inflicted upon the insurgent officers now in our hands, or hereafter to fall into our hands as prisoners; that such officers ought to be subjected to like treatment practiced toward our officers or soldiers in the hands of the insurgents, in respect to quantity and quality of food, clothing, fuel, medicine, medical attendance, personal exposure, or other mode of dealing with them; that with a view to the same ends, the insurgent prisoners in our hands ought to be placed under the control and in the keeping of officers and men who have themselves been prisoners in the hands of the insurgents, and have thus acquired a knowledge of their mode of treating Union prisoners; that explicit instructions ought to be given to the forces having the charge of such insurgent prisoners, requiring them to carry out strictly and promptly the principles of this resolution in every case, until the President, having received satisfactory information of the abandonment by the insurgents of such barbarous practices, shall revoke or modify those instructions. Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion.

Mr. HENDRICKS. I think it was the intention of the Senator from Maryland [Mr. JOHNSON] to discuss this resolution. I am not sure about that, but I know he was looking into the question, and I should myself desire very much to hear his views and reasons on the subject. He is not in his seat to-day. I suppose he is necessarily detained from the Senate. I move that the further consideration of the resolution be postponed until to-morrow.

Mr. WADE. Did I understand the Senator from Indiana to say that the Senator from MaryJand was anxious to debate this subject?

Mr. HENDRICKS. I said I thought it was the intention of the Senator from Maryland to discuss it. The Senator from Kentucky [Mr. POWELL] informs me that he heard him say so. This is an important subject. We all listen to that Senator with a great deal of interest, and myself with profit, and I should like to hear him on this subject. I therefore move the postponement, as I have suggested, until to-morrow.

Mr. WADE. I shall not resist the postponement until to-morrow on the suggestion that a Senator is anxious to debate this subject; and yet I feel that if the gentlemen who wish to debate it were in the condition of many of our prisoners, they would not want to hear long speeches on the subject, but they would want us to act at once. I feel that I am not really doing my duty when I agree to let it stand over until to-morrow, but I do it with the understanding that I shall press it at the very earliest opportunity.

Mr. HENDRICKS. One suggestion made by the Senator from Ohio perhaps demands a reply from me. Sir, I made a usual motion to accommodate a very distinguished member of this body, to accommodate myself in hearing him upon the question. A motion to postpone was not an unusual one, and did not call for debate except so far as I have suggested the reason. If the reason was not sufficient, then the Senator from Ohio ought to have objected to the postponement. If the reason was sufficient, then as a matter in the course of business in the Senate a postponement ought to take place.

The Senator saw fit to say that the Senator asking this postponement, if he were in the condition of some of our prisoners would not ask it, thereby implying perhaps that I did not feel that sympathy for the prisoners that I should feel. Perhaps, sir, there is no member of this body who feels more sensitively upon that subject that I do myself. I have a brother now in a southern prison who has been there since the 5th day of June last. The personal relation perhaps of no Senator to this subject can make him more sensitive than I am; but I am very free to say, without fully examining this subject, that the remedy for their unfortunate condition suggested by the Senator from Ohio in this joint resolution is not such a one as I had hoped to see come from him, and especially from the Administration. I think there is another remedy, and that is the exchange of our prisoners. We have nearly two to their one. I believe it is in the power of the Administration to bring our imprisoned soldiers home again, and

in a very short time restore them to their friends and families.

I am free to say I do not feel that the condition of my friends in the southern prisons will be made any better, and they made any happier, by seeing some men in our prisons here in the North starved to death. If we could inflict the punishment that is suggested by the Senator, upon the officers in the southern army who have contributed to the misfortunes of which he complains, I would agree with him; but here in our northern prisons are many men who entered into this war in the southern army against their wish, conscripted, compelled to obey the demands of a government de facto, having no part nor lot, no connection whatever with the wrongs that are inflicted upon our soldiers in the southern prisons, and now we propose to retaliate upon them, individually, and starve them to death, because the Senator says some of our friends in southern prisons have been starved! Reach the men that are in fault; strike them if we can; but where is the propriety, where is the Christianity of starving a man to death against whom we can lay no fault except that perhaps he has been compelled to obey the demands of the rebel government, a government, as was illustrated with great power by the Senator from Vermont, not now in his seat, [Mr. COLLAMER,] de facto, which the people down there for the time being had to obey?

But, sir, I did not intend to discuss this resolution now, but simply to reply to what the Senator said, which I thought was unjust to myself, having made this motion for a reason very proper, as I believed. I hope to see this proposition so amended as to bring our soldiers home again. Let them come back to their families. We can make these exchanges; and while I am upon that point I will read from a statement of fact made by a distinguished member of the House of Representatives the other day, not of my political party, but a distinguished member of the House of the same political party with the Senator from Ohio. Mr. KASSON, of Iowa, speaking of the Secretary of War, said:

"One thing more: if he be the man he is charged with being, who could in June last have exchanged prisoners of war of the United States on terms recognized throughout all civilized nations, yet left ten or twenty thousand of our gallant men to perish in rebel pens during the last summer, again I find a reason why his administration of that Department should be investigated."

If this statement be true, there is a reason why it should be investigated. If months ago, as is stated by a distinguished member of the party to which the Senator from Ohio belongs, this Administration could have brought our friends home again, restored them to their places in their families, and prevented this starvation, I say it is the highest charge that can be brought against this Administration. I want to know if we cannot have a remedy that will save this suffering rather than a remedy which will increase the suffering, not upon our prisoners perhaps, and it may be upon them. Their condition may be made better, but I fear it will be made worse by the course suggested in this resolution. If we can adopt some action on the part of the Senate which will compel the Administration to do that which a distinguished member of the other House says the Administration for five months might have done, and bring them home, I shall feel that we have accomplished something.

Mr. WADE. The Senator has made his argument on the subject, and I doubt now whether we ought to delay the passage of the joint resolution. I think he has made as strong an argument as the Senator from Maryland or any one else could have done.

The PRESIDING OFFICER, (Mr. PoмEROY.) The question is on the postponement of the resolution.

a sense of their duty, and has frequently had the effect to promote the objects of justice. It has been so in this war; we have tried it already successfully. There was a time when the enemy took our officers and placed them as a kind of protection against our assault on their fortifications. They placed our officers within the range of our guns, hoping thereby to protect themelves against our assaults. In order to prevent that we were compelled to retaliate in kind, and we sclected a like number of their officers and placed them in like jeopardy; and the moment they saw that we sternly intended to do that, they did not persist in their barbarous course any longer; when they found we were inexorable upon that subject, and that we would place their officers in like jeopardy, the effect was very soon manifest; our officers were immediately released from their position, and the rebels sought to make peace upon that subject. So they would upon this.

Sir, I have no doubt on investigation of this subject that it is a deliberate purpose of theirs to destroy every prisoner that comes into their hands. They do not intend that he shall be returned to us in such a condition that he can ever again take the field. Their inhuman treatment is probably owing more to this consideration than to mere feelings of malice. It is a system of savage policy, and it has had a most powerful effect on our Army. Of the thousands of prisoners we have had in their hands scarcely one of them is ever returned to us in such a condition that he can take the field again; while on the other side the prisoners that come into our possession are treated precisely the same as our own soldiers are, and they go back refreshed, recuperated, and ready to take the field against us, every man of them. I have no doubt that a prompt and stern resort to this measure of retaliation will have as beneficial an effect as the measure to which I have referred had in the case to which it was applied.

The gentleman talks of Christianity. Sir, 1 do not understand that there is very much Christianity in war. If you go to war you have departed from the great principles laid down by Christ and His followers, as I understand them; and if you go to war you must not only depart from those principles, but you must follow out that departure, for it leads to other necessities that do not square precisely with the doctrines of Christianity. You commit a great offense when you go to war; but the world has not yet reached that meed of perfection when war can be avoided. I say, then, you cannot invoke the principles of Christianity in vindication of all the incidents and doctrines that grow out of war. "They that take the sword shall perish by the sword," it is said. But, sir, I do not profess to be very familiar with these theological questions. I believe that when the Almighty imbued every man who receives an insult or an injury with a sense of resentment He intended that it should be used and mani

fested on proper occasions. You can hardly

eradicate this idea from the human mind. I know that, like other passions, it may run too far; it may be stimulated to excess; but I say again I do not believe that the Almighty endowed a man with a sense of resentment for an injury with the idea that it should not be exercised. I think it is proper to resent injuries sometimes, and frequently proper to retaliate as a means of putting an end to acts of wrong and barbarity. I think it is rather a mawkish idea of humanity that fears to subject rebel prisoners to the same treatment that we know our own brave soldiers are daily subjected to.

I think the influence of such a measure as that now proposed will be to do away with bad treatment on both sides; for when the rebels see that you will resort to retaliation, that their men in our hands will be subjected to the same hard

will have a very useful effect; it will have the effect to relieve thousands upon thousands who are now in southern prisons, and treated with such hardship that they are dying all over the southern country.

Retaliation has in all ages of the world been a means of bringing inhuman and savage foes to

son why they should relieve our men. Milder arguments have been utterly ineffectual. I do not know now but that other measures will be effectual. If so, I would resort to them at once; but I have seen no attempt to do so; I have seen nowhere the attempt on the part of this Government to redress these wrongs that are inflicted on our soldiers. I feel that something should be done. My sense of humanity is not entirely on one side, and that the side of the rebellion. As I go through the hospitals, my sense of humanity will be ne more harrowed up by seeing that reb

els are subjected to these hardships than it is when I see our own men returned from their prisons mere skeletons, shadows of what they were. I have seen this; and if a man can go through our hospitals with composure and see our men who have been returned from southern prisons and not have his sense of resentment aroused, he is more or much less than human.

Now, sir, I think this measure will be effectual; it will have the effect to do away with this great inhumanity. I proposed it as a remedy, and I hope it will be a remedy. As to what the Senator says about the exchange of prisoners, I have only to declare that if our Government has allowed our soldiers to be retained in this barbarous keeping when it had full power in its own hands to make equitable exchanges, it cannot be exculpated for such conduct. I do not know how the fact is. I have always understood that there was something in the way of the fair exchange of prisoners, and I have never been able exactly to understand what it was. It may be that the Government here is greatly to blame. The Senator says there are no reasons against it. I do not know that there are, but I have always supposed that there was reason

Mr. HENDRICKS. I did not express any opinion myself upon that question, but I read the statement of the fact, delivered under very responsible circumstances, that exchanges could have been made for months past upon terms consistent with the usages of nations.

Mr. WADE. I did not rise, Mr. President, with any intention of arguing this question. I want it decided by the Senate. If they are determined to see our prisoners subjected to these hardships without any endeavor to relieve them, be it so. If any one cavils at this measure and suggests no other, I think he is not in the way of doing much good. This proposition has been presented not only by me, but I understand that this resolution was reported with the approbation of the Committee on Military Affairs, I believe unanimously, though I do not know how that fact was.

Mr. HOWARD. There was referred to the Committee on Military Affairs a resolution which was presented by the honorable Senator from Ohio, [Mr. WADE;] also a memorial which was presented by the honorable Senator from Indiana, [Mr. LANE;] the Committee on Military Affairs took these measures into consideration, and instructed me to report a joint resolution to the Senate, which I did. It is joint resolution No. 97. Mr. WADE. That is the one under consideration.

Mr. HOWARD. That is all I know about it. The PRESIDING OFFICER. The question before the Senate is on the motion to postpone the joint resolution until to-morrow.

Mr. HENDERSON. I have an amendment that I desire to offer to the resolution, that I wish to have printed. Will it be in order to present it now?

The PRESIDING OFFICER. The amendment can be offered.

Mr. HENDERSON. I now offer it that it may be printed, and I desire the action of the Senate upon it when the joint resolution shall be again taken up.

landed, we are told, of something like eight thousand men; it required the united strength of this immense naval power and eight thousand troops to take a fort defended by but twenty-three hundred men. Now the Senator from Indiana demands that we shall exchange a rebel prisoner held by us for each one of the prisoners of ours held by them. Suppose they hold thirty thousand Union prisoners of war, and we exchange for them at once thirty thousand rebel soldiers. These thirty thousand rebel soldiers will be thrown into strong works like Fort Fisher, and then you will be compelled to marshal an army of one hundred and twenty thousand strong to be able to meet that thirty thousand sent there by you. The thirty thousand Union soldiers you receive, and ninety thousand additional troops will be required to recapture them.

This is the present condition of the contest. The rebellion has been so far suppressed that they are no longer able to meet us in the open field; they are now ensconced behind the strongest works that human skill and energy can produce; we are the assailing party; we are compelled to fight them in those works, and to capture those garrisons by assault, or the tedious process of a Siege in order to secure complete success. I think, therefore, it is very doubtful whether we are damaged by the refusal of the rebels to make a fair exchange; an exchange man for man will make the rebels relatively stronger. It is therefore doubtful, to say the least, whether a far-seeing, sagacious humanity would not induce this Government to refuse to exchange prisoners from this time forward. If this course should be adopted, then of course if the rebels treat Union troops held by them as prisoners of war with premeditated cruelty and inhumanity, it will furnish a just occasion for retaliation.

Such retaliatory measures should not be adopted rashly or needlessly, because it will always seem hard to compel the innocent to suffer for the guilty; on the surface it may seem cruel and inhuman, but only in the same sense in which it is cruel and inhuman to shoot a prisoner of war in retaliation for the murder of one of our own soldiers held by the enemy. Yet this is in accordance with the usage of all civilized nations. It is resorted to in order to compel the enemy to treat with humanity those whom they may capture in battle. There is nothing more cruel, it seems to me, in putting a rebel prisoner on lean fare, than there is in shooting a rebel prisoner in retaliation.

I desire that this resolution, if it is to pass, shall be amended somewhat so as to require the punishment to be strictly retaliatory; to be inflicted on officers and men of equal number and of the same rank; and so as to instruct the President to notify the rebel authorities that this punishment is inflicted in retaliation for the inhuman treatment of our troops held as prisoners by them, and will be continued only until they treat our prisoners with the humanity demanded by the usages of civilized nations.

I would rejoice to see every prisoner of ours held by the rebels released at once, but when I know that the release of a Union prisoner by the rebels requires the release of a rebel prisoner by our Government, and that he will be at once thrown into

Mr. HARLAN. I desire to offer an amendment also when this resolution shall come up for further discussion; but I wish to make a remark in connection with the subject as it has been presented to-day. Some three years ago I wrote a letter, and presented it to other Senators for their signatures, requesting the President to exchange prisoners with the rebels. I then believed that it was politic. Our condition has changed vastly since that time. The rebels are no longer able to meet us in the open field. Their armed soldiers fight us now almost exclusively behind their works and in strong fortifications. Military men tell us that it requires at least four men outside to take one inside of a fort. We have been expressing our thanks as a Congress to the commanders of the Army and the Navy that have taken a fort containing a garrison of about twenty-three hundred men. The Navy, I think, floated between six and seven hundred heavy guns; there was an army

compelled to recruit three other soldiers to unite with our returning prisoner to make the combat equal; that four lives are to be put in jeopardy to recapture the rebel whom we have released, I cannot criticise the Secretary of War if he should refuse to exchange prisoners from this time forward until the close of the war, even if a fair exchange could be secured; but I apprehend there are very few Senators here who believe that a fair exchange can be effected. They so analyze all prisoners that they hold of ours as to release those whose terms of service have expired or are about to expire. Their soldiers are mustered in practically during the war. Every southern citizen able to bear arms is enrolled as a soldier during the continuance of the war. Then when we release a rebel prisoner we put him into their army during the continuance of the war, while in nine cases out often, probably, the soldier received by us in return will be at once well fed and mustered out of service.

In addition to this, we know from the facts that have been developed by the committee on the conduct of the war that they do not return

to us able-bodied men, but only exchange the sick and dilapidated for those that are able-bodied and vigorous. We cannot, as I am informed, secure a fair exchange. If a fair exchange could be secured, I probably would accept it; but when a fair exchange cannot be had, I cannot complain of the Secretary for insisting on it with pertinacity when the delay is ruinous to the rebel cause und is hastening their ultimate overthrow.

Mr. CLARK. If the resolution is to be postponed, I have no objection to its being postponed now; but if the discussion is to go on, I want to say a word on the subject before the vote is taken. I have no desire to take up the time of the Senate now, if it is proposed to postpone the subject.

Mr. WADE. I propose to amend the motion to postpone, so as to make this joint resolution the special order for to-morrow at one o'clock.

The PRESIDING OFFICER. The Chair is informed that there is a special order for to-morrow at one o'clock.

Mr. CLARK. I suggest to the Senator from Ohio merely to postpone it until to-morrow, and we can take it up at any time at the pleasure of the Senate.

Mr. WADE. Very well; but I shall move to take it up to-morrow.

The motion was agreed to.

MESSAGE FROM THE HOUSE.

A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House had passed a joint resolution (H. R. No. 141) reducing the duty on printing paper, unsized, used for books and newspapers exclusively, in which the concurrence of the Senate was requested.

ENROLLED BILLS SIGNED.

The message also announced that the Speaker of the House of Representatives had signed the following enrolled bills, and they were thereupon signed by the Vice President:

A bill (H. R. No. 390) for the relief of Emily A. Lyon;

A bill (H. R. No. 598) making appropriations for the consular and diplomatic expenses of the Government for the year ending the 30th June, 1866; and

A bill (H. R. No. 607) to provide for an advance of rank to the officers of the Navy and Marine corps for distinguished merit.

HOUSE BILL REFERRED.

The joint resolution (H. R. No. 141) reducing the duty on printing paper, unsized, used for books and newspapers exclusively, was read twice by its title, and referred to the Committee on Finance.

J. AND O. P. COBB AND CO.

Mr. CLARK. I move that the Senate now postpone all prior orders and proceed to the consideration of the joint resolution (H. R. No. 80) for the adjustment of the claim of J. and O. P. Cobb & Co. of Indiana, and I wish to say at this time that I desire to have it before the Senate for the action of the Senate, as this joint resolution will be a guide to the Committee on Claims in regard to several other claims which are before them, and the committee desire the action of the Senate on this for their information.

The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the joint resolution. It proposes to direct the Quartermaster General to examine and adjust the claim of J. and O. P. Cobb & Co. of Indiana, for the loss sustained by them on the 11th and 12th days of July, 1863, by the destruction, by military order, of their barges and other vessels employed in the shipment of hay to Memphis, Tennessee, under a contract with the Government of the United States, and the hay on board of the vessels which was being shipped by the firm in the fulfillment of the contract, and other property connected with and being used in the fulfillment of the contract, the property having been burned and destroyed by the United States gunboat No. 33. The claimants are to be allowed the value of the property, not exceeding $11,000, to be paid out of any money heretofore or hereafter appropriated applicable to the payment of claims against the Quartermaster's bureau.

The amendment of the Committee on Claims was to strike out all of the resolution after the

words "military order" in line eight, and in lieu of the words stricken out to insert:

Of a certain quantity of hay loaded by them on certain barge and flatboats, on the Ohio river, to be delivered at Memphis, Tennessee, under a contract with the Government of the United States; and that he allow the said claimants the contract price of said hay so destroyed, less the expense of transportation from the place where destroyed to the place of delivery, to be paid out of any money heretofore or hereafter appropriated applicable to the payment of claims against the Quartermaster's bureau.

Mr. CLARK. There is a report of the committee in this case which may be read if it is desired; but I think by a short statement I can bring the point to the attention of the Senators, if they will listen to me.

Cobb & Co. were merchants in Indiana. They contracted with the proper officer of the Government to deliver a certain number of tons of hay-a large number, I think five thousand tons of hay-at Memphis, Tennessee. They proceeded to execute that contract at a given price per ton, twenty-eight dollars and some cents, to be paid at Memphis. They procured their hay and loaded it on certain barges in the Ohio river. When the hay was thus loaded on the barges, General Boyle, in command of the department, gave an order to a gunboat to proceed up the river and seize all the boats and barges on the river and destroy them, for the purpose of preventing John Morgan, who was then in Indiana or Ohio, from crossing the river southward into Kentucky. The officer of the gunboat proceeded up the river and destroyed all the boats on which this hay was loaded, together with the hay.

These contractors show precisely the number of pounds they had upon the boat, and the House of Representatives have considered the case, and their committee having reported this resolution, it has passed that House and come here, directing the Quartermaster General to pay them for the hay and for the barges as well. So far we have considered no claim arising out of damages done by our forces in the war. The hay which was on board the barges the Government should pay for, upon the principle that where the promisee puts it out of the power of the promissor to perform his promise, he is excused from it; and these parties having the hay loaded to be delivered at Memphis, and it having been destroyed while it was upon the river by the Government, the Government should pay for it less the expense of transportation to Memphis. But following the action of the Senate, or rather the want of action of the Senate heretofore, the Committee on Claims have struck out the payment for the barges because there was no contract in regard to them; they stand exactly like any other property destroyed. There is a very large number of claims before the committee for pay for property which has been destroyed during the war. If it is the pleasure of the Senate that the committee should consider and report those claims to the body, the committee will do so; but ifit be the pleasure of the Senate that they shall wait until the war is over, or nearly so, in order that we may see what the damages may be, or what is the course proper to be pursued by the Government, then the committee will not report more of those claims.

There has been an attempt in the Senate to establish a commission who should examine the value of the property destroyed. Senators will see that the testimony in regard to the value of the barges is all upon one side. The testimony in regard to the hay is exact, because the Government was to pay a given price for it. The parties show that they put on board just so many pounds at just such a price. That, therefore, can be arrived at exactly; but the committee had no evidence as to the value of the barges, except what was furnished by the claimants themselves.

But what the committee desire to know, and what they desire to accomplish by this amendment, is to ascertain the sense of the Senate in regard to claims for military damages. Many of them are very vast and they are very pressing; parties have lost large amounts of property; they are distressed for the pay for that property; and perhaps it may be said that property, destroyed in that way should as justly be paid for by the Government as any other property; but the committee seek to know whether the Senate are of opinion that we should take up these claims seriatim, one after another, and act upon them on such testimony as we shall have, and report them

to the Senate, or whether they shall be detained in the committee, and there shall be some provision made for a decision and adjustment of all of them. The committee have no choice about it; but if this amendment be adopted, the result will be to pay for the hay, and leave unsettled the question of payment for the barges. If it be not adopted, and the resolution be passed as it came from the House of Representatives, we shall pay for the hay and the barges both. They state their barges in round numbers to be worth $5,000. They have evidence to show that the valuation they put upon them is a just valuation, but that is from the opinion of persons who saw the barges. Other persons who might see them might say that they were not worth so much, but that testimony we have not. The price of the hay is fixed, and we think the Government should pay for that, at any rate, because it would have been delivered in a very few days if the Government had not destroyed it.

Mr. TRUMBULL. I should like to inquire of the Senator from New Hampshire whether this hay was delivered. Perhaps he stated how that was, but my attention was not called to it at the moment. My inquiry is whether the hay was received by the Government officer. Had delivery been made?

Mr. CLARK. That is the point; delivery had not been made fully. It was to be delivered at Memphis.

Mr. TRUMBULL. And it was destroyed on the Ohio river?

Mr. CLARK. Yes, sir. The Government prevented the delivery by their own act, and may be considered, perhaps, in that view to have accepted the hay.

Mr. TRUMBULL. Suppose this property had been burnt up accidentally where it was, would it have been the loss of the Government of the United States or the contractor's loss? Manifestly the contractor's.

Mr. CLARK. Certainly; the contractor's loss. Mr. TRUMBULL. Then it had not been delivered; it had not been received by the Government. I am merely asking these questions for information, without expressing at this time any opinion in regard to a very large class of cases where a great many deserving individuals have such claims. I ask how does this case differ from the case of the destruction of property in Missouri, or across the river here in Virginia, where farms have been laid waste by our forces in the prosecution of this war? All over Kentucky property has been destroyed necessarily. It was deemed necessary by the military authorities in command that the property should be destroyed for military purposes. How shall we distinguish this case of property destroyed before it was delivered to the Government, and before the contract was completed, from the destruction of other property by the Army in other places?

Mr. CLARK. The committee thought there was this clear distinction between the two classes of property; here the Government had contracted with these parties to supply it with a certain amount of hay, the parties had gone and collected that hay on the Ohio river in pursuance of their contract, and were in fulfillment of their contract and would have delivered their hay if the Government, the other party contracting, and who was to take the hay, had not seized and burnt it. The principle, as I said before, is that where the promisee renders the promise impossible of execution, the promissor is excused. Suppose the Government had taken the hay right there and fed it out to its horses would it not have been responsible? It is a very different case, it seems to me, from that which the Senator from Illinois puts, because these parties were in the fulfillment of their contract with the Government and the Government, the promisee, destroyed the property. It is a very different case from that of property destroyed by accident. It was clearly at the risk of the parties getting the hay, until the Government interfered with it; but when the Government interfered with it, it took upon itself the risk. The committee had no question about payment for the hay, and no question about the justice of the claim to the barges to a certain amount, though the value of the barges is not proved as clearly as the other part of the case, and the committee desired the attention of the Senate to that point for the purpose of ascertaining how they should proceed.

Mr. COWAN. I should like to ask the chairman of the Committee on Claims whether the law is not as clear that the barges should be paid for as that the hay should be paid for

Mr. CLARK. I think I may answer the Senator very readily, that the law is perhaps as clear. The question in my mind is not whether we shall eventually pay for the property, but whether we shall postpone the payment until we can fix some proper tribunal to ascertain the value of the property that we are bound to pay for. Here is entirely ex parte testimony in regard to the value of the barges. It is proved by opinion. A has got to go and look at a barge, and A says he knows what that barge is worth, and he thinks it is worth so much. There is nobody to show to the Senate that it was not worth so much. If we cut down the price we may do the man injustice; if we allow the price, we may do ourselves injus tice, upon that insufficient testimony. My own judgment is that we must establish some tribunal that shall have the power of compelling witnesses, as perhaps the Senate might authorize the committee to do, of taking testimony aliunde at proper places, and hearing the parties and perhaps counsel on both sides in some cases. Otherwise we may pay where we ought not to pay, and in some cases twice as much as we ought to pay. There is great difficulty in the matter. It is not the desire or wish of the committee to delay or defer anybody who has a just claim. We only desire to ascertain from the Senate what may be their wish in regard to the subject, and we ask the Senate to express their opinion from what they see in these cases, that it is dangerous to proceed without some proper tribunal, and to turn their attention to the establishment of some sort of tribunal. We have not so far, I think, reported an individual case, waiting to see what would be the result. Whether we shall wait further and delay these applicants and claimants, or whether the Senate will take cognizance of them now, is what we desire to ascertain from the Senate.

Mr. TEN EYCK. I want to be informed and enlightened on this subject. I have listened attentively to the discussion, and I am not able to see any distinction between this case and the case of so much hay belonging to individuals who had no contract with the Government to deliver it at all, who may have had a contract to deliver hay in Memphis to some private individual, or who had no contract, but were seeking a market down the river. Now suppose under the order of General Boyle, hay thus belonging to private individuals had been destroyed in order to prevent the boats upon which it was loaded being seized by Morgan and his men in an attempt to escape across the river out of Ohio. If the hay had belonged to private individuals and there had been no contract with the Government, it would have presented a case of ten thousand other cases involving thousands of millions of dollars, where property has been destroyed since the commencement of this rebellion in Kentucky and in all the border States throughout this Union. If there is any distinction in principle and in law between property thus circumstanced and this property, my vision is too obtuse to discover it. I should like to be informed on that point for it will regulate the vote I shall give.

Mr. DAVIS. I should like to make an explanation on the point suggested by the Senator from New Jersey. Here is the case that is now before the Senate: Cobb & Co., of Indiana, contracted to deliver a certain quantity of hay to the Government at Memphis; they loaded the hay on board of boats and barges, and the hay was on its way to Memphis to be delivered in conformity to the contract. The Senator from Pennsylvania wants to know the distinction between the case of the hay and the barges, and the Senator from New Jersey wants to know the difference between this case and the common case of the destruction of property in any of the States. The difference is a very plain and palpable one. Here the contract was in the course of execution by the covenantor to deliver the hay. The Government is the covenantee, and the covenantee interposes, when the hay is in transitu to be delivered in the execution of the contract, and destroys the hay. Now, the question is whether the destruction of the hay by the covenantee does not conclude the covenantee from denying that the contract was executed on the part of the covenantor. There

is no plainer principle of law; and it is a principle that is recognized and acted upon every day in our courts of justice. When there is a covenant, and one party is in the course of executing that covenant, and the other party interposes and defeats the execution of the covenant, the party who thus interposes and defeats the execution of the covenant cannot allege that the covenant is not performed on the part of the other party.

The reason that the committee made a difference between the boats and the barges and the hay was this: there was no contract on the part of Cobb & Co. to deliver the boats and the barges; it was simply a covenant to deliver hay, and the boats and barges were the vehicles or the means of transportation by which they were in the course of executing their covenant. It cannot be said, then, in relation to the boats and barges, that there was a covenant to deliver them by Cobb & Co. to the Government, and that the Government interposed and by its act defeated the delivery of the boats and barges which had been covenanted to be delivered, because there was no such covenant. The covenant was restricted to hay.

Mr. COWAN. Will the honorable Senator allow me to ask him a question?

Mr. DAVIS. Certainly.

Mr. COWAN. It is whether Cobb & Co. could not have recovered for the hay without going upon the contract, on the same principle that they ask to recover for the barges, namely, that the Government officer in a moment of emergency had destroyed this property, and therefore the law was that they were entitled to pay for both, without saying anything about a contract.

Mr. DAVIS. I admit that to be true, but still there is a distinction. The one would be a case of trespass, a wrong. The destruction of the boats and barges would be a case of wrong, and the Government would be responsible for their destruction as a wrongdoer; but the responsibility of the Goverment for the hay is upon a different principle. It is upon a principle arising in a matter ex contractu, where one of the parties to the contract is the cause of the other not having executed it. It is a plain and universal principle of law, that where two parties make a contract and one is in the course of the execution of that contract, and its execution is defeated by the other, it does not lie in the mouth of the other to assume that the contract has not been executed by the opposite party. I admit that there is the same principle of right and of justice generally for payment for the boats and barges as for the hay, but it is upon a different principle of law, and the committee acted and reported in the case so as to keep separate and distinct the principle upon which the Government would be bound to pay for the hay.

Mr. COWAN. I ask the honorable Senator again whether the committee did not feel themselves as much bound to pay for damages on account of a tort of the Government as damages for a breach of contract?

Mr. DAVIS. I feel that obligation, and I suppose the committee do; but as the Senator from New Hampshire, the chairman of the committee, says, the number of claims of that character against the Government is infinite; their amount is indefinite; it would come up to hundreds and probably to thousands of millions of dollars. It would be greatly in its amount beyond any such claims arising ex contractu as the claim of Cobb & Co. on the Government for the value of this hay; and here was one reason that I agreed to the report of the committee in the form in which it has been made. I admit that those whose property has been destroyed by the Government and its agents are entitled to remuneration from the Government, and ought to receive it.

Mr. COWAN. I will ask the honorable Senator whether the distinction which he takes between the barges and the hay is not destroyed by the intervention of this particular fact, that not only the hay but the barges were invited to that particular point where they were destroyed by the contract of the Government? Non constat that the hay and the barges might not have been hundreds of miles away but for this contract; and does not that distinguish it from a case where property is destroyed by the Government or its officers in an emergency, where the Government has done nothing to invite the property to occupy that particular locality where it has been destroyed?

Mr. DAVIS. My honorable friend is an able lawyer, and it seems to me that nothing can be plainer to a legal mind than the palpable distinction between the hay and the barges. It is not only because hay is not a barge nor a barge hay, but it is simply for this reason: Cobb & Co. contracted to deliver the hay, and they did not contract to deliver the barges and the boats to the Government. They could have wagoned the hay, or they could have taken it upon the railroad cars, or by any other mode of transportation. Therefore the passage of the barges and boats toward Memphis was not in the course of the execution of any contract by Cobb & Co. with the Government, but the passage of the hay to Memphis was in the course of the execution of a contract by that firm to deliver the hay to the Government. The Government arrested the hay that was being transported in the execution of this contract, by its general officer, and destroyed it. Mr. COWAN. Will the gentleman allow me to ask him another question?

Mr. DAVIS. Certainly.

Mr. COWAN. It is whether Cobb & Co. would be able to distinguish between the loss they suffered from the destruction of the hay, and the loss they suffered from the destruction of the barges? Whether they do not feel that they have the same right precisely to be compensated for the loss of the one that they have to be compensated for the loss of the other? And if there is no distinction in morals, how can there be such a distinction as is taken by the committee in law? Mr. DAVIS. I admit the general principle of the Senator; but I was going to state another consideration upon which the committee had made the distinction between the hay and the barges. If it be the policy and present purpose of the Senate and of Congress, as I conceive it ought to be, to make full compensation for all property that may be destroyed by the armies of the United States belonging to loyal citizens, the committee are of opinion that all this responsibility ought not to be met by private, individual, single claims as they arise, but that there ought to be a general law establishing a commission or a board, before which all these claims should be presented and established by proof, and instead of a few active claimants who have friends in the Senate or in the House of Representatives getting ahead of all the others in the nation who have as good a claim and as just a claim as themselves, by their private bills, Congress ought to provide for that whole class of cases by the establishment of a general commission, and require all these claims to be presented there for proof.

As the chairman of the committee says, there are a great many claims precisely of the same nature and depending upon the same principles of justice and law as that of Cobb & Co. for the value of their barges and their boats against the Government. The committee want to be instructed by the Senate whether it is their purpose to satisfy that order of claims or not. If it is the purpose of the Senate now to satisfy that class of claims, the committee are ready to be instructed by the Senate and to report all that are now depending upon that principle, and to report for the full satisfaction of the destruction of any and of all property by the armies of the United States, whether that property was about to be delivered in the execution of contracts or not. But the committee think, at least I do, that as a matter of justice and of policy, instead of permitting all these claims, that amount to a countless sum of money, almost to, no doubt, thousands of millions of dollars, to come up in detail, each claim by itself, and each claim to be heard upon the amount of proof that the claimant may bring before Congress to sustain him, Congress ought, on the contrary, to establish a general commission which should hear all the proof in relation to such claims and to report upon them to Congress, that Congress should then pay the whole class of these claims together.

If I have made myself understood, that is the distinction of principle and the consideration upon which my conduct as a member of the committee was determined in consenting to this report.

Mr. CLARK. The question presented to the Senate is of more importance than the mere joint resolution itself. I do not wish to press its passage at this time; I desired simply to accomplish the purpose of bringing it to the notice of Sen

ators, so that they might be considering this great question which must come before the Senate. 'These claims will be continually pressing, and the Senate and House of Representatives will be obliged, in my judgment, to provide some method of ascertaining them. Now, let me state a claim which is before the committee at the present time. Certain parties of Tennessee allege that they were the owners of a large plantation down in Arkansas; that they were Union men always; stood by the Government; that they had upon that plantation seventy negroes; one hundred mules; so many hogs; so much fodder of this kind, and so much fodder of that kind; and that the army came and destroyed a part, and somebody else destroyed a part; that a portion of their negroes came back, and a part got free papers and went to Ohio. They present a claim to us and ask us to adjudicate upon it and award them so much damages. I pray you, sir, how is the committee ever to determine the value of that claim? Here certain parties come and say that they think the seventy negroes were worth so much, and certain other parties come and say they think the mules were worth so much, and certain other parties say they think the hogs were worth so much; and the army destroyed about so many of the hogs, and so on. It is entirely indefinite. It is impossible for the committee to decide on a claim of that kind; and even if the testimony were definite as far as it goes, it would create injustice to decide the case upon ex parte testimony.

It is suggested to me by the Senator from Vermont [Mr. FOOT] that in that event we must do as a court of justice would do, reject the claim; but then, for the want of a proper jurisdiction, the parties will come again. You reject again, and they come again, and so by continually coming, the Senate at last becomes weary, and the danger is that the claim will pass at some time without a proper adjudication. We desire to submit to the Senate whether it would not be better in the outset, if it can be done, to turn our attention to providing a tribunal who shall ascertain upon one side and the other what is the proper measure of damages.

There is another question arising in this case of Cobb & Company. The committee present the joint resolution to the Senate with an amendment. If the Senate agree to the amendment, which is to strike out the allowance for the barges, the hay is left for the action of the body, and the committee would understand that the Senate did not intend at the present time to consider claims for such damages where there was no contract. They may then afterwards, if they choose, refuse to pay either branch of the claim, on the ground that it is all a war claim, and then the committee would have ascertained what they want to ascertain, that the Senate does not at the present time intend to act on that class of claims; and then we propose to leave Cobb & Company to their remedy at law. If this were a contract between two private parties, between A and B, if B had contracted to deliver hay to A which A destroyed in transitu, could not В go into court and sue A for the value of that hay on his contract? I think very clearly he could; but here is the Government on one side, and the question is whether it is not under the same obligation.

I desired to bring this case to the attention of the Senate. Perhaps Senators may wish to reflect upon it. I will now move that the joint resolution be postponed until to-morrow, and at some future time I shall call it up again. I have accomplished my purpose in bringing it to the attention of the Senate at the present time.

Mr. HOWE. I shall offer no opposition to the postponement, but I want to say just on this occasion that this amendment by some means or other got through the Committee on Claims without attracting my attention. I do not know whether I was present during the meeting at which it was considered or not. At any rate it did not attract my attention.

Mr. CLARK. My impression is that it was agreed upon in committee before the Senator came in, but I am not certain.

Mr. HOWE. That is very likely. I make that remark as preparatory to this: that for my single self I make no sort of distinction between the obligation of the Government of the United States to pay for these barges and its obligation to pay for the hay. I am entirely satisfied that if the Gov

ernment of the United States destroyed either the hay or the barges for the purpose of the national defense, the United States ought to pay for them. If the committee moved this amendment for the reason that they were entirely satisfied with the proofs upon the question of the hay, but were not satisfied with the proofs upon the question of the barges, that is a good reason.

Mr. CLARK. The Senator will pardon me; I had not any such idea. My main difficulty is, that cases of this kind before a committee of Congress are tried only upon one side. I want some tribunal to have an opportunity of trying both sides, not a peripatetic commission to go around the country and hunt up claims to be tried and allowed; but I desire something that shall ascertain for the Government, as well as for the indi

Mr. CLARK. If the Senator will allow me, I will say that the committee were mainly influ-vidual, what loss has been sustained. enced in moving the amendment by two reasons: one was to ascertain what would be the opinion of the Senate in regard to claims of that nature, and to bring the question distinctly before the Senate.

Mr. HOWE. If that be one of the purposes, or the leading purpose, then I could only meet the views of the committee by voting against the adoption of the amendment, because, so far as my vote can influence the action of the Senate, I || mean that it never shall make any such distinction; I mean that the Senate never shall intimate to the country that they intend to repudiate one of these obligations.

Mr. CLARK. We do not intimate any such thing.

Mr. GRIMES. Do I understand the Senator from Wisconsin to say that it is the theory of the Committee on Claims that we are bound by the laws of war and of nations to make good all losses that may have been sustained by individuals in the public defense?

Mr. HOWE. I do not understand the Senator from lowa.

Mr. GRIMES. Do I understand the Senator from Wisconsin to say that it is the idea and opinion of the Committee on Claims, of which he is a member, that this Government is bound by the laws of nations and of war to make good to every individual any loss that he may have sustained in promoting the public defense? I understood the Senator to make a statement as broad as that.

If the Senator will permit me here, as I am now up, I desire to say, for the sake of being guarded, that the committee do not propose to repudiate any such claim as that of the Messrs. Cobb. I should be sorry to have such an impression prevail from the remarks of the Senator, he being upon the committee, because that remark coming from him might come with more force than it would from a person off the committee, as leading the public to suppose that the committee entertained the idea. The committee acknowledge the justice of many of these claims, and they acknowledge, too, that Congress, in their judgment, must pay for them when some way shall be ascertained for determining the amount of the damages.

Mr. HOWE. What I said in reference to repudiation was not predicated on anything I had heard in the committee. It was induced by remarks I had heard on the floor of the Senate and during this debate. So much on that point.

Now, in reference to this suggested commission rather than proposed commission, let me say that I understand the difficulty in the way of getting at the exact truth in reference to these claims perhaps as well as the Senator from New Hampshire, the chairman of the committee; but I do not understand why we cannot clothe your Committee on Claims with all the power in reference to obtaining evidence and examining witnesses that you can any other tribunal. We may, I believe, in the matter of proof, guard the public interests just as well as any tribunal that you can establish. I think it would be decidedly better for us to make no distinction, to assume at once what is conceded to be the law of the land, that all these claims are equally to be respected, and

and to report upon them only when the evidence adduced satisfied us of the justice of the claim.

Mr. HOWE. The Senator misunderstood me in two particulars. In the first place, he misunderstood me, if he understood me to speak for the Committee on Claims at all. If I understand my own position here, I am speaking in opposi-proceed to hear them as the evidence is adduced, tion to the Committee on Claims. In the second place, if he understood me to speak of the laws of nations or the laws of war, he misunderstood me. Now he will understand me correctly if he understands me to be speaking for myself, and to say for myself that it is my own opinion, irrespective of the laws of war or the laws of nations, that the Government of the United States is bound, by its own laws, and by every principle of equity and of good conscience, to pay for every dollar of property that it appropriates or destroys for the public defense.

That is my position, and I do not resort to the laws of war or to the laws of nations for my defense of it, and such being my opinion, I take this early opportunity to declare it. It is the opinion that has guided me so far in my action upon the Committee on Claims, and so far in my action in the Senate.

I should not have acquiesced in this amendment to the pending resolution for any reason in the world, unless I found upon the examination of the proofs that the measure of damages was clearly established in reference to the hay, and was not clearly established in reference to the barges.

Now it is said that the idea prevails among some members of the committee, and perhaps elsewhere, that it is not safe for Congress to act upon these claims individually, that the Treasury would be better protected by the creation of one tribunal, one committee, if you please, or one commission to proceed to hear all these cases. My own judgment is, and I say it now, that I think the Treasury will be vastly safer if you wait for these claims to come here rather than if you establish a commission to go and look them up. Mr. CLARK. Nothing of that kind has been said.

Mr. HOWE. I understood it to be thrown out as the other course.

Mr. CLARK. I have not heard a word here about a commission going to hunt them up.

Mr. HOWE. No, but if you establish a commission, I suppose it is with a view of going into the localitics and hearing testimony.

The PRESIDING OFFICER. The question is on the motion of the Senator from New Hampshire, to postpone the further consideration of this joint resolution until to-morrow.

Mr. COWAN. I am willing to postpone this resolution, but at the same time I desire to say a word on the argument offered by the committee, that there was no evidence before them on the part of the Government to show the value of these barges.

Mr. CLARK. The Senator misunderstood me if he understood me to say there was no evidence. Mr. COWAN. I certainly understood the honorable chairman to say that the evidence they had before the committee as to the value of the barges was ex parte, and he thought it dangerous to report it on such evidence.

Mr. CLARK. Exactly.

Mr. COWAN. Then if it was ex parte, it must be on the part of the owners of the barges, and not on the part of the Government. I suppose that in appearing before a committee here, representing to a certain extent the Government, it was not necessary that formal notice should be given to the General Government to appear before the committee when a claimant came before Congress to have his just dues paid.

For my own part, I think that the obligation to pay for this hay is perfect and complete, because in either event the Government was guilty of a tort toward the owner, or of a breach of contract. The obligation to pay for the barges is equally complete, because it destroyed, in an emergency, the property of the citizen for the common defense of the whole, and it is well known that in such cases the whole always feel themselves obliged to pay. How far we are able to pay now for damages which arise from torts done by the Govern ment to the citizen is another question, and, as I understand the committee, that is the question which they desired to raise by this amendment. If we adopt this amendment now, it is to be taken that we will pay whatever damages we are bound to pay for the breach of our contracts, but that we

postpone all the damages which have accrued to individuals on account of our torts. That will be the result of it; and perhaps the committee are right in desiring a clear, fair understanding as to the course we intend to pursue with regard to this question, although I am free to say that I cannot see the slightest difference in the world between the force of the obligation which rests upon us in the one case and in the other.

If there is any difference in the force of this obligation, how are we to justify ourselves to one who has suffered by saying to him, "Although the obligation of the law rests upon us in your case as strongly as it does in the case of another, we cannot afford you relief?" How are we to say to the Government contractor who has agreed to deliver to the Government five thousand tons of hay upon a given day and it is destroyed in transitu for the defense of the whole, that we will pay him the amount we contracted to pay, and yet to another man equally meritorious, and equally loyal, with an equal amount of hay, and destroyed equally in defense of the whole," We cannot pay you?" Will not the citizen be likely to ask, under circumstances of that kind, why you make a difference between a man who contracts with you and one who does not contract? You destroy his property for the defense of the whole and you pay him; you destroy mine for the defense of the whole, and you do not pay me; and why? Because I am not a Government contractor. I confess that I do not see this distinction, which certainly exists without a difference so far as the citizen is concerned. Whether there is policy in postponing the claims of those who are not Government contractors, because of their enormous magnitude, is another question; but if one is to be postponed, I do not see why the other ought not to be, for the benefit of the exchequer, unless it may be, perhaps that if we postpone the claims of contractors we shall have no contractors; if we decline to pay those who have contracted to furnish us goods by a day certain, which we are obliged to destroy in transitu, perhaps nobody will contract with us; but that is another question.

All these questions I understand are raised by this amendment, and I have no objection that the bill be postponed in order that the Senate may act advisedly upon it, because it is a question of graver importance than would appear at first sight-one upon which, perhaps, the fate of the country may depend, because the fate of the country may depend upon the exchequer, and if its coffers are drained to pay these damages we may not be able to replenish them in time to carry to a successful conclusion the enterprise we have undertaken.

Mr. HENDRICKS. Perhaps it is proper that I should say one or two words in behalf of my constituents who are interested in this joint resolution.

The PRESIDING OFFICER. The question before the Senate is on postponing the resolution until to-morrow.

Mr. HENDRICKS. I believe the debate has extended slightly beyond that technical question. I do not desire to occupy the attention of the Senate more than a moment. I shall not object to the postponement, but I hope this resolution will not be postponed so as finally to be lost in the Senate if the amendment should be made.

Mr. CLARK. I assure the Senator that I intend to call it up again.

Mr. HENDRICKS. I rely upon that. If the amendment shall be made eventually, of course the resolution will have to go to the House of Representatives again for consideration of the amendment there; and Senators are aware of the difficulty of securing the consideration of that body to private bills. When I was a member of the Committee on Claims at the last session, I think there was a difference between the two classes of obligations on the part of the Government. We must pay contractors, else we cannot get supplies; and we cannot postpone the claims of contractors until after the war is closed without impairing the faith of the Government to such an extent as to make it difficult to get supplies. So we ought to pay these contractors as if the hay were actually delivered. But I desire to say that according to my understanding in committee, the question was not so much whether the Government is bound to pay for property which she herself has destroyed, as whether Congress shall make an