CONGKESS, U. S. 



251 



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 con- 

 templates 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 Con- 

 stitution 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 reiinactment 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 diffi- 

 culty, 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 execu- 

 tive, 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 ren- 

 dered 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 ma- 

 chinery 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 ex- 

 ecutive 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 Con- 

 stitution, laws, treaties, or authority of the 

 United States. I think the case is already pro- 

 vided for so as to give the right of appeal. 

 They have the unquestionable right of appeal 

 to their own State tribunal, the court of ulti- 

 mate resort there ; and already the provisions 

 are such, I think, as to warrant the prosecu- 

 tion of an appeal or writ of error from the de- 

 cision 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 ei- 

 ther 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 leg- 

 islatures 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 proceed- 

 ing, what harm or danger can there be in al- 

 lowing the unsuccessful party to try the cause 

 over again ? " 



Mr. Browning said: "I desire only to sug- 

 gest 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 fa- 

 vor of the defendant or respondent by the State court. 



Mr. Collamer : " That is precisely the same 

 limitation which applies to a writ of error un- 

 der the twenty-fifth section of the Judiciary 

 Act." 



The amendment proposed by Mr. Browning 

 was rejected. Other amendments were pro- 

 posed and rejected, and the bill was ordered to 



