Mr. COWAN. I have been very forcibly impressed with the remarks of the onorable Senfrom Vermont; and I would hope that some heed be given to this subject. I am very well aware of the difficulty that we now have in dealing with this subject as it should be dealt. with. I am very well aware of the difficulty there is in protecting an officer whoacted in the conse ientious discharge of his duties, while at the same time we protect the rights and liberties of the citizens who were the vic tims of those who abused their official position. often for the purpose ofinflicting wrong and for the purpose of gratifying private malice against tieir victims. It is therefore that I would fain hope that this bill will have the best. consideration that the Senate can giveit. That the 10 al citizen should have no remedy and no reress against the tyranny and oppression of those who for the time were clothed with a little brief authority, is too monstrous to contemplate in a Government which professes. like ours, to be a Government of law. That. the officer who, honestly, in the performance of his duty, executed the orders of his superior. should be. subjected to actions and liable to damages in the civil courts, is equally to be deprecated by eve good man. at the diflienlty is to know where to draw the line. How to pass an act of oblivion by which those things which were proper to be done, and which were right fully onc, should pass away and be forgotten, is one question. tis another to take care that the citizen be shielded, even though he may have been unfortunate enough to live in a district pervaded by these troubles, and where his life and his property, perhaps. were in jeopardy from those who were either ignorant of their properduties, or who, in disregard of them, were disposed to violate them maliciously. Mr. President, the boost of the American citizen and his pride heretofore. has been that this was a GOvernment oflaw, rather than that ofany individual or aggregate number of rulers; and it was supposed that we had so perfected the system that nothing could be done lawfully without law; or, in other words. that nothing could be done in this country, either in peace or war, which was not warranted by the laws of the land. I am very free to confess that I was one of those who so believed. I supposed that war had its laws as well as peace. I supposed that the oficer of the Army was as much bound by the law as the civil officer, the captain as much as the may istratc, the colonel as much as the judge, and the general as much as the Governor. I had supposed that in time of war that part of the law oignations which treats of war and which provides for war would be the guide of the soldier, as the municipal law in time of peace is the guide of the civil magis trate. But, sir, I am very well aware that in a proud and fierce democracy such as ours, it is perhaps impossible, in times of rest commotion, of great excitement, and O civil dissensions, that this line should be exactly observed or that these rules should be well known to those to whom we intrust the protection of the public interests. Still, at the same time, with all due regard to the responsibilities which attach to these men, and with all proptr consideration for the situations in which they find themselves, it must he confessed that after all the highest duty is the protection of the citizen and especially the loyal citizen, and I would say especially the loyal citizen in the rebellious district. Sir, there is small merit in playing loyal in NewHam )shire. There is very little merit in being lo in Pennsylvania. Any man can be loya when the pOpular sentiment is so loyal that it would threaten him with a lamp post if he were disloyal. But the stern virtue and the stubborn fidelity to the laws and to the Constitution, which marks the loyal man in a rebellious community, is above all others that which should be protected. It is for those men that I would now 5 cak. It is for those men that I would now Vindicate the justice of the Government. It is for those men t hatI would now vindicate the justice of the American rpeople. I say that where a loyal man in a reiellious district has been maltreated by an officer of the U.S. Army, or by any person in the service of the U.S., such a man is above all others entitled to the protection of the U.S. Government. Who can gninsay this I I know that the loud ency in the minds of men is to generalize. It is much more easy to generalize than it isto particularize. It is much more easyto throw your draw tictnroundacommunityorastatethan it is to pick out the individual criminals and punish them. It is much more easy for an officer in the execution of his duty, and especially one so delicate as that of putting down a rebellion has always been, to treat all the people, irre spective of the circumstances which surround them, as guilty, than it is properly to separate the one from the other and let his band he felt as the circumstances rer uire. How are we to do this, Mr. President? Does this bill do this? Will this bill enable an officer of the U.S., or one in its service who has wantonly, maliciously, and without any probable cause, invaded the rights of the citizen, the loyal citizen, to ese ape from the punishment which the laws on ht to inflict in such cases? Does this bill do tint thing? If it does, this Senate of the U.S.A., the greatest republic upon the earth, ought to be the last place where it should find favor. In the U.S.A., where, above all other places upon the earth, an insult offered to the meanest citizen of the Republic is to be taken as an insult to the Republic itself, wrong and outrage are not to be sanctioned by the laws. At the same time I wish it to be distinctly understood that I am as much in favor of.n law to protect the officer in the discharge of his duty, in the fair, honest, conse ientious discharge of the obligations imposed upon him in putting down this rebellion; I would protect him as far as any man. Does this bill do so“ and if it does so. does it rotcct him alone? I have not been concerne in the fhbrication of this bill; but I have thought that it would be far better and I throw this out for the sugges ion of the committee who have brought the bill here instead of a sweeping enactment of this kind to provide that no action should be maintained against any person for wrongs or injuries done under pretense of an authority from the U.S. in putting down the rebellion, unless the plaintiff should show certain things, which, as the usual rule, are not cast upon him as a burden. Where is the difficulty in requiring the plaintiff to prove that the person who committed the wrong and the outra e upon him did so without authority, that he did so wan tonly and maliciously? If you do that, you do not alter the frame and the texture O your laws, you preserve their harmony, and you preserve what is more, the administration of Justice pure; you throw the onus or burden of proof on the plaintifl". What is to prevent you from enacting that the plaintiff shall not maintain his action unless he shows that the person did the outrage, committed the wrong Without having the public good in his eye rather than the gratification of his own personal malice against the individual wronged or the individual comilaining? I suggest whether this would not be etter; would it not be safer for everybody? Then you put the burden upon the plaintiff to show the grammen of his charge, because ifthe person was really clothed with authority from the U.S., then the old maxim with regard to officers that everything the do is presumed to be rightly done would e still preserved, and the plaintiff would have his remedy over and above that. If a man clothed with authority commit an act of this kind, I think it is perfectly clear that it would be required on the part of anybody charging him with either misfeasance or malfeasance in Office that it be shown. If on the other hand a person not clothed with this authority should commit these wrongs, let him be put upon the footing of other citizens; let him have no advantage, even though be pretended that he had authority. Then, Mr. President, there is another suggestion that I have to make. Is this bill to extend everywhere, or is it to extend only to those portions of the Union where rebeliion has prevailed? Or are we to establish the principle that when rebellion revails in any portion of the U.S., that of itself operates to create adictatorship in the Executive? Is the suspension of the privilege of the writ of habeascorpus to be taken to mean that the Executive or his Officers may arrest everybody, right or wrong? If that is to be the construction put upon it, it is a new construction, and one which has never prevailed. If when the writ of habeascorpus is suspended I am ar rested and denied the privilege, I am notthereby debarred of my action for redress. The officer is still responsible, responsible not only for his malice, but for his blunders; and it behooves him, before he exercises this extraordinary power put in the hands of the m strate under these circumstances, to know we 1 upon whom he exercises it. I know that an impression prevails in some places that when you suspend the privilege of the habeascorpus, all people, innocent and guilty, without any difference or distinction, may be arrested and may be held until the supposed danger is over, without any remedy on the part of those innocently arrested. Mr. President, I take it, that is not the law, and if it were the law, no republic could long exist, because it is well known that the Chief Magistrate, the Executive of the nation, is the proper judge of the time and of the circumstances when it becomes necessary for him to exercise this extraordinary power, and I have only to refer to the cases of some South American republics where this very principle was made fatal and destructive to republican institutions altogether. If you ive the Chief may istrate of the Union the right to decide when the contingency happens, and upon whom he shall exercise this extraordinary power, then free institutions are at an end,tion a rebellion, which of itself is not dangerous, will be a pretext of a very great dangerto you, sir. Mr. President, I would be glad to see this bill so well considered as that no innocent man should be deprived of his remedy, and I would be glad to have it so well considered, too, that no officer or other person in the service of the U.S., honestly in the dischargeof his duty, should be liable to be harasse in the State courts and mulcted in damages for an honest and fairperformance of his duty, and in my judgment that can be only attained by the rule which I have laid down. Put the plaint iff to make out his case; put the plaintiff to show that the defendant acted without orders, ifyou please. but the plaintiff to show that the defendant, if e had orders, executed them in a wanton, malicious, and injurious, and if you please unnecessary manner as it regards him; put the plaintiff to show that with or without orders the act of the defendant was not justified either by tlm municipal law or by the laws of war.