Burnham, Calvert, Clements, Cobb, Cox, Cravens, Crittenden, | invaded, and in which the civil and judicial powers are in Dunn, English, Granger, Grider, Hale, Harding, Johnson, full operation. William Kellogg, Kerrigan, Knapp, Law, Lazear, Leary, May, Morris, Noble, Norton, Nugen, Pendleton, Price, Robinson, James S. Rollins, Shiel, Smith, Benjamin F. Thomas, Francis Thomas, Vallandigham, Vibbard, Voorhees, Wadsworth, Ward, Chilton A. White, Wickliffe, Woodruff, Worcester, Wright, Yeaman-48. 2. Resolved, That Congress has no power under the Coustitution to delegate to the President of the United States the authority to suspend the privilege of the writ of habeas corpus, and imprison at his pleasure, without process of law or trial, the citizens of the loyal States. 3. Resolved, That the assumption of the right by the Executive of the United States to deprive the citizens of such December 15-Mr. PENDLETON offered the fol- loyal States of the benefits of the writ of habeas corpus, lowing resolution : Resolved, That the President be requested to inform this House, if in his opinion not inconsistent with the public interest, whether in any oath of allegiance or parole required to be taken by any prisoner held in custody as a socalled political prisoner, there has been inserted a clause to the effect that he should not bring suit for the recovery of damages for such imprisonment, or that he should not oppose, by speech or otherwise, the war measures of the Ad ministration. Which was laid on the table by the following vote-yeas 77, nays 43. March 3-Mr. MAY offered the following resolution : Whereas it is represented that Major General Schenck, commanding the forces of the United States stationed in Baltimore, Maryland, has ordered, as a condition to be annexed to the worship of Almighty God by certain religious societies or congregations of the Methodist Church of that city, that the flag of the United States shall be conspicuously displayed at the time and place of such worship: and whereas the said order is a plain violation of the inalienable right to worship God according to the dictates of every one's conscience, as it is asserted by the said congregations, and also by our declarations of fundamental rights and secured by our State and Federal Constitutions: and whereas a minister of the said congregation, the Rev. John H. Dashiell, having, on Monday, the 15th ultimo, removed the said flag from his own premises, which was also the place of worship of one of said congregations, where the said flag had been placed surreptitiously by some evil-minded person, and for so doing was arrested by order of the said General Schenck and held as a prisoner: Therefore, Be it resolved, That the Judiciary Committee be, and hereby is, instructed to inquire into the allegations aforesaid, and ascertain by what authority the said General Schenck exercises a power to regulate or interfere with the privileges of divine worship, and also to arrest and detain as a prisoner the said minister of the Gospel, as aforesaid; and, further, that said committee be instructed to report upon the same at an early day. The House refused to suspend the rules to get the resolution before the House-ayes 28, noes 79, (yeas and nays not called.) First Session, Thirty-Eighth Congress. 1863, December 17-Mr. HARRINGTON offered this resolution: Whereas the Constitution of the United States (article one, section nine) provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it:" and whereas such provision is contained in the portion of the Constitution defining legislative powers, and not in the provisions defining executive power; and whereas the Constitution (article four of Amendments) further provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," &c.; and whereas the Thirty-Seventh Congress did, by act, claim to confer upon the President of the United States the power, at his will and pleasure, to suspend the privilege of the writ of habeas corpus throughout the United States, without limitations or conditions; and whereas the President of the United States, by proclamation, has assumed to suspend such privileges of the citizen in the loyal States; and whereas the people of such States have been subjected to arbitrary arrests without process of law, and to unreasonable search and seizures, and have been denied the right to a speedy trial and investigation, and have languished in prisons at the arbitrary pleasure of the Chief Executive and his military subordinates: Now, therefore, Resolved by the House of Representatives of the United States, That no power is delegated by the Constitution of the United States, either to the legislative or executive power, to suspend the privileges of the writ of habeas corpus in any State loyal to the Constitution and Government not and to imprison them at his pleasure, without process of law, is unworthy the progress of the age, is consistent only with a despotic power unlimited by constitutional obliga tions, and is wholly subversive of the elementary principles of freedom, upon which the Government of the United States and of the several States is based. 4. Resolved, That the Judiciary Committee be instructed to prepare and report a bill to this House protecting the rights of the citizens in the loyal States, in strict accordance with the foregoing provisions of the Constitution of the United States. Which was negatived-yeas 67, nays 90, as follows: YEAS-Messrs. James C. Allen, William J. Allen, Ancona, Augustus C. Baldwin, Bliss, Brooks, Brown, Chanler, Coffroth, Cox, Cravens, Dawson, Denison, Eden, Edgerton, Eldridge, English, Finck, Ganson, Grider, Hall, Harding, Harrington, Benjamin G. Harris, Herrick, Holman, William Johnson, Kernan, King, Knapp, Law, Le Blond, Long, Mallory, Marcy, McAllister, Mc Dowell, McKinney, Middleton, William H. Miller, James R. Morris, Morrison, Nelson, Noble, Odell, John O'Neill, Pendleton, Perry, Radford, Sam uel J. Randall, Robinson, Rogers, Ross, Scott, John B. Steele, William G. Steele, Stiles, Strouse, Sweat, Voorhees, Wadsworth, Ward, Wheeler, Chilton A. White, Joseph W. White, Winfield, Wood-67. NAYS-Messrs. Alley, Allison. Ames, Arnold, Ashley, John D. Baldwin, Beaman, Blaine, Blow, Boutwell, Brandegee, Broomall, William G. Brown, Ambrose W. Clark, Freeman Clarke, Clay, Cobb, Cole, Creswell, Henry Winter Davis, Thomas T. Davis, Dawes, Dixon, Donnelly, Driggs, Dumont, Eckley, Eliot, Farnsworth, Fenton, Frank, Garfield, Gooch, Grinnell, Hale, Higby, Hooper, Hotchkiss, Asahel W. Hubbard, John H. Hubbard, Hulburd, Jenckes, Julian, Kasson, Kelley, Francis W. Kellogg, Orlando Kellogg, Loan, Longyear, Lovejoy, Marvin, McBride, McClurg, McIndoe, Samuel F. Miller, Moorhead, Morrill, Daniel Morris, Amos Myers, Leonard Myers, Norton, Charles O'Neill, Ortli, Perham, Pike, Pomeroy, Price, William II. Randall, Alexander H. Rice, John H. Rice, Edward II. Rollins, Schenck, Scofield, Shannon, Sloan, Smithers, Spalding, Stevens, Thayer, Tracy, Van Valkenburgh, Ellihu B. Washburne, William B. Washburn, Whaley, Williams, Wilder, Wilson, Windom, Woodbridge-90. 1864. February 29-Mr. PENDLETON offered the following resolution: Resolved, (as the sense of this House.) That the military arrest, without civil warrant, and trial by military com mission without jury, of Clement L. Vallandigham, a citizen of Ohio, not in the land or naval forces of the United States or the militia in actual service, by order of Major General Burnside, and his subsequent banishment by order of the President, executed by military force, were acts of mere arbitrary power, in palpable violation of the Constitution and laws of the United States. Which the House refused to table-yeas 33, nays 84, and then rejected-yeas 47, nays 77, as follows: YEAS-Messrs. James C. Allen, Ancona, Augustus C. Boldwin, Brooks, Chanler, Coffroth, Cox, Dawson, Denison, Eden, Eldridge, Finck, Ganson, Harding, Harrington, Herrick, Holman, Hutchins, Kernan, Knapp, Law, Long, Marcy, Mc Dowell, McKinney, William II. Miller, Morrison, Nelson, Neble, John O'Neill, Pendleton, Radford, Samuel J. Randall, Rogers, Ross, Scott, Stebbins, John B. Sterle, Wiliam G. Steele, Stiles, Strouse, Stuart, Sweat, Voorhees, Wiliam H. Wadsworth, Chilton A. White, Winfield-47. NAYS-Messrs. Alley, Allison, Anderson, Arnold, Baily, John D. Baldwin, Baxter, Francis P. Blair, jr., Blow, Boutwell, Boyd, Brandegee, Ambrose W. Clark, Freeman Clarke, Clay, Cobb, Cole, Creswell, Henry Winter Davis, Dawes, Deming, Dixon, Donuelly, Driggs, Dumont, Eckley, Eliot, Farnsworth, Frank, Grinnell, Hale, Higby, Hooper, Hoteùkiss, Asahel W. Hubbard, John H. Hubbard, Jenckes, Julian, Kelley, Francis W. Kellogg, Orlando Kellogg, Loun, Marvin, McBride, McClurg, Moorhead, Morrill, Daniel Morris, Amos Myers, Leonard Myers, Norton, Charles O'Neill, Patterson, Perham, Pomeroy, Price, William H. Randall, John H. Rice, Schenck, Scofield, Shannon, Sloan, Smithers, Be it enacted, dc., That upon all arrests under section 6, Starr. Stevens, Thayer, Thomas, Upson, Van Valkenburgh, | this bill, which was referred to the Committee Elihu B. Washburne, William B. Washburn, Whaley, on the Judiciary: Williams, Wilder, Wilson, Windom, Woodbridge-77. January 25-Mr. McDOWELL offered the following resolutions, which were laid over under the rule: Remired, 1. That the House fully recognizes the great fundamental provision of the Constitution of the United States which guarantees the freedom of speech to every American citizen; and that neither the President, nor any person acting in a subordinate capacity to him, has the rightful authority to arrest and imprison a citizen of the loyal States for the utterance of sentiments distasteful to the men in power. 2. That we recognize in the freedom of the press the great bulwark of civil liberty; and that those persons temporarily intrusted with power have not the rightful authority, in those States not in rebellion, to subvert this great constitutional guarantee by issuing military orders, or by a resort to any other means unknown to the laws of the country. 3. That the right to security of person from arrest in the loyal States, when no crime is charged, is a sacred right guaranteed to every citizen; and that neither the President, nor any one acting by his authority, has the legal right to arrest, imprison, or transport our people without "due process of law," requiring affidavit, warrant, arrest, and trial by a jury of the country, impartially selected. 4. That the privilege of the writ of habeas corpus is a fundamental and inherent right belonging to the American people, solemnly guaranteed by express provision of the Constitution, that cannot be denied to the citizens of the loyal States, where the courts are open and the administration of justice is unobstructed, and "invasion and rebel5. That the Constitution of the United States is one of expressed and limited powers, and that neither Congress nor the Executive have the "lawful right" to interfere with the established rights and domestic institutions of the several States. hion" do not exist. 6. That we reaffirm our unalterable devotion to the Constitution of the United States, and to each and every provision thereof, as framed by the fathers, including those provisions relating to the rights of property and the inviolability of contracts, as understood and interpreted by the Supreme Court of the United States. of chapter 200, of an act approved the 17th of July, 1862, bail shall be admitted, and such bail, on the demand of the party so arrested, may be taken before any judge of the United States, any chancellor, judge of a supreme or superior court, or chief or first judge of court of common pleas of any State, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence and the usages of the law. Third Session, Thirty-Seventh Congress. THE ACT OF INDEMNITY OF MARCH 3, 1863. Section 1 provides: That, during the pres ent rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon the certificate, under oath, of the officer having charge of any one so detained that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ, so long as said suspension by the President shall remain in force, and said rebellion continue. Section 2 directs the Secretary of State and the Secretary of War to furnish to the judges March 21-Mr. ELDRIDGE offered this reso- of the circuit and district courts of the United lution, which was laid over under the rule: States and of the District of Columbia, a list Resolved. That the President of the United States be res- of the names of all persons, citizens of loyal pertiully requested, and that the Secretary of State and the States, held as State or political prisoners of Secretary of War be directed, to report and furnish to this the United States, in any fort, arsenal, or other House the names of all persons, if any there are, arrested and held in prison or confinement in any prison, fort, or other place; and provides that where a grand jury place whatsoever, for political offences, or any other alleged has adjourned without finding an indictment offence against the Government or authority of the United States, by the order, command, consent, or knowledge of against any such person, the judge shall forththen or either of them, respectively, and who have not been with make an order that any such prisoner charged, tried, or convicted before any civil or criminal (not desiring a discharge be brought before him to military) court of the land, together with the charge against be discharged, and every officer of the United such person, or cause for such arrest and imprisonment, if there be any, and the name of the prison, fort, or place where States is directed immediately to obey this they are severally kept or confined. Also, whether any person order, under penalty of fine and imprisonment or persons, for any alleged like offence, have been banished or set from the United States, or from the States not in rebel--the party first to take a prescribed oath of Eon to the rebellious States; and the names, times, alleged offence or cause thereof; and whether with or without trial; and if tried, before what court. allegiance. Another section provides: That any order of the President, or under his auApril 4--The resolution, on motion of Mr. of the present rebellion, shall be a defence in thority, made at any time during the existence EDWARD H. ROLLINS, was laid upon the table-all courts to any action or prosecution, civil yeas 62, nays 40. The NAYS were Messrs. James C. Allen, Ancona, A. C. Baldwin, Bliss, J. & Brown, Chanler, Cor, Cravens, Dawson, Denison, Eden, Edridge, English, Finck, Grider, Griswold, Harrington, Herrick, Holman, P. Johnson, Kalbfleisch, Law, Lazear, Long, Mallory, Marcy, McKinney, Middleton, J. R. Morris, Morrison, J. O'Neill, Pruyn, S. J. Randall, Robinson, Rogers, J. B. Steele, Wheeler, C. A. White, Winfield, Yeaman-40. June 20-Mr. Ross offered the following resolution, which went over under the rule: Resolved, That all persons not in the military or naval prisoned by the agents of the Government without process of Law, and released without trial or examination, are entitled to the same pay and mileage for the time they were deprived of their liberties as members of Congress; and the Committee of Claims are hereby instructed to report a bill at an early day for that purpose. service of the United States who have been arrested and im Same day, in SENATE-Mг. MORRILL offered or criminal, pending, or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue. Suits begun in State courts may be transferred to United States Courts under circum stances described. Any suit described in this act may be carried on writ of error to the Supreme Court of the United States, and all suits or prosecutions for any arrest or imprisonment or other trespasses or wrongs, shall be commenced within two years. This bill passed the House of Representa tives, March 2, 1863-yeas 99, nays 45, as imprisoned; and that for them redress might be had in the follows: courts of the United States, by resort to the peaceful, reg. ular, and ordinary administration of the law." It is framed upon the idea that the citizen was arrested without the existence of crime on his part, or even probable cause to suspect it, and that in making such arrests, the substance, as well as the form, of those provisions of law intended to secure personal liberty were entirely disregarded. It makes no exception of those cases in which the arrests have been made with malice, and the imprisonments have been inflicted with circumstances of brutality and cruelty, in which the "public good" has been made the cloak wherewith to cover the gratification of political animosity or private hatred. It distinguishes in nothing between the cases in which an honest mistake has been followed by its immediate correction, and cases in which malignity has been enabled, by false pretences, to procure the arrest and to prolong the imprisonment, to the loss of property, the destruction of health, and, in some instances, the insanity, suicide, or lingering death of the unhappy victim. It dis tinguishes in nothing between the active officer, zealous in the full discharge of his official duties, and the base miscreant who volunteers to assume the degrading character of spy and informer, that he may, with more effect and security, use the falsehood which the venom of his heart prompted him to invent. It proposes to condone all of fences, to protect all offenders, and to take away all redress for injuries, however great, or with whatever circumstances of aggravation or bad motive inflicted. YEAS-Messrs. Aldrich, Arnold, Ashley, Babbitt, Baker, Baxter, Beaman, Bingham, Jacob B. Blair, Samuel S. Blair, Blake, William G. Brown, Buffinton, Campbell, Casey, Chamberlain, Clark, Colfax, Frederick A. Conkling, Roscoe Conkling, Conway, Cutler, Davis, Dawes, Delano, Dunn, Edgerton, Eliot, Ely, Fenton, Samuel C. Fessenden, Thomas A. D. Fessenden, Fisher, Flanders, Franchot, Frank, Goodwin, Gurley, Hahn, Hale, Harrison, Hooper, Horton, Hutchins, Julian, Kelley, Francis W. Kellogg, William Kellogg, Killinger, Lansing, Leary, Lehman, Loomis, Low, McIndoe, McKean, McKnight, McPherson, Marston, Maynard, Mitchell, Moorhead, Anson P. Morrill, Nixon, Olin, Patton, Timothy G. Phelps, Pike, Pomeroy, Porter, John II. Rice, Riddle, Edward II. Rollins, Sargent, Sedgwick, Segar, Shanks, Shellabarger, Sherman, Sloan, Spaulding, Stevens, Stratton, Francis Thomas, Trimble, Trowbridge, Van Horn, Van Valkenburgh, Van Wyck, Verree, Walker, Wall, Wallace, Washburne, Whecler, Albert S. White, Wilson, Windom, Worcester-99. NAYS-Messrs. William Allen, William J. Allen, Ancona, Biddle, Calvert, Cravens, Crisfield, Delaplaine, Dunlap, English, Granger, Grider, Hall, Harding, Holman, Johnson, Kerrigan, Knapp, Law, Mallory, May, Menzies, Morris, No ble, Norton, Nugen, Pendleton, Perry. Price, Robinson, Shiel, Smith, John B. Steele, William G. Steele, Stiles, Benjamin F. Thomas, Vallandigham, Voorhees, Wadsworth, Ward, Chilton A. White, Wickliffe, Wood, Woodruff, Yeaman—45. Same day, the bill passed the SENATE, without a record of yeas and nays, owing to a misun-spection and care that only those who were really guilty derstanding respecting the putting of the vote. March 3-Mr. BAYARD moved that the Secretary of the Senate be directed to request the House of Representatives, to return to the Senate the above report of the Committee of Conference; which was rejected -yeas 13, nays 25, as follows: If these acts had been done in all cases from the purest motives, with an eye single to the public good, with as litthe aggression as possible on private rights, with all circumshould suffer such confinement as would prevent the commission of an unlawful act-if the public good were in fact subserved by them-it might be proper to protect the Pres ident, and those acting under his authority, from criminal prosecution and penal sentence; it might be proper to protect them from pecuniary loss, by the payment, from the pub lic Treasury, of the damages assessed against them. Even in seasons of great public dangers negative all wrongful inthen, whilst admitting that circumstances like these would tent in the commission of these illegal acts, it would be the duty of the Representatives of the people to affirm that at all times the President of the United States, before all other men, should adhere most strictly to the forms of legal procedure when directing his powers against the personal libNAYS-Messrs. Anthony, Chaudler, Clark, Dixon, Doo-erty of the citizen. It could never be proper to indemnify little, Foster, Grimes, Harlan, Harris, Hicks, Howard, the President, and those acting under his authority, at the Howe, King, Lane of Indians, Lane of Kansas, Morrill, expense of the citizen whom they had injured, or to add to Pomeroy, Sherman, Sumner, Ten Eyck, Trumbull, Wade, their security by the destruction of his remedies. Wilkinson, Wilmot, Wilson of Massachusetts-25. YEAS-Messrs. Bayard, Carlile, Davis, Henderson, Latham, Nesmith, Powell, Rice, Richardson, Saulsbury, Turpie, Willey, Wilson, of Missouri-13. The Constitution of the United States guards most care While this subject was pending before Confully the rights of the citizen; it was ordained "to estab gress, the House, December 8, 1862, passed an indemnity bill-yeas 90, nays 45, against which, on the 22d of December, thirty-six members of the House moved to enter on the journal this protest: Resolved, That the following protest of thirty-six members of this House against the passage of the House bill No. 591 be entered upon the Journal: On the 8th day of December, A. D. 1862, and during the present session of Congress, Mr. STEVENS, of Pennsylvania, introduced the bill No. 591, entitled "An act to indemnify the President, and other persons, for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof." and after its second reading moved that its consideration be made the special order for the Thursday then next ensuing, which motion being objected to, he moved the previous question, and this being sustained, under the operation thereof the bill was read a third time, and passed. This bill involves questions of the gravest importance. It provides that all suspensions of the privilege of the writ of habeas corpus, all arrests and imprisonments upon whatever pretexts or by whomsoever made, under the authority of the President, however arbitrary or tyrannical or unjust, are confirmed and made valid; and that all persons who advised or executed or assisted in the execution of any such acts are discharged from all liability, whether to the State or to individuals "in respect thereof;" and that all proceedings against them of any nature, whether for the recovery of damages or for the infliction of punishment" commenced or to be commenced," are discharged and made void. It also provides that the President may, during the existence of this rebellion, at any time and anywhere throughout any of the United States, and as to any person, suspend the privilege of the writ of habeas corpus. The bill is framed upon the idea that the acts recited were illegal, and without just cause or excuse; that they were violations of the rights of the persons arrested and lish justice, insure domestic tranquillity," and to "secure the blessings of liberty;" and so steadily was this object kept in view, that in addition to the reservation of all powers not granted, there are special prohibitions of seizures without warrant, detentions without indictment, imprisonment without a speedy and public trial, and deprivation of life, liberty, or property without due process of law; and there are clauses which extend the judicial power of the United States to all controversies between citizens of different States, and secure a trial by jury in all cases in which the value in controversy exceeds twenty dollars. Congress has hitherto uniformly maintained, and, as far as was neces sary, has perfected by its legislation these guarantees of per sonal liberty, and the courts have enforced them by the 28sessment of damages for their infraction. This bill proposes to deprive the courts of the power to afford such protection. It will, if carried out into practical and general operation, release the people from the duty of appealing to such peaceful and legal means of redress, and will provoke more summary and less constitutional measures. Yet this bill, without precedent in our history, suggesting such grave questions of constitutionality and expediency, believed by many members to be utterly subversive of the rights of the citizen and of the express provisions of the Constitution, by the force of mere numbers and against the remonstrance of the mi nority, was passed within one hour of its first introduction, without having been printed, without having been referred to any committee, select or standing, and without any op portunity for consideration or discussion. The undersigned, members of the House of Representa tives, do therefore most solemnly remonstrate against this action of the House, and respectfully ask that this their protest may be entered upon the Journal. They protest against the refusal of the House to permit consideration and discussion of the bill as an arbitrary exercise of power by the majority, unjust to the members, unjust to their constituents, and derogatory to its character as a deliberative legislative body. They protest against the passage of the bill 1. Because it purports to deprive the citizen of all exist ing, peaceful, legal modes of redress for admitted wrongs, and thus constrains him tamely to submit to the injury in- | present rebellion, it shall not be lawful for any officer or flicted or to seek illegal and forcible remedies. servant of the United States to arrest or detain any citizen 2. Because it purports to indemnify the President and of the United States who may be supposed or alleged to be all acting under his authority for acts admitted to be wrong-disloyal thereto, or for any other cause, except upon oath or ful, at the expense of the citizen upon whom the wrongful affirmation of some person or persons well known to be acts have been perpetrated, in violation of the plainest loyal to the United States, and particularly describing in principles of justice, and the most familiar precepts of con- said oath or affirmation the act of disloyalty or other cause stitutional law. for which the said citizen should be arrested and detained. SEC. 2. That any and every officer or servant of the United States who shall arrest or detain any citizen of the United States in contravention of the provisions of the first section of this act shall, on conviction thereof in any court having jurisdiction in the case, suffer a fine of not less than $10,000, or imprisonment in the penitentiary for a term not less than five years. 3. Because it purports to confirm and make valid, by act of Congress, arrests and imprisonments which were not enly not warranted by the Constitution of the United States, but were in palpable violation of its express prohibitions. 4. Because it purports to authorize the President, during this rebellion, at any time, as to any person, and everywhere throughout the limits of the United States, to suspend the privilege of the writ of habeas corpus, whereas by the Constitution the power to suspend the privilege of that writ is confided to the discretion of Congress alone, and is limited to the places threatened by the dangers of invasion or insurrection. 6. Because, for these and other reasons, it is unjust and unwise, an invasion of private rights, an encouragement to lawless violence, and a precedent full of hope to all who would usurp despotic power and perpetuate it by the arbitrary arrest and imprisonment of those who oppose them. 6. And finally, because in both its sections it is "a deliberate, palpable, and dangerous" violation of the Constitution," according to the piain sense and intention of that instrument," and is therefore utterly null and void. James R. Morris, A. L. Knapp, C. L. Vallandigham, C. A. White, Warren P. Noble, W. Allen, William J. Allen, 8. S. Cox, E. H. Norton, George K. Shiel, 8. E. Ancona, J. Lazear, Nehemiah Perry, C. Vibbard, John Law, Charles B. Calvert, George H. Yeaman, SEC. 3. That all persons arrested under the provisions of this act upon the charge of disloyalty to the Government of the United States, or for any other cause, shall have the privilege of the writ of habeas corpus; and the said writ shall not be suspended at any time so far as the same may relate to persons arrested as aforesaid. SEC. 4. That nothing in this act shall be so construed as to prevent the arrest of any person, a citizen of any or either of the States now in rebellion against the Government of the United States, who may be charged with treason or disloyalty thereto: Provided, That all arrests of such persons shall be made as provided in the first section of this act, or upon the precept of the President of the United States. Which was rejected--yeas 7, (Messrs. Carlile, Kennedy, Powell, Richardson, Saulsbury, Turpie, Wall,) nays 29. THE ACT SUSTAINED BY THE COURTS. The important case of George W. Jones, exMinister to Bogota, vs. William H. Seward, has been decided in New York by the Supreme Court. Mr. Jones was arrested on a telegraphic dispatch from Secretary Seward, and imprisoned at Fort Lafayette. When released he brought a suit for $5,000 damages for false imprisonment. Mr. Seward, by counsel, moved to transfer the case to the United States Circuit Court, under the act of March, 1863. The mo The motion to enter this protest was tabled-tion was denied, and the General Term decided yeas 75, nays 41. an appeal which was taken to it. The majority The above bill of Mr. STEVENS was amended of the judges affirm the act; one, Clerke, disin the Senate, and finally passed that body-sented. yeas 33, nays 7, as follows, January 28: YEAS-Messrs. Anthony, Arnold, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Henderson, Hicks, Howard, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, Wilmot, Wilson of Massachusetts-33. NATS-Messrs. Bayard, Carlile, McDougall, Powell, Turpie, Wall, Wilson of Missouri-7. The House non-concurred in the amendments, and a Committee of Conference having met, agreed upon a report, which was agreed to in both Houses as stated before, p. 184. VOTE ON SUSPENSION OF HABEAS CORPUS. Pending the consideration of the original House bill in the Senate, 1863, Feb. 19-Mr. PowELL moved to strike out the third section authorizing the President to suspend, by proclamation, the writ of habeas corpus in certain contingencies; which was rejected-yeas 13, nays 27, as follows: YAS-Messrs. Bayard, Carlile, Cowan, Kennedy, Latham, Nemith, Powell, Rice, Richardson, Saulsbury, Turpie, Willey, Wilson of Missouri-13. NAYS-Messrs. Anthony, Arnold, Chandler, Clark, Davis, Dixon, Doolittle, Fessenden, Foot, Grimes, Harris, Henderson, Hicks, Howard, Howe, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner. Ten Eyck, Trumbull, Wilkinson, Wilmot, Wilson of Massachusetts-27. VOTE ON ARRESTS. George W. Jones vs. William H. Seward. of the act of Congress passed March 3, 1863, affords a valid LEONARD, J.-The question is not whether the 4th section defence to the action. The true question is this: Is it in the power of Congress to give the circuit court jurisdiction of the case? to all cases in law and equity arising under the ConstituThe Constitution extends the judicial power of the Union tion, laws, and treaties of the United States. The defence in this case arises under the act of Congress, and the validity of that act, considered in the light afforded be determined at the trial. It has been decided that a case by the Constitution, will be one of the principal subjects to arises within the meaning of the Constitution as well when the defendant seeks protection under a law of Congress, as when a plaintiff comes into court to demand some right conferred by law. It has been objected that the original jurisdiction of all actions may be drawn into the Federal courts, by similar enactments of Congress, and that the case arises within the meaning of the Constitution only after a trial and judgment in this court, when the action can be referred by a writ of error or appeal, and brought before the Federal courts for review. The power of transferring causes to the United States Circuit in a similar manner, where the question involved was of an appellate and not original jurisdiction, has long been sustained. Chief Justice Marshall says, in the case of Osborn vs. The Bank of the United States (9 Wheaton, 821): “We perceive no ground on which the proposition can be maintained, that Congress is incapable of giving the circuit courts original jurisdiction, in any caso to which the appellate jurisdiction extends." Congress has enacted that the defendant may interpose Feb 23-Mr. CARLILE moved this substitute in his defence the orders, &c., of the President, and has for the bill: directed the transfer of cases involving such a defence, in the manner prescribed, into the circuit conrt. From and after the passage of this act, and during the According to the statements of the defendant such a case has arisen. We have nothing to do with the validity of the law as a defence to the action. It is sufficient for the State court that the defence involves the construction and effect of a law of Congress. The case has then arisen when the courts of the United States may have jurisdiction, if Congress so directs. If the law does not afford a constitutional or valid defence, it cannot now be doubted that the learned justices of the United States Courts will so declare it, when the jurisdiction of such cases will remain in the State courts, as before the enactment of the law. It is not our duty to assert the independence of our State sovereignty and jurisdiction; for the final construction and effects of all acts of Congress may be brought before the United States Courts by the express provision of the Constitution. The manner of taking the cause to those courts is of consequence. The Supreme Court of the Union must be relied on to prevent its jurisdiction from being unlawfully extended by Congress. I am of the opinion, therefore, that Congress has the power to direct the transfer of such cases. In my opinion this application was necessary in order to vest the U. S. Circuit Court with the possession of the action, but the discussion has not been lost, inasmuch as it will be now settled that this Court will not, in this judicial district, take further cognizance of cases which have been transferred under this act of Congress. It is very proper that an order be entered transferring the cause to the U. S. Circuit, as it affords the evidence in the Court of the disposition made of it. In arriving at my conclusions I have consulted Story's Com. on the Constitution, chap. 38, 23 903, 906, &c. ; 1 Wheat., Martin es. Hunter; & Wheat., Cohen vs. The State of Virginia; 9 Wheat., Osborn rs. The Bank of United States. As a rule of practice I think the Court should not approve any sureties unless the amount of the bond is equal to the sum in which the defendant in the action has been held to bail, if bail has been required in the State Court. This fact should be made to appear to the satisfaction of the judge to whom the bond is presented for approval. The decision in this case will also embrace the case of Gudeman vs. Wool, argued at the same general term as the present case. The order appealed from should be reversed, and the motion below should be granted without costs. SUTHERLAND, J.-The question is not as to the constitutionality of the fourth section of the act declaring that the order or authority of the President, during the rebellion, shall be a defence in all Courts, to any order for any arrest, imprisonment, or act done, or omitted to be done, under or by color of the President's order, or of any law of Congress; but the question is as to the constitutionality of the fifth section of the act, authorizing the defendant in any such action, to remove the same from the State Court to the Circuit of the United States for the district where the suit is brought for trial, on complying with certain requirements specified in the section; that is, on entering his appearance, filing his petition stating the facts, offering good and sufficient surety, &c. The question presented by this appeal is not as to the constitutional power of the President to order the arrest, imprisonment, &c, or as to the constitutional power of Congress to authorize the President to order the arrest, imprisoument, &c.; but the question presented by the appeal is as to the constitutional power of Congress to give the Cir cuit Courts of the United States, primary or original, and (as to the State Courts) exclusive jurisdiction, of the trial of actions for such arrests, imprisonments, &c. In determining the question as to the constitutionality of the sixth section of the act, we must assume, I think, that the trial of this action will involve the determination of the question as the constitutionality of the fourth section; that Congress, in passing the act. considered that the trials of the actions to be removed to the Circuit Courts of the United States under it would involve the determination of the question as to the constitutionality of the fourth section, whether tried in the State or United States Courts; and that Congress intended by the fifth section to take from the State Courts, and give it to the Circuit Courts of the United States, the right and power to determine that question. Had Congress the constitutional power to do this? That is the question. If Congress had the power, then the order appealed from denying the defendant's motion to remove the action and all proceedings therein to the Circuit Court of the United States for the Southern District of New York should be reversed, and I think an order made directing such removal. If Congress had not the power, then the order appealed from should be affirmed. If no steps had been taken for the removal of the action from this Court, and the action should be tried in this Court, and the question as the constitutionality of the fourth section of the act should be decided adversely to the defendant by the Court of Appeals of this State, the Supreme Court of the United States would have final and conclusive appellate jurisdiction of the question. (Const. U. S. Art. 3; sec 25 of the Judiciary Act; 1 Stat. at Larre, 85: Cohen vs. Virginia, 6 Wheaton, 264; Miller vs Nicholls 4 Wheaton, 311.) Cannot Congress give the Circuit Court of the United States original jurisdiction in any case to which this app llate jurisdiction extends? In Osborn vs. United States Bank, 9 Wheaton, cited by Judge Leonard. Chief Justice Marshall said he could perceive no ground for saying that Congress could not. In that case one of the questions was whether Congress could constitutionally confer on the Bank the right to sue and be sued "in every Circuit Court of the United States." It was held that such a suit was a case arising under a law of the United States, consequently that it was within the judicial power of the United States, and Congress could confer upon the Circuit Court jurisdiction over it. See, also, Curtiss's Com. on the Jurisdiction, &c., of the Courts of the United States, sections 12 and 13; the latter section, containing a quotation from another portion (p. 865) of the opinion of Chief Justice Marshall in Osborn rs. the Bank of the United States, apparently quite pertinent to the question in this case. I concur, then, in the conclusion of Judge Leonard, that Congress had the power to direct the transfer to the Circuit Court of the United States. Probably an order of this Court directing such transfer is not absolutely necessary, but to make one would be in ac cordance with usage in like cases; and besides, such an order would be the best evilence of the determination of this Court, that it no longer had jurisdiction of this action. It appearing that the defendant has complied with the requirements of the act for such transfer, the order appealed from should be reversed, and an order made by this Court for the removal of the action and all proceedings therein to the Circuit Court of the United States. Dissenting Opinion. CLERKE, J.-I see nothing whatever in the arguments of my brethren, or in those of other judges on the same subject, to induce me to recede from the position which I have attempted to maintain at Special Term. They have all alike, in my very humble judgment, unaccountably overlooked the only point claiming consideration on this great constitutional subject. According to the doctrine upheld by my brethren, we can scarcely conceive of any act committed by any officer of the General Government, under color of any authority derived from or under the President, which may not constitute a genuine, veritable case arising under the Constitution of the United States, and which, therefore, may not rightly coine within the cognizance of their judicial power. It is only necessary to claim that it was committed under color of that authority, and was, therefore, justified by the Constitution, however monstrous and appalling the act may be, to make it, according to this doctrine, a case arising under that Constitution. For, of course, according to the terms of that claim, the claimant appeals through this remarkable statute, to the Constitution for his justification, and, however palpably frivolous such a claim may behowever palpably manifest may be the conviction that the Constitution no more sanctions such an act than it sanctions the burning of the Capitol, the dispersion of Congress, an I the shooting, imprisonment or exile of the men of whom it is composed, yet it is claimed to present a question, and, therefore, a case arising under the Great Charter of Consti sutional Liberty in America-the perpetrator of the outrage making that a question which is unquestionably no question; and the judicial power of the State is ousted of its legitimate jurisdiction. Thus, this extraordinary statute prescribes not only that the character, but the mere assertion of the wrong-doer shall determine jurisdiction, and that the subject-matter, which has been always held, except in cases affecting Embassadors, other diplomatic Ministers and Consuls, as alone the criterion of jurisdiction, shall be excluded from consideration. Surely, if this can be done by Congress, the Government of the United States of America, is not as all men have heretofore supposed, incontestably a Government of limited powers and duties, and is, if not one of unlimited powers and duties, neverthe less, of very accommodating expansibility. This is a novel and strange theory of development in America. But, it is asserted as the appellate power of the Supreme Court of the United States extends in certain cases to State tribunals, that this case would, after judgment, reach the Federal jurisdiction, and that, therefore, it may as well be transferred to the United States Circuit Court before judg ment. Even if the Supreme Court of the United States would entertain such a case on appeal this is no controlling reason why it should, necessarily, be transferred to the United States Circuit for adjudication in the first instance. For, the only question to be determined by us on this motion. is whether Congress has the power to transfer cases of this description to the Circuit Court of the United States, not whether, ultimately, it may reach the appeilate jurisdiction of the United States Supreme Court. |