Mr. DOOLllTLE. Mr. President, I desire to say a few more words to my honorable friendfrom Illinois on this question of habeascorpus, and I have taken up the book from which my honorable friend read. In the State of Wisconsin, to which he referred, and which he said he presumed authorized judges sitting in term time, if they refused the writ of habeascorpus, to be fined and imprisoned or inulcted in am ages for refusing the writ, he is entirely mistaken. In the State of Wisconsin it is as I stated, and as it is in a large majorit of the States of this Union; the officer reusing to issue the writ in vacation, and not in term time, is made responsible. The statute of Wisconsin is as follows: “That if any officer authorized by the provisions of this chapter to grant writs of babemcorpus shall willfully refuseto grant the writ. When locally applied for, he shall forfeit for such offenseto the party ag grieved the sum of $1,000." It is the officer, not the court sitting in term time. How is it in the State of Illinois, where the Senator himself resides, and was himself ajudge of the supreme court? If the officer shall “corruptly” refuse to issue the writ he shall then be made responsible in damages. “The habeas counts act in Illinois, says Chancellor Kent, “confines the liability of the judge to a penalty for refusing to issue a writ of habeascorpus, when legally applied for, to a corrupt refusal” uot a judicial refusal, not even the decision ofu ministerial officer in the refusal of the writ. How is it in the other States of the Union? In Connecticut there is no penalt imposed whatever upon a judge for refusing the writ; it is left to his judicial judgment, and the people of Connecticut and the laws of Connecticut have confidence enough in their judiciary to suppose that they will decide according to the laws of the land and the oaths which they have taken. How is it in Virginia and NCarolina? Their habeascorpus act is a copy of the habeas empus act of England, from which we have borrowed the common law and the writ of habeascorpus, and how is it there? Are the judges sitting in term time made responsible in damages or by fine or imprisonment? Not at all; it is the judge sitting in vacation at chambers, not as a court, if he refuses the ministerial act, for it is nothing but a ministerial act to issue the writ when the statute requirements are complied with and the petition sets forth what the statute requires. Howis it in NewJersey? Preciselyt e same. In Maryland, I doubt not, it is the same bor rowed from the English statute. There are but 2 States in the Union that the Senator can point out and the one is NewYork and the other Mississippi where the Legislature has assumed to impose a fine upon judges for refusing to grant the writ in term time; and I now come to the question which originally arose between the Senfrom Illinois and myself: I say the issuance of the writ is not a question of judicial discretion, even by the jn gas in term time. There is no judicial discretion with them but to look into the petition and see ifthe petition conforms to the statute; and if it does. they are bound to grant the writ. It is not a discretionary writ; it is a writ of right. towhich the party has an absolute right. How is it in the State of Massachusetts? What says Chancellor Kent about Massachusetts on this subject of punishing judges for granting or refusing a writ? “The Massachusetts habeascorups not "And this is Chancellor Kent, living in NewYork and writing about NewYork and the statute of NewYork, comparing the statute of Massachusetts with the statute of NewYork, and he says: " the Massachusetts habeascorpus not in their revised statutes of 1335.does not contain degrading penalties hanging over the courts and Judges." Chancellor Kent, speaking of this statute of NewYork, which goes on to enact that the judges sitting in term time, if they refuse to grant the writ, shall still be made liable, says it is the 1stinstancein the history of the English or American law in which any such thing has ever occurred; and he speaks of it, when he comes to speak of Massachusetts, as a de ding penalty hangin over courts and judges. at how is it even in NewYork? It is not an exercise of judicial discretion; and that is just the point I made in the beginning; it is not a discretionary writ, but a writ of right. What says this some authority, to which my friend referred, speaking of the habeascorpus: " It is a writ of right which every person is entitled to exmerilojuaticim; but the benefit of it was in a great degree eluded in England prior to the statute ofCharleslI, as the judgesonly awarded in term time, and they assumed a discretionarypowerof awarding or refusing it." Because the judges in the time of Charles H assumed to so that the granting or refusing of a writ of mbeascorpus was a question of judicial discretion, “ the statute of 31 Charles H, c. 2, ” was enacted, which by its “explicit and peremptory provisions restored the writ of habeas cm us to all the efficacy to which it was entitledpat common law, ” and made it a writ of right, to which a man had a right, whether the court was in favor of it or not. He had only to comply with the stat ute in reference to the petition which he presented, and the court were to award it; and in order to enforce this right, England provided by statute that judges in vacation who should refuse to award the writ should be liableto be punished, but not the court sitting in term time. “The penalty for refusal to grant the writ was, by the English statute, confinedto the default of the chancelIor or judge in vacation time." Not sitting in court, not sitting in banc, not in term time, but in vacation time; and the only States are NewYork and Mississippi, which provide that the members of a court sit ting in term time shall be liable to a fine for not awarding the writ; and when they sit in term time and pass upon the question they pass upon it as a writ of right upon which they iave no judicial discretion any further than to look into the petition which is the basis of the application and determine whether that petition on its face makes out a case for the writ; they inquire into nothing outside of the petition. They can take proofof no fact whatever; they can only look into the petition, and if the petition reads according to the statute, the are bound to issue the writ; the are boun without any judicial discretion to oso. That is the very point in the case. What I said in the beginning and assert now is, that it is a novel proceedin to undertake to render ajudge responsible in damages for what he may ju i cially decide. My friendfrom Illinois will not understand me as being any less desirous of defending those faithful men who, in the midst of this great rebellion, have been acting in the name of the Government of the U.S. I wish to defend them; I wish to throw over them the shield of this Government; and where the individual has acted in good faith under the authority of this Government, I would defend him in the name of the Government, openly and frankly, and abide the consequences. I have some serious doubts whether it is within our power to declare, as it is de clared in one section of this bill, that a mere order shall constitute a defense in those places where martial law was not declared or where the o ierations of the Army did not so disturb the administration of the civil law in the State courts and the Federal courts as to prevent justice being done between parties. Where martial law prevails, of course, the order of the military commander is a perfect defense. There is no law where martial) law exists but the law of the military power governing the place, and whatever may be done may be jus tified under militar order. But, sir, in those places where civil law has all the while been in full play, where the courts have been open, their proceedings undisturbed by arms whether in such courts we can by act of congress go any further than to declare that such a military order shall constitute a "ma acie defense, and change the burden o proo, is a very serious question indeed. But, sir, I will not go into the discussion of that matter now. I only wished to discuss this single question which [have raised, whether the course I have suggested is not wiser, bet ter, more in accordance with the whole history of legislation in England, and with the history of legislation in this country, the only pretended exception being the case of the State of NewYork and the State of Mississippi; and these are condemned by Chancellor cut, the authority which the Senfrom Illiuoi has quoted, who speaks of it as a de ding pen alty hanging over courts and ju es; who is o posed to it; who declares thatt e statute of NewYork is the 1st in the history of English law or American law which looks in the direction of punishing ajudge for what he does or may not do in term time; although the act is not a discretionary act, it is an act which he is bound to do, if the petition complies with the statute, and he has no discretion to refuse the writ. I ask, is it wise to follow that example which is exceptional, contrary to the whole history of English law and American law I Is it wise for us to do it when there is no necessity for it? If the parties are made responsible; if the ministerial officers, who do not act judicially, and who always act upon their responsibilit, are made liable for the damages resulting from the case being proceeded With in the State court after the removal, why is not our officer perfectly protected? I think that the act which we are about to pass will be just as etheient if we leave out the action of those who act judiciall, it will be much less liable to objection in the States where it is to have force; and, in my judment, it will be more in conformity with the history of the legislatior of this country, and of that country from which we derive ourlaws.