CONGKESS, UNITED STATES. 



ted States ; and I am of opinion that that defi- 

 nition of jurisdiction does not include the cases 

 provided for in this bill. 



"But, sir, suppose it be proper to transfer 

 these causes from the State to the Federal 

 courts, ought the third and fourth sections of 

 this bill to be as they are ? "We are all familiar 

 with the act which authorizes the transfer of 

 certain causes from the State to the Federal 

 court. "Where a citizen of one State brings a 

 suit against a citizen of another State, in a 

 State court, the act of Congress authorizes the 

 transfer of that cause to the Federal court, 

 upon the application of the defendant; and 

 why ? Because the Constitution of the United 

 States provides that litigation between citizens 

 of different States may be heard in the Federal 

 court, which is supposed to be disinterested 

 in judgment and feeling between the parties. 

 But in that act we do not find such extraordi- 

 nary provisions as are in this bill. In that case 

 the defendant, upon the first day of the term, 

 must come into the State court and make his 

 application for the transfer before he does any 

 act which recognizes the jurisdiction of the 

 State court, and he must give his bond that 

 upon the first day of the next term of the Fed- 

 eral court he will file the papers in the cause 

 in the Federal court, and enter his appearance. 

 That is required of the defendant in a cause 

 where it is clearly proper, within the provisions 

 of the Constitution, to take the case from the 

 State to the Federal court. 



" Here, however, in a case, to say the least of 

 it, Avhere it is doubtful whether the transfer 

 can be authorized by Congress, it is provided 

 that that transfer may be asked by the defend- 

 ant, after he has entered an appearance in a 

 State court, after he has recognized, by his 

 appearance and pleadings, the jurisdiction of 

 the State court. And, sir, there is very strange 

 language here, which may be construed author- 

 izing the transfer after a judgment has been 

 rendered in the State court. I call the atten- 

 tion of the Senator from New Hampshire to 

 the language found in the third section, com- 

 mencing in the eighth line, and I ask him to 

 explain to the Senate the meaning of this lan- 

 guage: 



But nothing herein contained shall be held to 

 abridge the right of such removal after final judg- 

 ment in the State court; nor shall it be necessary, in 

 the State court, to offer or give surety for the filing 

 of copies in the Circuit Court of the United States. 



" Nothing herein contained shall be construed 

 to abridge the right to take the case from the 

 State to the Federal court after judgment ren- 

 dered. After the defendant has recognized 

 the jurisdiction of the local court, after he has 

 pleaded in that court, after he has submitted 

 to trial by a jury, and after upon the verdict a 

 judgment has been rendered, I want to know 

 of the Senator whether he contemplates that 

 there should be a transfer, and that the judg- 

 ment of the State court shall be vacated and a 

 new trial had in the United States court. 



"But, sir, in the existing law which author- 

 izes the transfer of causes to the Federal from 

 the State courts in cases that are clearly within 

 the provisions of the Constitution, is there any 

 provision that if the judge shall be of opinion 

 that the case ought not to be transferred, he 

 shall be liable to punishment, he shall be liable 

 to suit and damages? No, sir. Congress, in 

 the enactment upon that subject, has assumed 

 that the State judge will do his duty. But 

 here, almost for the first time, and I believe for 

 the first time unless a provision like this is 

 found in what is called the Civil Eights bill, it 

 is provided that if the judga shall deny the 

 transfer, upon the exercise of his judgment, 

 for what Congress may hold to be an error of 

 judgment, he shall be liable to a civil suit and 

 to damages. Are Senators willing to say that 

 the State judges are to be punished by suits 

 and damages for an error of judgment. 



" Mr. President, these are very extraordinary 

 provisions, ahd I am not at all surprised that 

 the Senator from Delaware should express 

 himself upon them very earnestly. The lan- 

 guage which he used I did not observe at the 

 time ; but I am very free to say to the Senato 

 that if I were a State judge, and I thought the 

 provision of this law was unconstitutional, I 

 certainly should regard the Constitution as a 

 higher law than the act of Congress which, in 

 my judgment, if it should be my judgment, 

 was contrary to the provisions of the Consti- 

 tution. It presents the question to a judge 

 whether a case can be transferred to the Fed- 

 eral court ; and shall he not decide it ? If I 

 bring a suit in a State court against a man 

 who has done me a grievous wrong during these 

 four or five years, a wrong perhaps accom- 

 panied with violence and malice, and the cause 

 is set down for trial upon an appearance and 

 plea by the defendant, and he then asks a 

 transfer of the cause to the Federal court, and 

 the judge shall say that the case must be heard 

 before him and before a jury in that court, shall 

 that judge, because of the exercise of a sound 

 and honest judgment, be punished by suit an4 

 damages? I ask the Senator from New Hamp- 

 shire if he has known of any cases in which 

 the State courts have refused under existing 

 laws to allow a transfer where a proper case 

 was made for a transfer. I have heard of 

 none." 



Mr. Wilson: "There are a great many cases 

 of that kind. I understand the Legislature of 

 Kentucky has passed a law forbidding the 

 judges of that State to allow these transfers. 

 I understand further that there are over three 

 thousand of these cases in -that State. One 

 officer of the Government has thirty-five cases 

 against him. One of the judges of that State, 

 Mr. Andrews, formerly a member of the House 

 of Representatives, would not allow the order 

 of the Government to the ofScer to be con- 

 sidered as any defence ; he said it was no de- 

 fence ; and in the course of ten days afterward 

 he discharged a rebel on the ground that hia 



