Mr. COWAN. I perhaps might agree that if the order was specific and to be strictly construed, then there would be no mise hief here, but if so there would be no remed here. If you propose only to protect the ofhcer or the soldier where he can cover himself with a lit eral order to do the act that he has done, then I am free to say that your act of oblivion will go for nothing. Large allowance must be made in the construction of these orders. The order is to do a particular thing. Well, as to that particular thing, nobody will he complained of. The order is to take the Senate Chamber; but the order will not warrant the slaughter of the honorable Senfrom NewHampshire after he has surrendered. But is not the intention of this bill to cover that by the “ order?”. Is it not intended to say that when the Senate is taken and when the soldiery are excited and when blood is hot. this is under the order? If it is not. what is it? My objection to it is that it reverses the usual order. For an outrage done to the Senfrom NewHampshire under circumstances of that kind, I would require him to show that the outrage committed upon him was wanton and malicious and unnecessary in the execution of the order. Is not that the usual course of courts? The plaintilf must make out his case; the burden of it rests on him, and he is required to make it out, and to make out a compilete case, even if the defendant himself be not present and defending. Clearly that is the case where men sue for torts. The prisoner in criminal prosecutions was not allowed toinake any defense in ancient times, and why? Because the King was bound to make out a case of guilt to the exclusion of every other hypothesis, or in other words to render unnecessary or impossible any defense. I think that is a clear, distinct, and plain principle of the law, and I think it would afford a far better protection to U.S. officers than simply to declare that they shall not be liable for certain acts done. and, Mr. President, apart from this bill is not the law so at any rate? Is itnotthe law of the country today that whoever complains of the act of an officer of the U.S. must show either that ho had no authority, or that he transe ended his authorit, or that the act that he did was not warrante by any law, municipal or international? Is not that the law toay? What is this bill for? Is not the very object of this bill to relieve against the law? Is it not to cover, shield, and protect men who have violated the law I Is it not for the purpose of enabling a man to go into court who has no lawful defense, and tomake one? Then the question arises, how is that best to be done? Is the defendant to make the defense, or is the plaintiff to make the case? If the plaintiff sues the Officer in a particular character, if he alleges that the wrong was done under color of some special authority, is he not either to show that that authority itself is unlawful or that the defendant transe ended it while be pretended to be actin under it? Isay it isa matter of grave consi oration for us, and that we ought not in this especial juncture to be hasty about this; that we conceive of some lan by which the Officer or the soldier as wel as the citizen may be protected. Mr. President, I am very certain that outside of the defined limits of the rebellion, as we delined them, that which I have stated is the law of the land. Within the limits of the rebellion and where martial law might be law fully declared, I am not so certain. Martial law, as I understand it, is the will of the commander, in the absence of any other law. Mar tial law exists in the paramount necessity of the ease; or in other words, it is that case where the commander is obliged to administer what in one sense may he said to be martial law, but in another is simply his own will, because there is no law and no other means of administering any other law in the premises. It arises where legessilent interarma. Where the courts are open. where the laws may be administered, the will of the commander cannot be substituted in the room and stead of that law, and his machinery for the execution of his arbitrary will can in no case supersede the propertribunalsof the country. To allow that for an instant is to allow that we are the vic tims of a tyranny against which the world has struggled during the historic era. There is not a page of our history I mean the history of Englishmen and the history of Americans that is not pregnant with lessons for our instruction upon this very point. The law, asI said before, is supreme; the will of the whole people embodied in the constitution or the statutes is what we obey. Who obeys any other sovereign? Do you, sir? Do I? Is any Senator here willing to take the will of one man, or a dozen men, and at it in the place of the American people, an dif nify it with the name of law of any kind? f so, such man or such a Senator is unworth of a place upon this floor and is unworthy of the name of American citizen. This is a government of law, and not of men, and therein is its great characteristic; and it is prescribed law, published law, law that men may read and know, law the penalties of which cannot be incurred while it is locked up in the brain of a tyrant, or when it is posted upon the top of high posts where the people cannot read it, as Caligula rescribed his laws. Then, say, where the law is in force, where the will of the American people is the rule of mens action, where the Xmerican people by their Congress have not displaced that law and subjected themselves to the will of a military commander, there this bill can have no place. At the same time, sir, as I said before, where they have declared the inhabitants of a certain definite, limited, bounded district in rebellion, and where that district is under the arbitrary will of the commander, which is martial law, there, and there only, is an act of oblivion or indemnity such as this is at all to be entertained for one moment. That changes the presumptions; that is all. When a district was declared by Congress to be in a state of rebellion, and our officers were sent there to suppress that rebellion, the presumption is in their favor that they did that which was right and proper to suppress the rebellion; if they did not, it is for the laintiff who undertakes to arraign them at the liar of the civil tribunal after the suppression of the rebellion to show it. But it is not for this Congress, nor for any other Congress, to declare by one sweeping act that nothing done in the suppression of the rebellion under authority and by virtue of orders shall give to any person injured an action for damages on account of it. That is a very different thing. Require your plaintiff to make his case but do not undertake by one root not of I hardly know what to cal it; will say dispensation, because it is to say that the laws which are the sovereign, and which we all admit we are willing to obey, shall for this turn, proMo via, have no place, that for a given time the people of this country, owing to the rebellion, sha I be taken to have had no law. That, I think, Mr. President, we are not prepared now to do. I hope we are not prepared to do it. I would the rather suppose that in the restoration which we contemplate, and in bringing back the country to its old harmony and raternal relations, it would be well to preserve as near as ossihle all of our laws and all of the spirit O those laws under which we have succeeded for about 3 quarters of a century as well as it was possible, and that we should not introduce into our code and make part of our system anything which was not consistent with it and which was not based upon the fundamental principles which have heretofore characterized that law and given it its high character among us.