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first section, not to provide for the removal of causes of action for trespasses or wrongs, but to provide by a mere enactment a defense ex post facto. Now, I should be sorry indeedit is something more than a mere question of taste-I should be sorry indeed to set the first example, I think, in the history of legistation, of commencing an enactment by admitting that I had committed or my officer had committed a trespass which in the end I undertook to justify by an arbitrary law. I hope, therefore, that the Senate will consent to the erasure of those words, which certainly in my opinion will not weaken the just force of the section.
and I am not certain that the amendment of the Senator would not be an improvement in the expression. I certainly have no objection to the adoption of the amendment, for I think the Senator from Michigan will agree that the words following "or any acts done or omitted to be done" will include everything that could be done by anybody; so that if the Senator from Vermont has any choice about it, I am entirely willing that the amendment should be agreed to.
Mr. TRUMBULL. The same reasoning would strike out all the other words, and you might just as well leave out the words "search, seizure, arrest, or imprisonment made," and let the section read:
Mr. TRUMBULL. Yes, sir
"at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President," &c.
Mr. CLARK. I do not think the amendment is material.
Mr. TRUMBULL. I do not think myself that it is very material whether the words are out or in. I suppose you might leave all the words I have suggested out, and I do not know but it would receive the same construction; but there might be a difference of opinion about that. Some courts might hold that the general language any act done or omitted to be done" would have one construction, and some another. The object of the law certainly should be to protect our officers who, acting in obedience to military authority, committed any trespasses or wrongs of any kind or made any seizures or imprisoned anybody when in the discharge of their duties in obedience to orders for the suppression of the late rebellion. I should myself be quite as well satisfied to let the section remain just as it is.
Mr. WILLIAMS. I respectfully suggest to the chairman of the committee the substitution of the words "or any injury to property or perWill not that answer every purpose and avoid the objection made by the gentleman from Vermont?
Mr. CLARK. That would be about as bad, would it not?
Mr. EDMUNDS. The previous act, in which this same language has been used, uses it in an entirely different connection. The words are there used in respect to the removal of causes from the State courts to the Federal courts, and in such an act it may be perfectly proper to characterize the subject of any action as a trespass or a wrong, because if the Federal officer has committed a trespass or a wrong for which he may be civilly responsible, it is perfectly appropriate that the national tribunals should adjust the differences between him self and the person whom he has injured; and hence the old act appropriately enough uses this term. Here we are called upon, in this
Mr. HENDRICKS. I should like to hear the amendment proposed by the Senator from Vermont read. I believe that is the amendment before us.
The Secretary read the amendment, which was in section one, line three, after the word "made," to strike out the words "or other trespasses or wrongs, done or committed;" so that the section will read :
That any search, seizure, arrest, or imprisonment made, or any acts done or omitted to be done during the said rebellion by any officer or person, &c.
The amendment was agreed to.
Mr. CLARK. There is a little amendment that should be made in the eleventh line of the first section. The words "done or" should be inserted after the word "so;" so that it will read, "or any acts were so done or omitted to be done."" It is an omission in the printing of the bill.
The amendment was agreed to.
Mr. HOWARD. I venture to suggest another amendment in the thirteenth line of the first section. The language as it now reads is this:
Or any acts were so done or omitted to be done, either by the person or officer to whom the order is addressed, or by any other person aiding or assisting him therein, shall be held, and are hereby declared, to come within the purview of the act to which this is amendatory.
I move to insert after the word "addressed" the words "or for whom it was intended." It may turn out in some cases that the order was misdirected by a mere clerical error, or the person for whom it was intended was misnamed in the orders innocently, and that he acted under the order nevertheless; but as the section is drawn, no person can avail himself of the protection of an order unless it should happen to be directed to him, although wrongly addressed by a clerical error. It seems to me this amendment will make it more exact and will enlarge the scope somewhat of the clause, and of the protection intended to be afforded. I propose to insert the words, "or for whom it was intended," leaving the matter of intention as a question of proof to be introduced upon the trial.
Mr. CLARK. It does not occur to me that there is any great objection to that. I do not now see any objection to the amendment. The amendment was agreed to.
Mr. CLARK. The word "is," the first word in the thirteenth line, should be changed to "was," so as to read was addressed." The amendment was agreed to.
Mr. HOWARD. The act to which this is an amendment is only referred to in the title of this bill. I suggest to the honorable Senator from New Hampshire that there should be a direct reference to it in the body of the bill. Mr. TRUMBULL. There is a reference to it in the first section.
Mr. HOWARD. The act to which this is an amendment is really referred to, if I mistake not, only in the title of the bill. I sug gest that the title of that act should be inserted after the word "act" in the seventeenth line; so that it will read:
And within the purview of the fourth, fifth, and sixth sections of the act entitled "An act relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3, 1863.
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.
It is a mere matter of form, to give the bill more symmetry.
Mr. CLARK. It seems to me it is hardly
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 martial 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
suits is brought shall, upon proper affidavit and
Sir, there is small merit in playing loyal in New Hampshire. There is very little merit in being loyal in Pennsylvania. Any man can be loyal when the popular sentiment is so loyal that it would threaten him with a lamppost if he were disloyal. But the stern virtue and the stubborn fidelity to the laws and to the Constitution, which marks the loyal man in a rebellious community, is above all others that which should be protected. It is for those men that I would now speak. It is for those men that I would now vindicate the justice of the Government. It is for those men that I would now vindicate the justice of the American people. I say that where a loyal man in a rebellious district has been maltreated by an officer of the United States Army, or by any person in the service of the United States, such a man is above all others entitled to the protection of the United States Government.
Who can gainsay this? I know that the tendency in the minds of men is to generalize. It is much more easy to generalize than it is to particularize. It is much more easy to throw your drag-net around a community or a State than it is to pick out the individual criminals and punish them. It is much more easy for an officer in the execution of his duty, and especially one so delicate as that of putting down a rebellion has always been, to treat all the people, irrespective of the circumstances which surround them, as guilty, than it is properly to separate the one from the other and let his hand be felt as the circumstances require.
How are we to do this, Mr. President? Does this bill do this? Will this bill enable an officer of the United States, or one in its service who has wantonly, maliciously, and without any probable cause, invaded the rights of the citizen, the loyal citizen, to escape from the punishment which the laws ought to inflict in such cases? Does this bill do that thing? If it does, this Senate of the United States of America, the
Mr. COWAN. I have been very forcibly impressed with the remarks of the honorable Senator from Vermont; and I would hope that some heed be given to this subject. I am very well aware of the difficulty that we now have in dealing with this subject as it should be dealt with. I am very well aware of the difficulty there is in protecting an officer who acted in the conscientious discharge of his duties, while at the same time we protect the rights and liberties of the citizens who were the victims of those who abused their official position, often for the purpose of inflicting wrong, and for the purpose of gratifying private malice against their victims. It is therefore that I would fain hope that this bill will have the best consideration that the Senate can give it. That the loyal citizen should have no remedy and no redress against the tyranny and oppression of those who for the time were clothed with a little brief authority, is too monstrous to contemplate in a Government which professes, like ours, to be a Government of law. That the officer who, honestly, in the performance of his duty, executed the orders of his superior, should be subjected to actions and liable to damages in the civil courts, is equally to be deprecated by every good man. But the difficulty is to know where to draw the line. How to pass an act of oblivion by which those things which were proper to be done, and which were right-greatest Republic upon the earth, ought to be fully done, should pass away and be forgotten, the last place where it should find favor. In is one question. It is another to take care that the United States of America, where, above all the citizen be shielded, even though he may other places upon the earth, an insult offered have been unfortunate enough to live in a dis- to the meanest citizen of the Republic is to be trict pervaded by these troubles, and where his taken as an insult to the Republic itself, wrong life and his property, perhaps, were in jeopardy and outrage are not to be sanctioned by the from those who were either ignorant of their laws. At the same time I wish it to be disproper duties, or who, in disregard of them, tinctly understood that I am as much in favor were disposed to violate them maliciously. of a law to protect the officer in the discharge of his duty, in the fair, honest, conscientious discharge of the obligations imposed upon him in putting down this rebellion; I would protect him as far as any man. Does this bill do so; and if it does so, does it protect him alone? I have not been concerned in the fabrication of this bill; but I have thought that it would be far better-and I throw this out for the suggestion of the committee who have brought the bill here-instead of a sweeping enactment of this kind to provide that no action should be maintained against any person for wrongs or injuries done under pretense of an authority from the United States in putting down the rebellion, unless the plaintiff should show certain things, which, as the usual rule, are not cast upon him as a burden. Where is the difficulty in requir ing the plaintiff to prove that the person who committed the wrong and the outrage upon him did so without authority, that he did so wantonly and maliciously? If you do that, you do not alter the frame and the texture of your laws, you preserve their harmony, and you preserve what is more, the administration of justice pure; you throw the onus or burden of proof
Mr. President, the boast of the American citizen, and his pride heretofore, has been that this was a Government of law, rather than that of any individual or aggregate number of rulers: and it was supposed that we had so perfected the system that nothing could be done lawfully without law; or, in other words, that nothing could be done in this country, either in peace or war, which was not warranted by the laws of the land. I am very free to confess that I was one of those who so believed. I supposed that war had its laws as well as peace. I supposed that the officer of the Army was as much bound by the law as the civil officer, the captain as much as the magistrate, the colonel as much as the judge, and the general as much as the Governor. I had supposed that in time of war that part of the law of nations which treats of war and which provides for war would be the guide of the soldier, as the municipal law in time of peace is the guide of the civil magistrate. But, sir, I am very well aware that in a proud and fierce democracy such as ours, it is perhaps impossible, in times of great commotion, of great excitement, and of civil dissen
were such as to drive him nearly crazy, a subservient Parliament passed an act somewhat similar to this, which declared that all arrests of people suspected of treason which had been made, or which might be made within a certain limited time, should be regarded as lawful, independent of the question of whether there was any ground of suspicion, and independent of the question what subject of his Britannic Majesty it was who should make the arrest. But, sir, I have yet to learn that any court in Great Britain ever upheld an act of that description. I believe that no decision can be found anywhere in any civilized community holding that an ex post facto enactment, declaring, by mere force of the law, that a past transaction should be guilty or guiltless, had any force at all except as it fortified martial law or operated upon districts where civil law was not in force. Therefore it has appeared to me, not, as I have said before, as one of those persons who are delighted to find constitutional objections to everything which is proposed in the disturbed state of the country, but rather as one of those who desire to use that noble instrument to its fullest extent, and not to abuse its powers, that it is unwise as well as illegal to pass a law of this description, which operates upon districts of the country where there has been perfect repose, and where the mantle of the civil law has been unfolded day by day in the courts of justice.
Now, if I correctly understand public law, (and I do not claim any great familiarity with it,) where martial law does prevail, the order of the commanding officer, the order of his subordinate traced down through to the smallest corporal that carries a musket, so that it emanates from headquarters, as all proper discipline makes orders emanate, is a defense, independent of enactments and independent of any special statute on the subject. There is no meaning which can be attached, in my judgment, to the term "martial law," except that it has the force of law; and therefore, if there were any sections of this country where martial law has prevailed and where these arrests and imprisonments and seizures have been made, whether right or wrong, so that they were made by authority of the superior commander, that very law itself furnishes the justification, and it needs no act of Congress to confirm it. At the same time I am willing, if it be thought that an act of Congress will make it stronger, to acquiesce in that opinion. But when you ask me to go a step further, and into regions where peace and repose have prevailed continually, and martial law has not existed, and where no foe has raised his banner anywhere, and to say that the order of the President of the United States, or the order of any other person professing to act under his authority, however remote, is to be held as a defense in a court of law, then I am compelled to disagree, because it invades what have always been considered the fundamental private rights of every member of organized society.
Where is the necessity of it? If any of these arrests and seizures and imprisonments were made in regions where civil law prevailed, and were rightfully made, can they not be defended? If they have been wrongly made, ought they to be defended by an enactment of this kind, after the fact, which, without inquiry into the circumstances of the wrong, blindly declares that the wrong shall not be redressed? I am sure not. Therefore it has appeared to me that every good end which this bill has in view-and I agree it has good ends in view is reached by adopting the amendment which I have proposed.
The usual course, and in my judgment the right one, and the course which ought to be pursued even in those regions where rebellion and martial law have prevailed, and the one which will be most effectual for the protection of those persons who are sued, is a bill of indemnity rather than an edict of defense. Let us declare that the United States district attorney for every district where any of these
sions, that this line should be exactly observed or that these rules should be well known to those to whom we intrust the protection of the public interests. Still, at the same time, with all due regard to the responsibilities which attach to these men, and with all proper consideration for the situations in which they find themselves, it must be confessed that after all the highest duty is the protection of the citi zen, and especially the loyal citizen, and I would say especially the loyal citizen in the rebellious district.
please unnecessary manner as it regards him; put the plaintiff to show that with or without orders the act of the defendant was not justified either by the municipal law or by the laws of
on the plaintiff. What is to prevent you from enacting that the plaintiff shall not maintain his action unless he shows that the person did the outrage, committed the wrong without having the public good in his eye rather than the gratification of his own personal malice against the individual wronged or the individual complaining? I suggest whether this would not be better; would it not be safer for everybody? Then you put the burden upon the plaintiff to show the gravamen of his charge, because if the person was really clothed with authority from the United States, then the old maxim with regard to officers that everything they do is presumed to be rightly done would be still preserved, and the plaintiff would have his remedy over and above that.
If a man clothed with authority commit an act of this kind, I think it is perfectly clear that it would be required on the part of anybody charging him with either misfeasance or malfeasance in office that it be shown. If on the other hand a person not clothed with this authority should commit these wrongs, let him be put upon the footing of other citizens; let him have no advantage, even though he pretended that he had authority.
Then, Mr. President, there is another sug gestion that I have to make. Is this bill to extend everywhere, or is it to extend only to those portions of the Union where rebellion has prevailed? Or are we to establish the principle that when rebellion prevails in any portion of the United States, that of itself operates to create a dictatorship in the Executive? Is the suspension of the privilege of the writ of habeas corpus to be taken to mean that the Executive or his officers may arrest everybody, right or wrong? If that is to be the construction put upon it, it is a new construction, and one which has never prevailed. If when the writ of habeas corpus is suspended I am arrested and denied the privilege, I am not thereby debarred of my action for redress. The officer is still responsible, responsible not only for his malice, but for his blunders; and it behooves him, before he exercises this extraordinary power put in the hands of the magistrate under these circumstances, to know well upon whom he exercises it.
I know that an impression prevails in some places that when you suspend the privilege of the habeas corpus, all people, innocent and guilty, without any difference or distinction, may be arrested and may be held until the supposed danger is over, without any remedy on the part of those innocently arrested. Mr. President, I take it, that is not the law, and if it were the law, no republic could long exist, because it is well known that the Chief Magistrate, the Executive of the nation, is the proper judge of the time and of the circumstances when it becomes necessary for him to exercise this extraordinary power, and I have only to refer to the cases of some South American republics where this very principle was made fatal and destructive to republican institutions altogether. If you give the Chief Magistrate of the Union the right to decide when the contingency happens, and upon whom he shall exercise this extraordinary power, then free institutions are at an end, then a rebellion, which of itself is not dangerous, will be a pretext of a very great danger to you, sir.
Mr. President, I would be glad to see this bill so well considered as that no innocent man should be deprived of his remedy, and I would be glad to have it so well considered, too, that no officer or other person in the service of the United States, honestly in the discharge of his duty, should be liable to be harassed in the State courts and mulcted in damages for an honest and fair performance of his duty, and in my judgment that can be only attained by the rule which I have laid down. Put the plaintiff to make out his case; put the plaintiff to show that the defendant acted without orders, if you please; put the plaintiff to show that the defendant, if he had orders, executed them in a wanton, malicious, and injurious, and if you
Mr. TRUMBULL. Is that not all there is here? Would not any officer be liable still, notwithstanding this bill, for an excess of authority just as a sheriff or anybody else would? This is only a protection for a man who does an act under and by virtue of an order. That is the extent of this bill; it goes so far and no further. For acts wantonly and maliciously done this bill would not protect him.
Mr. COWAN. Then, Mr. President, the bill is much more limited in its terms and the construction which the honorable chairman of the Judiciary Committee would put upon it than I have supposed.
Mr. TRUMBULL. I submit to the Senator to read it himself, and I ask him as a lawyer whether he would put any other construction upon it. It professes to protect persons for acts done under and by virtue of any order, written or verbal, general or special," issued by proper officers. Now, I ask him as a lawyer and as a Senator if he would hold that that protected a man for doing anything he might do, whether the order covered it or not. I apprehend no court would give it such a construction, and I submit to the candor of the Senator himself if in arguing it it is fair to assume that it is obnoxious to the objection that he makes.
Mr. COWAN. I perhaps might agree that if the order was specific and to be strictly construed, then there would be no mischief here, but if so there would be no remedy here. If you propose only to protect the officer or the soldier where he can cover himself with a literal order to do the act that he has done, then I am free to say that your act of oblivion will go for nothing. Large allowance must be made in the construction of these orders. The order is to do a particular thing. Well, as to that particular thing, nobody will be complained of. The order is to take the Senate Chamber; but the order will not warrant the slaughter of the honorable Senator from New Hampshire after he has surrendered. But is not the intention of this bill to cover that by the "order?" Is it not intended to say that when the Senate is taken and when the soldiery are excited and when blood is hot, this is under the order? If it is not, what is it? My objection to it is that it reverses the usual order. For an outrage done to the Senator from New Hampshire under circumstances of that kind, I would require him to show that the outrage committed upon him was wanton and malicious and unnecessary in the execution of the order. Is not that the usual course of courts? The plaintiff must make out his case; the burden of it rests on him, and he is required to make it out, and to make out a complete case, even if the defendant himself be not present and defending. Clearly that is the case where men sue for torts. The prisoner in criminal prosecutions was not allowed to make any defense in ancient times, and why? Because the King was bound to make out a case of guilt to the exclusion of every other hypothesis, or in other words to render unnecessary or impossible any defense.
I think that is a clear, distinct, and plain principle of the law, and I think it would afford a far better protection to United States officers than simply to declare that they shall not be liable for certain acts done.
And, Mr. President, apart from this bill is not the law so at any rate? Is it not the law of the country to-day that whoever complains of the act of an officer of the United States must show either that he had no authority, or that he transcended his authority, or that the act that he did was not warranted by any law, municipal or international? Is not that the law to-day? What is this bill for? Is not the very object of this bill to relieve against the law? Is it not to cover, shield, and protect men who have violated the law? Is it not for the pur
pose of enabling a man to go into court who has no lawful defense, and to make one? Then the question arises, how is that best to be done? Is the defendant to make the defense, or is the plaintiff to make the case? If the plaintiff sues the officer in a particular character, if he alleges that the wrong was done under color of some special authority, is he not either to show that that authority itself is unlawful or that the defendant transcended it while he pretended to be acting under it? I say it is a matter of grave consideration for us, and that we ought not in this especial juncture to be hasty about this; that we conceive of some plan by which the officer or the soldier as well as the citizen may be protected.
Mr. President, I am very certain that outside of the defined limits of the rebellion, as we defined them, that which I have stated is the law of the land. Within the limits of the rebellion and where martial law might be lawfully declared, I am not so certain. Martial law, as I understand it, is the will of the commander, in the absence of any other law. Martial law exists in the paramount necessity of the case; or in other words, it is that case where the commander is obliged to administer what in one sense may be said to be martial law, but in another is simply his own will, because there is no law and no other means of administering any other law in the premises. It arises where leges silent inter arma. Where the courts are open, where the laws may be administered, the will of the commander cannot be substituted in the room and stead of that law, and his machinery for the execution of his arbitrary will can in no case supersede the proper tribunals of the country. To allow that for an instant is to allow that we are the victims of a tyranny against which the world has struggled during the historic era. There is not a page of our history-I mean the history of Englishmen and the history of Americansthat is not pregnant with lessons for our instruction upon this very point.
The law, as I said before, is supreme; the will of the whole people embodied in the Constitution or the statutes is what we obey. Who obeys any other sovereign? Do you, sir? Do I? Is any Senator here willing to take the will of one man, or a dozen men, and put it in the place of the American people, and dig nify it with the name of law of any kind? If so, such man or such a Senator is unworthy of a place upon this floor and is unworthy of the name of American citizen. This is a Government of law, and not of men, and therein is its great characteristic; and it is prescribed law, published law, law that men may read and know, law the penalties of which cannot be incurred while it is locked up in the brain of a tyrant, or when it is posted upon the top of high posts where the people cannot read it, as Caligula prescribed his laws.
Then, I say, where the law is in force, where the will of the American people is the rule of men's action, where the American people by their Congress have not displaced that law and subjected themselves to the will of a military commander, there this bill can have no place. At the same time, sir, as I said before, where they have declared the inhabitants of a certain definite, limited, bounded district in rebellion, and where that district is under the arbitrary will of the commander, which is martial law, there, and there only, is an act of oblivion or indemnity such as this is at all to be entertained for one moment. That changes the presump: tions; that is all. When a district was declared by Congress to be in a state of rebellion, and our officers were sent there to suppress that rebellion, the presumption is in their favor that they did that which was right and proper to suppress the rebellion; if they did not, it is for the plaintiff who undertakes to arraign them at the bar of the civil tribunal after the suppression of the rebellion to show it.
But it is not for this Congress, nor for any other Congress, to declare by one sweeping act that nothing done in the suppression of the
put the rebellion down, and, strange to say, in that State some of the courts have declared that an order given by a Union officer to his subordinate was no defense, but if given by a rebel it was a defense, and the man set free. That is so.
Mr. JOHNSON. How is it proved? I should like to know.
rebellion under authority and by virtue of orders shall give to any person injured an action for damages on account of it. That is a very dif ferent thing. Require your plaintiff to make his case; but do not undertake by one great act of I hardly know what to call it; I will say dispensation, because it is to say that the laws which are the sovereign, and which we all admit we are willing to obey, shall for this turn, pro hac vice, have no place, that for a given time the people of this country, owing to the rebellion, shall be taken to have had no law. That, I think, Mr. President, we are not prepared now to do. I hope we are not prepared to do it. I would the rather suppose that in the restoration which we contemplate, and in bringing back the country to its old harmony and fraternal relations, it would be well to preserve as near as possible all of our laws and all of the spirit of those laws under which we have succeeded for about three quarters of a century as well as it was possible, and that we should not introduce into our code and make part of our system anything which was not consistent with it and which was not based upon the fundamental principles which have heretofore characterized that law and given it its high character among us.
The PRESIDING OFFICER. The question is on the amendment moved by the Senator from Vermont.
Mr. CLARK. I hope this amendment will not be agreed to by the Senate. The scope of it, I understand, is to limit the effect of the bill to those States in which martial law has been declared, or rather where the habeas corpus has been suspended and to leave these men who were commanded to do certain things in States where the habeas corpus has not been suspended, by their military superiors, to take their chances with a suit at law. The bill is in amendment of an act passed March 3, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," and the fourth section of that act provided:
"That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed. or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress; and such defense may be made by special plea, or under the general issue."
You will bear in mind, Mr. President, that this section provides that any order of the President or under his authority shall be a defense. In the course of this rebellion a great many things have been done by other officers than the President of the United States, and where you cannot trace the act directly back to the authority of the President; as, for instance, a general in command would order a certain thing to be done, and the officer under him, the inferior officer or the soldier, would go and do it; and so the act of March 3, 1863, was no protection either to the officer or the man under him who did the act, because he could not trace his authority back to the President. This bill goes on to provide further, that if these acts were done by any officer or person under and by virtue of any order written or verbal"it happens sometimes that the order was verbal, there was no written order, and it was difficult to be proved in this respect-"general or special, issued by the President or Secretary of War, or by any military officer of the United States holding the command of the department, district, or place within which such seizure, search, arrest, or imprisonment was made, done, or committed;" that order shall be a defense.
Now, it so happens, as the rebellion is passing away, as the rebel soldiers and officers are returning to their homes, that I may say thousands of suits are springing up all through the land, especially where the rebellion prevailed, against the loyal men of the country who endeavored to put the rebellion down. In one single State, and that a State which neger seceded, I am told there are three thousand of these suits against the loyal men who attempted to
Mr. CLARK. I have it from the member of Congress who was in the court when it was done.
Mr. JOHNSON. One of the superior courts? Mr. CLARK. One of the courts of one of the States. I do not know whether it was the superior court, but it was one of the courts which had cognizance of the thing.
Mr. JOHNSON. A justice of the peace, perhaps.
Mr. CLARK. Not a justice of the peace, but somebody who had jurisdiction of the cause; and it becomes absolutely necessary that there should be some act to protect the men who have been fighting our battles for us and putting this rebellion down. How long ago was it that General Terry came here from Richmond in the pursuit of his ordinary business, and was prosecuted here in this District for something he had done somewhere in the department of Virginia? And so on through the land. No longer ago than last evening I read an account from a North Carolina paper that all through that State, since the rebellion has been subdued, and the rebels are returning, suits are springing up from one end to the other; and these rebel courts are ready to decide against your Union men and acquit the rebel soldier. If the Governor of one of those States had not interfered with his pardon, men would have gone to the State prison in that State for doing acts in pursuance of putting down the rebellion. And now the Senator from Vermont moves that this bill shall not apply to a loyal State, but shall be confined to States where the habeas corpus has been suspended. I must say I was surprised that the amendment should come from the Senator from Vermont; but I was not at all surprised that it should be indorsed by the Senator from Pennsylvania.
Mr. CONNESS. That was as natural as could be.
Mr. CLARK. Perfectly natural.
Mr. EDMUNDS. I hope the Senator from New Hampshire will not dishonor the paper, if it is good, on account of the poorness of the indorsement. [Laughter.]
Mr. CLARK. Certainly I would not, but I will say that if the Senator had been with us here during the rebellion, he would not have signed that paper.
Mr. COWAN. I hope that the honorable Senator may allow me to indorse that paper. Mr. NYE. Will it improve it any? [Laughter.]
Mr. COWAN. I think it would. I am pretty well satisfied that if the Senator from Nevada had a good deal of his indorsed in the same way it would improve it. [Laughter.] But 1 have been in the habit of indorsing paper from the same State from which the honorable Senator [Mr. EDMUNDS] hails, and I am proud to see that the place of a Senator and a lawyer who formerly distinguished these Halls by his presence, (Mr. Collamer,) and with whom I had the honor to agree, I think, much oftener than the honorable Senator from New Hampshire, is filled by one who offers paper that can again be indorsed by me.
Mr. CLARK. I have no doubt in the world that the honorable Senator from Pennsylvania is glad to see a bit of paper of this kind from Vermont, it is so unusual; and I knew as well when it was offered that he would indorse it as I did after he put his name without recourse on the back of it.
Now, Mr. President, what is the reason why we undertake to shield these men in a case of this kind? First, because they are in pursuit of a worthy cause in putting down the rebellion; and secondly, because when a soldier is commanded to do a thing he cannot resist it. The soldier has the order of his superior to go
and do so and so. What shall he say? "I will not do it, sir.' Then he is court-martialed or put in the guard-house at once. He obeys; he cannot well do otherwise; and then because he is in a loyal State he is not to have the protection of the Government, forsooth!
Mr. TRUMBULL. The Senator from Vermont was the author of the law of 1863.
Mr. CLARK. I understand that the old Senator from Vermont was the author of that law, and I did not know that the Senator from Pennsylvania indorsed it.
Mr. COWAN. I did indorse it; and if the Senator from New Hampshire does not know it, I can tell him that I myself was the author of some of its provisions.
Mr. CLARK. I am glad to hear him say so, for I have had it my mind, somehow or other, that the Senator from Pennsylvania had been changing around; now he has indorsed the contrary.
Mr. COWAN. A very intimate friend of mine was supposed at the time that bill was passed to be in some trouble in this particular direction; and I am not so certain whether the honorable Senator from New Hampshire, who is generally exceedingly captious and exceedingly tart, did not somewhat reflect on me at that time because I was constructing that bill in order to shield my friend; but we did not make it go beyond the order of the President or his authority at that time.
Mr. CLARK. The Senator from Pennsylvania is entitled to the benefit of that acknowledgment that he voted for the law to shield a friend. Has anybody else got a friend that wants to be shielded? These men were soldiers of a common country, and if the Senator from Pennsylvania will not shield them, the country should.
Now and I am going to confine myself to this amendment-it is admitted that this is necessary in the rebel States, if you permit me to call them so, or in the seceded States. But suppose a case occurred in the State of New York. I think it was in 1863 when the riots occurred in the city of New York, and it was necessary to have a force there to maintain order. Suppose General Butler had said to one of his inferior officers, "You must do so and so, " and he went and did it in pursuance of keeping the peace there and maintaining the authority of the Government, is not that man to be shielded? Suppose you follow it down from soldier to soldier, if you follow the order from one grade to another, so long as the man acts under the order, so long should he be protected.
I agree entirely with the Senator from Illinois, that if a man has an order of this kind and with that order in his possession he abuses the order and does what he is not required by the order, he cannot protect himself under the order. Does the Senator from Vermont think that he would be able to do so? If an officer by virtue of a writ should go and attempt to do certain things not commanded in the writ, and then should try to protect himself by the writ. it would be at once said, "You did what you need not do and what the writ did not command you to do." Suppose a man comes upon my ground; I put him off; and in putting him off, without any necessity I kick him and abuse him, and he sues me in court, and I plead that he was on my ground and that I put him off. "Ah! but," says he, "you not only put me off, but you kicked me;" then it would not defend me; there could be no pretense that it would defend me. So, if a man was commanded to go and take a horse and impress him into the Army, and he went and robbed a house, the order would not protect him; or if he went and stole a pig, the order would not protect him. It is what he is commanded to do by the order that the order protects him against; and it should protect him against that. He must follow the line of his orders or he cannot be protected.
Mr. EDMUNDS. Does the Senator from New Hampshire mean to contend that an excess in degree in the execution of one of these
one of these men is to be protected in Kentucky, he shall not be protected in Ohio, Indiana, and Illinois. Did we not have John Morgan in Indiana? Did we not have various disturbances in Illinois? Did we not have John Morgan in Ohio? And shall not the man who fought John Morgan in Ohio and Indiana and was obliged to seize a horse to follow him or seize a boat by order of his commander, be protected? Mr. President, the shield of my patriotism is broader, longer, every way larger; it covers these men wherever they are found who have been true to the Government.
Mr. EDMUNDS. Suppose there was not great excess, but merely some excess?
Mr. CLARK. Then it seems to me if there was a little excess, and he did not intend it, and you lay the motive aside, it should protect him, and there is no great complaint of a thing of that kind; it is not worth complaining of; it is a distinction without a difference almost. Mr. COWAN. That is minimis.
Mr. CLARK, (to Mr. Cowax.) I know, non curat.
The PRESIDING OFFICER. Senators will address the Chair
Mr. COWAN." It was Latin.
Mr. CLARK. I do not understand that Latin is without the order of the Senate. What we desire is protection to these men in acts of this kind. We do not desire to shield anybody who has been guilty of doing what ought not to be done, or who has under such an order undertaken to wreak his vengeance or do mischief, but it is provided for the loyal men of the country who have been engaged in putting down this rebellion; and if in the great struggle that we have been obliged to make some men have done acts that were wrongful and we are obliged to excuse them to protect the great mass, we had better do it than let the servants of the Republic be tormented as they are in the courts.
Mr. CONNESS. Will the Senator permit me a word? I desire to suggest to the Senator that we are every day granting amnesty to rebels for the highest crimes known to the law. Who is against granting amnesty to some loyal men who have been fighting the battles? That is the suggestion I desire to make.
Mr. CLARK. It is a very pertinent suggestion. Those men, who have been pursuing our soldiers and murdering them everywhere they could find them almost, are coming here to the President of the United States, to those having power, and imploring pardon for all their acts. Mr. CONNESS. And they get it. Mr. CLARK. And they get it. But in regard to these Union soldiers who have come at your call, and marched under your orders, and preserved your Government, men cavil if even the Senate and House of Representatives propose to extend to them the hand of protection and protect them from the very men whom they have been fighting to save your Government from. Let me say, Mr. President, none but a rebel or a rebel sympathizer would sue one of these men who has thus been serving his country; but it more than anything now shows that the animus of this accursed rebellion still lingers that we are unwilling to do this.
I know the Senator from Pennsylvania says it was a very easy thing to be a loyal man in New Hampshire. Then let me say to him that the disloyal men of New Hampshire, or Pennsylvania either, were without excuse, because there was not much difficulty about it.
Now, Mr. President, I appeal to the Senate, I appeal to the Senators to know whether if
The Senator from Pennsylvania would find out some different and some better mode of doing this; and that has always been the objection; when a measure has not been liked it has been asked, "Cannot you find some better way?" I do not know any better way than to go directly at it, say what we mean to do, and do it, and I do not care a copper whether the burden of proof is on the plaintiff or on the defendant, provided the defendant be protected, and protected by the strong arm of the Government. This bill comes to us from the House of Representatives. They framed it; they said it was the one they thought adapted to the purpose, and they sent it for our approval. The Committee on the Judiciary have taken the bill and examined it, and reported it back to you with one amendment and asked that it may be passed. Some verbal and other amendments have been made to it, which perfect the bill; and I ask now that this bill shall not go on one leg in the rebel States, and on a crutch in the loyal States.
Mr. EDMUNDS. Mr. President, it has always appeared to me in the brief experience I have had in this world, that in the long run, passionate legislation, if I may so describe it, comes back to plague those who enact it, and it has generally happened in the history of civilized communities, that legislation which has been enacted under the influence of feeling, no matter how pure, under the influence of passion, no matter how complete and perfect might be the beauty of the object of it, returned futile and nugatory upon the heads of those who undertook to carry it through.
Now, sir, I do not yield to the Senator from New Hampshire in my devotion to the interests of the loyal men who have fought the battles of the country. Where I am known it would not be necessary for me to justify myself on such a point as that. I do not yield to any man in my desire, to use the language of my friend from New Hampshire, to protect the soldier who has fought the battles of the country, whether in Illinois, or Ohio, or Kentucky, or South Carolina. And it is because I desire to protect him that I am desirous that this bill should be put in such a shape that it will stand the searching investigation of a court of law. I do not think he can be accounted the true friend of the soldier who holds out to him the ashes of disappointment in a species of legislation which, while it looks well, will not bear the test of actual experiment. My way of protecting the soldier is to give him a protection || which will be real, to hold up to him a security which is something more than a mere fulmination, and which shall answer to him with the certainty of a positive defense. How is that to be done? That is the question.
It is useless to waste our time in vague discussion about who is the best friend to the soldier, or whether the Senator from Vermont happens at this moment to be on the wrong side of the Senate Chamber. That is nothing to the question. The question is, how shall we reach the end which we all desire in the safest and in the most positive way? It happens that the Senator from New Hampshire thinks that the best way to do it is to go directly at it, as he says, and to declare by an act of Congress that an act which was guilty yesterday, which was a wrong yesterday, an invasion of private rights yesterday, is right to-day, and is therefore justified. That is all there is in this act. I am not speaking of those questions of excess which seem to have troubled some gentlemen;
I am speaking of the cases where an act which was wrongful in itself has been committed, and where, therefore, the person who was wronged has as much right to claim our protection as the person who wronged him, whether he acted under orders or whether he did not.
Now, I undertake to declare with the little knowledge which I have on subjects of this description, and to defy contradiction, that there is not an instance in the history of legislation which has been practically followed and justified in law, that went beyond simply this: providing an indemnity, as I said a little while ago, by way of securing to the party accused, whether in a criminal information or in a civil suit, for a wrong done, the benefit of an impartial trial in the courts of the country, as this bill very properly provides, providing that he shall be defended at the public expense, and if it happens that in the execution of his duty he has invaded private rights, let the public, for whose sake and at whose command he has invaded them, foot the bill. That is the way to defend a loyal soldier in my judgment, and I do not care to have my patriotism impugned because I think it the better way than it is to enact a nugatory law to protect him.
Mr. NYE. Can the public go to prison for him?
Mr. EDMUNDS. They ought to go to prison for him.
Mr. NYE. They cannot very well. Mr. EDMUNDS. If he goes to prison, it is only as a consequence of the criminal procedure, which the public of course by a pardon can at any time dispense from. And it is open to a little doubt whether this act applies to criminal cases at all. It ought to apply to them. If it is a civil case, certainly the public can stand between the officer and all harm by paying the damages which the law declares in favor of the party whose private rights have been invaded.
There are two classes of people in this country to be looked at in this matter. There are the soldiers who must be protected, and there are the citizens who must be protected. They must both be protected in the exercise of their rights. It is the right, as it is the duty, of the soldier to obey the commands of his superior officer, and he must be protected in doing so. It is the right of the peaceable citizen in a loyal community where civil law prevails to be secure from search, seizure, arrest, or imprisonment, except by due process of law or the judgment of his peers. One right is as sacred as the other, and therefore in our hasty zeal to protect one class of the community let us not do it at the expense of another who equally deserve protection, but let us so adjust our legislation by way of indemnity, rather than of arbitrary edict, as to provide for both.
Mr. HOWARD. .I do not rise to detain the Senate on the question of this amendment.
Mr. HENDRICKS. If the Senator does not desire to go on to-night I will move an adjourn
Mr. HOWARD. I shall occupy but a few minutes. The effect of the amendment of the honorable Senator from Vermont will be to withdraw the protection afforded by this bill from all persons who have committed any of the acts contemplated by the bill in any State where martial law has not been proclaimed. I so understand the amendment of the honorable Senator, and if I misunderstand it I should be very glad to be corrected.
Mr. EDMUNDS. The effect of the amendment is this: in all States where martial law did not exist at the time of the supposed act, whatever it may have been, and in all States where there was no rebellion, this statute does not, in and for itself, operate as a defense, but it still allows, if my amendment be adopted, a transfer of the cause to the Federal courts, and to be defended there upon the same principles that any other act of a public officer would be.
Mr. HOWARD. Simply applying it, then, to the question of removal?
Mr. EDMUNDS. Yes, sir.
Mr. HOWARD. Well, Mr. President, I can