222 



CONGKESS, UNITED STATES. 



gone so far as to say to us that if he were a 

 judge sitting for the purpose of administering 

 justice between man and man in his own State, 

 and this statute, if it should become a statute, 

 should be presented to him, and should be in- 

 sisted upon by way of defence, he would feel 

 bound to hold it unconstitutional and void, and 

 that he would proceed, notwithstanding this 

 Federal statute, to pass a final judgment in the 

 case which might be before him, and to enforce it. 



" It is not necessary for me to say that it is 

 the duty of a judge, whether he occupy a high 

 or an inferior position, as such to decide every 

 question of law that may fairly be presented to 

 his consideration. I am not aware that the 

 law exempts any class of judges of courts from 

 this high and solemn duty. Still, it does seem 

 to me that if I were a State judge, and this 

 question were presented to me in the form which 

 he has suggested, certainly if a doubt hung over 

 the question at all, I should feel it my duty to 

 decide in favor of the validity of the statute, 

 leaving the question finally to be determined by 

 the court of dernier ressort, the Supreme Court 

 of the United States, and such, I think, would 

 be felt to be the duty of almost every well- 

 informed State tribunal. 



" But, sir, is there any thing in this statute 

 which is in conflict with the Constitution? 

 And does the judicial power of the United 

 States as delegated in the Constitution itself 

 cover the cases which are contemplated by the 

 section ? That is the first and principal point 

 for us to determine. If there be a delegation 

 .of power in the Constitution covering these 

 cases, the question of its constitutionality cannot 

 be raised upon that issue. The Constitution 

 declares that ' the judicial power shall extend to 

 all cases in law and equity arising under this 

 Constitution, the laws of the United States,' etc. 

 Are the cases contemplated by section four cases 

 arising under any law of the United States? 

 What are they, and what is their character ? 



" I am speaking of regular acts of war per- 

 formed by inferiors in obedience to the orders 

 of their superiors. I ara not speaking of wilful 

 and wanton trespasses committed by soldiers or 

 officers without warrant and without order, 

 because the bill contemplates no such cases, 

 affords protection in no such cases. I am speak- 

 ing of acts done under regular orders. Do 

 those acts present cases coming under any law 

 of the United States ? That involves the ques- 

 tion whether the war itself existed in pursuance 

 of any law of the United States. If the war 

 itself was waged in pursuance of law, if the 

 Congress of the United States, in providing for 

 its prosecution, did not transcend the Constitu- 

 tion itself, all these acts of war were committed 

 under a law of the United States ; and the acts 

 themselves, taken in connection with the party 

 plaintiff and the party defendant in the State 

 court, constitute a case at law. A case at law 

 must have parties ; there must be a fact con- 

 nected with it, there must be an allegation on 

 one side by one party against the other in re- 



spect to which the plaintiff asks for relief or 

 asks for judgment. That I understand to be 

 in 'very brief terms a definition of a case at 

 law. 



u The judicial power of the United States ex- 

 tends to just such cases ; that is-to say, it reaches 

 them, it covers them. The judicial power of 

 the United States may, if Congress so choose, 

 take these cases and deal with them in any way 

 it sees fit. If the case exists in a State court, 

 being covered by and subject to the judicial 

 power of the United States under the Consti- 

 tution, it is competent undoubtedly for Con- 

 gress to provide for the prosecution, trial, and 

 decision of these cases in their own way. That, 

 in brief, is all that is contemplated in this stat- 

 ute. But, sir, if according to the doctrine of 

 some, if according to the teachings of a class 

 of doctors who have been too numerous and 

 whose teachings have been too fatal in this 

 country, it is not competent for the Congress 

 of the United States to wage war, as they say, 

 against a State ; if the acts of the United States 

 in the prosecution of this war were according 

 to the doctrines of those teachers, all void and 

 of no effect; if a State ordinance of secession 

 is to be the paramount law of the land, the 

 Constitution of the United States to the con- 

 trary notwithstanding, then, sir, I agree that 

 all these cases are not cases arising under any 

 law of the United States, and therefore they 

 cannot be removed from a State court in which 

 they may happen to be brought. But, sir, I do 

 not belong to that school of politics. I reject 

 the whole theory of Mr. Calhoun and all his 

 followers from beginning to end upon the ques- 

 tion of the right of a State to secede, or the 

 right of the Government of the United States 

 to wage war for the purpose of putting down 

 a rebellion or an insurrection. I hold all our 

 acts to be perfectly valid, and as valid as they 

 were necessary." 



The amendment of Mr. Saulsbury was re- 

 jected, and after some verbal changes the bill 

 was passed, as follows: 



YEAS Messrs. Anthony, Chandler, Clark, Conness, 

 Cragin, Doolittle, Edmunds, Foster, Henderson, 

 Howard, Howe, Johnson, Kirkwood, Lane of Indiana, 

 Morgan, Norton, Nye, Poland, Pomeroy, Earasey, 

 Sprague, Stewart, Sumner, Trumbull, Van Winkle, 

 Wade, Willey, Williams, Wilson, and Yates 30. 



NAYS Messrs. Buckalew, Guthrie, Hendricks, and 

 Saulsbury 4. 



ABSENT Messrs. Brown, Cowan, Creswell, Davis, 

 Dixon, Fessenden, Grimes, Harris, Lane of Kansas, 

 McDougall, Morrill, Nesmith, Kiddle, Sherman, and 

 Wright 15. 



The amendments of the Senate were not ap- 

 proved by the House, and committees of con 

 ference were appointed, and the bill was passed, 

 after an unimportant modification of the sixth 

 amendment of the Senate. 



Subsequently in the session an amendment tc 

 this amendment was passed, which provided 

 means for the removal of the person of the de- 

 fendant, whose cause had been removed from a 

 State court. 



