CONGRESS, UNITED STATES. 



221 



order from the rebel service was a complete do- 

 Mr. Hcndricks : " I am not familiar with flio 

 case referred to by the Senator from Massa- 

 Hmsi-tK If the judge to whom he refers 

 showed i>:irti:dity, or that ho "ivas governed by 

 corrupt motives, I certainly have no apology 

 <>r cl. i, 1,,'e to make for him. But I had not 

 heard of any refusals by State judges to allow 

 transfers of causes where the cases were prop- 

 erly presented. I know that in the State of 

 Indiana, as far as my practice has extended, 

 there has been no occasion to complain. If a 

 judiro has acted in Kentucky as the Senator 

 ichusetts nnderstands, then the rem- 

 ; gainst him is by impeachment, not by a 

 general provision that for the exercise of his 

 judgment a judicial officer shall be liable to 

 suit and to penalties/' , 



Mr. Williams, of Oregon, said : " I under- 

 stand that it has been repeatedly decided by the 

 Supremo Court of the United States, so that the 

 question now is regarded as finally settled, that 

 where, in a State court, a party sued makes a 

 defence under the Constitution, laws, or treaties 

 of the Unfted States, he has a right to have that 

 cause removed at any time during its progress 

 from the State court to a court of the United 

 States, and there have the questions involved 

 adjudicated. I think there can be no question, 

 upon this authority, and upon othe/ decisions of 

 a like nature of the Supreme Court of the Uni- 

 ted States, as to the constitutionality of this sec- 

 tion, because it is manifest that a military officer 

 in the discharge of his duty is acting under the 

 law or the authority of the United States." 



Mr. Cowan, of Pennsylvania, followed, saying : 

 " Mr. President, it might be well to inquire from 

 whence sprang all this brood of transferring 

 cases from the State courts to the United States 

 courts. How did it happen that there ever was 

 a precedent for that thing ? I will try and ex- 

 plain that. Among other powers delegated to 

 the United States was the power of levying 

 taxes, imposts, duties, and so on, or in other 

 words, to enforce a revenue system. In 'early 

 times in this country there was no act of Con- 

 gress taking cognizance of that revenue system 

 and providing for the decision of cases under it ; 

 and hence, perhaps, thirty-five or thirty-six 

 year ago, about 1830, an act of Congress was 

 passed which provided that whenever a revenue 

 officer in the execution of his duty collecting 

 the revenue shall be involved in lawsuits with 

 anybody about that subject, those cases should 

 be transferred to the courts of the United States 

 in order that he might be tried there, because 

 the cases arose not under State laws, but under 

 the laws of the United States. That was right 

 and proper. "Where the officer was acting un- 

 der the laws of the United States, where he 

 was executing the laws of the United States, 

 and where the whole subject-matter was within 

 the jurisdiction of the United States, it was 

 eminently proper that the cause should bo ear- 

 ned into the United States courts ; but that is a 



very different thing from the application w* 

 have made of that rule here, and a very differ 

 ent thing from the later precedent which wo 

 have followed. This is not that case. This is a 

 case where prima facie the State courts have 

 not only clear, unquestionable jurisdiction, juris- 

 diction never before perhaps doubted, but 

 where the United States, by the very terms of 

 the instrument under which we govern the 

 Union, have no such power. Take the Consti- 

 tution and the judiciary act and read them. Let 

 any man read them and see where he can find 

 the authority there. The nearest he can possi- 

 bly come to it is that these may be suid to be cases 

 arising under the laws of the United States. I 

 am perfectly free to say that an argument may 

 be made there ; but I am also perfectly free to 

 say, and I am perfectly sure in saying, that the 

 man who decides that question one way or the 

 other is not on account of that decision to be 

 taken as a criminal or to be mulcted in damages 

 because of any mistake he may make. 



" As my honorable friend from California 

 (Mr. McDougall) very often says, the old fathers 

 were wiser than we are. What did they do? 

 They provided that whenever a defendant in 

 any court sets up a justification under the laws of 

 the United States or under the Constitution of the 

 Tinted States, and the State court refused that 

 defence, decided against it, decided against the 

 constitutionality of the law under which he set 

 it up, in such case he should have a writ of 

 error to the Supreme Court of the United States. 

 AVI i at could be plainer and wiser ? If it be true 

 that under the laws of the United States these 

 officers are justifiable in any particular case, 

 where is the objection to their making that de- 

 fence in the State court, and, if it is not allowed, 

 give thorn the right to appeal to the Supreme 

 Court of the United States. What can be 

 plainer than that ? " 



Mr. Howard, of Michigan, in support of the 

 bill, said : " Mr. President, a very strenuous op- 

 position is made to the fourth section of the 

 bill. The honorable Senator from Delaware 

 has moved to strike it out. Another Senator 

 has moved an amendment to that amendment, 

 to strike out the word 'judges ' in the seventh 

 line, so as to exempt the judges of the State 

 courts from the damages which are contem- 

 plated in the section. I am opposed to both 

 these amendments, and in favor of the passage 

 of the bill with the fourth section in it, because 

 I think that section contains- a sound principle, 

 and that without it there may be many cases in 

 which great injustice may be done to parties 

 who are brought into the State courts on claims 

 of damages by owners of property taken for the 

 purposes of the war. I see no constitutional 

 difficulty whatever in the fourth section. Still 

 I am aware that it comes within that long cate- 

 gory of bills which the Senate have passed or 

 endeavored to pass during the late war, which 

 by certain gentlemen in this chamber have been 

 denounced as flagrantly unconstitutional. In- 

 deed, the honorable Senator from Delaware has 



