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CONGRESS, UNITED STATES. 



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 indi- 

 rectly. 



"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 defence against actions of this de- 

 scription. 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, 

 district, or the place within which any search, 

 seizure, arrest, or imprisonment was made, etc., 

 shall stand as a defence in and of itself; so that 

 in States of the Union which have never been 

 in rebellion, in States of the Union where mar- 

 tial 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 defence 

 to an action of trespass against him for false 

 imprisonment, or for taking a horse, or what- 

 ever it may be. Certainly it must be an ex- 

 treme necessity indeed which drives us to such 

 legislation as that. It is the exercise, as it ap- 

 pears to me, in regions where martial law and 

 rebellion have not prevailed at all, of a power 

 which can nowhere be found in the Consti- 

 tution, which can nowhere be raised by impli- 

 cation 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 assassina- 

 tion and the overthrow of his Government 

 were such as to drive him nearly crazy, a sub- 

 servient 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 cer- 

 tain limited time, should be regarded as law- 

 ful, independent of the question of whether 

 there was any ground of suspicion, and inde- 

 pendent 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, declar- 

 ing, by mere force of the law, that a past trans- 

 action 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 objec- 

 tions to every thing which is proposed in the 

 disturbed state of the country, but rather as 



one of those who desire to use that noble in- 

 strument 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 sub- 

 ordinate traced down through to the smallest 

 corporal that carries a musket, so that it ema- 

 nates from headquarters, as all proper discipline 

 makes orders emanate, is a defence, 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 sec- 

 tions of this country where martial law has 

 prevailed and where these arrests and imprison- 

 ments 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 acqui- 

 esce 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 defence in a court of law, then I am 

 compelled to disagree, because it invades what 

 has always been considered the fundamental 

 private rights of every member of organized 

 society." 



Mr. Howard, of Michigan, said : " Now, sir, 

 the great object of this bill is, in every case 

 where a soldier or officer has acted in good 

 faith under an order addressed to him or in- 

 tended for him, to extend to him the protection 

 of the law as against the consequences of any 

 act which he might do and perform under that 

 order or under color of that order, and to enable 

 the defendant in such case as that to transfer 

 the prosecution of the suit (for the proceeding 

 may be criminal or it may be civil) from the 

 local or State tribunal to a Federal tribunal, 

 thus giving the defendant an opportunity of 

 presenting his case to a court and a jury not in- 

 fected by the local prejudices of the place where 

 the act was committed. 



"I must confess that I see no ground or 

 reason whatever for drawing the distinction 

 that is drawn by this amendment of the Senator 

 from Vermont. I see no reason why it should 

 not be applied as well in loyal States in the 

 case of acts by military officers or soldiers as to 

 the same acts when performed in rebel States 



