1865. THE CONGRESSIONAL GLOBE. The motion was agreed to, and the Vice President appointed Mr. TRUMBULL. HOUSE BILL REFERRED. The bill (H. R. No. 676) making appropriations for the naval service for the year ending the 30th of June, 1866, was read twice by its title, and referred to the Committee on Finance. PETITIONS AND MEMORIALS. Mr. HARRIS presented a petition of merchants of the city of New York for the construction of a national ship-canal from Lake Erie to Lake Ontario; which was referred to the Committee on Military Affairs and the Militia. Mr. JOHNSON presented the petition of booksellers and newspaper publishers, praying for the repeal of the impost on chemicals, feltings, wirecloths, and other articles used in the manufacture of paper, and also the abolition of the excise tax; which was referred to the Committee on Finance. Mr. COWAN presented the petition of field and line officers of the thirty-first regiment United States colored troops, praying that a brevet second lieutenant drawing the pay of the grade may be authorized by law to be appointed for each company of the United States colored troops; which was referred to the Committee on Military Affairs and the Militia. He also presented a petition of booksellers and newspaper publishers, praying for the repeal of the impost on chemicals, feltings, wire-cloths, and other articles used in the manufacture of paper, and also the abolition of the excise tax; which was referred to the Committee on Finance. to take up that bill, which I suppose will take some time, I ask Mr. CHANDLER. If the Senator has a pressing matter of business before the Senate, I will move the postponement of this bill until the day after to-morrow at one o'clock, and that it be made the special order for that time. Mr. SHERMAN. What is the bill? The VICE PRESIDENT. The Senator from Michigan moves to take up the bill (H. R. No. 307) to regulate commerce among the several States. Mr TRUMBULL. I ask the Senator not to press that motion until I can call up a resolution which I laid upon the table some days ago in reference to the constitutional amendment, which ought to be acted upon. I desire to make a short statement as to the practice of the Government. The VICE PRESIDENT. Does the Senator from Michigan withdraw his motion? Mr. CHANDLER. No, sir, but I am willing to let it be passed over informally. The VICE PRESIDENT. The Senator either withdraws the motion or he does not. Mr. CHANDLER. I move to make the consideration of the bill the special order for Thursday next at one o'clock. The VICE PRESIDENT. The Senator from Michigan first moves to take up the bill indicated by him. Mr. SHERMAN. On that question I desire to say a word. I have been trying now faithfully for three weeks to get the attention of the Senate to the consideration of public bills reported by the Committee on Finance. On Thursday next, at farthest, we ought to take up the legislative, executive, and judicial appropriation bill. We are getting behind-hand in business. The bill which the Senator from Michigan seeks to call up is, I understand, the bill about the railroads, a controverted subject, which will lead to long argument, and cannot be acted upon without serious debate. I trust, therefore, it will not be made a special order to stand directly in the way of the legislative business of Congress which must be acted on. Mr. MORRILL. I present the petition of H. C. Ingersoll, Mary Wendell, and Nancy J. Spalding, who represent that the use of foreign luxuries of apparel tends to take the gold from the country and to depreciate our national currency; that those persons who desire to purchase American fabrics only have found themselves unable to distinguish the productions of our own country from the fact that the best American goods are put into the market with a foreign stamp upon them; that our manufacturers and merchants have combined to perpetuate this wide-spread falsehood; that this course is detrimental to the public conscience, and inju-signed to me by the Senate, to call for the yeas rious to our national honor and to the American name; and they therefore ask that Congress place such a tariff of duties upon foreign luxuries of apparel as shall amount to prohibition, thus rendering it impossible that the extent and variety of American goods shall longer be concealed, and making the fact plainly discernible to the large number of persons who earnestly desire to promote the best interests of their country that they can clothe themselves with neatness and good taste in American fabrics. I move that the petition be referred to the Committee on Finance. The motion was agreed to. Mr. WILSON. I present seventeen petitions of officers in the military service of the United States, praying for an increase of the pay of Army officers. As the Committee on Military Affairs, to whom such petitions have been referred, have made a report, I move that these petitions lie on the table. Mr. WILSON also presented the memorial of A. C. Swartzwelder, surgeon United States volunteers, remonstrating against an increase of the pay of Army officers; which was ordered to lie on the table. Mr. HARRIS presented a petition of officers in the military service of the United States, praying for an increase of the pay of Army officers; which was ordered to lie on the table. He also presented three petitions of ministers of the gospel and pastors of churches, praying that ministers of the gospel may be exempted from military duty; which were referred to the Committee on Military Affairs and the Militia. I feel it to be my duty, occupying the place asand nays on the honorable Senator's motion. If, however, he will allow the bill to stand like other bills on the Calendar, subject to be called up on his motion when other business is not pressing, I shall not have the slightest objection, but shall vote with him. If he desires to make it the special order for Thursday, so that it will interpose to prevent the ordinary legislative business, it is my duty to call for the yeas and nays, and let the Senate decide the question. Mr. CHANDLER. I do not wish to antagonize this measure with any of the Senator's financial bills, as a matter of course; but I desire to get a vote on it at the earliest moment. I do not think it will lead to further discussion. I have taken great pains to give an opportunity to every Senator to consider it during the session, and I think the speeches are made; at any rate, if they are not made, it is the fault of those who desire to speak, not mine. I desire to press the bill to a vote. Mr. DOOLITTLE. The Senator from Michigan will allow me to say that I do not think the discussion on that question has begun yet. Mr. SHERMAN. Several Senators around me say they mean to discuss it. The VICE PRESIDENT. The Senator from 629 sideration of the following resolution, which.was submitted by Mr. TRUMBULL on the 4th instant; Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States, respecting the extinction of slavery therein, having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendinent, inconsistent with the former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives. Mr.TRUMBULL. Since the Government was formed several amendments to the Constitution of the United States have been proposed by Congress and adopted by the States. They were all proposed at three different times; the first series of ten amendments was proposed in 1789; the eleventh amendment was proposed in 1794, and the twelfth amendment in 1803. The Constitution of the United States declares that "the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution," which being ratified in the manner prescribed shall become a part thereof; and the amendments which have been heretofore adopted have been adopted under this clause of the Constitution authorizing Congress to propose amendments, and those proposed amendments have never been presented to the President of the United States for his approval. The clause of the Constitution which declares that "every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States;" and the clause that requires "every order, resolution, or vote to which, the concurrence of the Senate and the House of Representatives may be necessary (except on a question of adjournment,") to be presented to the President of the United States" for his approval, are not applicable to the proposal of amendments to the Constitution. Those clauses of the Constitution requiring the approval of the President to the bills which pass Congress and to the resolutions which pass both Houses, have reference to ordinary legislative proceedings; and hence, when amendments were proposed in 1789, 1794, and 1803, they were not presented to the President for his approval. tol I have before me a statement prepared by the Chief Clerk of the Senate, of the different amendments which have been adopted, and the manner in which they were adopted, from which the fact I have stated will appear. The question was raised distinctly in 1803 in the Senate of the United States on a motion that the then proposed amendment should be submitted to the President: "On motion that the Committee on Enrolled Bills be directed to present to the President of the United States for his approbation the resolution which has been passed by both Houses of Congress proposing to the consideration of the State Legislatures an amendment to the Constitution of the United States respecting the mode of electing President and Vice President thereof, it was passed in the negative-yeas 7, nays 23." On a distinct vote 23 to 7 voted that the Committee on Enrolled Bills should not present the proposed amendment to the President of the United States for his approval, and it was not presented to or approved by him. In 1798 a case arose in the Supreme Court of the United States depending upon the amendment to the Constitution proposed in 1794, and the counsel in argument before the Supreme Court insisted that the amendment was not valid, not having been ap Ohio calls for the yeas and nays on this ques-proved by the President of the United States. tion. Mr. CHANDLER. I withdraw the motion. The VICE PRESIDENT. Reports of committees are now in order. Mr. TRUMBULL. Before proceeding with other business, I ask the Senate to take up the resolution in reference to the approval of the constitutional amendment by the President, and I move to postpone all prior orders for that purpose. Mr. DIXON. Will the Senator from Illinois Mr. POMEROY presented resolutions of the Legislature of Kansas in favor of a grant of land to aid in the construction of a railroad from Elwood, via Marysville, to the Big Bend of the Republican river; which were referred to the Com-allow me to make a report? mittee on Public Lands, and ordered to be printed. ORDER OF BUSINESS. Mr. CHANDLER. 1 move to postpone all prior orders for the purpose of taking up House bill No, 307... Mr. TRUMBULL. Before the Senator moves Mr. TRUMBULL. I shall get through with this matter while the Senator is making his report, if he will allow me to get it out of the way. The motion was agreed to. CONSTITUTIONAL AMENDMENT. The Senate accordingly proceeded to the con 'This was his argument: "The amendment has not been proposed in the form prescribed by the Constitution, and therefore it is void Upon an inspection of the original roll, it appears that the amendment was never submitted to the President for his approbation. The Constitution declares that 'every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being dis approved by him, shall be repassed by two thirds of the Senate and House of Representatives,' &c. (Article onep section-seven.) Now, the Constitution likewise declares that the concurrence of both Houses shall be necessary to a proposition for amendments. (Article five.) And it is no auswer to the objection to observe that as two thirds of both Houses are required to originate the proposition, it would be nugatory to return it with the President's nega tive to be repassed by the same number, since the reasons assigned for his disapprobation might be so satisfac tory as to reduce the majority below the constitutional proportion. The concurrence of the President is required in matters of infinitely less importance, and whether on subjects of ordinary legislation or of constitutional amendments the expression is the same, and equally applies to the act of both Houses of Congress." Mr. Lee, the Attorney General, in reply to this argument, said: "Has not the same course been pursued relative to all the other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of investing the President with a qualified negative on the acts and resolutions of Congress." The court, speaking through Chase, Justice, observes: "There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution." The court would not hear an argument from the Attorney General on the point, it was so clear. If the approval of the President were necessary, none of the amendments which have been made to the Constitution since its adoption would be valid, for not one of them ever received his approval. I ought to state, perhaps, that three or four years ago, when Congress passed a proposition to amend the Constitution by a two-thirds vote, it was inadvertently presented to the President for his approval, just as the one passed a few days ago was presented; but that amendment has never been acted upon by the States, and it ought not to form a precedent. The object of the resolution which I have introduced is to prevent the inadvertent approval in this instance being considered as a precedent hereafter; so that it shall not be in the power of any future President by pocketing, if you please, an amendment proposed by both branches of Congress by the constitutional majority, to defeat it. I think it important that the precedent should be right. The resolution also instructs the Secretary not to inform the House of Representatives that the President has approved the proposed amendment. His approval of it can do no harm, but it is not a necessity, and it having been inadvertently presented for his approval, the Senate ought so to declare lest a wrong precedent be set. Mr. HOWE. As I was the instrument of the Senate who took this resolution to the President, perhaps the Senate will indulge me in a single word on the matter. The bulk of the precedents are against the propriety of that step, as has been stated by the Senator from Illinois. There is a judgment of the Supreme Court of the United States declaring that the assent of the President is not necessary to a resolution of this kind. That is the authority for dispensing with the assent of the President. Nevertheless, to my understanding, the express language of the Constitution requires the assent of the President just as much to a resolution of this kind as to any other. It does not require the assent of the President to a vote for adjournment, and that is the only exception. The Con stitution declares that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." All legislative powers are vested in a Congress, and we are expressly told of what the Congress consists. If you will look to see what Congress may do, in the eighth section of the first article you are told that the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to borrow money, to establish a uniform rule of naturalization, &c. The Congress may do these things. That is precisely the tribunal, in precisely the words, which is authorized in a subsequent clause of the Constitution to propose amendments to that instrument. It is the Congress that may propose amendments; it is the Congress that may raise armies; and the Congress consists of a Senate and House of Representatives. Now, how does it happen that any bill or any resolution must go to the President for his signature? Because there is a distinct clause in the Constitution which provides that "Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States." He is not a part of the Congress, and all legislative powers are vested in the Congress; never theless, you cannot have a law unless you have "Every order, resolution, or vote to which the concur- "by two thirds of the Senate and House of Representa- If this language applies to any one resolution itself. The Senator from Illinois, however, says-and in that he is borne out by the judgment of the Supreme Court, or at least he is borne out by the language of Justice Chase, formerly a member of that court-that this provision which I have just read only applies to the ordinary acts of legislation. It cannot be disputed that Justice Chase so said, and the court having concurred with him perhaps we are bound to consider the law settled upon that point. Not a reason was assigned for it; and the argument which was made by the counsel in that case against the validity of the amendment adopted was not answered either by the opposing counsel or by the court; nor have I heard it answered by any one. Justice Chase remarked, indeed, that argument was not necessary upon a point of that kind. In the vote which was taken in the Senate of the United States in 1803 I notice among the names of those who voted for presenting the resolution to the President the names of Mr. John Quincy Adams and Mr. Pickering. I think, with all deference to Justice Chase, that when such gentlemen as Mr. Adams and Mr. Pickering have affirmed that a step is necessary, some argument may fairly be offered to show that it is not necessary. being transmitted to the Secretary of State, he transmits it to the Legislatures of the States. I think I am abundantly authorized to say that but for this very action of the Committee on Enrolled Bills, which your resolution says was not necessary, the resolution proposing this amendment to the Constitution would not have reached the Legislature of a single State probably until this time. If it had, I do not know how it could have got there, or who would have sent it there. You took no steps whatever to send it there. It certainly would never have got there until after, under the procedure which was adopted, many of the States had actually ratified the amendment. If it be the established law that these resolutions should not go to the President for his assent, certainly the two Houses which pass them ought to take some measures to execute them, and to get them before the State Legislatures. I am free to confess that when I presented this resolution to the President I did so in pursuance of what is a mere habit, so to speak; I did not stop to distinguish between this and any other resolution. I had not looked into the precedents; I had not looked into the Constitution. Since my attention has been called to it I have looked into the precedents; I have looked into the Constitution; and as I have already said, my judgment is satisfied that the course taken was right, notwithstanding the authority which has been read goes so far against it. Mr. JOHNSON obtained the floor. Mr. TRUMBULL. If the Senator from Maryland will allow me, I desire to refer to the rule of the Senate on this subject. I omitted to do so when I was up before. One of the special rules of the Senate also shows that these constitutional amendments are not to be submitted to the President. The 26th special rule of the Senate declares: "And all resolutions proposing amendments to the Constitution, or to which the approbation and signature of the President may be requisite, or which may grant money out of the contingent or any other fund, shall be treated in all respects, in the introduction and form of proceedings on them, in the Senate, in the same manner with bills." Showing by irresistible inference that resolutions proposing amendments to the Constitution are not required to be submitted to the President for his signature; because the language is "And all resolutions proposing amendments to the Constitution, or to which the approbation and the signature of the President may be requisite," &c. Mr. JOHNSON. It would be very improper to say that the question which is presented by the resolution offered by the honorable member from Illinois, if it was an original question, would be This resolution says that the resolution proposing an amendment to the Constitution was inadvertently presented to the President, and the aim of the resolution is to prevent its being made a precedent; but the Senator from Illinois has told us correctly that the precedent has already been established. In 1861 an amendment was agreed to by both Houses and was submitted to the President for his approval; and I have yet to learn that any member of either House of Congress entered any protest to that form of procedure. The President did approve it. The Senator from Illinois says it ought not to be considered a prece-entirely free from doubt, not only because the dent because the Legislatures of the States did not adopt the amendment. How that can make it more or less of a precedent I do not understand. The two Houses concurred in the resolution; the organs of the Houses presented it to the President, and he approved it; and so your records show; and there is the precedent. If this resolution passes without dissent on the part of Congress it will be but another precedent. Precedents, I take it, cannot override the Constitution itself. The approval of the President will not do any hurt if the Constitution does not require it. My own judgment is that the express language of the Constitution does demand it, and my own judgment is that propriety sanctions it; that it is proper to present it to the President; for it does not follow, if the President dissents and presents his objections to the two Houses, that the vote of two thirds of each House can be again had to repass the resolution. But assuming that the Constitution does not require the President's assent to such a resolution, and assuming that the resolution was inadvertently presented to the President, the resolution now pending declares that it was unnecessary to present it to him. I do not think that follows, even if the premises are as stated; for if it had not been presented to the President, I ask you, sir, and I ask the Senate, how would it have been transmitted to the Legislatures of the States? Your resolution proposing the amendment provided no means, and there has been no other action taken on the part of the two Houses to get it to the States. It would not go to the State Department unless presented to the President. When presented to the President, if he approves it he transmits it to the State Department; and honorable member from Wisconsin thinks differently, and has expressed a different opinion upon it, but because there were some six or seven Senators, in 1803, I think, who entertained a different opinion. But, to my mind-with due respect to the authority of my friend from Wisconsin-it seems to be quite clear that a resolution proposing an amendment to the Constitution is not to be submitted to the President for his approval. The object of the constitutional provision on the subject is simply to initiate a mode by which the people shall decide whether there shall be an amendment of the Constitution or not. It does not operate as a law. The whole effect of it is, if it is initiated by Congress, to submit the question to the people for their determination; and the Senate, of course, will have seen that that is but one way in which amendments are to be proposed. Precisely the same effect is given to amendments proposed by the Legislatures of the States. I suppose it will hardly be contended that the President has any control over a convention called by two thirds of the State Legislatures. What makes it, as I think, still more obvious that it was not the purpose of the Convention that framed the Constitution that the President should decide upon a resolution of this description is, that the resolution itself is not to be passed unless it is concurred in by two thirds of each House. The constitutional provision which gives to the President the authority to veto any such bill as is to be submitted to him for approval or rejection says that if he disapproves, he is to send it to the House in which the bill or resolution originated, and if passed by that House and the other by two thirds it is to become a law notwithstanding the veto. You are not to construe these pro visions, therefore, literally where they come in conflict with each other, but you are to construe them in relation to the subject-matter with which they deal. By looking at the provision upon which my honorable friend from Wisconsin relies, you find that "Every order, resolution, or vote to which the conqurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States." The clause immediately preceding says: "If he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House it shall become a law." Now, as such a resolution as the one in question is a resolution which cannot be passed by either House except by a vote of two thirds, why should it become necessary to submit that to the President for his decision; for, after he decides, there is but one provision looking to what is to be done in consequence of his decision against the resolution, and that is that it is to be passed by two thirds; so that if this resolution was sent to the President for his approval, and he rejects it, and it comes back, it will just be precisely the same vote. Mr. HOWE. It does not follow that it will get the same vote after Congress has heard the President's objections. Mr. JOHNSON. I know it does not; but what I mean to say is, that looking at the two provisions that is to say, the provision which gives to the President the right to approve or disapprove, and the provision which looks to the duty of Congress consequent upon his disapproval-it is evident that what was intended to be submitted to the President was a question which was to be passed upon by more votes than were necessary before it was submitted. Then the provision is: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution" * "which" "shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof." * Now, the proposition is that no proposal by Congress of an amendment to the Constitution, although receiving the support of two thirds of both Houses of Congress, is to be submitted to the States, unless the President shall approve it. That is not the case in relation to the other mode of proposing amendments. There being two modes, and stated in the alternative, the other mode is: "Or, on the application of the Legislatures of two thirds of the several States." What are Congress to do then? Suppose two thirds of the States propose amendments, has the President anything to do with that? All will admit that he has not. Has Congress anything to do with that? All will admit that their single duty then is an imperative duty-to call a convention. So that the whole object of the clause, as it seems to me, is merely to begin a mode by which the people shall have an opportunity of deciding whether the Constitution shall be amended or not. But when, as is stated by the honorable chairman of the Judiciary Committee, every amendment which has been adopted has been submitted to the States without having been approved by the President, and when the Supreme Court, at a time when it stood as high as it has ever stood at any time since its organization, refused even to hear an argument on the subject, supposing it to be too clear for discussion, it would seem to me that we ought to consider the question as settled; and in order that it may be considered as settled, that it is advisable to take the particular case which is before us (where the amendment has been submitted to the President for his approval without at the time, as my friend admits, due consideration or any consideration, taking it for granted it was to go to him for approval) out of the way as a precedent. The resolution was agreed to. CREDENTIALS PRESENTED. Mr. FARWELL presented the credentials of Hon. WILLIAM PITT FESSENDEN, chosen by the Legislature of the State of Maine a Senator from that State for the term of six years, commencing March 4, 1865; which were read and ordered to be filed. REPORTS OF COMMITTEES. Mr. POMEROY, from the Committee on Public Lands, to whom was referred a bill (S. No. 391) authorizing an adjustment of the claims for lands heretofore confirmed to any State, reported it with an amendment. Mr. DIXON, from the Committee on the District of Columbia, to whom was referred a bill (S. No. 421) to amend an act entitled "An act to incorporate the Columbia Institution for the Deaf and Dumb and the Blind," approved February 16, 1857, reported it without amendment. He also, from the same committee, to whom was referred the bill (H. R. No. 364) authorizing and requiring the opening of Sixth street west, reported it without amendment. Mr. HALE, from the Committee on the District of Columbia, to whom was referred a bill (S. No. 368) to incorporate the Association of the Sisters of Mercy in the city of Washington, in the District of Columbia, reported it with amend ments. Mr. HENDRICKS, from the Committee on Public Lands, to whom was recommitted the bill (S. No. 238) to ascertain and settle private land claims in the State of California, reported it with an amendment. DISTRICT BUSINESS. Mr. DIXON. I am directed by the Committee on the District of Columbia to move that Saturday of this week, after the morning hour, be assigned for the consideration of business reported by that committee. Mr. COLLAMER. I have in my charge a single bill relating to the Post Office Department that I wish to have passed. I do not know why the District Committee should have time particularly assigned to its business when I cannot get any time for mine. Mr. DIXON. I believe it has been customary to assign a day for the business of the Committee on the District of Columbia. Mr. COLLAMER. I know there has been that practice, but I insist that some other committees should have the same privilege also. Mr. BROWN. I should like to ask the Senator from Connecticut to include in the business of the District for which he wishes to assign a special day, a bill of my own, reported from the Military Committee, touching the militia organization in the State of Missouri. It is a very important military bill, and ought to have been acted on long since. The VICE PRESIDENT. The question is on the motion of the Senator from Connecticut. The motion was agreed to. BILL INTRODUCED. Mr. LANE, of Kansas, asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 431) to amend an act entitled "An act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of cerproved March 3, 1863; which was read twice by tain railroads and telegraphs in said State," apits title, and referred to the Committee on Public Lands. MESSAGE FROM THE HOUSE. A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House had disagreed to the amendments of the Senate to the bill (H. R. No. 583) to amend the twenty-first section of an act entitled "An act to define the pay and emoluments of certain officers of the Army, and for other purposes,' approved July 17, 1862; asked a conference on the disagreeing votes of the two Houses; and had appointed Mr. J. F. WILSON of Iowa, Mr. W. H. WADSWORTH of Kentucky, and Mr. E. R. ECKLEY of Ohio, managers at the same on its part. AMENDMENT OF ENROLLMENT ACTS. The VICE PRESIDENT. The morning hour having expired, it becomes the duty of the Chair to call up the unfinished business of yesterday. Mr. SUMNER. I do not wish to interfere with the regular order of the day; but with the indulgence of my colleague I am going to ask the Senate informally to take up the resolution which I offered yesterday calling on the President for information with reference to recent conversations or communications with the rebels, that it may be acted on without debate. Mr. SHERMAN. If that resolution is to be pressed now, I shall desire to discuss it. Mr. SUMNER. Does the Senator desire to debate it? Mr. SHERMAN. I desire to have it go over. I wish to discuss it. Mr. WILSON. I hope, then, we shall proceed with the regular order of business. Mr. SAULSBURY. I have prepared an amendment to the resolution of the Senator from Massachusetts, which I wish to lay on the table to go over with the resolution. The VICE PRESIDENT. The amendment will be received. The regular order of business is the bill (S. No. 408) in addition to the several acts for enrolling and calling out the national forces, and for other purposes, the pending question being on the amendment of the Senator from California [Mr. CONNESS] to the amendment of the Committee on Military Affairs. The Senator from California proposes to amend the third section of the reported amendment by inserting after the word "who," in line two, the words "for pay or profit;" so that the clause will read, "that any recruiting agent, substitute broker, or other person, who for pay or profit shall enlist or cause to be enlisted," &c. The amendment to the amendment was agreed to. Mr. COWAN.. I move further to amend the third section by striking out the word "by," in the eighth line, and inserting the word "in," and in the next line by striking out the words " martial or military commission" and inserting "of the United States having competent jurisdiction;" viction in any court of the United States having so that it will read if amended, "shall upon concompetent jurisdiction, be fined," &c. I do not propose to debate this question. I merely wish to say that I have no doubt it would be better for the country that this amendment should be made. It will transfer this class of offenders to the proper court where they may be tried according to the forms to which the people are accustomed, and in the judgments of which they will acquiesce; and it will relieve the military department from that which must now be a source of great trouble, if not vexation to them. Further, it will unques tionably make this section conform to the Constitution. It will confine the jurisdiction of military tribunals to military men, to those who are in the land or naval forces and in the service of the United States. It will throw all civilians within the jurisdiction of the civil courts, and there they will be tried, and tried much-more speedily, fairly, and, I think, acceptably to the country generally. The question being put, it was declared that it appeared that the amendment to the amendment was agreed to. Mr. CONNESS. I call for the yeas and nays, Mr. CONNESS. I would not call for a division or for the yeas and nays if I believed it was the sense of the Senate to adopt this amendment; but I can hardly think the Senate will agree to transfer this class of cases to the United States courts where the process of trial and punishment will be so slow as really to amount to nothing. I do not wish to detain the Senate by any remarks on the subject; but having no doubts on the constitutional question involved, as presented yesterday so elaborately by the Senator who makes this motion, and desiring that the provision shall be effective, I can hardly think that it is the deliberate sense of the Senate to agree to this amendment. I have therefore called for the yeas and nays. Mr. COWAN. I haye but a single word to say. I may remark that the fact that the administration of criminal justice is slow has long been common to our system. One of the illustrations of it is, that a Turkish cadi will hear a crime, order the offender off to the other end of the room, give him a hundred on the soles of the feet, or the bastinado, and settle the question in twenty minutes; whereas an English or American court, having regard to the liberty of the citizen, would perhaps occupy itself for three months with that same question. It is the very essence of liberty, that those who are intrusted with the punishment of the citizen should go slowly, in order that the citizen may have an opportunity to defend himself. with it and growing out of it, should in all cases These are my views about it, Mr. President. Mr. HOWARD. I do not wish to occupy the time of the Senate in discussing this clause further, except to say that if this amendment shall prevail it will destroy, as I think, all the efficiency of the measure itself. If it shall be made necessary by this act to try all these petty offenses before the ordinary civil tribunals of the county in which they may happen to be committed, if it is necessary to call a grand jury to indict the offender in every case, and a traverse jury to try him, if all the cumbrous and dilatory machinery of a civil court is to be employed in every case to punish these crimes committed against the interests of the military service of the United States, the bill itself will not be worth, practically, the paper upon which it is written. The very object of the bill in this respect is to expedite trials and bring them to a close, and to bring these offenders to speedy justice. There has been an almost universal outcry all over the country in relation to the agents and perpetrators in these frauds against the sol-entangled in this mesh of military dominion and diers and against the interests of the Government, and in many cases the outcry has even claimed that a penal statute should be enacted by which they should be hung for defrauding the Government and for imposing upon the honest soldiers. I trust this amendment will not be made; I trust the Senate will stand by the bill and continue the policy which seems to have actuated the Committee on Military Affairs, of subjecting this class of offenders to trials by courts-martial. Nothing short of it will answer the purpose which is now demanded. Mr. HARLAN. I desire to ask the attention of the Senator from Michigan to the point that I understand was raised by the Senator from Pennsylvania, that this bill proposes to punish a civilian by a military court, which he seems to think conflicts with the provision of the Constitution of the United States providing for the trial by jury of all crimes except where the party accused is attached to the military or naval service of the United States. It is on that point on which I should like to hear the Senator from Michigan. Mr. COWAN. The vice of my honorable military rule. If the fact of a man going forward Mr. HOWARD. No, the Senator will allow Mr. COWAN. I think the Senator's position is not good. The true test is whether the person committing the crime is within the jurisdiction of the military officer. I merely wish to say a word further and submit this matter without any longer debate. All members of the Senate now, I have no doubt, understand it thoroughly. The honorable Senator says that these cases Republic as he could be within its military power. Mr. HOWARD. If time would allow, I certainly would repeat the views which I expressed yesterday on that subject. I certainly entertain no doubt whatever of the competency of Congress to enact this law. I have no doubt of the power of Congress to punish as for a military offense acts injurious to the military or naval service of the United States, and intended to injure that service, or to obstruct it or impair its efficiency. There must be some power by which to protect the efficiency of the military service. We certainly have power to punish by court-martial offenders against the laws in all cases arising in the military or naval forces of the United States, for that is the language of the Constitution; the question is, therefore, what is a "case" arisingmarily within the grasp of the civil power of the in the military or naval forces of the United States? What is a case? It seems to me it requires no very great ingenuity of construction or of interpretation to ascertain and find out what a "case" is. Such a case I should understand to be a state of facts by which the military service or the naval service of the United States was damaged, obstructed, or endangered intentionally by a person committing the act. I know that definitions are not only difficult, but dangerous sometimes; but if any gentleman will turn his attention to the language of the clause in the fifth article of the amendments to the Constitution, it seems to me no doubt can remain as to the intention of the framers of the instrument. It was intended to be sufficiently broad to protect the military and naval service of the United States, and to punish all persons offending against it, all persons obstructing it, all persons intentionally damaging it, or injuring it in any respect whatever. All persons who assume to act as contractors for the United States, who assume to act as recruiting agents of the United States, or take upon themselves any other function connected with the military or naval service of the United States, are, as it seems to me, persons coming within the category of the fifth amendment, coming within the "cases" there mentioned. It certainly never was the intention of the framers of the Constitution, as it seems to me, that this class of offenses, whether immediately in the military service or being more remotely connected people; there is the difficulty; and we are bound to protect the virtuous citizen as against any danger from this quarter. I have no hesitation here in asserting that, if these persons are indicted in the United States courts, and tried and convicted within them, a solemn judgment of the court inflicting this punishment will be a hundred times more efficacious than the sentence and punishment of a court-martial. I have no doubt of it, because there is a natural, innate love in the people of these forms of administrating justice, and they will never be satisfied with any other forms. Therefore I have the hope and the assurance that there will be an end put to this source of trouble and difficulty on the part of the Government itself, making it enemies every day and everywhere, and giving color to the charge of tyranny and oppression against it which, at the present time with us, is worth millions. When we are making a great struggle ostensibly for liberty and equality among men, we ought by all means to endeavor to preserve and guard for ourselves and for the loyal citizens all those great privileges and muniments of liberty which have come down to us intact for so many generations. As my friend from New Jersey [Mr. TEN EYCK] suggests to me, these cases are taken into the United States courts every day, and are being tried there, and persons guilty of these offenses are being punished; and no one has ever yet come here with a complaint that those courts have conducted themselves in an informal or tyrannous manner; and nobody has ever yet charged them with having failed in their proper duty toward the country in the conviction of these persons. Why, then, not let them exercise their function as was contemplated by the Constitution? Let all people who are in the Army and who are in the Navy obey the laws of the Army and the Navy, and let people who are outside the service be subject to the municipal law, not because many guilty people may not do very bad things, may not commit offenses, and perhaps escape punishment, but it is better that ninety-nine of them should escape than that one innocent man should be punished improperly and the odium of his punishment thrown on the Government. The question being taken by yeas and nays, resulted-yeas 29, nays 14; as follows: YEAS-Messrs. Buckalew, Carlile, Cowan, Davis, Dixon, Doolittle, Farwell, Foot, Foster, Hale, Harlan, Harris, Henderson, Hendricks, Howe, Jolinson, Lane of Kansas, Morgan, Nesmith, Pomeroy, Powell, Richardson, Riddle, Saulsbury, Ten Eyck, Trumbull, Van Winkle, Willey, and Wright-29. NÄYS Messrs. Anthony, Brown, Chandler, Clark, Conness, Grimes, Howard, Morrill, Nye, Ramsey, Sherman, Stewart, Sumner, and Wilson-14. ABSENT-Messrs. Coliamer, Harding, Hicks, Lane of Indiana, McDougall, Sprague, Wade, and Wilkinson-8. So the amendment to the amendment was agreed to. Mr. GRIMES. I move to strike out the first section of the amendment reported by the committee. I make this motion in order to call forth from the chairman of the Committee on Military Affairs some explanation of the reason why he proposes such a very radical change in the present method of conscription and enrollment. It will be remembered by the Senate that as the law now stands, a person who has been enrolled and who is liable to draft cannot be used as a substitute for another person who has already been drafted. This section proposes to change all that, and to say that any person who is enrolled in any particular township, although he may be subject to draft the next day if another draft shall be made, may be received as a substitute for a man who was drafted the day before. This, it will be observed, will in a great many instances require us to expend two men in order to get one man. The operation of it is destined to be exceedingly unjust. I can best illustrate the effect of this proposition, if it shall be adopted, by an example that has occurred within my own observation. But one word more. The "case" must not be outside of the land or naval forces; it must be within them, and it must attach itself to somebody who is within them, and somebody who is amenable to them. Now, upon an examination of the Articles of War, it will be readily seen what is the class of cases that fall within the exception of the fifth amendment to the Constitution. First, there is mutiny; second, desertion; third, advising desertion. Anything which militates against the regular organization and police of the camp, is the exception that was contemplated. Another most substantial reason, which ought not to be overlooked, is the fact that the moment that a man enters the military or naval service he voluntarily agrees to become subject to these extraordinary and extra-judicial provisions. The first thing that is done with the soldier or the sailor In the county in which I have the fortune to live when he enlists is to ask him, and upon his oath, there is one large town, and that is a town of conI believe, whether he submits to be governed by siderable wealth, containing a population of ten these Articles of War. That is never the case or twelve thousand. Adjacent to it is a purely with the civilian. The civilian is left to be gov-agricultural township, with not a store or a village erned entirely by the municipal laws of the country, subject to them, and entitled to protection under them. Now, it does seem to me that this section as it stands would be most mischievous. It not only || affects these bad people, but it may affect good in it, composed of excellent, loyal, industrious husbandmen. It was known that a very large number of the young men from this agricultural township had gone to the war, and it was supposed as a matter of course that there was no lia bility on the part of that township to the draft. But when we had the draft last year, it was discovered that although there was a surplus of twenty-eight men who had gone from the agricultural township to the war, they were credited to the town in which I live, having been induced to accept the bounties that were furnished by the gentlemen in this wealthy town; and the result, therefore, was that this purely agricultural township, that had sent an excess of her population of twenty-eight persons to the war, was under that draft compelled to furnish fourteen more. Is that fair? Is that what the Committee on Military Affairs want to provide for? Or is it what we ought to provide against? This proposition, if we adopt it, is going to create a very radical change in the whole system of conscription, and in half the instances, I think, to raise three hundred thousand it will cost us five hundred thousand enrolled men, as the section now stands. Mr. WILSON. The original enrollment act allowed substitutes to be obtained among those who were enrolled. At the last session it was feared by some gentlemen that we should soon exhaust the enrolled men of the country if we allowed substitutes to be taken from among those enrolled, and we provided that substitutes could only be obtained from among men under twenty years of age or over forty-five years, or from aliens, unless the persons who were thus enrolled should be made liable on future drafts. The practical effect of that act is simply to confine the persons enlisted as substitutes or as volunteers mostly to aliens and to persons under twenty years of age. I think the tendency is to check filling up the Army. Now, what we want to do is to fill up the ranks of our armies and to do it at once. Most of the men put into the armies are enlisted; very few are obtained by draft. The enrollment system has more effect to stir up, to press the people and the officers of the various localities throughout the country to fill up the Army by volunteering, than it has the direct result of obtaining soldiers by draft. That is the great value of the law. I am told by persons engaged in raising men that the effect of the law passed at the last session has been to check enlistments. I was told the other day, by a gentleman who has himself enlisted and put into the service during this war fifty-eight thousand men, that the passage of this first section will increase the number of enlistments tenfold at once, and he suggested at the same time that another provision ought to be made, which the committee have not reported, that the substitute should have the same bounty as the enlisted man, and be put on the same footing in every respect. He thought that in that way we could fill up the armies speedily. nor the Provost Marshal General has any right to do these things. They are a violation of law, and it is unjust to the whole country that they are exercising power which does not belong to them. proper Sir, this is a plain matter of calculation. The law provides for the enrollment of men between twenty and forty-five years of age; and when the enrollment is made, if it is incorrect it may be revised, and should be revised; but when the officers appointed have done that work, it does not belong to the President or anybody else to interfere with it. If a call is made for men, justice to all sections of the country requires that the record shall stand correct, and the quota of each locality is a matter of mere mathematical calculation and not of favoritism toward any man or set of men in the country. It is this eternal interference, this construction one way to-day and another way to-morrow, that has prevented filling up our armies promptly; and the result is also owing to the system of large bounties and those abuses by which insane men, drunkards, criminals, and men who have run away from the Army, have been enlisted and imposed upon the country; so that the result is that we do not get more than fifty per cent. of the men who are professed to be put in the service. General Hinks, who has had the superintendence of this matter in New York harbor for months, under his own hand, in a public letter that has been printed, testifies that not more than fifty per cent. of the men sent there really go to make up the forces of the country. Our present system seems to be to fill up quotas and not fill the armies. It is because the armies have not been filled up as they should have been under the call for five hundred thousand men last year that Lee's army is defiant at Richmond to-day. If General Grant had had fifty or sixty thousand more men last fall, he could have cut Lee's lines of communication and have destroyed that army. Now, sir, I am opposed to this policy. I am in favor of adopting means at once to get all the men we can raise of the three hundred thousand men called for, and fill up the armies now, and put an end to this war that we all want to see ended. I think the striking out of the first section will simply have the effect of checking the filling up of the armies, and to make the matter linger along. There is no danger of exhausting the men of the country. We have in the country to-day more men fit for military duty than we had when the war opened. There is no danger on that point. What we want to do is to get the men now, at the earliest possible moment, for we have no time to lose. Open the spring campaign; destroy the military power of the rebellion; and then we shall have peace without sending commissioners to Richmond, or meeting their commissioners half way to talk about it. Mr. GRIMES. If the purpose of this section of the amendment which is proposed by the Committee on Military Affairs be to accomplish that which the Senator says is all that was accomplished by the laws that have hitherto been passed on this subject—that is, to frighten people into volunteering in the national forces-it is possible that this section of the present bill may accomplish that end, and therefore may be of some value; but if it be a real, genuine enrollment bill; if it be based on the theory that every man owes his service, his life, if need be, to the country, and that we should come just as near as possible to then I say that we ought to amend the Senator's proposition by striking out the first section. I know that many provost marshals and many persons engaged in filling up the armies are of opinion that this change ought to be made. We now take men for one year, and when a man has served his time he goes back. There is no danger of exhausting the enrollment. I believe that if we could now fill up the pending call for three hundred thousand men, we should have no special reason for any more soldiers. We want these men now. Our armies are not filled up because of the manner in which the attempt has been made to execute the law, and because of the terrible abuses that have grown up under the system of heavy bounties, stimulating bad men to perpetrate wrongs upon others and upon the Gov-requiring every man to perform that sacred duty, ernment itself. If we had had three months ago fifty thousand or seventy-five thousand men to send to General Grant before Richmond, I think the war would have been ended to-day by the destruction of the only force there is in the country that carries the flag of the rebellion, I mean Lee's army. Why did we not have it? We have had all sorts of constructions of this plain law which he that runs may read and understand. Then we have had all sorts of interference with its execution-committees sent here from localities to ask the Secretary of War or the Provost Marshal General or the President to do what none of them had any right to do; and I understand that committees have been here recently to fill up the call that has been made by getting reductions rather than by sending men. There is a report in circulation that a large percentage of the number called for from one of the States has been remitted by the President, who has no more right to do it than I have. Neither he, nor the Secretary of War, The Senator says we have not accomplished as much as we ought to have accomplished hitherto in filling up the Army, for three different reasons, I believe; first, he says that there have been various interferences by the executive authorities of the Government; in the next place, there has been a great deal of rascality perpetrated by bounty brokers and other persons of that description; and in the third place, there have been a great many irrelevant and indecisive and improper constructions placed upon our laws by the executive authorities who have the administration of them. Are we going to improve that condition of things by changing our legislation on this subject every few months? It is now thoroughly known all through the country what our legislation is. It is now known that a man who is already enrolled upon the books of the provost marshal cannot be that operated injuriously? Has there been a draft in the Senator's own State? Has he had any experience or observation of it? I have had in the town in which I live, which is the central point in the congressional district in which a draft has been made, and I can tell the Senator that he is wholly mistaken in regard to the operation of the law as it now stands. I have seen men of family and of substance who have been drafted, and who had the capacity and the opportunity to procure substitutes, but who said that they did not believe that it was a manly and generous course for them to pursue, and they shouldered their muskets, leaving their families and their property behind them, and are now under General Sherman. We have experienced no difficulty there in the law as it now stands. We have no disposition to sacrifice two men for the sake of securing one. Where does this demand for a change come from? Will the Senator tell me that the War Department desires this change? He has not so informed the Senate, and I have heard from no quarter that anybody has desired it, except some gentleman who, the Senator says, has enlisted fifty-eight thousand men since this war began. He has not told me what relation that man sustains to the parties for whom he has enlisted them. It may be possible that it may be for the interest of that individual, as the agent of a State or as a private broker, that this change of the law should take place, because then he will have a wider field from which to secure his substitutes. He can then go into one of the agricultural townships in Massachusetts, if a draft should be ordered in that State, and exhaust from that township enough of the men who are already enrolled there to fill up the quota that may be due from a rich commercial township adjacent to it; and then when the draft shall hereafter come upon that agricultural township, she will be deficient to the extent of the men that have been drawn from her, and the draft will be imposed upon those who remain; and if there shall not be men enough capable of bearing arms in the township after this number have been drawn off into the rich commercial towns, who is the sufferer? The Government of the United States. Mr. President, I confess that I have never heard that there was any objection to the law as it now stands in this respect, and I never imagined that there was going to be any attempt to change the enrollment law on this subject. As I have said before, I live in a State where a draft has been: made in every county, and I have never heard of any objection to the law as it stands being made by anybody there. Why shall we change it; why shall we have this irresolute, this indecisive, this whiffling, changing kind of legislation, to the principle of which the Senator attributes so much of the evils of the past in regard to the filling up of the quotas? Mr. WILSON. I will simply say to the Senate that I think the act we passed at the last session has had a tendency to prevent filling up the armies of the United States in this way: persons who are enrolled, knowing that they may be drawn if the draft comes, are not likely to go into the service, and thus their enlistment has been prevented. Besides, it has had a tendency to make persons who had substitutes to get or who wished to enlist men, go around and pick up aliens, get them in from Canada, get them anywhere they could, and pick up boys under twenty years and men over forty-five, and put improper men into the service. I have no doubt that if we allow the men who are enrolled to be enlisted, and exempt them from draft during the time they are in the service, it will enable us to fill up the armies more speedily at the present time. Mr. HENDRICKS. Will the Senator allow me to ask him one question while he is on this particular subject? Mr. WILSON. Certainly. Mr. HENDRICKS. The Senator is speaking of the effect of the law of the last session upon the enlistments. I wish to ask him if the repeal of the commutation clause did not have the effect to cut off enlistments and stop volunteering? Mr. WILSON. I have not examined the subject enough to decide that question; but I was opposed, as the Senator knows, to the repeal of the commutation clause. I had to submit to it, however, as I have to many other things here. |
