192 



CONGRESS, UNITED STATES. 



value than two thousand dollars the cases are 

 too trivial to bring before that tribunal, but 

 whenever the matter in controversy is of the 

 value of $2,000 or more, either party shall be 

 allowed his appeal. 



"Now, Mr. President, in a case where a man's 

 liberty is involved, ay, sir, under existing laws 

 where his life may be involved, and the ques- 

 tion has been brought before a circuit court 

 of the United States, and the decision has been 

 adverse to him, you say that he shall not 

 have his appeal to the Supreme Court. I wish 

 to know why. 



" But, Mr. President, waiving that for the 

 present, I wish to call the attention of the Sen- 

 ate to the fact that if a foreigner comes before 

 any judge of a court of the United States, or 

 before any of the Federal courts, and shows to 

 that judge or that court that he is wrongfully 

 restrained of his liberty, and that such restraint 

 of his liberty is in violation and in disregard of 

 a ' right, title, authority, privilege, protection, 

 or exemption' which he sets up and claims 

 1 under any commission or order or sanction 

 of any foreign state or sovereignty, the validity 

 and effect whereof depend upon the laws of 

 nations, or under color thereof,' and the judge 

 or court decides against his case, he has an 

 appeal to the Supreme Court of the United 

 States. Notice the fact, Mr. President, that 

 you give to the foreigner in protection of his 

 liberty an appeal to the Supreme Court when 

 he says that he is entitled to his liberty by vir- 

 tue of some regulation, order, or authority of 

 his foreign government under the laws of na- 

 tions ; but when a citizen of the country in that 

 same court claims his liberty in express terms 

 under the Constitution, or under any treaty or 

 law of the United States, you say he shall not 

 have an appeal to the Supreme Court. Can 

 Senators reconcile such legislation with the 

 rights which the citizens may claim, and with 

 the duties which we owe to the citizens them- 

 selves ? 



" Mr. President, nnder the act of the 2d of 

 March, 1867, and the acts amendatory thereof, 

 it is possible for the citizen to be arrested, to 

 be taken before a tribunal unknown to our 

 Constitution and system of laws, a military 

 commission, to be held in custody, to be tried, 

 condemned, and confined in prison or put to 

 death. If, during the progress of these pro- 

 ceedings, he appeals to the circuit court of 

 the United States having jurisdiction in the 

 State, and the court refuses to restore him to 

 liberty, refuses to protect him in his endangered 

 life, you say he cannot come to the Supreme 

 Court with that case. A trial is being had for 

 his life before a court that is unknown to the 

 Constitution, not only a court unknown to the 

 Constitution and the laws, but a court which 

 the^ Supreme Court of the United States has 

 decided cannot become known to the Consti- 

 tution and the laws of the United States for the 

 purpose of trying a citizen; and being brought 

 before such a court he seeks the protection of 



his liberty, the safety of his life, in the Federal 

 courts ; and being denied that protection in the 

 circuit court, he seeks his appeal to the Su- 

 preme Court of the United States, and Congress 

 says, ' You shall not have it.' Now, upon 

 general principles, can Senators reconcile that 

 to their sentiments of right, to the security 

 which the Constitution and the laws ought to 

 afford to every citizen ? 



" Will Senators be good enough to recollect 

 of a single instance in the history of any free 

 Government where, for proper purposes, the 

 jurisdiction of an appellate court has been taken 

 away from a cause after that jurisdiction had 

 attached ? I do not mean the criminal courts, 

 where jurisdiction sometimes falls by the re- 

 peal of the law defining the crime, but I speak 

 of an appellate court of important jurisdiction, 

 before which a case has come, and the jurisdic- 

 tion of which has attached under existing law. 

 "When, in the history of this Government or of 

 any State of this Union, was that jurisdiction 

 expressly taken away? I know of no such 

 case. It is understood that, when the law gives 

 a man a right to bring his case into a court, he 

 shall have that cause heard; that the Legisla- 

 ture will not come in after he has brought his 

 case according to law, and take away the right 

 to prosecute the case to a final hearing. 



"But it is done here; and why? It is to reach 

 the McCardle case. I do not know very much 

 of that cause ; I had not the opportunity to 

 hear very much of the able argument in the 

 Supreme Court ; but I understand the facts to 

 be these: McCardle was the publisher of a 

 newspaper in the State of Mississippi, and in 

 the publication of his paper he felt authorized 

 to make criticisms npon the policy Congress 

 had established in his State, and he felt au- 

 thorized to make criticisms upon the conduct 

 of the military officers who were carrying out 

 this congressional policy in Mississippi, and 

 the military officers caused him to be arrested 

 and to be brought before a military com- 

 mission to be put upon trial. At that stage 

 of the case he appealed to the circuit court 

 of the United States for that State for the 

 writ of habeas corpus. The writ was issued, 

 and when the officer returned to the court 

 that this man was held in custody because 

 he had published these articles in his news- 

 paper, the circuit court held that return to be 

 sufficient, and that the party should be re- 

 manded to the custody of the military officers. 

 From that decision McCardle appealed to the 

 Supreme Court of the United States. Sir., 

 why should he not be heard in that court? 

 Had not the Supreme Court of the United 

 States, with great unanimity, decided that a 

 military commission could not try a citizen in 

 a time of peace for an ordinary civil offence; 

 that the Constitution had guaranteed to the 

 citizen a trial before a jury, with full opportu- 

 nities for defence ? That was the decision of 

 the Supreme Court of the United States, and 

 McCardle, when he was sent back by the cir- 



