for the bill reads:

And provided also, That no such appeal or writ of error shall be allowed in any action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the State court.

Mr. Collamer: "That is precisely the same limitation which applies to a writ of error under the twenty-fifth section of the Judiciary Act."

The amendment proposed by Mr. Browning was rejected. Other amendments were proposed and rejected, and the bill was ordered to

a third reading. Mr. Bayard, of Delaware, alone, took the floor to express opposition to its passage. He said: "With the solitary exception of an amendment proposed by the honorable senator from Ohio, which was originally rejected and afterward adopted, there is nothing in the bill which does aught than advance us toward a despotic exercise of power. It refers not only to the past but to the future action of the executive of the United States, and it throws a shield over every act of aggression that he can commit against the rights of an American citizen, and interposes a bar, in point of fact, to the right of recovery against even the individual who is the agent for the purpose of infracting those rights. The Senate, I have no doubt, from the votes already given, will pass this bill. I do not intend to enter into any argument against it further; but I will make this prediction: you may pass this bill, but the public sentiment of the country will not ratify your action. The spirit of civil liberty has been dormant, but it is awakened. Rely upon it. Gentlemen may think me mistaken now, but they will find hereafter that they have committed a blunder, a political blunder, and that is said to be worse than a crime. They will have by the passage of this bill brought the legislative power into accord with the executive, so as to prevent for past action and for future action of the executive any redress on the part of an American citizen, however great the outrage may have been. In my judgment it would have been better to pass the House bill. That is a plain, open, manly defiance of the Federal Constitution. This is more indirect. It is, in some respects, sustainable; but I trust that in others, when it comes to the criterion of the courts, it will be adjudged to be void and of no effect. It is useless to particularize now; but whether it be done under cover of law, and whether it be sustained or not, it is, in my belief, equally true that the passage of the bill is but an advance toward a centralized despotism in this country."

The question being taken by yeas and nays, resulted as follows:

YEAS-Messrs. Anthony, Arnold, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Henderson, Hicks, Howard, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, Wilmot,

and Wilson of Massachusetts-33.

NAYS-Messrs. Bayard, Carlile, McDougall, Powell, Turpie, Wall, and Wilson of Missouri-7.

The bill passed the Senate and went to the House.

In the House, on the 18th of February, the original bill, as amended by the Senate, came up for consideration. Mr. Voorhees, of Indiana, spoke at much length in opposition to it. His views, however, were embraced in these words: "Sir, the bill now before the House has no parallel in the history of this or any other free people. It is entitled 'An act to indemnify the President and other persons for

suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof.' But it embraces even more than its startling title would indicate. It gives to the executive and all his subordinates not merely security for crimes committed against the citizen in times past, but confers a license to continue in the future the same unlimited exercise of arbitrary power which has brought disgrace and danger to the country. I propose, to the best of my ability this day, to show that neither indemnity for the past nor impunity for the future can be bestowed on those who have violated, and who propose further to violate, the great and fundamental principles of constitutional liberty."

Mr. May, of Maryland, strongly opposed the bill, saying: "The House bill is a pure, unmitigated product of ideas of republican liberty as manifested by the dominant party of this House. The Senate's amendments claim to draw a sanction from a Democratic precedent. The provisions of the amendment adopted by the Senate, and which is, indeed, a substitute for the original bill, look to the example of the celebrated Force Bill of 1833 to justify it. But, sir, the provisions of the Senate amendment go infinitely beyond the principle asserted by that law.

"The Force Bill adopted in General Jackson's day proposed simply a transfer of jurisdiction from the State to the Federal courts in revenue cases only; in actions brought for some alleged wrong committed in the execution of the revenue laws. The law of 1833 limited the exercise of the right of transferring the case to the period before trial, and there it ceased.

"But here, sir, is a proceeding which gives the right to remove a suit in all that comprehensive class of cases brought to redress wrongs committed under color of any authority derived from or exercised by or under the President of the United States,' both before trial and also after judgment. It also gives the strange right of an appeal at once from the State to Federal courts, or, if the party shall prefer it, within six months after judgment, by writ of error or other process,' to remove the case from a State to the Federal Circuit Court, there 'to try and determine the facts and the law as if the said case had been there originally commenced;' and provided further, that no such appeal or writ of error shall be allowed where the judgment is in favor of the defendant in the State court,' and if 'the plaintiff is nonsuited or judgment passed against him, the defendant shall recover double costs.' These amendments further provide that if the Federal judge shall certify that the defendant had probable cause to act, or acted in good faith, then, notwithstanding the jury have found otherwise and a judgment been recov ered by the plaintiff, yet no execution shall issue until after the next ensuing session of Congress; thus striking down in effect the trial by jury in such cases. It is further provided that an appeal shall be allowed to the defendant to

the Supreme Court of the United States, 'what ever may be the amount of the judgment.'

"Am I not authorized, Mr. Speaker, in view of these before unheard-of and most monstrous provisions of a judicial bill, to say that, while proposing to promote justice, it is simply a mean and cunning scheme, designed purposely to frustrate it?

"The measure before us, so far from following the principle of the Force Bill, flagrantly violates it. That Force Bill simply provided for the impartial administration of law by allowing, upon certain prescribed conditions, the transfer of jurisdiction. The principle it asserted was supremacy of law. It transferred only such suits as were brought to question the execution of a law. Its language is for acts done under the revenue laws of the United States or under color thereof.'

"But here the monstrous power is asserted of justifying the acts of the executive power committed against law. The mere arbitrary will of the President, or his agents 'acting under color of his authority,' and despoiling the citizen of his constitutional rights, is now for the first time to be vindicated and approved by Congress, that ought to feel insulted and outraged by such a proposition.

"I need hardly add, sir, that I shall vote against these measures."

An extended debate followed on the policy of the Government, at the close of which, the amendment of the Senate was not concurred in, and a committee of conference was appointed by the House.

On the 27th of February, the Committee of Conference, in the House, reported an agreement that the Senate recede from their amendment, and approve of the House bill, with some amendments. The consideration of the report was postponed to March 2d.

In the Senate a similar report was made by the Committee of Conference on the 2d of March, and the bill was debated through a portion of the ensuing night.

Mr. Powell, of Kentucky, having the floor, yielded it to Mr. Cowan, who wished to ask of him a question.

Mr. Cowan, of Pennsylvania, said: "I ask whether it is possible that the legislature can deny the privilege of the writ of habeas corpus to any one; whether from the very nature of the thing, ex necessitate rei, it does not follow that the legislature must delegate to somebody the right to deny the privilege, whether it be the party arresting, whether it be the judge who issues the writ, or whether it be the custodian in whose keeping the prisoner is? It is not possible that the legislature, in my humble judgment, could say that the privilege shall be denied in this case, or in that case, or in any other case, because that would require them to legislate in particular cases; but are they not obliged when they suspend the writ to declare that somebody, either executive or judicial in his functions, shall have the power in his hands

to deny the privilege? It may be, I see nothing improbable in it, that they should delegate to the judges the power to determine who should be denied the privilege and who should not, or they may delegate it to the President. But even admitting that it is their function to declare when the contingency shall happen that the writ shall be suspended, still I ask if it does not follow, and follow inevitably, that either the judicial officer or the ministerial officer shall apply the law to the exigency declared by the legislature?"

Mr. Powell replied: "I will answer the senator's question with great pleasure. If Congress, in obedience to the power vested in it by the Constitution, should suspend the writ of habeas corpus, there can be no doubt that the judiciary would obey the law. If you were to pass such a law, it would be the duty of the executive to see that the law, like every other, was faithfully executed. That would be all the President would have to do with the matter."

Mr. Cowan again asked: "Mr. President, allow me to request the attention of my learned friend to the phrase in the Constitution. I admit that if the writ of habeas corpus were to be suspended, the power would be delegated to the judge to say when he should refuse the writ; but upon referring to the Constitution, it will be found that the writ is not to be suspended, but it is the privilege of the writ which is to be suspended. Now, what is the privilege? The privilege is that great right which inheres as a prerogative to every citizen to be discharged upon bail, or to be delivered over to the civil magistrate to be tried, and that privilege is in the hands of his custodian, not in the hands of the judge. As I understand it, in this republic, the writ can never be suspended. That is not the language of the Constitution. The writ must always issue; but the privilege may be suspended, that is, the right to be delivered over under the writ, or to be delivered upon bail, or to be discharged. Now, then, the privilege only being suspended, in whose hands is that privilege? Not in the judge's, certainly. The judge has the writ; he grants the writ; but it is upon the return of the writ that the privilege comes in question, and it is a question upon that return whether the petitioner, the complainant, is entitled to the privilege. If the privilege is suspended pro hac vice, for that turn, as to him, then I think it could properly be delegated to the executive to suspend it, or in other words, to his custodian."

Mr. Powell replied: "I do not concede that the language of the Constitution justifies the senator in his construction. That language is this: "The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public service may require it.' Who has the privilege of the writ? Every person who is deprived of his liberty. To whom does he apply for the writ? To the judges, the judiciary; not to the executive. If