ing their terminus at this island, it would be the duty of Congress, in my opinion, to modify their charter, as we have a right to do, and compel them to reduce the length of route, because it diminishes the tax on freight across this continent to that extent; this shortening of the line would enable the trade passing from ocean to ocean to reach deep water at a point that much nearer.

But, Mr. President, there is another reason why Congress ought to compel this company to put the terminus of this road at this island, or some other such place. At this point the terminus of the road will be at deep water, where ocean-going steamers and other ships can float up to the depots of the company and put off and take on freight directly from the cars. If we are left to the old line all the freight that crosses the continent on this road will be compelled to go through the corporation of San Francisco, and be subject to the expenses of handling and cartage incident to the transportation through a great commercial city. Everybody knows the great tax this will neces sarily involve, not only to private freight but to the freight of the Government. Why, sir, in the shipment of ordnance and other munitions of war it seems to me it is our duty to secure such a line of transportation as will enable it to be done with the least handling | and least cost.

This project, beyond doubt, will shorten the line very materially and enable the company to put the terminus of the road at deep water, where all this freight can be received and reshipped without this handling and cartage.

We believe the Government has a title to the island. It therefore has a right to permit this company to build its road to the island. It will involve a considerable expense to the company; but the incidental advantage to the whole community, it seems to me, ought to induce Congress to compel them to build the road to the spot indicated and put their terminus there for the reasons I have stated, and I can see no reason whatever to the contrary. It diminishes the tax on trade-on the iminense freight for the Government as well as for private individuals across the continent. There

is not a single fact stated by the Senator from Indiana, as it seems to me, that ought to weigh to the amount of a feather against these great public reasons.

Mr. FESSENDEN. I should like very much to hear the report read which is on the table.

Mr. COLE. I feel it obligatory on me to correct the statements of the Senator from lowa, [Mr. HARLAN.] They are certainly very erroneous in the particular of the distances. He says that this will shorten the distance to reach deep water at San Francisco one hundred miles. That is certainly a very egregious error. It will shorten the distance a mile or two and no more. The water in front of the main land opposite San Francisco is not deep out for a mile or two, and will be built out eventually to within a mile or two of this island.

This is a question as to whether this island is necessary for the defense of the city and harbor of San Francisco. That is the point in which I consider it. It does not make so much difference in point of distance as to whether the road terminates on some portion of the island or upon the main land. Nor does it make so much difference whether they reach | this point on the bay or whether they go around to San Francisco. Even that could not make a difference of one hundred miles nor forty miles nor thirty miles. This is all a mistake about the distance to be saved.

Mr. HARLAN. I have only this to say: I judge in the first place by the maps that are on file in the Interior Department, which it became my official duty to examine carefully at one time, and I have only stated the judg ment I arrived at from an examination of those maps, and that is verified by a statement of the Senator's colleague. He confirms my judg. ment in the matter, and says it will at least shorten the line one hundred miles. But the

Senator's remark reminds me of another fact. This railroad will be compelled to connect with a private railroad if it goes on the old line and has no terminus of its own at the ocean; and the freight across this continent, therefore, would be saved the taxation of that private corporation; but if they are permitted to build this branch road at their own expense and make their terminus at deep water, thus evading that possible taxation by that private corporation, as well as the expense of shipping everything through the corporation of San Francisco.

Mr. COLE. There is certainly nothing in the way of building the road to the shore of the mainland and out into deep water opposite San Francisco, in case they choose to stop there, rather than to go to this island. However, I am quite willing that this company shall have their depot and place of transhipment upon the island of Yerba Buena; but the statements made in reference to the great advantage that it will be to the Pacific railroad cannot be sustained by the fact, as any one will see who will take occasion to look at the maps of the country. To be sure, if they were to follow the original law of the Pacific and Western and San José railroad and go by San José, it would increase the distance perhaps some thirty-seven miles; but that is much further than there is any necessity for any railroad going to reach the city of San Francisco. San José, which is the present terminus of the Pacific railroad, is far out of the way. Unquestionably a Pacific railroad will be built, and this railroad will build this line down to the city of Oakland, which is opposite San Francisco, and out into the bay, and perhaps upon this island; and I am quite willing that they shall provided it does not interfere with the harbor and city of San Francisco. But I do not see how it will save any distance more than about two miles at the utmost by stopping upon this island or by stopping short of the island. I only make this statement for the purpose of correcting the statement made by the Senator from Iowa.

Mr. STEWART. I should like to ask what is the distance from San Francisco to the main land there?

Mr. COLE. It is some six or seven miles, if my recollection serves me, and to the end of a road now built much less.

Mr. STEWART. I mean to the island, actually built. Is it not over ten miles?

Mr. COLE. The distance from San Francisco to this island is less than two miles, and the distance from the island to the main land is about three or four miles. But wharves are already built away out into the bay toward the island, and railroad cars are now running out upon those wharves, and that they will eventually reach the island I have no question. This company will have the privilege of reaching the main land and the island in this way, and will not be interfered with at all. There is nothing in the laws of California to prevent them from pursuing such a course. They can pursue any course they choose in reference to the location of their road.

Mr. CONNESS. I am a little astonished at some of the statements of my colleague. It must be known to him that the Western Pacific Railroad Company located the route of its road via San José to San Francisco, and that the distance between San Francisco and San José is fifty miles; and that the line is shortened, and very largely shortened, by the proposed route. But my colleague raises a new issue, one not referred to by the honorable Senator from Iowa, namely: that there is but a short distance gained should the depot be made on the Oakland side of San Francisco bay, or at the island of Yerba Buena. He is technically right in that; but that has not been raised heretofore. He tells us in the same breath that there is a railroad now pointing to Yerba Buena Island, and that it will eventually reach there, and this company can undoubtedly go there. I suppose they can if they buy that railroad and wait until that railroad shall have reached the island; but it is

my colleague's statement simply that they will reach the island. They have no right to reach it without the permission that this bill proposes to give; and I confess I am astonished that my colleague should offer opposition to the location at deep tide-water of the terminus of this great trans-continental road. I do not wish to extend the discussion.

Mr. HENDRICKS. I rose at the same time with the Senator from Maine to call for the reading of the report in this case.

The PRESIDENT pro tempore The report will be read.

The Chief Clerk proceeded to read, as follows:

"Report by George H. Elliot, G. H. Mendell, and B. S. Alexander, officers of engineers, to General A. A. Humphreys, chief of engineers, of an examination of Yerba Buena Island, showing its importance as a military defense to the harbor of San Francisco'

Mr. HENDRICKS. That is not the report I called for. I wish to hear the report of the committee that reported the bill.

Mr. CONNESS. The bill was referred to the Committee on the Pacific Railroad, I will say to the honorable Senator, and reported with an amendment as bills generally are, without any accompanying printed report.

Mr. HENDRICKS. No statement of the character of this island, its extent, location, and value?

Mr. CONNESS. No, sir; but the committee very fully examined that matter.

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Mr. HENDRICKS. I must say, in view of the character of this bill, that the committee ask us to take a good deal on faith. Here is an island about which most of the Senators do not know very much-perhaps an island of one hundred acres, or five hundred acres. have no information on that subject. Its exact location, how it is to be approached, what it is worth, what its peculiar features are, and in what regard it is important to individuals or to the country, these are questions upon which we have no statement from the committee asking us to give support to this bill. I submit that is asking a good deal of the confidence of the Senate.

Mr. HOWE. If the Senator will give way and allow that report, which is in the hands of the Secretary

Mr. CONNESS. It is a very lengthy one. Mr. HOWE. Its reading was called for by the Senator from Maine, and I thought if that was read it would explain it.

Mr. MORTON. It may be very important,

too.

Mr. CONNESS. I have not the slightest objection, if the Senate want it read. I have read it.

Mr. HENDRICKS. The report to which the Senator from Wisconsin refers is from the military officers. It has to do only with the military features of the question. Now, sir, some time ago, during the session, there was laid upon our tables a remonstrance of some citizen of California, setting up a private right in his own favor. I do not know whether the claim made by that person to the island, or a portion of it, has been considered by the committee or not; but it was proper that it should have been considered before we came to vote upon the bill. I agree in very much that my colleague has said about it. Perhaps there is a statement of the question which will remove the objections to the bill. But this is said to be a very large grant that is being made to this road. Some gentlemen have said to me that it was very difficult to estimate the value of this island. They place it at millions of dollars. One gentleman went so far as to say that it was the most valuable piece of ground in the world in view of the future of this country.

Mr. HOWE. Will the Senator from Indiana give way while I call his attention, and the attention of the Senate, to what seems to me to be the point of the case? I think it will shorten the debate.

Mr. HENDRICKS. I am always more glad to hear the Senator from Wisconsin than myself.

Mr. HOWE. The Senator misunderstands me. I do not rise for the purpose of discussing the bill. I rise for the purpose of calling his attention and that of the Senate to the point in the bill as it is presented to me now, and it is this; it is of no consequence what the intrinsic value of the island is, whether it is $100,000 or $100,000,000; it is not worth anything to the United States for the purposes of sale, simply because as I understand-I have not the evidence, because that paper is not read, and I have not read it-but I understand the military authorities say that we must have it for military purposes in case of war. Therefore, in time of peace it is not worth anything to us. We cannot sell it, and we do not want to occupy it. If we do, and the War Office says so, then the company take no privileges. That being the situation of the island, the bill says that the railway company may have the privilege of occupying so much of it as the War Office does not want. Occupy it how long? Until the War Office says, War is at hand, or is imminent;" and when they say that, then this privilege of occupying by the railroad company is gone, and we take possession of it with all the fixtures upon it, and occupy it for our purposes. Now, if it is worth $100000,000 it is of no more consequence to us, since we will not sell it. If we were in a condition to sell it, then I should want to sell it to this company, or whoever would give most for it; but if we cannot sell it, and do not want to use it, why not let this railroad company use it? That is the point, as it strikes me, in the bill.

Mr. HENDRICKS. I do not construe this grant as the Senator from Wisconsin does. I do not think it is an occupancy at will. I think it is an agreement on the part of the Govern ment that if the railroad company shall take possession of this island and improve it by the erection of such structures as are necessary in connection with the road that that occupancy shall be perpetually subject to just one thing: that if war shall come during the war the Government may resume the occupancy; but in resuming the occupancy the Government becomes the tenant of the railroad company, and is to pay the railroad company for the use of its improvements.

Mr. STEWART. That is stricken out.

Mr. HENDRICKS. Very well. Then without paying rent the Government has the right to resume the possession pending the war. There is no provision on the subject of rent, I believe. That would raise a question simply whether the Government would be bound under the circumstances to pay rent or not without an express contract on the subject. But the provision is, that the Government may resume the possession during the war, to be returned of course to the company at the close of the war; so that as between the Government and the company it is a grant perpetual, amounting to a grant in fee. As neither is supposed to have a life, both being perpetual, that is the effect of it.

Mr. HOWE. I ask the attention of the Senator to the language of the bill, and see if it is not simply this: if it grants anything more than the privilege to the company to occupy this island when we do not want to occupy it?

Mr. HENDRICKS. It means much more than that. It means just this, that the Government says to this company, You may go and take possession of that island, and you may improve it, and you may occupy it subject to the will of the Government in case of war. It is not a tenancy at will. It is an agreement to a continued occupancy.

Mr. CONNESS. If my friend will permit me, the Senator from Maine on my right [Mr. FESSENDEN] has got some amendments touching this very point which he will offer, and which will be entirely acceptable.

Mr. HENDRICKS. I am very much gratified that the Senator says that it will all be acceptable and satisfactory then. I do not know, but if it is so with him it ought to be with all other wise men, but some of us are so

stupid perhaps as not to be able to see it. I want to know something about it before a grant of this sort is made; and I think the demand made by Senators who wish to know something about it is but reasonable. I think the committee ought to have accompanied this bill with an elaborate report, giving us all the facts. If this is to result in a shorter line between San Francisco and the Missouri river we should have been informed how it was proposed to be done, so that we should know something about it. If it is to be a mere gratuity because Congress can make it, let us know that. I think the Senate has not been called upon to vote for so important a bill as this upon so little information since I came into the body. We are literally without information except so far as it is furnished from the War Department, and that report is adverse to this occupancy, as I understand. That report takes the ground that the entire islandI have not read it, and perhaps I ought not to refer to it-may become important for military purposes for the ordinary defense of the

coast.

Mr. HOWARD. If the Senator will look into the bill he will discover that if the Secretary of War and the General of the Army are of the opinion that the whole of the island is requisite for military purposes then this bill will have no effect at all; then it will all be retained still for military purposes. The company ask only so much of the island as those officers shall determine is not necessary for warlike purposes in time of peace.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from California [Mr. COLE] to the amendment.

Mr. FESSENDEN. What is the amend ment to the amendment?

The PRESIDENT pro tempore. It is in line sixteen, after the word "by," to insert "the chief of engineers and;" so as it will read, "be designated by the chief of engineers and the General of the Army of the United States, with the approval of the Secretary of War."

Mr. CONNESS. My only objection to that is that the chief of engineers is a subordinate to the General of the Army and to the Secretary of War, and therefore I do not want that amendment inserted.

Mr. HOWARD. I hope that amendment will not prevail. I do not wish to spend time about it, but it is perfectly obvious that the course that will be pursued in regard to this will be that the Secretary of War and the General of the Army will direct an engineer to make out a report in regard to this island, and they will base their judgment upon the information which they will thus derive from a subordinate officer. It is not expected that they will go in person and inspect the island and survey it personally. I do not think it worth while to leave such a power as this to a subordinate officer. No part of the island would be subjected to this privilege under this bill if the engineer who has already decided against it should be put upon the board, because his vote would balance that of the General of the Army, and no action could be taken upon it at all. It would utterly defeat it.

Mr. COLE. As a general proposition it is true the chief of engineers is subordinate to the General of the Army and the Secretary of War; but he is not subordinate to those officers in his particular sphere. If we give him a voice in this matter equal with them he will have as much voice in it as they will have, and as he is the proper officer to determine this question I insist upon the amendment.

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Mr. HOWARD. One word more. Is it possible that the honorable Senator from California can desire the engineer to constitute one of the judges of this case when he has already predetermined the question against the company and come to the conclusion that no part of the island can be spared for this purpose? He is not a fit person to judge in such a case.

whether the engineer is of the opinion that this entire island is important for the military defenses in that locality?

Mr. FESSENDEN. I will state to the Senator that if he will have the report readMr. CONNESS. It is very long.

Mr. FESSENDEN. I will not call for it; but I will state that when this matter was sug gested a commission was appointed of military men of the engineer department to make a survey and report to the engineer office. They made, as they say, a careful survey, which is set out, and they report their own judgment that it is not best to have anything done with it; that it is all needed for military purposes, and that this grant will interfere with those purposes. That is their opinion; whether right or wrong I am not engineer enough to say.

But one thing that they say struck me with a good deal of force, and I should like to have some gentleman explain it. They say that the navigation there on the other side of this island, I suppose, as near as I can get at it, is now difficult on account of the force of the current; that vessels, especially sailing vessels, meet with great difficulty at times on account of the force of the current in going up to the city, I suppose, and that the effect of building this causeway and bridge will be seriously to increase the force of that current and thus seriously impede navigation. They consider that of so much importance that they make it as one of their principal objections. In case this grant is made, I suppose it will be necessary to build solid for a very considerable distance where the water flows, and probably an open bridge for some distance-I do not know how far; but, at any rate, the engineers say that the effect of that construction there will be seriously to affect navigation on account of the inevitable effect which will be produced by increasing the force of the current. I know nothing about it except what I see by that report; and I meant to inquire, before we got through, of some gentlemen learned in these matters how they will answer that argument, because it struck me as an argument of some consequence, for there is a great deal of navigation there.

Mr. CONNESS. It does not affect this amendment.

Mr. FESSENDEN. I know it does not affect this amendment, but it affects the main question.

Mr. MORTON. It is somewhat remarkable that the only information which the Senate has on this subject is a report of engineers of the War Department, who have reported ag nst the measure, and this bill is to be forced through here right in the face of that report. It is objected that the report is too long to be read; but the Senate is called upon to vote away this island in the face of an uncontradicted report made by a board of engineers. That is all there is of it.

Mr. HOWARD. The Senate is to vote away no part of the island.

Mr. MORTON. That is a difference of opinion.

Mr. HOWARD. Neither title nor privilege. It will depend entirely upon the judgment of the General of the Army and the Secretary of War whether the company shall have a particle of this island.

The amendment to the amendment was rejected-ayes six, noes not counted.

Mr. FESSENDEN. I move to amend the amendment by inserting after the word "be," at the end of the nineteenth line, the words "terminable at the pleasure of Congress, or may be;" so that it will read:

Which privilege shall, however, be terminable at the pleasure of Congress, or may be suspended whenever the United States shall be engaged in war, &c. Mr. CONNESS. There is no objection to that.

The amendment to the amendment was agreed to.

built under this act, or;" so that the proviso will read:

Provided, however, That nothing herein contained shall be so construed as to authorize or grant any subsidy or land for any road built under this act, or to increase the subsidies in bonds beyond that accruing under existing lines of location and laws heretofore passed providing for the construction of the Pacific railroad.

Mr. CONNESS. When this amendment was shown to me before it did not occur to me that it excluded a subsidy of land. The bill as it stands was intended to exclude a subsidy of bonds. In the first place, there is very little land on the route of this road, and it is hardly worth while to exclude the amount of land to which they are entitled. It will be remembered that the company at their own expense, without any subsidy in bonds, will build an extent of at least thirty-five miles of road over a very high range of mountains. I think, with the disposition to give lands for the construction of roads which are great public improvements, and with the fact which my colleague very well knows, and I presume will affirm, that there are very few public lands on the route of the road proposed, it is not well to exclude the small quantity of lands that may be granted there. Therefore, I move to amend the amendment of the Senator from Maine so as to strike out the words "or lands." They are to build over a high mountain range, the most difficult work that can be imagined, without a dollar of bonds of any kind whatever. I hope the Senator from Maine will accept that modification. It is but reasonable and just that they should have these lands when they propose to shorten a great public highway.

Mr. FESSENDEN. I cannot consent to

that.

Mr. CONNESS. Then, sir, if it be in order, I move to amend the amendment by striking out the words "or lands."

The amendment to the amendment was agreed to.

The PRESIDENT pro tempore. The question now is on the amendment of the Senator from Maine, as amended.

The amendment, as amended, was agreed to. 'Mr. ANTHONY. I suggest to the Senator from Maine whether the previous amendment offered by him would not read better if he were to say "and may be suspended" instead of

or may be suspended;" so that it may be terminable at the pleasure of Congress, and may be suspended whenever the United States shall be engaged in war, &c.

Mr. FESSENDEN. I accept that modification, to substitute "and" for "or." I do not think it will make any difference.

The PRESIDENT pro tempore. That modification will be made.

Mr. FESSENDEN. I think there ought to be an amendment to this bill before it is passed providing that any causeway or bridge that is erected from the main land to this island shall be erected under the supervision of the engineer department, so that they may see that it is built in such a way as not to seriously impede navigation.

Mr. NYE. I suggest to the Senator from Maine that there are laws regulating that subject now. Neither this company nor any other company would have a right to build a structure in the harbor of San Francisco that would obstruct in any way the navigation of the harbor. It would not be allowed by existing laws. Mr. FESSENDEN. It does not obstruct the navigation in that sense.

Mr. NYE. The apprehension, as I understand it, the Senator from Maine has is that they would change the channel by filling up so as to make obstructions at some other point. Mr. FESSENDEN. Increase the force of the current.

Mr. NYE. The company will undoubtedly

take care of that.

Mr. FESSENDEN. I should rather not leave it to them myself.

Mr. NYE. Do you mean that it shall be constructed under the supervision of a Government engineer?

Mr. FESSENDEN. Yes, sir; one of our own engineers.

Mr. NYE. A Government engineer might make a structure that would cost $20,000,000.

Mr. FESSENDEN. I confine myself merely to that point, that it shall be so constructed as not to impede or obstruct navigation. I can draw the amendment in a very few moments.

Mr. COLE. In pursuance of the suggestion of the Senator from Maine I think an amendment of this sort might with propriety be adopted: to insert after line thirty-five the words "but so as not to impede the waterway."

Mr. NYE. Only skiffs or flat-boats run through this channel. The Senator from California knows that no ships come through of any size.

Mr. COLE. I am not speaking of the navigation, but the current, the tide.

Mr. FESSENDEN. The point is that it affects the current on the other side by making

an obstruction here.

Mr. NYE. That is hypothetical entirely. Mr. FESSENDEN. It is so said by the engineers.

Mr. NYE. I understand that is assumed, but from my information I do not think there is anything in it.

Mr. NYE. Scientific men, engineers, would be likely to know.

Mr. COLE. I offer this amendment: to insert after line thirty-five the words "but so as not to impede the water way to the injury of the harbor of San Francisco."

Mr. FESSENDEN. I do not think that speaking of. that will reach the point that I have been

Mr. COLE. If that is not sufficient I am

willing to agree to any modification that will make it so. I do not know what suggestion the Senator from Maine would make. The tides set up back of the island and flow daily to and fro. There is an ebb and flow of the tide on this side of the island where this causeway will be built across. ["Question!" "Question!"].

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Mr. FESSENDEN. I think that amendment will not answer the purpose. Gentlemen are very anxious for the question. They continue calling "question, question" when we are trying to get this bill into a shape in which it will be satisfactory to the rest of us. If they will let the question" alone for a few minutes I think we may come to some conclusion, but if they keep calling" question" will give it up. It is of no more interest to me than anybody else, but I should like to have it safe, for I really think that the city of San Francisco is destined to be one of the greatest cities on the globe at some future time, and I think it of very great importance that we should not pass any bill that may seriously affect the navigation of its bay.

Mr. CONNESS. I agree entirely in what has been said by the honorable Senator. I think he ought to concede that we have a very deep interest in preserving that harbor. Why, sir, if an obstruction should be made there injurious to the harbor, it would be removed at once; they would not be permitted to go on.

Mr. COLE. In the report of the board of engineers, which has been submitted in connection with this bill, a careful and scientific calculation has been made to determine the effect which it would have upon the harbor of San Francisco proper if the channel between the island and the eastern shore of the bay were to be closed up by a solid causeway. This calculation shows that the currents in front of the city where vessels lie at anchor would be very much increased. Those of us who reside there know that those currents are now so great as to often make it exceedingly difficult to reach the wharves by the vessels navigating the upper river as well as those which come in from the ocean; so that if this tide were to be increased materially by turning the current that passes now east of the island into the narrow and deeper channel in front of the city it might work, and would unquestionably work,

very great damage to the city of San Francisco.

The PRESIDENT pro tempore. The ques tion is on the amendment of the Senator from California.

Mr. MORTON called for the yeas and nays; and they were ordered.

Mr. ANTHONY. Before the vote is taken, I understand the Senator from Maine is preparing a substitute, and I wish to see which amendment I shall vote for. I shall vote for the stronger of the two.

Mr. FESSENDEN. I ask my friend from California whether this proviso, added to the end of the bill, will not answer better?

Provided, That no work shall be constructed by the said company between the mainland and said island which will, in the judgment of the War Department, injuriously affect the navigation in the harbor of San Francisco.

Mr. COLE. That will not cover the case, for this reason: that side of the island is scarcely navigated at all. It is not the navigation, but the water currents that are to be protected, the tide that ebbs and flows east of the island into the bay twice a day.

Mr. FESSENDEN. Does not anything which affects the currents, which increases the force of the currents, injuriously affect navigation?

Mr. JOHNSON. Of course it does.

Mr. FESSENDEN. I thought this was general enough:

Provided, That no work shall be constructed by the said company between the mainland and said island which will, in the judgment of the War Department, injuriously affect navigation in the harbor of San Francisco.

Several SENATORS. That covers it.

Mr. COLE. I am not sure that that is suf

ficient. With that construction, however, I shall not object to it; but if it relates to the navigation east of the island

Mr. FESSENDEN. It does not say "the navigation between the island and the mainland," but "in the harbor."

The PRESIDENT pro tempore. Does the Senator from California withdraw his amendment?

Mr. COLE. Yes, sir; I withdraw it. The PRESIDENT pro tempore. This question, then, is on the amendment offered by the Senator from Maine.

The amendment was agreed to.

Mr. HENDRICKS. I desire to make one inquiry. I wish to inquire what is the purpose of so much of this bill as follows line thirtythree? It does not seem to be a part of the amendment reported by the committee. It seems to be a part of the bill. It provides for the right to construct another road from this island to the town of Stockton. I should like the chairman of the committee to inform us what is the purpose of that part of the bill?

Mr. HOWARD. I was not able to hear what the honorable Senator said.

Mr. HENDRICKS. I inquire of the chairman of the committee what is the purpose of so much of the bill as follows line thirty three? It does not seem to be a part of the amendment.

Mr. CONNESS. I can answer the honorable Senator. It authorizes the Western Pacific Railroad Company, this corporation organized under the laws of the State of California, to locate a road and to take from the public land such earth, stone, timber, &c., as is usually allowed in the construction of a road, and such other grants and privileges as are given for the construction of the Pacific railroad with the exception of the subsidy in bonds, which is specially provided against.

Mr. HENDRICKS. What lands of the United States, then, does this road pass through?

Mr. CONNESS. If the Senator is aware of the topography of that country he will know that it passes from this island through what is called the Contra Costa range of mountains, a very high mountain range, to Stockton, or near there, which is on the plain in the valley, a distance of thirty-five or forty miles-a route of very difficult construction, indeed, and such

as the Pacific railroad on its main line receives $48,000 per mile in bonds for constructing.

Mr. HENDRICKS. My objection to the language used in this part of the bill is that it seems to authorize the construction of a railroad in a State; to give to a corporation of a State a power to locate and make and build a road in a particular direction and upon a particular route.

Mr. CONNESS. My friend will permit me to say that it is precisely the language of the original Pacific railroad bill, and the same right precisely that is given in that bill to construct the Central Pacific railroad.

Mr. HENDRICKS. The suggestion of the Senator may be an answer, and it may not be. I have not time to make a comparison of the language; but I understood the policy of the Pacific railroad grant to be to allow the corporations of the States where that road ran through a State to construct it. Congress did not undertake to organize companies or to empower companies in a State, but to give companies under the authority of the State subsidies to enable them to carry out the work which the State authorized. This provision undertakes to clothe the company with authority to build a road in the State of California. Can Congress do that work? Can Congress authorize a railroad company of the State of California to build a railroad from the city of San Francisco to the city of Stockton, whether that railroad is to go over high mountains or along deep valleys?

Mr. CONNESS. Why, Mr. President, I will answer my friend again. The Congress of the United States authorized the Folsom and Placerville Railroad Company to do just that thing. It authorized the Copperopolis and Stockton Railroad Company to do just that thing. It was passed upon by both Houses of Congress in those cases, and no question was made in regard to it.

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Mr. HENDRICKS. I know that Congress has in many cases granted lands to States for the benefit of railroad companies organized under the authority of the States; but I did not know that Congress had undertaken by any bill already passed to authorize the construction of railroads within the limits of States, and I do not think Congress possesses that power.

Mr. HOWARD. If the honorable Senator will look at the first Pacific railroad charter he will discover that Congress has done the same thing in the State of Kansas, and companies are now operating under that clause.

Mr. HENDRICKS. That was referred to the State. The corporation was organized by the State. Congress merely said to the company, "We will give you subsidies, if, under the authority of the State, you construct the road." That was the legal effect of it.

Mr. POMEROY. The company was authorized to build according to its charters.

Mr. HENDRICKS. But it was chartered by the State, so that the company referred to by the Senator from Michigan got its authority from the State.

Mr. NYE. This company is chartered by California.

Mr. POMEROY. The State of Kansas conferred the right to construct a railroad along a particular route.

Mr. HENDRICKS. As the Senator from Kansas says, the State of Kansas conferred the authority to construct a railroad along a particular route, and then Congress said to that company, "If you will construct that road, we will aid you in that enterprise by the subsidies that we propose." But here is a naked proposition that Congress will clothe the company of a State with authority to build a road not authorized by the laws of the State, for anything that appears here. It is an entering wedge to a new system. It is a power under which we may construct a road from Washington city to New York, under which we may construct a railroad from this city to the city of St. Louis, and so on. It involves propositions of a gigantic nature.

Mr. POMEROY. I suppose they have a right by their charter to go there.

Mr. CONKLING. It is authorized. Mr. HENDRICKS. If it is authorized, Congress need not use language which attempts to authorize it. That Congress may authorize them to go over the public lands, to go over special reservations, is not questioned by me. That does not seem to be the purpose of this provision. The purpose of this provision seems to be to clothe the company with authority to construct a railway.

Mr. FRELINGHUYSEN. I should like to know from those who are familiar with this bill whether it is understood that the Government of the United States, when they take possession on the termination or suspension of this privilege, have a right to take possession of any works and structures on the island, and if they are to do it without making compensation therefor?

Mr. HOWARD. I refer the honorable Senator, in answer to his question, to the bill itself, in which it is declared that the United States shall be authorized

To take possession of the part of said island subject to said privilege, together with all buildings and other fixtures erected thercon by said company. and to occupy and use the same for military purposes during the war.

That answers part of the honorable Senator's question. The remaining part of his question, whether it is expected by the advocates of the bill that the Government shall pay the company anything for that use or occupation

Mr. FRELINGHUYSEN. Whether the Government are to pay for the works and structures?

Mr. HOWARD. Not at all. Mr. FRELINGHUYSEN. It seems to me that ought to be expressed.

Mr. HOWARD. It was expressed in the the Senate have seen fit to strike out that part bill itself as I reported it to the Senate, but of it. For instance, the words "and the United States shall pay to said company, their successors or assigns, such sum as may be reasonably due for such use and occupation thereof," have been stricken out.

Mr. FRELINGHUYSEN. It was expressed that the United States should pay? Mr. HOWARD. Yes, sir. Mr. FRELINGHUYSEN. And that has been stricken out?

Mr. HOWARD. Yes, sir.

Mr. FRELINGHUYSEN. If it has been stricken out on the ground that it is understood the United States is not to pay, I think that ought to be expressed. If this company are to put up structures there, and the Government of the United States takes possession of the island, it ought to be expressed that the Government is not to pay for those structures.

Mr. COLE. There is no question, I believe, before the Senate at present. I therefore move to amend the bill by inserting as an additional proviso the following:

And provided further, That this act shall not impair the rights or claims of persons in possession of the island of Yerba Buena at the time of the military occupation thereof, or who have been ousted therefrom by military force, nor the assignees or grantees of such persons: but such rights and claims shall be ascertained and liquidated according to the laws of California,

Mr. HOWARD. I hope that amendment will not be adopted.

Mr. COLE. The facts, so far as this amend ment is concerned, are, that there were persons in possession of this island, living there with their farm-houses and improvements, who had been there for many years. I think their occupation began before the acquisition of the country by the United States. They were in quiet and peaceful possession of their homes upon the island until about a year ago, or perhaps until the year 1866, at which time, after the war had ended, the military authorities took possession of the island and ousted these parties. This was done by the strong arm of military force, and without any adjudication of their rights. These persons were in possession

of this property by as much right as other citizens in San Francisco held the property that they occupied; for it will be remembered that this island is within the boundaries of the city of San Francisco. Other persons upon the main land in the city of San Francisco regard themselves as justly entitled to the property they were in possession of, and which has been granted to them by the local authorities and by Congress. This possession of the island, dating back prior to the occupation of the country by the United States, gives these parties a right superior to that which was acquired by the United States by the proclamation of the President in 1850 or 1851, which declared this to be a military reservation.

To be brief, these persons are entitled to this little meed of protection which is sought for them at this time. They only ask such protection as is awarded them by the laws of California. There the laws provide that if a railroad company need any private property, even a possessory claim, for the purposes of building their railroad or improvements, they can go to one of the district courts and ask that a commission be appointed for the purpose of assessing the value of this occupation, this possessory right. These persons only ask this privilege. We know that it is not asking much for them, because a powerful railroad company always have more influence with

courts and commissioners than humble individuals. But these parties are entitled to this protection.

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I know it has been stated that this island is a rocky island. There are rocks upon it; but there is also good land upon it. These persons were there before the military occupation, with their dwellings and their out-houses, and they had their orchards, their cattle, and other stock. They were living there as quietly and peaceably as any people were living in any other portion of the State. I do not charge that there was any motive for the use of mili tary force to get these persons out of possession, springing from the railroad company, because I do not know that that is the case, and I do not believe that that is the case. believe that the military thought they had a they did for military purposes. But these peoright to this property, and took it in the manner ple have been ousted; they have been driven from their homes; they have been forced to abandon their works there, their wharves, their quarries, and their fields; and if this company is to come in and take possession of this island, or any portion of it, it should pay these parties the little value that will be attached by a commission, under the laws of California, to their possession and improvements. I hope, therefore, that the Senate will acquiesce in this amendment. It is only an act of justice to parties who have been overridden by the military authorities, and whose rights have not been properly respected.

Mr. CONNESS. I should be very sorry to see such an amendment adopted as the one my colleague has proposed. In the first place, those parties never had any right to go there at any time. They were contestants against the title of the United States to the island. Like the other contestants against the title to the point known as Black Point

Mr. COLE. I ask my colleague if there was ever any question as to their right, or any contest between them and any department of the Government prior to the year 1866, or when the military department took possession?

Mr. CONNESS. There was nothing to hinder any person from going upon this island any more than there was from going upon Angel island, or going upon Black Point reservation, or going upon the Presidio reservation, all of which belonged to the Government, at or near San Francisco; but parties acquired no right by going there. It was a military reservation; and my colleague knows very well what I am now going to say, that there was a legal case made up against the Government of the United States entitled "Grisar vs. McDowell," McDowell being the commander of

you.

Mr. CONNESS. Of course it was in regard to another piece of land; but it stood upon precisely the same principles. The case of Grisar vs. McDowell, in which my colleague, I believe, was a counsel against the Government, was tried and determined by the Supreme Court here this year, and determined in favor of the United States. The legal question involved was that the squatting parties denied the legality of the reservation made; but that has been settled by the highest court in our country. The possession claimed of this isl and was precisely upon the same terms and the same ground, except that the parties claiming this island went upon it and undertook to occupy it when it was a reservation, and the parties who claimed in the case of Black Point, or the case of Grisar vs. McDowell, were parties who were assignees of those who had occupied. That is the only difference. Otherwise, the cases are precisely the same.

Mr. President, the chairman of our committee [Mr. HOWARD] examined this claim of title fully, and those parties have no title. They came here and alleged a title, and then offered it for sale. Some speculative persons, perhaps, undertook to make a bargain with them. But after it has been alleged and stated here, and nobody questions it, that the Government has not only a title to this island, but requires it for military purposes, are you going now to adopt a provision of law which shall recognize a title unexamined, or in fact condemned? Why, sir, it is not to be thought of for a single mo

ment.

Mr. HOWARD. In regard to the amend ment of the honorable Senator from California [Mr. COLE] I have a word to say. This island was reserved for military purposes on the 12th of October, 1866, by proclamation of the President of the United States, after a careful examination of the claims which had been put forth to the island on the part of private individuals. The matter seems to have been referred to the district attorney of the northern district of California to investigate those titles. The result was he came to the conclusion that there was no ground in law whatever for the claims which have been referred to. Thereupon the President of the United States issued this proclamation, or this order:

EXECUTIVE MANSION, WASHINGTON CITY, October 12, 1866. Whereas the island of Yerba Buena, in the bay of San Francisco, is needed for defensive purposes, and has been surveyed by the Government, and batteries projected and planned for its occupation, the within application is approved and referred to the Secretary of the Interior, with directions to except and reserve the island of Yerba Buena, in the bay of San Francisco, from relinquishment and grant to the city of San Francisco, California, authorized by the act of Congress, approved July 1, 1864, and to designate the said island as so excepted and reserved; and it is ordered that the said island be retained by the United States for military uses.

ANDREW JOHNSON.

Mr. MORTON. It occurs to me, if that is worth anything at all, it is a good answer to this bill, the whole of it.

Mr. COLE. The Senator from Michigan states that this island was reserved in 1866.

Mr. CONNESS. Eighteen hundred and fifty-six.

Mr. COLE. Eighteen hundred and sixtysix by Andrew Johnson. These persons have been in possession there, as I reiterate, for many years, and their possession antedates any attempt to make it a military reservation. The reservation of it for military uses was as much a violation of the rights of these persons as if the same power had been exercised in refer

ence to a piece of land in the heart of the city of San Francisco, if you please, on Montgomery or Clay streets; but if this reservation had been made within the city of San Francisco, would it be alleged here by my colleague or the Senator from Michigan that the persons whose lands and valuable improvements were thus taken in that city were not entitled to any compensation for their improvements and lands which they had occupied for fifteen or twenty years, and upon which they had placed valuable improvements? Is that the position taken? If it is it is one from which I most earnestly dissent.

Mr. HOWARD. If the Senator will allow me, he is speaking of improvements made by those settlers. I beg him to state, if he is able to do so, what those improvements are.

Mr. COLE. I have already stated what those improvements were. They consist of farm houses, out-houses, orchards, wharves, quarries, and other things too numerous to mention-valuable improvements which I have myself seen, and which anybody can see any day from the ferry-boat that passes from San Francisco to Oakland. These persons are, in my judgment, clearly entitled to some consid. eration.

I am aware of the decision which has been made in the Supreme Court touching a case somewhat similar. It was an action brought by a person by the name of Grisar against General McDowell for ousting him from his residence on a military reservation in San Francisco. The question as to whether Grisar was entitled to compensation for disturbance in his possession is one not now to be discussed. But this consideration must not, I think, go for naught with Senators: that these persons had been upon that island from some time prior to the acquisition of the country by the United States down to the year 1866, with the supposition that they were entitled to their possessions, and with as much ground for that belief as other citizens in San Francisco had.

I know there is a disposition on the part of some Senators and members of Congress to treat squatters," as they are termed, or settlers, with great disrespect, and as if they were not entitled to any regard from the Government. That is not my opinion. The public lands are the lands of the people of the United States, and by law persons are entitled to go and settle upon them, and notwithstanding one adverse decision or opinion of an Attorney General, I believe they are entitled to protection. Those persons, if any, upon the public lands are entitled to some protection. If their lands are to be taken for a public use, or à quasi public use, their rights ought to be regarded.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from California.

Mr. COLE called for the yeas and nays, and they were ordered.

The Chief Clerk proceeded to call the roll. Mr. ANTHONY, (who had voted in the affirmative.) I beg to say that I did not entirely comprehend the latter clause of the amendment. I voted yea; but I will change my vote and vote nay. I am willing to vote for the amendment without the last clause. I think the last clauses imposes obligations upon the Government that we ought not to

assume.

The result was announced-yeas 11, nays 26; as follows:

YEAS-Messrs. Buckalew, Cole, Edmunds, Fowler, Hendricks, McCreery, Morton, Ross, Vickers, Wade, and Willey-11.

NAYS-Messrs. Anthony, Chandler, Conkling, Conness, Cragin, Davis, Drake, Fessenden, Frelinghuysen, Harlan, Howard, Johnson, McDonald, Morgan, Nye, Osborn, Patterson of New Hampshire, Ramsey, Stewart, Sumner, Thayer, Tipton, Trumbull, Welch, Williams, and Yates-26.

ABSENT-Messrs. Bayard, Cameron, Cattell, Corbett, Dixon, Doolittle, Ferry, Grimes, Henderson, Howe, Morrill of Maine, Morrill of Vermont, Norton, Patterson of Tennessee, Pomeroy, Rice, Saulsbury, Sherman, Sprague, Van Winkle, and Wilson-21. So the amendment was rejected.

Mr. HENDRICKS. I suppose it is hardly worth while to offer any amendments to this

bill; but I will move in the thirty-fourth line to insert after the word "authorized" the words "if its charter so authorizes;" so as to read:

The said Western Pacific Railroad Company are also hereby authorized, if its charter so authorizes, to locate and construct a road, &c.

Mr. STEWART. I think there is no objection to that.

Mr. CONNESS. There is not the slighest objection to it.

Mr. HENDRICKS. Gentlemen accept this. They think this one amendment may be made. The amendment was agreed to.

Mr. FRELINGHUYSEN. I understand the effect of this license is that the Government retain the title to the island; that they grant a privilege which they may suspend or determine at pleasure, and that they may take possession of this part of the island at pleasure during war, and then transfer it back again to the use of the company. I think there ought to be a provision in the bill that if they suspend or determine this privilege, and the structures or erections remain, the Government are not to pay for them; or if the Government take possession of the island for a time, returning it to the company, the Government shall not pay for the use and occupation during that period; and to that end I offer the following amendment, to come in at the end of the bill:

And provided further, That on the determination or suspension of the privilege hereby granted, and on the United States taking possession of that part of the island to which such privilege applies, the Government of the United States shall not be required to make compensation for any structures or erections remaining thereon, or for the use or occupation of said island or structures.

Mr. CONNESS. I have simply to say that I do not think such an amendment as this was ever before offered in such a case. We have passed a score of acts giving the right given in this bill to occupy parts of military reservations, but no such conditions were ever imposed as have already been imposed by this bill, and by the amendments offered.

Mr. FRELINGHUYSEN. I ask the Senator from California, so that we may understand it, whether his idea is that the Govern、 ment is to pay for structures or erections that may remain, or are to pay for such temporary use and occupation of the island as they may make? If the idea is not that they are to pay, there is no objection to providing that they shall not pay; but if they are to pay I certainly will not vote for the bill.

Mr. CONNESS. I have nothing to say.

Mr. MORTON. I have something to say, as my friend stops short. I submit now that the objection made by the Senator from California is a fair illustration of the iniquity of this bill. It is simply to give the company the use of this island, it is said, we to resume it when we need it; we to hold the title; but in the meantime they have costly structures there, as they will have, depots, machineshops, railroad tracks, houses for employés to live in. War comes on, and we want it; but, says the Senator, we must now pay for those things that we find there, and which are in

the way.

Mr. CONNESS. The Senator says nothing of that kind, and the honorable Senator from Indiana is not authorized to put that language in my mouth.

Mr. MORTON. Well, Mr. President, the opposition to this amendment says that distinctly, if it means anything. If they do not mean that, why oppose the amendment?

Mr. CONNESS. Why, Mr. President, have I no right to oppose an amendment unless such language as the Senator chooses shall be mine? That is it, is it?

Mr. MORTON. I speak of the effect of opposing this amendment.

Mr. CONNESS. Ah!

Mr. MORTON. I say it means that, or it means nothing. If Senators do not mean that the Government shall pay for the machine shops, and for the depots, and for the structures that may be there in case of war and we