Mr. COWAN. lam aware there are a great many people who do not understand that, and who really come here and attempt to be Senators of the U.S., and to legislate here upon this floor as if they were members of Parliament, and as if the had omnipotent governmental power over this country. I know such gentlemen sneer; I know they snig or at this oetrine; and I know that a man Iias a right to snigger at his own disgrace, and at his own ignorance. He has that right, there is no doubt. I know of no provision in the Constitution which prevents a man from bein just as big afool as he pleases. [Laughter] do not know of any law to the contrary. But 1 do know that generally gentlemen and Senators Ought to listen calmly and carefully to what is said on the other side, knowing the fallibility and frailty of human judgment, and that there is such a thing possible as that they may be wrong. The Constitution of the U.S. says that this is a Government of delegated powers. What is meant by that? That we have just such power as is given in the Constitution by the several States and the people of the several States who compose this nion; and for fear that we should exercise any other or further powers, when we come here we are called up to your desk, sir, and required to take a solemn oath that we will support the Constitution. I am aware that oaths are used familiarly by diecrs; I am aware that in some months they are but straws in the fire of the hot blood; but in the mouth of a Senator I suppose they mean something. I so pose that when we come here and take an oath that we will support the constitution, we are to look to the authority that it confers upon us and will not endeavor to transcend that authority even a hairs breadth. Why? Because to do so is to transe end the will of the American people. When we are to have more authority, at the American people confer it, and then we can legislate in the premises. Mr. President, what is the judicial authority conferred by the Constitution upon the government of the U.S.A.? It is not all the judicial authority of the land uul questionably. B what warrant does your State court in RhdIsland, sir, [illh ANTHONY in the chair] decide criminal causes in it? By what authority does it convict the thief of lar ceny, the burglar of burglary, the murderer of murder? Is it by virtue of authority derived from the U.S.? Is it by virtue of authority enjoyed concurrently by the U.S. with the State of RhdIsland? Not at all. The stu idest citizen you have knows that your State as rights as well as the U.S. hasrights. You have the right in that State to try for offenses committe within it nerally. When does the U.S. try or offenses committed within the State of RhdIsland? Generally? Not at all. Not generally, but particularly, where the authority is given in the Constitution. By whatjudicial authority do your courts in RhdIsland de cide between man and man in RhdIsland? Bv the authority of the sovereign State of RhdIsland, and by virtue of her reserved rights which were not delegated to the U.S. in the Constitution. Did you, sir, ever known man in the State of RhdIsland, did you ever know in an State of the Union 2 citizens of that State ragged into the U.S. court for a difference between them? Nobody ever heard of it, and it has remained until this day and this age that these things should be known. As to differences arising between citizens of RhdIsland, unless in the particular cases provided in the Constitution and in the constitution the particular cases are provided for the U.S. courts have no more jurisdiction thnn the have overa casein Russia. If ndispute arises between acitizen of RhdIsl and and a citizen of Massachusetts, the U.S. courts determine it; and why? Because the Constitution and the Union were made for the purpose of securing domestic tranquillity, for the pay use of settling did utes between citizens of ifferent States which would otherwise have led to broil and trouble between States. A citizen of RhdIsland and, with your liberty, sir. I will take your State as being one of as small compass, perhaps, as any other charges upon another citizen of RhdIsland a trespass. Or I might o to the State of the honorable Senfrom cw Hampshire and take a case from his immense State with the large amount of patriotism and love of country which he professes here, and which he is not willing to allow to my honorable friendfrom Delaware,:1 little State, too. I suppose Delaware has just about as much patriotism as NewHam sire, and I suppose, and I have always suppose, that a man from Delaware loves his country as well as the Senfrom NewHampshire, although he may perhaps differ from him as to what was the protperway to manifest that love. I am sorry at upon this floor we cannot argue questions and not people. I may imitate to some extent the language of the Senfrom NewHampshire when I say that I think we have had too much of that, and I think it is time that the whip had ceased to crack over the heads of the minority here, or persons who do not choose to a e with a ominant tyrannical majority. what do gentlemen suppose they caii do? Terrify men into submission to the will of a majority without expressin their opinions? Gentlemen, I tell you when this Senate becomes a place where a man cannot express his opinions freely, you have not restored the Union; you have not preserved your Government; you have destroyed the very essence and the vitals of it while on were pretandin to save it; you have intro need a tyranny as etestable as that from which your ancestors rese ued you in the Revolution a tyranny as detestable as prevails anywhere in the world. Let every man in the Senate ask his free thoughts, give his opinions free y, and let no man impugn his motives upon this floor. Sir, I come back to the question I put be fore. What was the judicia authority granted to the U.S. in the Constitution? This bill provides that when a citizen of the State of RhdIsland brings an aetionof tres pass against another citizen of RhdIsland, for a particular offense committed during the existence of the rebellion, and, if you please, in the act of suppressing the rebellion, the jurisdiction of the courts of RhdIsland shall be pushed aside, set aside, and jurisdiction of that cause giVen to the U.S. courts. I am not so dogmatic as to say that perhaps that may not be right. It is not necessary or the purposes oft c argument here that I should assume, as if infallible, that that may not be right. I merely suggest it doubt, in order that I may meet the argumentto the point of which I shall come direct y. But, Mr. President, what I do say is thatit is aquestion, and aquestion of law as to whether the jurisdiction of the State of RhdIsland in that case can be ousted and that of the courts of the U.S. substituted for it. That is aquestion, a fair question, and I have respect or a man who argues it on this floor fairly. I have no respect for a man who assumes it to be one so exceedingly plain that nobod can mistake it. A question, then , as Isaid, comes up between 2 citizens of this State, and one of them alleges that he was acting under the or ders of the U.S., that he was in the service of the U.S., and that what he did in the premises he did as such servant of the U.S. That, it is alleged by this bill, gives to the U.S. courts jurisdiction. I doubt it very much. Let us see in what cases the U.S. have jurisdiction; let us read it, because here it is. It is inv small compass, and any man of moderate abilities might, if he were to take the time, ascertain precisely the extent of the jurisdiction of the U.S. courts; and he could ascertain it from the Constitution itself, withoutrun nin away to far fetched analogies which have really no connection with the matters in hand. "The judicial power shall extend to all casesin law and equity arising under laws of the U.S., and trtheaist ieCsumnsatditeuotriown tichhe shall be made under their authqrity; to allensesaffect inilscmbassadors, other public ministers, and consu " Because, on will observe, that when the Union was ormed, all connection between the several States and foreign Powers was aban doned and veu over to the new creation arising out oft O whole “ To all casesof admiralty and maritime jurisdiction; to controversies to which the U.S shall be a party; to controversiesbetween 2 or Smtoartee;States; betweena Stateand citizensof another betweencitizens of different States: between citizensof the sameState claiming lands” You observe it is particular, not general; it only applies to citizens of the same State who are “claiming lands under grants from different States, ” and you see how appropriate that was. If the titles to lands were to be decided in the courts of the State granting one of the m, of course the trial would not be very likely to be acquiese ed in. Then, in all such cases the U.S. was to have general jurisdiction for the purpose of public tranquillity, for the purpose of preserving the peace. “ and betweena State or the citispns thereof and foreign States.citizens, or sulzuccts. There is the extent of it. Now, I ask any intelligent man under what part of that delegation of udicizil power to the U.S. is claimedI the right to decide between 2 citizens of RhdIsland or 2 citizens of any other State upon a question of trespass. Is that a plain question? Will any man say that that is a question upon which any man might not blunder, an man might not stumble, any man might not ecide it one way or the other? Now, if I understand, what is complained of by my honorable friendfrom Wisconsin in this bill is, that you punish the judge for deciding that question one way as though it was a crim inal offense. Now, Mr. President, once for all in this body let me ask, is crime a fact or is crime an abstraction? Is crime a thing which has actual, otentiul existence in the mind of the crimiua, or is it a mere creature of statute, to be made out of that which has no element of crime about it? Clearly not the latter. In order to constitute crime, there must be a criminal intent; in order to constitute a tres pass, a violation of the rights of anybody which is remediable by damn ii there must be an intent in the mind of the person who commits it to do the wrong. on cannot make that wrong which in itself is right and fair and honest by writin it down in a book that it shall bewrong. That will not effect uate your purpose. It is complained here that a judge, honestly deciding the law as he understands it, honestly deciding the question under the Constitution and under the laws taken all together, shall be punished as a criminal. To me that proposition is monstrous; to medt has never had any place in any legislation in civilised countries, within the recent Christian era at least, I think I may say. But it is said that a ndge may be made a criminal because he Wlll not issue a writ of habeas c. I am rather inclined to think he should 0, but invthat case he is not to be a criminal because of his decision of able 1 point; it is because of his refusal to do apain duty laid down before him by the statute. If I go to njudge and demand a writ of habeascorpus, I do not ask him to deliver me a legal opinion on it; if the writ is warranted by the statute and I bring myself within the requirements of the statutel demand it of right, and if he refuses"to do it he refuses to do his duty, and that is an offense. If I am detained of my liberty and I appeal to the judge to deliver me and he will not issue the writ, that is an offense and a very high offense. It was an offense as far back as tunnymede, in the great charter. But if he issues the writ and I am brought before him and my case is heard and he decides it, no matter how improperly, how erroneously, there is no guilt in that if he was not moved by an improperpurpose, which I must show, not from the statute book, but I must. show as existing in his mind an intent to do the wrong, if I want to mulct him in damages or punish him as a criminal. There is the distinction a very clear, broad distinction, one that nobod could mistake between the cases cited here as precedents fort is extraordinary exercise of power and this case itself. Mr. President, it might be well to inquire from whence sprang all this brood of transfer ring cases from the State courts to the U.S. courts. How did it happen that there ever was a precedent for that thing? I will try and exp sin that. Among other powers delegated to the U.S. was the power oflevying taxes, imposts, duties, and so on, or in other words, to enforce a revenue system. In early times in this country there was no net of Congress taking cognizance of that revenue system and providing for the decision of cases under it; and hence, perhaps, 35 or 36 years a 0, about 1830, an act of congress was passe which provided that when ever a revenue officer in the execution of his duty collecting the revenue shall be involved in law suits with anybody about that subject, those cases should be transferred to the courts of the U.S. in order that he might be tried there, because the cases arose not under State laws, but under the laws of the U.S. That was right and proper. Where the officer was acting under the laws of the U.S., where he was executing the laws of the U.S., and where the whole subject matter was within the jurisdiction of the U.S., it was eminent y properthat the cause should be carried into the U.S. courts; but that is a very didemiit thing from the application we have made of that rule here, and a very different thing from the later precedent which we have followed. This is not that case. Thi is a case where primafacie the State courts have not only clear, unquestionable jurisdiction, jurisdiction never before perhaps doubted, but where the U.S., By the very terms of the instrument under which we govern the Union, have no such power. Take the Constitution and the judiciary act and read them. Let any man read them and see where he can find the authority there. The nearest he can possibly come to it is that these may be said to be cases arising under the laws of the U.S. I am perfectly free to say that an argument may be made there; but I am also perectly free to say, and I am perfectly sure in saying, that the man who decides that question one way or the other is not on account of that decision to be taken as a crim inal or to be mulcted in damages because of any mitake he may make. As my honorable friendfrom California