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good legislation to stand upon the statutebook when the hour of passion has passed, I think it is by far better that we leave out the judges.
Mr. STEWART. How would you reach a case like this? An indictment has been found against one of our officers and it is before the judge. How will you prevent his having the suit prosecuted? In most of the States a nolle prosequi cannot be entered without the consent of the judge. He has a right, after the suit has been brought and an indictment found, to order the prosecution to proceed. How will you prevent him, except by a law of this kind? It is in his hands alone.
consin, who says that the provision to proceed against a judge is a novel provision, something new; and I think he said it was unknown or new either in this country or in that country from which we derive our laws. I have before me a statute made as long ago as 16 Charles I, in the year 1640, two hundred and twentysix years ago, which contains this remarkable provision:
"And be it further provided and enacted, That if any lord chancellor, or keeper of the great seal of England, lord treasurer, keeper of the King's privy seal, president of the council, bishop, temporal lord, privy counselor, judge or justice whatsoever, shall offend, or do anything contrary to the purport, true intent, and meaning of this law, then he or they shall for such offense forfeit the sum of £500 of lawful money.
It was at the time when the English Parliament undertook to break up the Star Chamber which had been derogatory to the liberties of the country. They feared that they should not be able to enforce the provisions of this act without a penalty, and they made a provision that if any of those judges attempted to proceed and to do what theretofore the court had done, they should be liable to that penalty. Now, we desire to break up this practice of prosecuting Union men for attempting to preserve the Government. Why should it not be done? Everybody, I think, agrees that it is desirable. The Senator from Wisconsin agrees that it is desirable. Then if these judges will proceed in the face of the law of Congress, direct and peremptory, why should they not be punished? If they do not do it, if they yield obedience to the law, they will not be visited by the punishment; but if they will act in the face and eyes of the law, why should they not, as well as the parties and officers and other persons offending, be visited with the punishment? I hope we shall retain the word "judges," and that we shall say to them that they are amenable, as well as other parties, to the law of-Congress and to this penalty.
Mr. DOOLITTLE. I think we ought to presume that the judge of a State, in his judicial office, who by the Constitution of the Uni#ed States is bound to take an oath that he will support the Constitution of the United States, and all laws inade in pursuance thereof, anything contained in any State constitution or law to the contrary notwithstanding, will not violate his oath of office. It is not necessary, in order to secure the rights proposed to be secured by the bill. There can be no proceeding against an individual if there is no party to it against him; and if the party who is seek ing his redress against the Union officer is restrained, if he is made liable; it is not necessary to presume in the law of Congress that the judge will commit a crime. Why is it necessary to put it in your statute?
Mr. STEWART. If the Senator will allow me, I will ask, might not the State become a party, and make it a prosecution on the part of the State? Many of these cases are prosecuted in behalf of the State.
Mr. DOOLITTLE. I believe in what is said by Judge Kent, the authority cited by the Senator from Illinois. He says, in speaking of this very thing in the statute of the State of New York, which was to defend the liberty of every citizen; speaking of the writ of habeas corpus as a writ of right; speaking as a citizen of New York, who had been a distinguished judge of New York in the supreme court and chancellor of the State, he speaks of that provision as a degrading provision in reference to the judges. He says Massachusetts imposes no such degrading penalties upon her judicial officers. None of the States do it, it seems, but New York, and Mississippi, who followed perhaps the example of New York. I would agree with the Senator from New Hampshire, if it were necessary in order to defend the Union officers, to presume that these judges would, in violation of the law, be guilty of this proceeding of which he speaks. I do not question the constitutionality of our including the judges as well as including the officers or the parties; but as a question of good policy and
Mr. DOOLITTLE. I understand the effect of the third section is to remove the cause into the circuit court of the United States, and the circuit court which has the cause can by mandamus or certiorari
Mr. STEWART. Suppose the judge refuses to remove the case at all from under his jurisdiction. How will you reach him?
Mr. DOOLITTLE. The third section removes the cause.
Mr. STEWART. But he has jurisdiction, and he says that this act is unconstitutional, and the case shall not be removed.
Mr. STEWART. Suppose, then, that the judge will not give up his record, and goes on with the trial notwithstanding. You say it is removed. He says, "It is not; I have got jurisdiction, and I will continue to have the cause tried; I will not allow a nolle prosequi, even if the district attorney is willing; it is under my control exclusively;" and it is. I submit, when an indictment is found the judge may proceed with it in any State. He can disregard your entire law unless you punish him for it.
Mr. DOOLITTLE. The third section provides:
That the right of removal from the State court into the circuit court of the United States, provided in the fifth section of the act to which this is amendatory, may be exercised after the appearance of the defendant and the filing of his plea or other defense in said court, or at any term of said court subsequent to the term when the appearance is entered, and before a jury is impaneled to try the same; but nothing herein contained shall be held to abridge the right of such removal after final judgment in the State court, &c.
late courts, and finally, on an appeal, in the Supreme Court of the United States, inasmuch as the validity of this law, an act of Congress, would be in question.
Mr. STEWART. But suppose the judge goes on and convicts the man and sends him to the penitentiary, he must lie there until the case can be heard in the Supreme Court, three or four years hence.
Mr. DOOLITTLE. How can he send him to the penitentiary? No officer is allowed to do it. Will the judge put him there himself? Mr. STEWART. The judge can order the officer to put him there.
Mr. DOOLITTLE. What if he does if the officer cannot put him there? If every officer to execute a decree of the court is made responsible, how can the judge do it?
Mr. STEWART. The judge has jurisdiction over the officer, and he can order him to do it, and if he does not do it the judge can call upon the power of the State if he has jurisdiction.
Mr. CLARK. I desire to make but one suggestion in answer to the Senator from Wisconsin, and that is one of fact. He says if it were necessary that these judges should be proceeded against he would not object. I hold in my hand a communication from a member of the other House from Kentucky, in which he says that all the judicial districts of Kentucky, with the exception of one, are in the hands of sympathizing judges. They entirely disregard the act to which this is an amendment. They refuse to allow the transfer, and proceed against these men as if nothing had taken place. Here is not the assumption that these judges will not do this; here is the fact that they do not do it, and it is necessary that these men should be protected.
Mr. SAULSBURY. It is about the hour of adjournment, and I move that the Senate adjourn.
Several SENATORS. Let us take a vote. Mr. SHERMAN. There are other bills behind this which it is important for us to act upon, and we ought to dispose of this bill to-night.
Mr. SAULSBURY. I will not insist on the motion.
The PRESIDING OFFICER, (Mr. ANTHONY in the chair.) The question is on the amendment of the Senator from Wisconsin, to strike out the word "judges," in the fourth section of the bill.
The amendment was rejected.
The PRESIDING OFFICER. The question now is on the amendment proposed by the Senator from Delaware, to strike out the fourth section.
The amendment was rejected.
Mr. EDMUNDS. I hope I shall not be thought hostile to this bill by offering one more amendment, which is to add to the first section the following words, which I will read:
And in any suit or prosecution to which the provisions of this act or the act to which this act is an amendment apply, it shall be the duty of the Secretary of War to assume and carry on the defense thereof, at the expense of the United States, and to indemnify and save harmless any defendant or respondent therein from all damages, fines, costs, and expenses arising therefrom.
I hope that this will commend itself to the good sense of the Senate as an appropriate amendment, because it secures to the soldier who, in obedience to orders, has done his duty, that protection which we all believe he is entitled to, the protection not only of the word and of the law of the Government, but the protection of its arms and its pocket, in reliev ing him from litigation which, even if success. ful, to him in the end would be almost as ruinous as defeat.
Mr. SHERMAN. I should like to have the amendment read at the desk. The Secretary read it.
Mr. SHERMAN. I am sure my friend from Vermont could not have understood the effect of such a provision upon the financial condi tion of the country, If the United States may be sued in the United States courts, there will be people who will sue the United States when
they would not bring suits against individuals. The effect of this amendment is to enable any. body to sue the United States for any transaction that has occurred during the recent war, because, although John Doc, or Richard Roe, or some nominal defendant, may be made the party defendant, yet, if the United States is to assume beforehand to conduct the defense of all suits that may be brought against these persons for any acts done during the war, and then the United States is not only to pay the expense of defending the suits, but to pay the judgments of the courts in all the various suits, it would be necessary for us to consider this bill in the Committee on Finance a little while and to provide ways and means to meet the judgments that may be rendered in cases of this kind. It seems to me we had better leave the defendant upon his trial, giving him the privilege of taking the case to the United States courts, there to be tried. There may be cases where the United States may, by appropriations to be hereafter made, indemnify the defendant; but it seems to me we ought not to invite that kind of litigation. It is well known that if the United States is a defendant in a suit, even an honest jury will give a much larger verdict against the United States than as against an individual. At any rate, it seems to me a proposition of this kind to assume the defense of all these cases and to guaranty beforehand the judgment that may be rendered in them, would be rather an expensive operation.
go by default or without making the necessary defense.
Mr. EDMUNDS. I do not know but that it would be an expensive operation. The putting down a rebellion and sustaining the Government of the country is always an expensive operation; but I had supposed, from the course of this debate, that the question under consideration was, the protection of the officers of the Government at whatever cost, irrespective of any question of finance or of mere pecuniary policy. We have gone upon the theory, and the correct theory, that it is a positive and solemn duty imposed upon the Congress of the United States to protect the officers and men who have executed its authority. If that theory is correct, and in my judgment it is correct, then most certainly we ought to make that protection something more than a delusion and show. We cannot logically or justly stop by merely declaring that the man on his own account, who has obeyed our authority, shall defend himself in years of litigation at his own expense. It is not his duty to do it. If he has obeyed our orders and has executed our will, is it not our duty, above all considerations of cost, to defend him? Do we defend him when we merely impose upon him the obligation of defending himself? We have stopped his pay; we have discharged him from the Army; we have driven him to rely upon his own exertions to obtain his livelihood, and have left him in the excess and magnificence of our gratitude a lawsuit as a pension. I am not disposed to stop there. I agree that the question which my friend from Ohio has raised is serious; but I do not believe that because it is serious we ought to shirk upon some future Congress, whose opinions upon this question we cannot forecast, the responsibility at last of doing the soldier justice. Let us do it now, when we have the power.
Mr. WILLIAMS. I wish to make one or two suggestions on this proposed amendment. It seems to me that its tendency would be to encourage litigation, and to induce persons who suppose they have claims growing out of the war to prosecute those claims with the assurance that any recovery would be settled by the United States because the United States makes itself responsible to the claimants. I think, in the second place, that there is danger that there may be collusion between the plaintiff and defendant. If it is understood that any judgment that may be recovered by a party when he sues another that has acted as an officer will be paid by the United States, there is danger that there may be collusion between the parties, and judgment suffered to
It seems to me that if an officer honestly and fairly defends himself in a suit of this description and he fails, and judgment is rendered against him, upon an application to Congress he will obtain relief. I believe it is the prac tice of Congress, where an officer, either civil or military, undertakes faithfully to discharge the duties of his office, and is subjected to expense in consequence of his efforts, to indemnify that officer upon special application; and upon such an application the facts can be examined. But to assume beforehand, while this litigation is threatened, that the United States in every case will pay the judgment that may be recovered and assume the defense of the action, it seems to me, is putting the finances of the country to some extent into the hands of private speculators and persons who might expect to make gain by these trans
Mr. HOWE. For a part of this amendment, it seems to me, I should vote with a good deal of pleasure. I do think that the Government, if it undertakes to protect these parties, should make that protection efficient; I do think the Government should undertake the defense of the class of cases which are provided for in this first section; and if it stopped there, if, instead of directing the Secretary of War, it directed the Attorney General to assume the defense of these cases, leaving the respondents in them to apply to Congress for the payment of the judgment, if a judgment was recovered, it seems to me I should vote for it. I do not see any objection to that. I think the Attorney General is the officer who should direct the defense rather than the Secretary of War; and I think as far as we ought to go now is to lend the aid of the prosecuting officer of the Government to the respondent in managing the defense, but to leave the question of paying any judgment, if a judgment is recovered, to the future consideration of Congress.
Mr. EDMUNDS. Mr. President, if it is right for us, as it seems in the judgment of the Senate to be right, to declare in advance by a decree of the Senate that the commission of any of these acts which have been performed is lawful, and therefore in effect to declare that the United States adopts and justifies every one of these acts over which the bill reaches, then where is the middle ground upon which we can rightfully pause and say, that having adopted these acts as our own, having justified them by our enactment, we will still turn the poor soldier over to the tender mercies of his own ability to carry on his lawsuit and leave him to appeal to some future representatives of the people, whose opinions toward him may not be so favorable as our own, for his final recompense? It appears to me that we cannot rightly do it. It appears to me that in the case of a soldier or an officer who is brought to answer in a tribunal of a State or in a tribunal of the United States, when we justify his act and make it our own, we ought to defend that act at our own expense, and if it turns out that the act was an invasion of private rights, so that the private citizen is lawfully entitled to redress therefor, it is we, and not the soldier or officer, who ought to make the compensation; and we ought logically and rightly, when we create the defense, to provide the means now and here of making that defense effectual.
people to see that the soldier and the officer go scot free from trouble and expense, as well as from litigation.
Mr. GUTHRIE. Mr. President, the first section of this bill proceeds upon the predication that every individual who was engaged in the Army, and acted under orders of his superior was acting in the line of his duty, and acting innocently, and is entitled to protection, and we interpose it by this section, carrying it further than we did in 1863, for then we only made it a protection to the President and some of the principal officers. Now we propose to protect those who did any act under the order of any military officer of the United States holding the command of any military department, district, or place in which any
Seizure, arrest, or imprisonment was made, done, or committed, or any acts were so omitted to be done, either by the person or .officer to whom the order is addressed, or by any other person aiding or assisting him.
The officer or the soldier may succeed in his defense; but how does he succeed, and at what expense? At the expense of years of litigation, at the expense of a ruin to him which is almost as complete as would be the ruin of defeat. Now, can we not trust the war branch of the Government, charged with the department of military affairs, in whose records is to be found the authority for these very acts, and under whose supervision and control every one of them has been performed? I ask, can we not trust such a Department with the supervision of this defense, and leave it to that Department to exercise the duty, as it ought to be the pleasure, of the Government and the
You grant the protection of the Government to all individuals who obeyed their superior officers; you interpose that order as a protection to them, as a defense for the acts for which they may be sued. If it so chances that they had no such orders, or that they did the acts complained of willfully and maliciously, and it is so proved to a jury, there will be verdicts against them, I have no doubt.
Now, I think we have carried this a little too far; we have made it broader than we need do. That is my principal objection to the bill. While this exemption was confined to the higher officers and the military policy of the Government, as proclaimed and ordered to be carried out by them, I thought it was fair enough and right enough. But after you have interposed these orders as a justification for your officers, and yet on trial they are convicted, I am not for paying the expenses of trial nor for paying the verdicts out of the Treasury; and I do not want it to be held out that any other Congress may be appealed to to pay those judgments. That is not a principle that I wish to establish on the heel of this civil war; and I hope that the amendment now pending will not be adopted. I think we are not prepared for it. I am perfectly certain that there are a great many places in the United States where there would be heavy verdicts against the officers if it was understood that the Government would pay them; and the plaintiffs and defendants would understand each other before they got through with these matters. I have no doubt about that.
It is a question with me whether without this act it is not a defense that the thing complained of was done under the authority of the order of a superior and that it was necessary to be done under that authority. I am sure that our district judge in Kentucky would hold it a defense that it was done in pursuance of orders of a superior. Judge Graham has been referred to as having decided that the confederate soldiers who seized property under the order of General Simon Bolivar Buckner were protected by that superior order, and Judge Robertson, of the supreme court of Kentucky, affirmed the decision, which is now before the Supreme Court of the United States, and he is one of our ablest jurists. I am sure he would not have confirmed Judge Graham's decision unless he had believed there was full foundation in law for it, and I do not believe either of them would allow a recovery where the party had the orders of a superior officer in the Federal Army. I think a man in the service of his country, and bound to obey, is protected by the order of his superior officer, and cannot be held either criminally or civilly responsible for it. He ought not to be, and that is the justification of this act.
Kentucky is a fruitful place for precedents, as I find here. I did not know when I left home that there was a single solitary suit of this character in the city of Louisville. I have heard of some suits in other parts of the State, and there have been some criminal suits. The confederate soldiers came in and they took horses and they alleged that they were sent in by their superior officers; and in some parts of the State
should like to have him do so; if not I will move it as an amendment to his amendment:
we iudicted them for stealing, and convicted them, and sent them to the penitentiary. Our Executive released all that class of men on the principle that they had acted under orders, whether right or wrong. We had both armies, as you all know, there; the confederate army was upon us, and the Federal army was upon and we were pretty unceremoniously treated by both sides. Then we have had guerrillas. Our people like to fight out their rights in the old way, and they love a lawsuit, I believe, for the excitement and the luxury of it, [laughter,] and we would get all right if you would just give us back the courts and let us fight it out in the tribunals. We will never get right short of them, and I do not believe the United States will get right until we restore the writ of habeas corpus, restore the right of suits for all wrongs that infringe a man's personal rights or his property. But I am decidedly against this amendment, tacking this system of expenditure at the close of the war on the finances of the country.
Mr. EDMUNDS. I have only this to say in reply to the honorable Senator from Kentucky: that I think from what I understood of his remarks that he misapprehends the scope of the amendment which I had the honor to offer. That amendment is confined literally and exactly to the scope of the enacting section of the bill, if I may so term it, and it pledges the faith of the Government to defend only those acts which are provided for in the first section, and which the friends of this bill declare, and I hope rightfully declare, are only those acts which were lawfully done pursuant to lawful authority. My amendment, therefore, only goes to the same extent that the bill itself goes, and that is to provide for the payment of whatever may be necessary to protect the officer or the soldier in the discharge of his duty, and not to provide for payment or indemnity to the officer or the soldier who exceeds his duty; and unless the first section has a construction much broader than that which has been claimed for it, the amendment which I proposed has only the construction which I give to it. That is the whole of the story. This amendment is conceived for the purpose, and it will answer the purpose, and in my judgment no other part of this bill will answer the purpose, of fulfilling the duty which this Government owes to its executive agents, who in pursuance of its authority and not in excess of its authority have executed its will. Mr. HENDRICKS. I hope we shall have a vote on this bill to-night, and therefore I do not intend to occupy the attention of the Senate for more than a moment. Though I have not considered the subject very carefully, I like the purpose of the amendment proposed by the Senator from Vermont. I do not think it would be safe to adopt this amendment. I think a proposition so important in its effects upon the Treasury of the country ought to be very carefully considered by some proper committee of the body, and therefore, although I might approve of the purpose of the mover, I cannot vote for an amendment coming before us under circumstances that prevent our considering it with that care with which it ought to be considered. Therefore I shall not vote for the amendment.
And in any suit or prosecution to which the provisions of this act or the act to which this act is an amendment apply, it shall be the duty of the Attorney General and of the several district attorneys of the United States in the several districts, at the request of the respondent, to assume and carry on the defense of such action, after such action shall be removed into any of the courts of the United States.
But there is this view to be taken: if the officer acts under an order which is legal and right, that is a defense to him. If he acts under an order which was not legal and not right, then the man who is injured by this wrongful act ought to have some remedy; and if the officer in executing the order has acted in good faith he ought to be protected. Now, protected by whom? Protected at the expense of the honest citizen who is wronged, or protected at the expense of the Government, for whose benefit he honestly and in good faith did the act? I think at the expense of the Government, and therefore I am inclined to agree with the Senator from Vermont, in his purpose; but I cannot vote for the amendment under the circum
Mr. HOWE. If the Senator from Vermont will accept this in lieu of his amendment, I
39TH CONG. 1ST SESS.-No. 130.
Mr. EDMUNDS. I cannot accept the modification proposed by my friend from Wisconsin, because it fails to come up to the logical and just consequences of the bill which we are about to pass; it only goes half way. It admits our obligation to protect this man, but says we will ouly protect him at half expense ourselves and half expense to him, as we propose to remedy the cases of the iron-clad operations. I do not want to meet them in that way. Therefore I shall not accept the modification.
Mr. HOWE. I move this as an amendment to the amendment. ["No!" "No!"] Very well, at the suggestion of the Senators, I will let the yote be taken on the amendment of the Senator from Vermont, and if that be rejected I shall offer this.
The PRESIDING OFFICER. The question is on the amendment offered by the Senator from Vermont.
The amendment was rejected. Mr. HOWE. Now, I offer this to come in at the same place:
And in any suit or prosecution to which the provisions of this act, or the act to which this act is an amendment apply, it shall be the duty of the Attorney General and of the several district attorneys of the United States in the several districts, at the reof the respondent, to assume and carry on the quest after such action
removed into any of the courts of the United States. Mr. SHERMAN. If this amendment be adopted, the effect will be that if the defendant in any suit asserts that he did the act complained of under or by virtue of an order of an officer, that will compel the United States to assume the defense of that suit, whether the allegation be true or false. It seems to me we ought not to do so. A mere allegation beforehand of a fact of that kind, which may be false, may be known to be false, and shown to be false, ought not to compel the United States to assume the defense of that person.
Mr. HOWE. No, Mr. President, the Senator from Ohio misunderstands the effect of the amendment. The question, whether the particular cause comes within the purview of the first section is determined before the canse gets into the circut court of the United States.
Mr. SHERMAN. No; if the defendant claims that what he did was under or by virtue of an order, that authorizes the transfer of the suit to an impartial tribunal; but his mere claim to have done the act under the order of an officer ought not to require the United States to step forward and assume before the claim is settled the expense of the trial.
Mr. HOWE. The United States assume no expense whatever, except it loans the professional services of their officers in making the defense after the case gets into the Federal courts. I cannot see any objection to that.
Mr. GRIMES. I suggest that as this bill comes from the Committee on the Judiciary, a committee in whom we have the utmost confidence, is reported to us without any clause of this description, they not deeming that it was necessary that there should be such a provision in the bill, and this amendment not being printed, and nobody exactly understanding its full scope and effect, the Senate had better pass the bill without the amendment, and if it be necessary to adopt such a provision as this as an independent measure, let it be so presented, and let it be printed, and let us see what it is. Mr. HOWE. The proposition of the Senator from Iowa may be a very plausible one, but I think I can defend myself against the charge of interfering with the jurisdiction of the Judiciary Committee, when I state the simple fact that this amendment was drawn up by a member of the Judiciary Committee. I plead that in bar. [Laughter.]
Mr. DOOLITTLE. I deem this proposition of my colleague an important one, and there is an amendment which I myself wish to propose to the first section, which I think is very important; and the question now is, shall we go on with the discussion, or shall we adjourn and take up the question hereafter?
Several SENATORS. Let us finish it now. Mr. DOOLITTLE. This proposition of my colleague has a very great deal of importauce, in my judgment. It does not merely concern the States that have been in rebellion, but it concerns our own States, our own provost marshals, and the men who have acted all over our States. I speak now of the States of Iowa, Wisconsin, and all the States of the North. Our provost marshals are being sued, a great many suits are being instituted against them, and it is going to be the ruin of those men who have been acting on behalf of the Government for them to go on simply with the defense of these suits. They have not the means to do it and attend to them, and there ought to be some kind of provision by which the Attorney General of the United States and the district attorneys, or somebody in behalf of the Government, should take hold of the defense of these actions that are now pending. Several actions are pending in the county where I live, against the provost marshal of the district and the officers who have acted under him, and it is no small matter whether we give over these men to these harassing prosecutions, and leave them to defend themselves as best they may.
I do not say that it would be wise for us to announce, unqualifiedly and in advance, that we should defend all cases and pay all judgments that may be recovered against them. That might not be wise for us now to announce; but I think we should assume this matter of the defense under some limitations. It may be that in addition to what my colleague's amendment proposes we might provide that the cause, on being transferred to the circuit court, should be presented to the district attorney of the United States, and if he should be satisfied that there was a bona fide defense he should then go on with the suit. There might be some qualification of that sort.
But, Mr. President, in addition to that which my colleague proposes, I have an amendment which I shall offer to the first section of the bill which I deem very important. It is not precisely like the amendment which was offered by the Senator from Vermont, and in reference to this matter of making a law of Congress an absolute defense against a wrong to person and property absolutely and unqualifiedly in States where there has been no rebellion, no martial law, and where the courts have been continually open, that is further than I am prepared to go. Upon that subject I have drawn an amendment which meets my views and which I desire to have acted on, and I deem it very important.
Several SENATORS. Read it.
Mr. DOOLITTLE. As I am upon the floor
tion about it thereafter, he proposed the law; therefore, he said that the veto of the President ought to be overruled. Now, sir, I say that it is not altogether clear. Does Congress intend to defend men who have gone on under orders of superior officers and done things cruelly and with unnecessary severity? Do you intend to step between the injured man and the wrong-doer when he pretends to defend himself under an order of a superior officer, if he has executed that order with cruelty and unnecessary severity? Although the law may possibly be construed, as the Senator says, yet there is no objection to saying so. It will not cost so much to print these words, if the Senate wants them in the bill. I call for the yeas and nays.
to the States where there has been no martial law. Although this section of the statute will have validity, I have no doubt, in all those sections where martial law has prevailed, and where the courts have been overturned and military law has prevailed, and operate as a good defense; yet, when you come to apply it in those States where the courts have been open all the while, and declare that it is to be a perfect and complete defense independent of whether the act is done corruptly, maliciously, or oppressively, I have very serious doubts as to the constitutional power to do it. I want to have it so that the effect will be to defend our officers in Wisconsin. It is an additional provision which I wish to add to the first section, so as to apply in California and Wisconsin as well as in the States where they have been acting under military orders in the rebellion.
Mr. CONNESS. I feel under great obligations to the honorable Senator from Wisconsin for taking care of California, of course, but I thought I was right when I rose before, and that the Senator did not intend to ask for a vote on his amendment now as a question pending. It is easily understood, and does not require a discussion by legal gentlemen. We have listened here all day to a discussion of legal questions. It has been of great interest, but there is no legal question involved in the proposition that is before the Senate now, and I trust we shall have a vote upon that, and then for one I am ready to vote upon the proposition of the Senator from Wisconsin.
But no such order by force of this act, or the act to which this is an amendment, shall be a defense to any suit or action for any act done or omitted to be done after the passage of this act, nor for any act done with cruelty or unnecessary severity.
Mr. CLARK. I doubt the propriety of adopting this amendment here, as it refers to the act that we passed in 1863 as well as to this. I think that is the meaning of the law, that a court would not hold a man to be exculpated under an order of that kind if he exercised unnecessary cruelty. I think it had better stand as it is.
Mr. TRUMBULL. I think the Senator from New Hampshire is entirely right. If we now say that the law shall not apply to this, another Senator may propose that it shall not apply to some other thing, and so on. Of course it will not apply to such a case as is supposed. This law, like all others, is to receive a reasonable and fair construction; and no court would hold that a man is to be protected in excessive cruelty in the execution of an order. That is not a fair meaning of the law. None of us would justify such things. If we commence making this class of exceptions, I do not know where it will stop. I think the amendment had better not be adopted.
Mr. HENDRICKS. I think it had better be adopted. The other day the Senator from Illinois made a very able argument to the Senate, assuming, in the first place, that the law of the land was as he proposed to declare it, and yet because it was not entirely clear, because there was some difference of opinion upon it, he proposed to declare what the law was. That was in relation to the citizenship of the colored people of this country. He admitted that they were citizens already, but there was a dispute about it, and so that there should be no ques
The yeas and nays were ordered. Mr. JOHNSON. Before the vote is taken I would suggest to the Senator from Indiana that his amendment perhaps only covers personal wrongs. I should like him to amend it so as to comprehend also property.
Mr. BUCKALEW. Insert maliciously or." Mr. HENDRICKS. I will modify it by inserting with malice." The amendment now reads "nor for any act done with malice, cruelty, or unnecessary severity."
The question being taken by yeas and nays, resulted—yeas 18, nays 16; as follows:
YEAS-Messrs. Buckalew, Doolittle, Edmunds, Guthrie, Henderson, Hendricks, Howe, ohnson, Lane of Indiana, Morgan, Norton, Poland, Ramsey, Saulsbury, Sprague, Van Winkle, Willey, and Yates-18.
NAYS-Messrs. Anthony, Chandler, Clark, Conness, Cragin, Foster, Howard, Kirkwood, Nye, Pomeroy, Stewart, Summer, Trumbull, Wade, Williams, and Wilson-16.
ABSENT-Messrs. Brown, Cowan, Creswell, Davis, Dixon, Fessenden, Grimes, Harris, Lane of Kansas, McDougall, Morrill, Nesmith, Riddle, Sherman, and Wright-15.
So the amendment was agreed to.
Mr. DOOLITTLE. That amendment, I think, substantially covers the same point which was embraced in the amendment I proposed to offer; so I shall not offer mine.
The bill was reported to the Senate as amended; and the amendments were concurred in and ordered to be engrossed, and the bill to be read a third time.
The bill was read the third time.
Mr. SAULSBURY and Mr. HENDRICKS called for the yeas and nays on the passage of the bill; and they were ordered.
The Secretary proceeded to call the roll. Mr. SPRAGUE, (when the name of Mr. LANE, of Kansas, was called.) The Senator from Kansas, who sits next to me, desired me to say that he is paired off with the Senator from Delaware, [Mr. RIDDLE.] If present, he would vote in favor of the passage of this bill.
Mr. JOHNSON. I was requested by the Senator from California [Mr. McDOUGALL] to say that if he were here to vote he would vote in the negative.
The result was announced-yeas 30, nays 4; as follows:
A joint resolution (H. R. No. 115) for the relief of John Wells & Sons, of Baltimore.
The message further announced that the House of Representatives had passed the bill (S. No. 150) for the relief of Theodore G. Eiswald.
ADJOURNMENT TO MONDAY. On motion of Mr. CLARK, it was Ordered, That when the Senate adjourn to-day it be to meet on Monday next.
REGISTERS TO VESSELS.
Mr. CHANDLER. I move to take up Senate bill No. 89, returned from the House of Representatives with an amendment.
The motion was agreed to; and the Senate proceeded to consider the amendment of the House of Representatives to the amendment of the Senate to the bill (S. No. 89) to issue American registers to the steam vessels Michigan, Despatch, and William K. Muir.
The amendment of the House of Representatives was in line four of the Senate amendment to strike out the words "now called the Roamer."
Mr. CHANDLER. I move that the Senate concur in that amendment. The motion was agreed to.
HOUSE BILLS REFERRED.
The following bills and joint resolution from the House of Representatives were severally read by their titles, and referred as indicated below:
A bill (H. R. No. 500) making appropriations to supply deficiencies in the appropriations for the public printing for the fiscal year ending June 30, 1866-to the Committee on Finance.
A bill (H. R. No. 504) for the relief of Ishmael, Day-to the Committee on Claims.
A joint resolution (H. R. No. 115) for the relief of John Wells & Sons, of Baltimore-to the Committee on Claims.
Mr. SPRAGUE. I move that the Senate do now adjourn.
The motion was agreed to; and the Senate adjourned.
HOUSE OF REPRESENTATIVES.
The House met at twelve o'clock m. Prayer by Rev. GEORGE F. MAGOUN, President of Iowa College.
The Journal of yesterday was read and approved.
The SPEAKER stated as the regular or der of business the calling of committees for reports of a private nature, commencing with the Committee on Mines and Mining.
Mr. ROLLINS, from the Committee of Accounts, offered the following resolution:
Resolved, That the Sergeant-at-Arms be allowed to employ an additional clerk in his office during the present session of Congress at a salary of $125 per month.
Mr. CONKLING. What is the occasion of this resolution?
Mr. ROLLINS. This resolution was referred to the Committee of Accounts several weeks ago, and after careful examination the committee came to the unanimous conclusion that it was best that the allowance should be made of an additional clerk during the present session. He asked for an annual appointment, but the committee recommend it only during the present session, which will be for a very short time. I have a letter from the Sergeant-at-Arms, which I will send to the desk and have read. Mr. UPSON. When does the clerkship commence?
During the present ses
sion. Mr. UPSON. At the beginning of it, or now?
Mr. ROLLINS. Let the resolution be read. The resolution was again read.
Mr. ROLLINS. I will modify it by having
it read "from and after the 1st of April."
to any further discussion of other matters. Ifany gentleman has any remarks upon this resolution I will yield.
The Clerk read the letter, as follows:
HOUSE OF REPRESENTATIVES, WASHINGTON, D. C., March 7, 1866. SIR: I have the honor to submit the following reasons why the resolution introduced by Hon. G. W. ANDERSON, chairman of the Committee on Mileage, and referred to your committee, authorizing the employment of an additional clerk in my office, should receive the favorable consideration of the committee and of the House:
The clerical labor incident to the present system of keeping deposit accounts with each member, with the necessary checks and daily balance-sheets, and the collection and payment of the internal revenue tax, has more than doubled since the passage of the revenue law.
In addition to the above increased labor at the present time, an examination of former "mileage reports" and routes, in order to enable the committee to equalize the mileage lists, has thrown so much additional labor upon this office that the present force of one clerk and one messenger cannot properly do the work.
I would therefore carnestly request that I may be allowed one additional clerk, with a salary of $1,500 per annum. This increased expenditure will amount to but little more than the percentage allowed to collectors on the same amount of revenue that is collected and paid into the Treasury from this office, for which I cannot by law receive any compensation. Very respectfully, your obedient servant, N. G. ORDWAY, Sergeant-at-Arms House of Representatives. Hon. E. H. ROLLINS,
Chairman of Committee of Accounts.
Mr. RANDALL, of Pennsylvania. I have no particular objection to the passage of this resolution for the employment of this additional officer, provided that it is necessary, but I wish to bring to the attention of the House the fact that there is now employed, or rather engaged, in the post office, a lad who is very efficient and industrious, working from early morning till late at night, and there is no provision, I understand, for his payment. I desire, therefore, knowing the services of this lad, having it directly under my own observation, to add an amendment that the postmaster be authorized, from this date until otherwise ordered, to pay that lad the wages of a page upon the floor of this House.
Mr. WASHBURNE, of Illinois. I would like to know the circumstances under which this lad is employed.
Mr. RANDALL, of Pennsylvania. By no authority, as I understand; but he is the son of the postmaster of the House, and the employés not being equal to the service required, this lad volunteered to assist. He takes a deep interest in the discharge of the duties, and is very faithful.
Mr. CONKLING. What does he do? Mr. RANDALL, of Pennsylvania. He delivers the mail at my house every morning, and he is engaged during the day every thirty minutes in carrying the mails out from this office to the sub-offices in the city.
Mr. CONKLING. I should not like to say anything by way of complaint of the post office, or of anybody who delivers the mail. But if the person to whom the gentleman from Pennsylvania [Mr. RANDALL] refers as delivering his mail is the same who delivers, or omits to deliver, my mail, I hope that a very moderate compensation will be fixed.
Mr. RANDALL, of Pennsylvania. I would inquire of the gentleman from New York [Mr. CONKLING] if it is a boy who delivers his mail.
Mr. CONKLING. Iam sure I do not know. It must be a very small boy that delivers it sometimes, so small that with the naked eye we have very great difficulty in finding him.
Mr. STEVENS. I do not know anything about this small boy that is spoken of as being in the post office of this House. But I do know that we had there one of the best men I ever knew, by the name of William Tudge; and I know that almost every member of this House signed an application to the postmaster of this House to continue him in that office. And I know that the postmaster in place of that turned him out. Now, I would like to have some better reason assigned for giving additional force to the postmaster, before I give any more patronage to a man who thus abuses it.
Mr. ROLLINS. It is evident that members want to discuss everything but the resolution pending before the House. I decline to yield
Mr. ANCONA. I would inquire of the Chair how this resolution came before the House. The SPEAKER. It was reported regularly from the Committee of Accounts when it was called in its order.
Mr. ROLLINS. The resolution was introduced, I believe, by the gentleman from Kentucky, [Mr. SMITH,] and referred by order of the House to the Committee of Accounts. After a careful examination by the committee they have reported unanimously in favor of the resolution as modified. The duties imposed upon the clerk of the Sergeant-at-Arms, as stated in the letter he has submitted to the committee, are nearly double, in my judgment, what they formerly were. And all who are familiar with the duties devolved upon that clerk will readily come to the conclusion, I think, that this request is just.
Mr. FINCK. I am opposed to the passage of this resolution; I do not believe that there is any necessity whatever for the appointment of an additional clerk in the Sergeant-at-Arms's office. It is known to the members of this House that the duties of the Sergeant-at-Arms's office, ever since its organization, have been carried on with the same force that it has at present. The Sergeant-at-Arms of this House has been favored with the services of an assistant of the highest business character and qualifications. He keeps the books and the accounts of the members. And if another clerk is added he will not aid the clerk now there in any respect whatever.
It is very well known to this House that during the Thirty-Eighth Congress no more force was in the office of the Sergeant-at-Arms than there is there at present. Now, from my observation of that office, and the business connected with it, I have no hesitation in stating that the present force is sufficient to discharge all the duties of that office. If they do not now receive sufficient compensation, then bring in a proposition to give them a greater compensation. But if you appoint an additional clerk for this session of Congress, he will be continued during the next session, and it will be followed as a precedent hereafter. I hope the resolution will not pass.
Mr. RANDALL, of Pennsylvania. I desire to say a word or two in reply to what has been said by my colleague, [Mr. STEVENS.] Idesire to say to him that two wrongs do not make a right. Because this clerk, Mr. Tudge, was removed, that is no reason why this boy should not be paid. I joined with others in the recommendation that Mr. Tudge should be retained; perhaps that was one reason for his removal; I do not know how that is. But here is a boy employed, and I ask simply that he shall be paid for his services the same wages that are given to our pages.
Mr. ROLLINS. I will suggest to the gentleman that he can best accomplish his object by introducing an independent resolution, and having it referred to the committee.
Mr. RANDALL, of Pennsylvania. Very well; I withdraw my amendment.
Mr. ROLLINS. I believe it is necessary for the proper management of the affairs of the office of the Sergeant-at-Arms that he should have this additional assistance.
Mr. SMITH. I do not wish to have attributed to myself anything that belongs to another, and especially I do not wish to steal the thunder of the gentleman from Missouri, [Mr. ANDERSON.] He, not I, introduced this resolution.
Mr. ROLLINS. Yes, the gentleman from Missouri, [Mr. ANDERSON,] the chairman of the Committee on Mileage, introduced the resolution.
Mr. ANDERSON. I desire that the passage of this resolution shall not be affected by the indorsement of the gentleman from Kentucky, [Mr. SMITH.] [Laughter.]
Mr. ROLLINS. I wish to state also for the consideration of the House, that the matter of mileage has occasioned additional labor on the
part of the Sergeant-at-Arms. During the last session, before the matter of mileage was properly adjusted, the Sergeant-at-Arms advanced mileage to various members, trusting to circumstances for his pay. I move the previous question.
On seconding the previous question, there were-ayes 51, noes 33; no quorum voting.
The SPEAKER, under the rule, ordered tellers; and appointed Messrs. ROLLINS and ANCONA.
The House divided; and the tellers reported -ayes 66, noes 30.
So the previous question was seconded. The main question was ordered; which was upon the adoption of the resolution.
Mr. FINCK called for the yeas and nays. The yeas and nays were not ordered. Mr. FINCK called for tellers on ordering the yeas and nays.
Tellers were not ordered.
The resolution was adopted.
The bill, which was read, provides that, as a recognition of the heroism of Ishmael Day, of Baltimore county, Maryland, and as compensation for the loss of all his property in defending the national flag from an attack by rebel raiders on the 12th day of July, 1864, there be paid to Ishmael Day, annually from July 12, 1864, during his life, the sum of $421 50, to be paid in semi-annual payments.
The report, which was read, states that the petitioner, aged seventy-two years, and loyal to the Government of the United States, had his property, consisting of a dwelling-house, out-houses, and personal property, to the value of $7,025, burned and destroyed on July 12, 1864, under the following circumstances:
Early on the morning of that day, as was his custom, he elevated and unfurled the flag of the United States in front of his door-steps as an insignia of his principles. Soon thereafter, while it was waving there, one hundred and fifty of Gilmore's raiders approached the premises, while two of the men in advance of the main squad of the enemy, seized the flagstaff and jerked it down, cursing and calling