Mr. JOHNSON. Having, as one of the ComJudiciary, by whom this bill was reported, concurred With the committee in the propriety of reporting it, although there are one or 2 things in perhaps it that I could have wished had been omitted, I rise merely for the purpose of stating very briefly the grounds upon which I suppose we have a right to this bill. n every well regulated Government and it is as true of a constitutional Government as of any other nothing is mete evident than that the judicial Dept should be coextensive with the legislative; that is to say, the former Dept should be able to decide upon all questions which may arise upon the legislation of the legislative dept of the Government. 1 c act of 1789, in its 25th section, was passed for the purpose O uardin against State decisions which might Ee foun to conflict with the Constitution and laws and treaties of the U.S., or found to punish or disregard in an way acts that might be done by officers of the U.S. acting under the authority of the U.S. The policy of that provision at that time was very apparent to the men by whom the act of 1789was passed, and that policy has been vindicated by almost the entire experience of the country from the time it was passed to the present hour. I think it is not too much to say that but for that revision our institutions would have failed. hey would have failed because the rightful authority of the Government could not have been maintained; and if that authority could not have been maintained, the Genera Government, without the existence of which the State governments would be comparatively unable to constitute us a happy or a great people, would have been comparatively futile. That section provided that every case which might be instituted in a State court in which should be in volved any question respecting the validity of a law of the U.S., or the application of a constitutional provision of the U.S., or of a treaty adopted under the authority of the U.S., in which the decision of the State court wasn ainst the provision of the Constitution or the w or the treaty might be carried by writ of error to the SCOTUS The effect of that provision was merely to submit to the Supreme curt of the U.S. the question included within that section and nothing else. The Senate, and especially the legal members of the Senate, are not to be told that from the act of 1789 to the time when the case of Martin vs. Hunter was decided, reported in 2 Wheaton, the constitutionality of that provision never was questioned, and its whole some Operation, I think, had proved itself to the satisfaction of all those who desired to sea the rightful authority of the Government of the U.S. maintained. When the case of Martin vs. Hunter arose it was contended by Virginia that in a case instituted in a State court, as that was, where the final judgment had been rendered, the jurisdiction existing of course in the State court to pronounce that final judgment, it could not be carried at all any part of it to the SCOTUS by writ of error; not only because, perhaps, it was not involved in the section of the act of 1798, to which I have adverted, but because if it was, Congress had no authority to confer that power. Upon looking at the decision of the Supreme Court in the case referred to, the Senate will find that the principal difficulty, if they had any difficulty, that the Supreme Court had to encounter wasin the existence in the particular case of a final judgment. It was not doubted then, nor as far as I know has it been doubted since, that at anytime from the commencement of a suit in the State court up to the rendition of a final judgment, if a question arose which involved the validity of a State law upon the ground of its being in conflict with the Constitution of the U.S., or the validity of a statute of the U.S. upon the round that it was not authorized by the Constitution of the U.S., or the validity of a treaty upon the same ground, or the validity of an authority exercised by any agent employed by the U.S. under the authority of the U.S., it might, antecedent to judgment, be broughtfor examination into one of the courts of the U.S. The strict constructionists of Virginia, at the head of whom stood at that time that judicial luminary, as he may well be called, Judge Roane, were exceedingly devoted to the doctrine of State rights, and they considered the 25th section of the act of 1789 as mate rially interfering with the wholesome operation of that doctrine in cases which might be broughtinto the U.S. Supreme Court an or that section, and as in point of fact inconsistent with the existence of their State right notions. The effort of the Supreme Court in the decision, a portion of which has been read by my brother from Oregon, [Mr. Winniniis] quoted in the volume O Storys Commentaries to which he referred, was to show that the fact that the case had one to judgment did not take from the U.S.tates e authority to examine the questions which the case involved, so far as those questious included the Constitution of the U.S., or the laws of the States upon the ound that they were not in accordance with the Constitution or the treaties or statutes of the U.S. The learned judge, as I think, (independent of all mere authority to which the judgment of that tribunal is entitled) arrives, by reasoning which is not to be resisted, at the satisfactory conclusion that there is as much authority to take a case into a court of the U.S. after judgment by a State court as there is to take it before judgment is pronounced. I repeat, that the authority to take it in the latter case was an authority that was never disputed. Now, what does this bill do 3 We passed the act of 1863, the 5th section of which was intended to protect those who were executing authority unfier the U.S. during the rebellion. The whole country was in a state of agitation, such as perhaps no country in the world was ever before subjected to; certainly such as our country, fortunate], was never before subjected to, and Itrust in eaven never will be subjected to again. The language of that section ais "That if any suit or prosecutionlcivil or criminal. has beenor s against any offiacllebr, e commencedin any State court civil or military or against any other person.for any arrest or imprisonment made, or other trespussnsor wrongsdone or committed or any act omitted to be done, at any time durinlz the present rebellion, by virtue or under color of any authority derived from or exercised by or under the POTUS, or any act of Congress, and the defendantshall, at the time of entering his appearancein such court or ifsuch appearanceshall have beenenteredbeforethepassage of this act, then at the next sessionof the court in which such suit or roseoution is pending. file a petition. statina the actsand verified by nflidavit. for the removal of th amigofar trial at the next circuit court of the U.S.0. es. That, as the Senate sees, and as you see, Mr. President, does notprovide for the case in which a judgment has been pronounced, and the question, therefore, submitted to the ComJudiciary, and the one upon which my own judgment was exercised as a member of that committee, was whether it was not advisable to make the remedy entirely coextensive with the possible mise hief. For aughtthat we know judgments may be rendered in those cases awainst a party who has committed the acts, whatever they may have been, under the authority of the U.S., without his having had an opportunity to make the application in time according to the provisions of the 5th section of the original act, and he may be punished, unless the case can be brought to a court of the U.S., for the faithful discharge of his duty to the U.S. he may be punished for having obeyed the order of a commanding officer up to the order of the President, which he had no authority, or supposed he had no authority, to refuse obedience to. It seemed to me, therefore, to be just as proper to give the power to remove a case into a court of the U.S. after judgment as to give the authority to remove it at an time antecedent to judgment, and that is all that is done by one of the sections of this act. The authority, therefore, to make such a provision, I submit, with great respect to those who may entertain a different Opinion, seems to me to be very clear. It assumes, as you are obliged to assume in the particular case, that the statutes of the U.S. already upon your statute book are valid laws; it assumes that your officers, the POTUS and those actin in subordination to the POTUS, have done nothing that the laws of the U.S or the Constitution of the U.S. will not protcct them in. Assuming that, if the principle be the one which I stated in the beginning of these remarks as a principle necessary to the existence of any Government, that the judicial power of the Government must be coextensive with the legislative power of the Government, it is fitaud properthat when the validity of the laws of the GlU.S. is questioned, or the validity of any authority exerted under the authority of the U.S. is questioned, the courts of the U.S. should have jurisdiction. That, I repeat, is all that is done y the 3rd section of this act. Now, having the power to pass that section, the next question which presented itself to the committee was, how is the party to be secured in the benefit intended to e conferred upon him by that section? He is sued, and judgment is rendered against him. He has been relying upon the constitution of the U.S.; that reliance, so far as the State judiciary is concerned, has proved unavailing. He has been relying upon a law of the U.S., or upon the authority of the President; and the State court has decided that his reliance fails him. Now, if we have a right and that I will not argue again notwithstanding the judgment, to take the case from the State court, and thereby arrest at once by displacing for a time, or absolutely, the jurisdiction of the State tribunal, the only question is, will you do anything, and if you in do anything, what will you do to render that right elfectual? Then what have we done by the 4th section? We have said that if, after an apil ication is made to remove a case institute in a State court, in which it is attempted to make responsible an individual for an act done under the authority of the POTUS, the State court thinks proper, not withstanding that removal, or that right to have a removal upon the part of the de endxiut, to execute the jud meut; somebodyis to be punished. The on y question is to what extent will you carry the punishment, or rather, whom will you embrace in the class of, persons who are to be punished for violating a law of the U.S.? If the 3rd section is one which we have a right to ass, then the enforcing of a judgment bytie State court, after the case has been taken from the State court under the nuthorit of the 3rd section, is an offense, if we thin proper to make it an offene, because it is aviolation of the statute of the U.S. which we have the authority to pass. How do on punish the violations of any statute of the U.S.? How do Emu punish a postmaster for violating his duty? how do you Ipunish him who interferes with your mail? how do you punish the officers of the land? How do you punish those who interfere improperly, illegally, with your records in yourcivi tribunals, or with the records of the Executive Depts? and why do you punish? Because, without punishment, provisions of that sort would be practically in many cases nugatory. Whether it is admissible to do this, is another question. Whether the whole benefit of this act would not be accomplished bv omitting the judges from the operation of the 4th section, is another question. But as far as the authority to punish is concerned, why is not the judge to be punished as well as his subordinate officer? If a judge forges his records, you can punish him; if e interferes with the mail, you can punish him; if he is guilty of any corruption in his office, you can punish him, notwithstanding he is a judge. e who commits a crime, Or what the law constitutes a crime legally, cannot protect himself upon the ground that he holds an official station under a State government, or under the Government of the U.S. That is very clear. A judge, therefore, when a case is removed from his jurisdiction by virtue of a constitutional act of congress, who thinks proper to enforce a judgment ever which his jurisdiction has entirely ceased, is just as much liable to be punished, if the legislative Dept thinks proper to punish him, as he reliable to be punisiied if hey think proper to punish him for committing any other wrongful act. this not the case, according to my view, of an erroneous judgment: It is a violation of a statute of the U.S., which, I have a right to assume in this branch of the argument, we have the authority to pass; and, en posing we have the authority to take the case from his jurisdiction, he has no more authority to execute any judgment which he may have ante cedently pronounced than he would have authority to do anything else which the laws of his State or his country prohibited him from doing. I agree with my friendfrom Wisconsin that perhaps it would be advisable, because it would be probably less objectionable to the State tribunals, if this law is objectionable at all I do not think it ought to be objectionable if the section was amended in the way proposed by my friendfrom Wisconsin. I did not understand him as denying that we have the authority to make the act for which the section as it now stands punishes the judge a criminal offense. There are many reasons, Mr. President, to which I beg leave very briefly to advert before " I conclude, why legislation of this kind is important. I know that many acts of very unnecessary violence, many abuses of authority, many excesses of power have been committed by those in whose hands the mana ement of this rebellion has been placed. believed from the 1st, and I believe now, that it might have been suppressed, perhaps just as effectu ally, by observing all the limitations to be found. in the Constitution upon the authority of the several Depts of the Government] believed, however and perhaps I may have been induced to that opinion, though Ithought not at the time, and have no reason to think now that I was induced to form that opinion by any such consideration I believed in the beginnin of the rebellion that it was all important 1st the writ of habeascorpus should e suspended; and at the instance of the then POTUS I wrote an article upon the subject, after Mr. Chief Justice Taney had decided that it could not be done except by the authority of Congress, respect fully differing with the judgment of that great urist; and that opinion was adopted by the "xecutive. Butimay have been wrong. It would be worse than i le, it would be presumption of the highest degree for any man, and especially for one who was brought up almost at the feet of the learned judge to whom I have adverted, and whose excellence as a man, as well as his profound knowledge as a jurist, in common with all who had the same opportunity of knowing him, I acknowledge to say that my opinion was certainly right, and his opinion was wron. I do not know how the SCOTUS, if the question was brought before that tribunal, would decide it now. I think they would decide that the opinion which I gave was a nor rant one; but they might not hold that opinion. They might yield to the higher authority of the very is tinguished man who has pronounced adifferent opinion in a case before him where the question was fairly presented. What then? very member of your Government who has been in any way instrumental, or in any way a party in a refusal to obey the writ of habeascorpus, and who thereby defied the State power, or defied the judicial power of the U.S., where an attempt has been made to exert it, would be responsible, notwithstanding he may have acted in perfect good faith, and under the honest connction which I felt at the time felt because I believed the power existed perhaps, but certainly felt that without the suspension of the writ, it would be exceedingly did cult to put down the rebellion as early as for the good of the country and for the sake of humanity it should be put down. But that is not all. The POTUS and persons acting under his authority, have esta lished from time to time military commissions for the trial of citizens not connected with the Army. There is I forget the particular section in a section of the act of congress containing the Articles of War, a provision which, considered by itself, would comprehend all who may do the acts specified in the particular section. Myimpression was, from the 1st, that that particular article was to be construed in connection with the entire articles, and that it meant only to embrace those who were connected with the Army. The Executive took a different view of it and they established military commissions. Hundreds have been confined, some are now under confinement, several have been hung under the authority of those commissions. i endeavored to satisfy the military commission by whom those who were charged with the assassination of the late POTUS were tried that they had no authority to pass judgment at all. I failed. The sentences were executed. Those against whom the punishment of death was not awarded are now in confinement. Those upon whom that punishment was awarded were executed. I cited a case in the arvument to which I advert for the purpose of showing to the commission the peril in which they might place themselves if they executed anybody under that authority, the peril that the Presidenthimself and all his oihcers were involved in who participated in that execution; to show that if it turned out thereafter that the military commission was an illegal tribunal, they might be indicted for murder. I cited a case, never disputed, in England, which was substantially this: in one of the islands belonging to England there was a Governor Wall, in whom all power was vested, military and civil. He had some 3 or 400 soldiers under his command. He got it into hishead that they were about to mutiny. He was about leaving the island for home, and his paymaster was to go with him. The mens pay was largely in ar rear, and they were under the impression that they would not be paid if those officers were permitted to leave the island. The result was what Governor Wall supposed, a mutiny, Ind be selected the man that he thought was the leader of the mutiny and ordered a drum head court martial upon him. The man was brought up and tried at once. Some 3 or 400 lashes was the sentence. They were inflicted, and he died in consequence of the punishment. As soon as the news reached England Governor Wall was indicted. He remained away until he thought the whole matter would have been lost to recollection by time, and at the end of 20 years, when Lord Ellenborough, who afterward was at the head of the court of Kings Bench, was the AttyGen, he reached England. He was tried upon theindictment for murder, convicted, and, in spite of all interposition, was hung. Now Mr. President, that the POTUS who has ordered military commissions, the officers who have acted as judges in those tribunals, and those who have executed the sentences whichthe commissions from time to time have awarded. acted honestly, I do not doubt. They thought they had. the authority. The Supreme Court has de cided that they had not. They held at the last term of the court that the whole proceeding was illegal, that there was no authority either by a court martial or by a military commission to try a civilian, unless he happened to be a spy, and that brought him within the scope of military law. I am not willing to leave the question as a matter of doubt whether the officers of the Government, high or low, who have honestly dischared their duty under an authority which they ielieved was ample, are liable to punishment. Now, how are we to prevent it? 11 of the States have been in insurrection. I differ with a good many of the members of the senate, perhaps with most of those to whom I am immediate y addresshg myself; I believe that the large majority of that people are just as loyal now to the authority of the Government as we are; but there are a good many, perhaps, who are not; and there may be included in that number State judges and State officers, and they may assume jurisdiction and they have the jurisdiction unless we interfere to try those parties for some such offenses as these, and they may be disposed to rocced to a final and an adverse result. Now. ask if it be in our power to avert such an end as that, ought we not to exert the power? That is all that is done by this bill; the 3rd section securing to the party merely the right to have the case remitted to a court of the U.S.; and the 4th section providing a penalty for proceeding to execute ajudment in a case over which the jurisdiction 0 the State court has terminated. Whether it is advisable to leave in the bill the particular clause suggested by my friendfrom Wisconsin is another question. I think the bill would be just as satisfactory, just as productive of good results, practically, without that provision as with 5it but whether with or without it, if my O inron is of any avail, I think now, as I thought when the subject was before the ComJudiciary, that the constitutional power to pass it is free of all reasonable doubt.