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CONGRESS, UNITED STATES. 



"Will the Senator allow me 



Mr. Kernan: 

 to put him a question?" 



Mr. McMillan: "Certainly." 



Mr. Kernan : " Does he mean to argue that 

 soldiers and officers should be above being 

 indicted and punished if they violate the law ? " 



Mr. McMillan: "I mean that the present 

 punishments which can be visited upon soldiers 

 and officers of the army of the United States 

 are sufficient; that any further punishments, 

 or such punishments as are provided for in this 

 section, would operate to injure the Govern- 

 ment and destroy the effective force of its army, 

 and it is a dangerous principle to incorporate 

 into the laws of the country." 



Mr. Bayard: "Mr. President, it seems to 

 me that the result of the argument of the hon- 

 orable Senator from Minnesota (Mr. McMillan) 

 would go to this extent, that an officer in charge 

 of any military movement would be beyond 

 the reach of the penal laws of the United States, 

 because forsooth the judge before whom the 

 case was to be tried might be mistaken as to 

 the law, or might find him guilty." 



Mr. McMillan : " If the Senator will allow 

 me to answer his suggestion, I adduced that 

 argument to show that you were applying here 

 to the army of the United States a principle 

 that you would not think of applying to the 

 judicial branch of the Government." 



Mr. Bayard : " Mr. President, I should like 

 to show here that in section 5529 of the Re- 

 vised Statutes there is provision : 



Every officer or other person in the military or 

 naval service, who, by force, threat, intimidation, 

 order, advice, or otherwise, prevents, or attempts 

 to prevent, any qualified voter of any State from 

 freely exercising the right of suffrage at any general 

 or special election in such State, shall be fined not 

 more than $5,000, and imprisoned at hard labor not 

 more than five years. 



" There is an offense denounced against any 

 officer in the military service who does this 

 thing, and yet he may be upon the eve of very 

 important military movements at the time the 

 indictment is found against him, or at the time 

 the trial comes off. But it seems to me scarcely 

 worth while to illustrate the principle that no 

 man before to-day to my knowledge has ever 

 denied, which is that every resident of this 

 country, official or unofficial, civil or military, 

 is subject to the law of the land ; and for every 

 breach of that law such penalties as are therein 

 described shall be visited against him, no mat- 

 ter what may be his occupation or his position 

 under the Government. 



"I really think the honorable Senator is 

 conjuring up difficulties that are not fairly sup- 

 posable, and imputing to this section inten- 

 tions and influences which are not only totally 

 foreign from it, but which are absolutely im- 

 possible under it." 



Mr. McMillan: "But if the Senator will 



allow me to call his attention to the section, 



an officer performing any of the acts which 



onld come within the provisions of it might 



without any intention to violate law, under the 



command of his superior officer, even be liable 

 to a penalty ; the act might be through a mis- 

 take even, and the penalty would be incurred. 

 As I said, a judicial officer of the Government 

 may make a mistake in his decision, and what- 

 ever the consequences of the mistake may be, 

 you never think of applying a penalty to a ju- 

 dicial officer for a mistake of that kind." 



Mr. Bayard : " The honorable Senator from 

 Minnesota recognizes as well as I how essential 

 is the doctrine that ignorance of the law ex- 

 cuses no man. No man can find authority 

 under a void warrant; no man can be shel- 

 tered behind an unlawful authority. He must 

 act, and we all act, at our peril. In executing 

 any duty, in the claiming of our civil rights, 

 claiming our political rights, in all matters we 

 act under the supposed authority of the law ; 

 and yet, men have innocently been guilty of 

 trespass, men have innocently violated law ; 

 but that does not prevent the law from stand- 

 ing, and the violator from paying the penalty, 

 whatever it may be. But the question of the 

 guilty intent is a question that by the very 

 spirit of our law requires to be found. There 

 can scarcely be an innocent breach of a penal 

 law. I apprehend that every indictment must 

 contain the elements of the criminal scienter; 

 otherwise the indictment would be dismissed. 

 It must be knowingly and willfully, or it must 

 be erroneously or maliciously, according to the 

 act charged." 



Mr. McMillan: "Is the Senator willing to 

 admit an amendment of that character, making 

 such a declaration as that, in the section? " 



Mr. Bayard : " Nothing of the kind is found 

 in other penal statutes ; but it is required in 

 the very draft of an indictment to present a 

 man for a crime. This section is drawn in the 

 usual form of laws on this subject, and there 

 is no reason why it should not stand in its 

 present form." 



Mr. McMillan : " Still the objection applies 

 to the statute, and the further objection that 

 you place within the power of any citizen here 

 the right to interfere with an officer in the per- 

 formance of his duty in a manner which may 

 result in its defeat." 



Mr. Bayard : "No more than an interference 

 is allowed by existing laws." 



Mr. McMillan: "You provide a remedy by 

 instituting a process which does not exist in 

 the law now, because you have not the pro- 

 ceeding of indictment in cases of this kind. 

 If you had, then why assert it here? If you 

 have the remedy which this section provides, 

 why reenact it ? If you have not, then you do 

 introduce the evils to which I have referred." 



Mr. Hoar, of Massachusetts, said : " I should 

 like to put to the Senator from Delaware agairj 

 the question just put to him by the Senator 

 from Minnesota, because the answer to it did 

 not satisfy me what his real opinion was. I 

 understand the Senator from Delaware now 

 to say, in answer to the criticism upon this 

 section that it would condemn the officers of 



