CONGRESS, UNITED STATES. 



209 



tlie army for violations of law where they had 

 exercised their discretion and had exercised it 

 wrong, that he does not claim that they ought 

 to be convicted and punished under this sec- 

 tion unless their violation of law was knowing 

 and willful ; that it would require the scienter. 

 Now I wish to ask him again, is he willing to 

 put that into the section ; to say ' whoever 

 willfully and knowing that it is in violation 

 of the law shall,' etc. ? that will test the 

 thing." 



Mr. Bayard: "Mr. President, I hold that 

 before the laws of the United States a soldier 

 or civilian stands precisely on the same level, 

 and that either acts at his peril ; and that there 

 is no plea of any kind of ignorance of the law, 

 or mistake of the law, that would not avail a 

 civilian as much as a soldier, or a soldier as 

 much as a civilian, or that would avail either 

 of them one jot or one tittle." 



Mr. Hoar : " That is a very different answer 

 from the answer which the Senator from Dela- 

 ware gave to the Senator from Minnesota just 

 now." 



Mr. Bayard : " Well, Mr. President, the hon- 

 orable Senator asked me for my answer ; I gave 

 it. If he desired me merely to make the same 

 answer, it was unnecessary to ask. I have not 

 the notes of the reporter. I think the Senator 

 from Massachusetts, however, must have mis- 

 understood me." 



Mr. Hoar : " Now, if the Senator will par- 

 don me, the difference is a difference of sub- 

 stance. The Senator from Minnesota urged 

 upon the Senate with great force the impro- 

 priety of selecting one branch, those of our 

 citizens engaged in one department of public 

 service, and not merely saying that this or that 

 act done by them should be criminal, but say- 

 ing in one sweeping clause that whenever they 

 did as an army, in their official capacity, an 

 act not authorized by law or by the Constitu- 

 tion, they were to be punished by fine and 

 imprisonment. That is, it does not say a spe- 

 cific act shall be prohibited; it says that all 

 acts beyond law shall be punished in this way. 

 You can not find another instance of such legis- 

 lation in this country, in my opinion. 



u Novv, then, the Senator from Minnesota 

 says you not only do that, but you do it to 

 persons who are obliged to act at their peril, 

 and to obey the orders of a superior on pain 

 of punishment, and who may do the act having 

 done their best to know what the bounds of 

 their legal duties are, and having honestly 

 erred, to which the Senator from Delaware 

 replied, ' Why, of course the scienter, the guilty 

 knowledge, is essential to their being punished.' 

 It was the reply which I should have expected 

 from the legal learning and the candor of that 

 Senator. Now I ask him, as the Senator from 

 Minnesota did, if that be the opinion of the 

 Senator from Delaware as to what is just and 

 right and righteous, are you willing to ex- 

 press that in your law, and to say that this 

 punishment shall only be inflicted where the 

 VOL. xvin. 14 A 



party errs with knowledge that he is violating 

 law ? I understand, when that question is re- 

 peated, the Senator from Delaware abandons 

 that ground and desires to have the army pun- 

 ished at its peril." 



Mr. McMillan: "The Senator says that a 

 soldier of the army and a citizen of the United 

 States are both bound to know the law, and 

 that they are both in the same position with 

 relation to their obedience to it. The Senator 

 in that is mistaken, as I apprehend. The sol- 

 dier as a soldier is under obligation to his su- 

 perior officer ; he is bound to obey him ; and 

 if he resists, he does it at the risk of punish- 

 ment by a court-martial. He can not act from 

 choice." 



Mr. Blaine : " He may be shot." 



Mr. McMillan: " He may be shot, as is sug- 

 gested, as part of that penalty. The citizen is 

 at liberty to obey the law or refuse to obey it 

 without incurring any penalty ; and he has but 

 one duty that is single, always to be appre- 

 hended obedience to the law." 



Mr. Bayard : " Mr. President, I should ex- 

 press my astonishment, if it were not rather 

 late, at what I hear. The Senator from Min- 

 nesota now says, and I understand him to say 

 it with the approval of the Senator from Mas- 

 sachusetts, that a member of the army of the 

 United States by becoming subject to the rules 

 and articles of war is absolved from his obe- 

 dience to the laws of the United States." 



Mr. McMillan : " No such assertion as that 

 was made by me." 



Mr. Bayard : '' Let me state the proposition. 

 I will state the Senator as I heard him, as I 

 comprehended him ; and if I am in error, I 

 shall be gladly corrected, for I have no other 

 wish than to understand him and to report him 

 fairly. He states that a soldier is subject to 

 the rules and articles of war, and that his law 

 is the articles of war, so that if he disobeys any 

 command of him whom by the articles of war 

 he is called upon to obey, and he must obey 

 him blindly, he may be, according to the sug- 

 gestion of the honorable Senator from Maine, 

 shot. My answer is this, that where a soldier 

 is subject to the articles of war, the articles 

 of war are subject to the law of the land ; and 

 that he does not cease to be a citizen because 

 lie enlists in the army of the United States. 

 He has his obligations as a citizen to obey the 

 laws of his country, and superadded to those 

 he has the articles of war that compel him to 

 obedience to his military superior ; but if his 

 military superiors give him an order wind 

 transgresses the law of the land, and if undei 

 that order he commits either trespass or a crime, 

 both he and the man who gave the order will 

 answer as criminals or transgressors at the bar 

 of the courts of the country." 



Mr. McMillan : " Then, if the Senator will 

 allow me to state the position of the soldier, 

 it is this : Here is a command from a superior 

 officer which he is bound to obey at the peril 

 of the punishment of death in some cases ; he 



