CONGRESS, UNITED STATES. 



215 



wood, Lano of Indiana, Morgan, Morrill, \ye, Po 

 luiiil, I'onicrcv, I; ae, Stewart, 



Sunnier, TrumbaU, w^l*', Will.-y, A> illwms, \Vilson, 

 and Yutes 83. 



s Messrs. Uuckalcw, I>;u !<, Doolittlo, Onta- 

 rio, lli'iidrii-k-i, .liiliti.-nii, .\tcl)iiu^:ill, NcMnitli, Nor- 



. Idle, Siiulstniry, and Van \Vinklc !'_'. 



. an, Dixun, Lane of Kansas, 

 and Wright 4. 



In tli.' I loose, on March 14th, n bill reported 

 l>y the Cummittee on tho Judiciary to amend 

 the act of 18G3, relative to the responsibility of 

 oH'nvrs, etc., was considered. Mr. Cook, of Illi- 

 nois, stated the object of the bill to be to relieve 

 all officers and persons acting under military 

 authority from responsibility when sued for acts 

 done during tho late war, when done by order 

 of superior officers, and to provide for the trial of 

 the question of authority in the Federal instead 

 of tho State courts. 



He said : " The first section of this bill pro- 

 vides that an order from any military officer of 

 the United States holding the command of tho 

 department, district, or place within which tho 

 act complained of shall have been done, shall be 

 a defence. 



" This provision is rendered necessary from 

 the fact which appears in evidence before the 

 committee that the State courts in some of the 

 border States have held, under section four of 

 the act of which this is an amendment, that 

 tho order of the President of the United States 

 is necessary to justify the party doing the act, 

 and as it is scarcely possible for a party sued to 

 produce an order from tho President of the 

 United States directing him to do tho particular 

 act complained of, the law became in many in- 

 stances a dead letter. The principle that a Gov- 

 ernment shall relieve its officer from individual 

 responsibility for any act done by the command 

 of a military superior has been settled so long 

 and so well that I do not propose to discuss it 

 now. In order to make that principle operative 

 in tho act to which this is an amendment, the 

 provision contained in tho lirst section of this 

 bill is indispensably necessary. "Where the State 

 courts hold that the order of the President of 

 the United States himself must bo produced to 

 justify tho impressment of a horse or seizure of 

 forage or military supplies, the protection 

 designed to bo given by the act is taken entirely 

 away. Tho spirit of the first act it is believed 

 is met by the words of this amendment, whirh 

 provides that a military order issued by any per- 

 son having the command of the district, depart- 

 ment, or place where the act complained of is 

 done shall be a defence. The soldier or subor- 

 dinate officer must at his peril obey without 

 question the order of his superior, and that or- 

 der should protect him from individual respon- 

 sibility for acts done in pursuance of it. 



" The second section of the bill has reference 

 merely to the character of tho evidence of the 

 existence of this order which shall beprodtice.l. 



" Tho third section of tho bill provides for 

 the removal of the action from the State to 



the Federal courts at any time before the jury 

 was impanelled to try thesamo. By the original 

 art it was necessary that tho motion for a change 

 me should be filed at the term that tho ap- 

 pearance of tho defendant was enter. -d. 

 dence is before the committee tending to show 

 that in the State of Kentucky alone fifteen hun- 

 dred suits have been brought against citizens who 

 acted or claimed to act in behalf of the United 

 , for acts done by command of military 

 officers. In tho vast majority of these cases 

 the defendants were not aware that it was 

 necessary that the motion to change the venue 

 should be made at the appearance term. In some 

 cases the suits were brought before the act be- 

 came generally known, and in consequence 

 thereof many are prevented from taking the 

 change of venue to the Federal court which 

 they desired to do. 



U I find by reference to the act of 1833, called 

 the 'force bill,' precisely such a provision was 

 ini-erted to meet the state of facts in South 

 ' Carolina in nullification times. That act pro- 

 vides that the change of venue may be taken at 

 any time before trial. To meet this difficulty, 

 and to secure to those who were intended to be 

 protected by the law of 1863 the benefit of that 

 protection, it is provided in the.third section of 

 this act that the change of venue may be made 

 after tho appearance of the defendant and be- 

 fore the impanelling of the jury to try the cause. 

 That applies to suits pending as well as to suits 

 to be commenced hereafter. The object of the 

 section is to give relief to those men who have 

 been sued there, and who, not understanding 

 that it was necessary to file a petition for a 

 change of venue at the appearance term, have 

 suffered that term to pass. Section three pro- 

 vides for a state of fact like this : there was evi- 

 dence before the committee tending to show 

 that in some of the State courts of Kentucky 

 the courts have refused to grant a change of 

 venue after application has been made precisely 

 in accordance with tho terms of the act of 1863. 



The reasons assigned, so far as I have heard 

 them, are two. The first is, that the act of 1863 

 is unconstitutional ; and the second is, that the 

 court has a discretion which it may exercise to 

 refuse to approve the security which is offered 

 by tho defendant that he will file the record in 

 the United States court. 



"The fifth section of the bill provides for 

 cases which have occurred in which the clerks 

 of the State courts have refused to give certified 

 copies of the record to be filed in tho United 

 States courts, and to prevent tho right to a 

 change of venue being defeated by any default 

 of tho clerks of the State courts. 



' There is another important provision of this 

 bill which I failed to explain. The law of 1863 

 provides that at the time the defendant shall 

 file his petition for a change of venue he shall 

 give security, to be approved by tho State court, 

 conditioned that he will at the next term of th> 

 Federal court file a copy of the record in that 

 court. There was evidence before the commit- 



