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THE OFFICIAL PROCEEDINGS OF CONGRESS, PUBLISHED BY F. & J. RIVES, WASHINGTON, D. C.

THIRTY-EIGHTH CONGRESS, 2D SESSION.

AMENDMENT OF ENROLLMENT ACTS.

The Senate, as in Committee of the Whole, resumed the consideration of 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 amendments of Mr. BUCKALEW, to amend the amendment reported by the Committee on Military Affairs, by adding the following as an additional

section:

SEC.. And be it further enacted, That the third section of the act entitled "An act further to regulate and provide for the enrolling and calling out of the national forces, and for other purposes," approved July 4, 1864, be, and the same is hereby, repealed.

Mr. DAVIS. Mr. President, I had remarked that I was one of those who believed that the white soldier was more efficient in battle and in all the service of a soldier, except probably manual labor, than the negro. The objection now made is not to the enlistment of negro soldiers, but to the substitution of negro soldiers for white soldiers. I believe that the intelligent free white men of Massachusetts, of any northern State, and of any State in the Union, are a superior order of soldiery to the negroes of Alabama and of Georgia. The sense in which I desire this repeal to take place is this: that the effect of the provision proposed to be repealed is to exclude the intelligent, superior soldiery of the northern States, and of all the States, from the Army to some extent, and to make an inefficient negro soldiery their substitutes. I object to that. If the Government or the Senate desire negro soldiers to be recruited and to be brought into the Army, be it so; but let them be brought in on account of the United States, and not of any particular State. Let them come in as soldiers of the Republic at large, and not of Massachusetts or any particular State.

Now, sir, if this measure is not repealed, what is the condition of the States relatively? There are some States too poor in their revenues and in their resources to offer large and attractive bounties. Here is the State of Massachusetts, that has so much aggregated wealth that the bounties in that State in various forms in the aggregate, as I understood at the last session, amounted to from ten to fifteen hundred dollars per man. Here then is the State of Indiana, or the State of Kentucky, that has not the means to offer such large and alluring bounties for white or negro soldiers. Massachusetts has these means. She goes down into the South, and with her large bounties is enabled to recruit negro soldiers to an extent sufficient to exonerate her whole white population from mili- || tary service, or, at any rate, to exonerate to a considerable extent her white population from | military service. The effect is that money can buy an inferior soldiery, and the law now proposed to be repealed allows that inferior soldiery to be substituted for the superior soldiery; in other words, the negro substitute exempts the white man upon whom the draft would otherwise devolve. Suppose the quota of Massachusetts is twenty thousand under the new draft, and she is enabled to substitute ten thousand southern negroes for that number of her white population. Would the United States make anything by the exchange? Would it or not be a bad bargain? Would it or not be the substitution of an inferior for a superior soldiery?

The argument that that measure brings the negro soldier into the field is not a good argument; it is not true in point of fact. The negro can be brought into the field without the benefit of the section which is now proposed to be repealed. In the county of Bourbon, in which I reside, over eight hundred negro soldiers have been recruited into the service, and they have not been recruited into the service by the operation of the law which the honorable Senator from Pennsylvania now proposes to repeal. I venture the opinion that if there were one hundred thousand intelligent white men, such as can be drafted or procured by volunteering in the northern States, in one army, and one hundred and fifty thousand southern negroes in an opposing army, and they were led by

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TUESDAY, FEBRUARY 7, 1865.

officers of equal skill and ability in war, the one hundred thousand white soldiers would be an overmatch for the one hundred and fifty thousand negro soldiers. Therefore, sir, I am in favor of the repeal of this provision which was intended to operate for the benefit of Massachusetts and the other northern States that have ample funds out of which to give large bounties. It operates in their favor by allowing them to enlist, to buyyes, sir, to enter into the slave traffic, to enter into the purchase of negroes, and to buy negro soldiers for their surplus money, and to substitute those negro inferior soldiers and exonerate their white men from service in the field.

Upon that ground I am in favor of this repeal. My objection is not that under it negroes are put into the army. I have made the objection to negro soldiers heretofore often, but it has been overruled a hundred times, and I acquiesce in the decision of the Senate and of the nation that negroes are to go into the army. That is not my objection to this measure; but my objection is that every negro thus brought into the army excludes a white man, who would make a superior soldier, from it. They are a more expensive soldier than the white soldier. All the army reports prove that. They are more destructive upon arms, upon clothing; more wasteful in all the munitions and supplies of war than a white soldiery are; and an aggregate of one hundred thousand negro soldiers would be much more expensive to maintain than one hundred thousand white soldiers. I want the superior soldier, the more economical and less expensive soldier to be brought into the field, and that he shall not be excluded by the inferior negro soldier being bought by the money of Massachusetts or of any other State.

Mr. SHERMAN. Mr. President, I certainly would not have introduced this controverted point of the last session now, but since it is before us I feel bound to vote according to my convictions on the subject. It will be well remembered by the Senate that on several decisive votes a decided majority of the Senate were opposed to sending State agents into the southern States to enlist negro soldiers. It was the almost unanimous desire of the Senate to enlist all the negro troops possible, but it was the opinion of a large majority that those soldiers when enlisted should not be credited to a particular State, but ought to be entered into the service as United States volunteers. The objection to sending agents to the southern States was that it created an unhealthy competition and strife and contention which would probably interfere with the public service or the proper employment of negroes in the southern States. That was my conviction then; it is my conviction now. I have conversed with many officers on the subject since, and they have uniformly informed me that wherever these agents came they created embarrassment, struggle, strife, and contention. In one case a general officer told me that a few negroes who had been employed in the quartermas ter's service, where their services were as valuable as they could be in any capacity, were actually taken away from Memphis, Tennessee, by the offer of large bounties, transported in Government vessels, taken to a remote State, there enlisted into the service of the United States, credited to that State, and carried back to the same place where their services were less valuable in their new capacity than they were before all this money had been expended upon them.

At the same time we have no right to complain of Massachusetts or any other State in this regard. This is not a question affecting a particular State. If the Governor of Massachusetts is more active in availing himself of the privilege conferred by the law than others, we have no right to complain of it. If Governor Andrew is always first at the feast, we have no right to complain, because the law of the last session, which was passed against the decisive vote of the Senate, and passed by the agency of a committee of conference, gave to the Governor of Massachusetts and the State of Massachusetts the legal right to enlist these negroes, and if they are more active than

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NEW SERIES.....No. 39.

other States we have no right to complain. The fault is in the system.

Reference has been made to a letter by General Sherman, which was published. I know from him, as well as from his public communications, that these attempts to enlist negro soldiers in the army of the Mississippi created embarrassments, until finally he had to compel them to leave his lines. There was a competition between the agents of the different States offering these increased bounties, sometimes more, sometimes less, creating a strife right in his own army, s0 that it was necessary for him in order to preserve military discipline in his camp to exclude these State agents altogether. It was not done out of any disrespect of Congress, but simply to preserve military order.

The reason given by the honorable Senator from Massachusetts for this law at the last session does not now apply. He said then that it was desirable to get these negroes in the service of the United States, (and that I conceded;) and he said that the military authorities of the United States would not enlist them; that some of our military officers were opposed to the enlistment of negroes, and would not promote their enlistment; and it was said that in the army of the Mississippi no efforts were made to enlist negro soldiers. That is not now the case. Every general officer, from the highest to the lowest, so far as I know, is in favor of enlisting negroes in our Army. There never was any objection to it in my mind; and from the beginning of this war I believed it was the policy of the Government to employ negro laborers and negro soldiers. There is not now an officer in the service but what is willing and anxious to promote the employment of negro soldiers. I have here an order issued recently, dated "Headquarters Military Division of the Mississippi, in the field, Savannah, Georgia, January 16, 1965," in which it is made the express duty of all the military officers in that army to encourage the enlistment of negro soldiers, from which I will read an extract. In speaking of the condition of the negroes, it is declared:

"By the laws of war and orders of the President of the United States the negro is free, and must be dealt with as such. He cannot be subjected to conscription or forced military service, save by the written orders of the highest military authority of the Department, under such regulations as the President or Congress may prescribe. Domestic servants, blacksmiths, carpenters, and other mechanics, will be free to select their own work and residence; but the young and able-bodied negroes must be encouraged to enlist as soldiers in the service of the United States, to contribute their share toward maintaining their own freedom and securing their rights as citizens of the United States. Negroes so enlisted will be organized into companies, battalions, and regiments, under the orders of the United States military authorities, and will be paid, fed, and clothed, according to law. The bounties paid on enlistment may, with the consent of the recruit, go to assist his family and settlement in procuring agricultural implements, seed, tools, boots, clothing, and other articles necessary for their livelihood."

Now, Mr. President, when it is not only the law, but when it is the practice of all our general officers in the field, to enlist these soldiers in the service of the United States, why should we send the agents of the States down there to compete with our own enlisting servants? It seems to me the most ridiculous proceeding that can possibly be had. When these negroes enter our service in Georgia, they do not cost the Government anything; we pay them no bounties; they are willing to enter the service to fight for their liberty. But when you allow the agent of the State of Ohio, or any other agent, to go and enlist those negroes, the United States pay to each one of them a bounty; they are transported in Government vessels, perhaps not according to law, but they are necessarily transported from the scene of operations back to the State where they are enrolled and enlisted, and credited to the State, and finally sent back. All this enormous expense is had without any occasion and without any necessity, and probably they are sent back to per form the same duty after a three or four months' voyage northward and back again. It seems to me a very ridiculous and absurd farce.

I would not have moved to repeal this law, simply because the law fell dead; it was not practically executed in any of our military lines, because all the military officers in the whole line of our operations across the continent interfered by military orders with the operations of these State agents. They had necessarily to do so, not from any opposition to the employment of negroes, but simply to prevent the strife and contention that was inevitable from such a state of affairs. the proposition has been made, I hope the Senate will adopt it, and repeal that provision of law, which, I think, was unwisely and unadvisedly passed at the last session.

As

Mr. TEN EYCK. Mr. President, it may be altogether unnecessary, but after the remarks made by the Senator from Massachusetts, [Mr. SUMNER,] if I understood him aright, I deem it necessary to say a few words in relation to this

matter.

I understood that Senator either directly to declare, or it was an inference derived from the current of his remarks, that all who were in favor of the amendment as proposed by the Senator from Pennsylvania were rather disinclined or opposed to the employment of negro troops in the armies of the United States. My opinions upon that subject having been misunderstood in quarters which I deem much more interesting to me than even the Senate, I wish simply to say that I am not opposed to the employment of negro troops in the Army. So far from it, as long back as the 22d of July, 1861, (and I remember the date because it was the day following the first battle of Bull Run,) I declared myself upon this floor in favor of the employment of such troops in the Army, and cited the example of General Jackson at New Orleans in support of it. But, sir, I can see a very great difference between the employment of such troops generally and this provision which it is now proposed to repeal, the design of which was to bring them into the service solely or mainly through the agency of the different States, and thus create a controversy and contest between the States in procuring this class of persons for the public service. Entertaining that view, during the discussion of the enrollment bill at the last session of Congress I opposed that section, which subsequently became a law through the agency of a committee of conference who met upon that subject. I was then, and am now, in favor of employing, not only colored troops, but all other troops that can be procured in the rebel States, to strengthen the arm of the Federal Government and weaken the arm of the rebellion.

But my opinion is that the best way to do that is in the way pointed out by the commanders of our armies. The best way is to recruit them into the Union service generally without assigning them to any particular State, or giving any particular State the benefit of them. I shall not weary the Senate by undertaking to recapitulate the several reasons that have been assigned for this course, showing that it is more beneficial, more desirable, and freer from objections. They are apparent and manifest to every one.

With this explanation, I shall continue to vote as I voted during the last session, now to repeal, then in opposition to, this section; and in doing so I shall not array myself against the employment either of negro troops or white troops that may be procured in the States in rebellion; and at the same time avoid, as I believe, unpleasant, if not disastrous, consequences resulting from unseemly competition between the agents of these different States going down and overbidding each other, creating a sort of new auction-block, upon which these colored men may be exposed to sale and knocked down to the highest bidder, and thus become the soldier of the State whose coffers are able to pay the highest sum for that class of troops. I want them to be enlisted in the armies of the United States in the regular way. Let the Union have the general benefit of their services, and let each State have its pro rata benefit, as it will have just so far as the employment of these troops will Jessen the amount of men to be called upon by draft, just so far as the poor men of the North who cannot raise money to relieve themselves from the draft will be benefited by this general enlistment of these troops in the old way.

Mr. POWELL. Mr. President, the only equitable way to furnish men in this war is for each State, out of its own population, to furnish its

quota. When you put the negroes who are residents of the seceded States, or the rebel States, in the Army, they must be credited to the general quota, and that would lessen the draft upon all the adhering States. That is the only equitable way in which it can be done; and that was the sentiment of the Senate at the last session on more votes than one. If you want three hundred thousand soldiers by draft, and you get fifty thousand from the negroes in the rebel States, then the draft will be only for two hundred and fifty thousand, instead of three hundred thousand, and that distributed equally and properly will tend to relieve every State in the Union from the draft.

derstand it, is to take from the court that is to try these offenses the discretion as to the punishment as far as the minimum is concerned; that is to say, the party, if convicted, must be punished by a fine of not less than a certain amount, or an im prisonment not less than a certain period of time. It appears to me there may be a great variety of causes existing in cases of this description which would render it proper that the discretion should be as large as possible. Let it be a fine of any amount the commission may think proper to impose, or an imprisonment any number of days only, as they may think proper to impose; but one thing is perfectly certain; I speak, as I think from some experience, not so much professional of my own and others, as from a knowledge of the cases which have been brought before these commissions; they are always sure to fine enough, and they are always sure to imprison long enough to answer the purposes of justice.

Mr. HOWARD. I call for the yeas and nays on my amendment.

The yeas and nays were ordered.

Mr. HOWARD. Allow me to say one word on the subject. The third section of this bill assumes to subject to trial by court-martial or milicommission

Any recruiting agent, substitute broker, or other person, who shall eulist or cause to be enlisted as a volunteer or substitute, any insane person or persons in a condition of intoxication, or a deserter from the military or naval service, knowing him to be such, or who shall defraud or deprive any volunteer or substitute of any portion of the State, local, or United States bounty, to which he may be entitled

The Senator from Massachusetts says there has been no abuse under this law. The Senator from Ohio has told you of the abuses under it. That excellent letter of General Sherman, published some time ago, told the country of the abuses under it. But I will tell the Senator some of the abuses which have fallen under my own observation. In Kentucky, all the negroes are enrolled as the white people are. The draft in that State is based upon the enrollment of both whites and blacks. Under the operation of this law, agents. from the northern States have come and located themselves in Indiana and Illinois, right on the bor-tary ders of Kentucky, and absolutely sent over agents and stolen and taken by force negroes from Kentucky and enlisted them. These are facts that I know. If you take away the negroes from Kentucky and Missouri in that way, do you not see that Massachusetts, or the State that gets them, gets credited for them, and we have to be drafted upon the old enrollment upon which these very negroes were all enrolled? The greatest frauds were committed in that way. When they get these negroes over the river, they make the negro say he is from Alabama or Georgia, or some State in rebellion, not excluded in the law, and that is the way the thing is worked. There is no doubt about these evils existing there; I know them myself; and yet the Senator from Massachusetts says there are no evils resulting from it. On every hand you hear of the evils of it. Why, sir, the border States that have been devastated by this war, and the new States in the West are not able to send out and pay large sums to recruiting agents all over the country to fill up their quota, they have to give their men to the conflict; and why should not the older and richer States do so? If you enlist these negroes, and they are being enlisted everywhere by the general orders of our superior officers, let them go to the general account, where they ought to go, and let each State of the Union be compelled out of its own population to give the quota that is wanted from it.

The question being taken by yeas and nays, resulted-yeas 28, nays 12; as follows:

YEAS-Messrs. Brown, Buckalew, Carlile, Chandler, Collamer, Cowan, Davis, Doolittle, Grimes, Harlan, Harris, Henderson, Hendricks, Howard, Howe, Johnson, Lane of Indiana, Nesmith, Powell, Ramsey, Richardson, Saulsbury, Sherman, Ten Eyck, Trumbull, Van Winkle, Willey, and Wright-28.

NAYS-Messrs. Anthony, Clark, Conness, Dixon, Farwell, Foster, Hale, Morgan, Morrill, Nye, Sumner, and Wilson-12.

ABSENT-Messrs. Foot, Harding, Hicks, Lane of Kansas, McDougall, Pomeroy, Riddle, Sprague, Stewart, Wade, and Wilkinson-11.

So the amendment to the amendment was agreed to.

The PRESIDING OFFCER, (Mr. FOSTER in the chair.) The question now is on the amendment of the committee as amended.

Mr. HOWARD. I move further to amend the amendment in section three, line ten, by inserting after the word "dollars" the words "nor less than $200," and after the word "years," in the same line, by inserting the words "and not less than three months;" so that the section will read:

That any recruiting agent, substitute broker, or other person, who shall enlist, or cause to be enlisted, as a volunteer or substitute, any insane person, &c., shall, upon conviction by any court-martial or military commission, be fined not exceeding $1,000, nor less than $200, or imprisoned not exceeding two years and not less than three months, or both, at the discretion of such court-martial or military commission.

The object is to require some punishment to be inflicted upon conviction. As the bill now stands, it would let off the offender with a nominal conviction and nominal imprisonment. I choose to fix a minimum punishment, which will be something more than a mere formality.

Mr. JOHNSON. The amendment, as I un

The clause, as it is reported from the Committee on Military Affairs, punishes any one of these offenses, upon conviction, with fine not exceeding $1,000, or imprisonment not exceeding two years, or both, at the discretion of the court. My amendment is for the purpose of fixing a minimum of penalty by law below which the court shall not be at liberty to go; and its minimum fine is $200 for any one of these offenses, and its minimum imprisonment is three months. In other words, on conviction, it requires the court absolutely to sentence the offender either to pay a fine of at least $200 or undergo imprisonment for at least three months, or both together, as the court may see fit. It takes away from the court the discretion of imposing a mere nominal penalty, either fine or imprisonment, but requires it absolutely to impose a minimum penalty. As it stands now, on conviction, a court might allow an offender who had defrauded scores of honest soldiers of their honest bounty, and who had cheated them in the matter of recruitment and enlistment, to escape scot-free by payment of six cents fine or imprisonment for an hour. Is that just? If we impose a penalty for such offenses, we should be in earnest, and make it for the interest at least of the individual to do his duty and refrain from the violation of the law. It seems to me that the amendment commends itself to the favor of almost any man.

Mr. HALE. I confess that I differ with the honorable Senator from Michigan. There may be frequently cases where a court would find it self compelled under the evidence to find a judg ment against the prisoner, but still the mitigating circumstances might be such that a mere nominal punishment would answer the purpose. I recol lect the other day reading an account of a very distinguished trial in the city of New York be tween two great chieftains of the political world, Thurlow Weed and Mayor Opdyke; and I understand that in that case there was a division; the jury came to no verdict, and still there was a considerable number of the jury who thought it would be well to find a verdict with damages at six cents. It is true that was a civil action, but it is frequently the case in criminal actions that the court finds it necessary for the enforcement of the law to sentence a man, but only imposes a nominal punishment. I have seen a case where a very learned court found itself under the neces sity, under the law, of punishing a man for ansault and battery because he had been found guilty by a jury, but the circumstances were such that the court thought there was no real offense, and fined him a dollar, without costs. That was a court which sat in the State of the honorable Senator from Maine, and I thought at the time its action was very judicious. There may be a great many cases of that sort, and it seems to me we should

allow them to be provided for. But, sir, I do not want to take time on this subject.

Mr. HOWARD. Undoubtedly, cases might occur where it would be a hardship to inflict even the least of these penalties on an offender, but the honorable Senator knows perfectly well that in cases of such hardship it is very easy to apply for executive clemency, and it never would be withheld in a case which had merits. There are hardships in every criminal law. If the objection which is raised against this amendment is a good one, why would it not apply in the case of murder? Still, in cases of murder, I am sure there are very few States in the Union that do not fix a specific and minimum punishment for the crime; and we all know that it frequently happens, such is the fallibility of human nature, such is the infirmity of juries and courts, that a person may be convicted of that heinous crime who is absolutely innocent of it. There have been numerous cases of men who have been taken to the scaffold and executed, as innocent as you and I of a charge of murder.

members, where four may convict, the judge ad-
vocate or prosecuting officer of the Government
constituting part of the court and being with them
during their deliberations.

Then there is another question equally diffi-
cult to settle, when is a man intoxicated? and that
is to be subjected to inquiry by a court-martial,
and if an individual offers a substitute that a ma-
jority of four out of the seven members of a court-
martial find was intoxicated, and he knew it, he
is to go to the penitentiary for two years, for you
must remember that the punishments by imprison-
ment following the sentences of courts-martial are
executed by imprisonment in penitentiaries, and
it is just the same as if the law said they should
be subjected to imprisonment not exceeding two
years at hard labor in any penitentiary. These
are the most delicate questions, and the most dif-
ficult to be decided that could possibly be pre-
sented to any judicial tribunal.

But in this case it seems to me we ought to hold up to the view of the offender the certainty of punishment, the absolute certainty that if he is convicted of any one of these offenses created by the statute he will at least receive some punish-stitute broker, upon the recruiting agent, upon ment. Otherwise you but hold out to him, as it seems to me, the temptation to use the ill-gotten gains which he has in his pocket, and which he has been filching from the honest soldier, for the purpose of influencing the very court itself which is to try him, for the very purpose of bribing the tribunal before whom he may be brought. It strikes me that we ought to let him understand || that he is to undergo some punishment absolutely unless he can make out such a case to the Executive as will entitle him to executive clemency.

Mr. BUCKALEW. The question is, I believe, on imposing a minimum punishment in this case wherever there may be a conviction. In the case of a great many bills that have been before the Senate at this session, a minimum punishment has been stricken out, upon the policy of allowing punishments to be exactly proportioned to the character of the offense as may be shown on the trial. Believing that to be a good policy as a general rule in our legislation, I shall vote against the amendment of the Senator from Michigan.

The question being taken by yeas and nays, resulted-yeas 23, nays 14; as follows:

YEAS-Messrs. Brown, Chandler, Clark, Collamer, Conness, Dixon, Farwell, Grimes, Harlan, Harris, Howard, Howe, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Pomeroy, Ramsey, Sherman, Stewart, Sumner, and Wilson-23.

NAYS-Messrs. Anthony, Buckalew, Carlile, Cowan, Davis, Foster, Hale, Henderson, Hendricks, Johnson, Powell, Saulsbury, Trumbull, and Wright-14.

ABSENT-Messrs. Doolittle, Foot, Harding, Hicks, McDougall, Nesmith, Richardson, Riddle, Sprague, Ten Eyck, Van Winkle, Wade, Wilkinson, and Willey-14.

So the amendment to the amendment was agreed to.

And in addition to these very difficult questions,
what is insanity and what is intoxication, there
is another question which nobody short of Infinite
Wisdom een pronounce certainly upon, and that
is, that the individual knew that the substitute he
offered was insane or was intoxicated. It seems
to me that if you put this penalty upon the sub-
those who go into that business, you go quite far
enough, without subjecting everybody that offers
a substitute to such a penalty before such a tribu-
nal. I remember not many years ago attending
a trial where the question was whether a man was
intoxicated or not. One set of witnesses on one
side testified that he was an intemperate man and
had been so for years, that they had known him, ||
and that he had so reduced and impaired his in-
tellect by intoxication that he was not capable to
do business. That was the testimony of the wit-
nesses on one side. Then there came up another
set of witnesses on the other side who testified
that they had known him equally as well as these
other witnesses for a long period of time, some
twenty years, and that they had never once seen
him intoxicated in all their lives. What was
the difficulty? They had different ideas of what
intoxication was. Some persons judge a man to
be intoxicated the moment he takes a single glass
of alcoholic drink, and others hold that he is not
intoxicated as long as he can walk a track, or very
nearly a track.

son or an insane person or a deserter, knowing him to be drunk or a deserter or insane at the time of committing the act, then he is punishable; and if he does not know him to be such at the time he enlists him or causes him to be enlisted, he is not punishable. It seems to me that there is no danger, under this language, of an innocent person being punished for doing any one of these three criminal acts. The question will be, in each case, did the party know the person enlisted to be a deserter, or know him to be drunk. or know him to be insane at the time he enlisted him? I submit that that language, "knowing him to be such, cannot be misapprehended or misconstrued by anybody. We all know what is meant by it, especially those of us who belong to the profession of the law.

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Mr. HALE. The honorable Senator has not practiced before courts-martial.

Mr. HOWARD. The honorable Senator from New Hampshire remarks that I have not practiced in the military courts. That is very true; but I think I know enough of military law to know that the rules of evidence are precisely the same in a military court as in a civil court. I hope, therefore, as no harm can come of this language, that the clause will be retained and not stricken out.

Mr. COWAN. It is precisely because of the clause of the section relied on by the Senator from Michigan that I think these words should be stricken out. To find the scienter is one of the most difficult questions that ever come before a court, and one that a flaxseed court or an arbitration or a military commission would be just as likely to go wrong on, and perhaps more likely than another.

Mr. President, there is a broader_ground on which this section is objectionable. The section relates to a "recruiting agent, substitute broker, or other person." I suppose the "recruiting agent" is not technically an officer in our service. He is a person employed by the State, perhaps, to recruit, but he is not an officer in the United States service; because I find that the fourth section provides for the punishment of an officer who mus ters into service these persons improperly, so that this recruiting agent is simply a private individual. Substitute brokers are private individuals, and "any other person" is unquestionably so. Now, I should like the honorable Senator from Michigan to reconcile the provisions of this sec

about to read. If these persons are guilty of anything they are guilty of a crime; if the section is to operate at all, it will be to operate to deprive them of their liberty. The Constitution provides that

I do not want to trifle about these things; but I think that this extending of the authority of mili-tion with the provisions of the Constitution I am tary tribunals over citizens not necessarily connected with the public service, has been carried quite as far as the public service requires. But in this case a citizen desirous of doing his duty brings a substitute in good faith and offers him and he is accepted; afterward it is alleged that the substitute was intoxicated. There is no measure or standard by which that can be tried; it exists only in the judgment of men. Some men would hold that he was perfectly sober, while other men equally intelligent and equally honest might think he was very much intoxicated. That question is to be submitted to a court-martial, and if a majority, four out of seven, find that the substitute was intoxicated, the man who put him in is to be subjected to two years' imprisonment in the penitentiary or a fine of $1,000. It is an enormous penalty that may be inflicted upon a decis

Mr. HALE. In that same section, in the second line, I move to strike out the words " or other The section now subjects person." 66 any recruiting agent, substitute broker, or other person," who may present an intoxicated or insane man as a substitute with the penalties of military trial by court-martial. I have suggested this amendment to the chairman of the Committee on Military Affairs, who does not see any objec-ion of one of the nicest questions that could postion to it. It leaves the military law operating on recruiting agents and substitute brokers, and subjects them to a trial by court-martial, and to the penalty presented. Now, as I hear from my friend from Michigan, in an undertone, that he is opposed to the amendment, I want to state my reasons for moving it.

sibly be presented to the consideration of any
tribunal, and one that, as I said before, has en-
gaged the attention and taxed the faculties of the
wisest and best men that have ever tried cases. I
think such questions legitimately belong to the
civil tribunals, and that it is not safe and prudent
to transfer them in the case of citizens, men who

come honestly to perform their duty, to the judg

ment of a court-martial.

Mr. HOWARD. I hope, sir, the words will
not be stricken out, but will be permitted to stand.
I see no danger such as that which seems to be

Hampshire. Let us read the clause again, and
then we shall understand it:

One of the most difficult questions that have ever presented themselves to the judiciary of this country in all the States to settle is, what is inBanity? There are so many kinds of insanity, moral insanity and insanity of various sorts, that it has been found to be one of the most embar-apprehended by the honorable Senator from New rassing questions that have been presented to the judiciary in this country in all the States. This question, that taxes the learning of the wisest men in the States, is to be subjected by this section of the bill to the action and decision of a court-martial, and the whole people of the United States who offer substitutes are to be subjected to trial upon the question of the insanity of those substifutes before a court-martial composed of seven

That any recruiting agent, substitute broker, or other person, who shall enlist, or cause to be enlisted as a volunteer or substitute, any insane person, or person in a condition of intoxication, or a deserter from the military or naval service, knowing him to be such.

The whole question depends upon the knowledge of the offender. If he enlists a drunken per

"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jucy of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses, against him; to have compulsory process for ob taining witnesses in his favor, aud to have the assistance of counsel for his defense."

If

Now, Mr. President, this section of the bill is to operate or may operate on any one of us. we are liable to be drafted, and offer a substitute, as almost all men, all citizens, some time or other during this war, who are liable to be drafted, may be obliged to do, and questions should arise he was intoxicated, or whether he was a deserter as to whether that substitute was insane, whether from the military or naval service, and we knew it at the time we offered him, that constitutes crime. If it was absolutely certain that we were guilty, I would not object to the punishment, and I would not care much who inflicted it. It is the difficulty of ascertaining the guilt which renders the precautions necessary, and which has always rendered all these precautions necessary.

If the honorable Senator from Michigan were charged with an offense of this kind, let us see what safeguards the law has thrown around him for the purpose of securing to him a fair trial. I the first place he could not be put upon his trial

until a grand jury of his own immediate neighbors decided that there was sufficient cause to put him on his trial. There is no power in this Government anywhere, there ought not to be any power, to put him upon his trial unless through the intervention of a grand jury. After the grand jury consents that he shall be tried, and after they find the form and manner in which the offense shall be stated, (and it must be stated so perfectly as to protect him from any subsequent prosecution, if he should be either convicted or acquitted, a thing which a prosecution before a court-martial would not do,) then he has the right to be tried by a petit jury; and a petit jury selected how? Selected by the War Department? Selected by his commanding officer? Not at all; that jury is to be selected according to the forms of the common law; and when it is selected he has a right during the impanneling of it to challenge for fear, favor, and affection;" he has a right to have put upon that jury nobody but true, good, and impartial men; and then he has the right to be confronted with the witnesses; and all that in the district where he lives.

Yet what has been done almost within the very shadow of the court-house, and almost within a stone's throw of the judge having jurisdiction? And that judge is the creature of the Administration; the marshal is its creature, and that marshal has a right to select jurors.

Gentlemen may say that some of the jurors may not be loyal. The marshal has a right to go among his own friends and select those who are truly and sincerely loyal. I say that within a stone's throw of all this machinery men have been taken up charged with these offenses, which are merely offenses at common law, and they have been carried away hundreds of miles from home, and they have been tried before military commissions. What has been the consequence? In one case, very well known to my colleague, partially known to myself, upon the testimony of a suborned witness, upon the testimony of a man who was himself a deserter, and who had himself got up all the resistance there was to the draft, the conviction was procured of a man who had actually gone to the meeting called to resist the draft to get that meeting to desist, to disperse quietly, and go to their homes, because there was no difficulty or danger. Upon the oath of that man, a deserter, a military commission two or three hundred miles away from the home of the parties, away from where the proper testimony could be gotten, innocent men were con

of the neighborhood became aroused to the necessity of leaving their district and leaving the place where they had been in the habit of having justice administered to them, and going, some of them at their own expense, all the way to the State capital, that they were able to satisfy the military commission that this man was utterly unworthy of credit and that his statements were wholly false. What then? Some forty or more men had been arrested; they had been carried to Fort Millih; they had been shut up in a casemate; one of them had died; another had lost his health, I believe irrevocably; another had become insane; and one or two on trial had been convicted. Then the rest were doled out and dismissed; two, three, four, half a dozen at a time, so as to get clear of them without any public demonstration.

Now, Mr. President, suppose a man in one of the western counties of Pennsylvania is charged with this offense, and he is carried away to Harrisburg to be tried before a military commission, I ask what chance has he to a fair trial, even waiving the protection which the Constitution provides for him, and which he is entitled to in-victed; and it was only at last when the people voke, certainly in the United States Senate if he is entitled to it anywhere; what chance has he? He has no voice in the selection of this tribunal; it is appointed by people who may desire his conviction, who may have determined upon it beforehand, and may have determined upon it for many reasons. Are they men learned in the law? Certainly there is no lawyer in the Senate who would trust the trial of a criminal cause before any judge, unless he was a man learned in the law. Is there not such a thing as being imbued with the spirit of the law, feeling not only in the brain, but in the heart of the man, all those great principles which have been infused for long ages into English law, and which themselves are the guarantees of English liberty? Surely no man imbued with the spirit of that law would ever for one moment intrust the trial of a citizen charged with crime to any other than a judge learned in the law; and surely, I say, Mr. President, and I speak it in the spirit of that law, no man so imbued would ever trust the finding of a fact in such cases to any other than a jury of the vicinage. If it were certain that all people who are arrested on charges of this kind were guilty, there would be no necessity for these safeguards; but that is just what the law never presumes. The law always presumes innocence until guilt is shown, and the presumption of guilt must be such as to exclude every other hypothesis than that of guilt. How would you make a military commission understand that? You cannot. Nobody can.

Very well; now this man is dragged away from the district in which the offense is committed, he is taken away two hundred miles from home, and he is put on his trial before this extra-judicial tribunal, this tribunal which can have no legal existence under our Constitution, as it can have none in any civilized country that I know of to-day, either on this continent or in Europe. He is put upon his trial; how is he to get process to compel the attendance of witnesses? He is dependent on the mercy of the tribunal for that, because there is no law which compels them to grant it, unless this bill may provide for it here. But how is he to get his witnesses? How is he to know what witnesses are to be there against him? If he does know, he may be too poor to summon and to bring his witnesses a distance of one hundred and fifty or two hundred miles and detain them there waiting till his trial comes on, or until it pleases this military commission to award him his trial.

Mr. President, I am sorry to say that this is no fancy sketch. This is a thing which is occurring to-day all over this country, to the wonder and astonishment of the civilized world, and without the slightest necessity whatever. We enacted here a few years ago a law by which we made resisting the draft an offense, and we gave to the regularly constituted courts of the country jurisdiction over all offenders against that act.

Mr. President, I think we have had entirely too much of that already. Where is the necessity for withdrawing the trial of offenses from the courts of the United States, I would ask? I admit that there is a strong argument against submitting these cases to the State courts often, because it may be that juries would be unwilling to convict; but that reason fails entirely when you allege it against the United States courts, because, in those courts, if there is a loyal jury within the whole district, the marshal may summon it, and may have it there for the trial of offenses.

But again, the instinct of self-preservation ought to impel us to reject any such provision as this. Are we to give up all our liberties here? What for? I might be willing to suspend for a while the operation of the laws which secure mine, if it were necessary. If any man can satisfy me that it would in any way help to put down rebellion, help to strengthen our arms, help to make the country stronger, I might agree to it; but, Mr. President, it has the very contrary effect; good people know it; good people lament it, and I am sorry to say people are beginning to be astonished that we sit here, and not only permit this, but provide for it.

Take a substitute broker, and that is the very worst type of the class-1 think there is not a man in the world who has less sympathy with a substitute broker than I have; take a substitute broker, if you please, the vilest of mankind, still he is a citizen, and he is entitled to a fair trial; he has a right, to use a very popular phrase now, to stand upon an equality before the law. The law presumes him innocent until his guilt is established. Take, I say a substitute broker who commits one of the offenses enumerated in this section; what objection can there be to trying him in the United States district court? If you have no confidence in a jury of the vicinity, where is your Government gone? Where does it exist? In whom will you confide? If you cannot govern this people through itself and by an appeal to its own reason and its own good sense, what despotism are you going to build up that can govern it? Do you

think you can overturn this great fabric that has been built up here at such an expense of blood and treasure for hundreds of years-that you can overturn it all, and all its safeguards, and substitute in the room and stead of it a packed military tribunal, in the choice of which you can have no voice? Mr. President, it is just like laying the ax to the very root of the tree; it is like digging away the very corner-stone on which the temple stands. Is it not enough that it is suspended within the military lines? Is it not enough that these great privileges are for the time suspended within the actual lines of the Army? The people of the loyal States, the people who have been bepraised in this Hall for their loyalty and their virtue and their liberality in the great sacrifices that they have made, have made them for what? To be tried by military tribunals, to be ridden down by despotic governments and irresponsible dictators? If the people are fighting for nothing better than that, there is an end of it. But, sir, the people are not making this tremendous struggle for that. They are making, as Burke would say, this great struggle that twelve men may be got in the jury box whenever a man's life, liberty, or property is in jeopardy; and yet here is a provision to take away the jury box from the people, because "any other person" is a phrase broad enough to cover all persons, and this penalty would necessarily, if the tribunal had any character, render the convict infamous for life. I do not know but that now it might increase the sympathies of the people for him, and perhaps render him famous; but if the tribunal had any character to give force and effect to its decrees and findings, it would render him infamous.

I am opposed to this provision. We have courts for the trial of our people constituted according to the Constitution and laws, known to the people, willingly obeyed by the people, to which the people are accustomed; but I would never, never institute a tribunal outside of them for the trial of any offense of which they could have cognizance and take jurisdiction.

Mr. HOWARD. Mr. President, the honorable Senator from Pennsylvania takes the ground that the clause of the bill which is now under discussion is violative of the Constitution of the United States, and he tells us, in that tone of earnestness which is peculiar to him, that courts-martial and military commissions are tribunals unknown to the Constitution. Upon this assumption is based the denunciatory part of his speech in which he has indulged in so much vituperation against the mode in which military justice has been administered during this war.

Is it true that this clause violates the Constitution? Is it true that all the convictions we have had before courts-martial and military commissions have been coram non judice, void for want of legal authority? Is it true that the Executive Administration, in carrying out their policy in the prosecution of this war, and in the punishment of offenses committed in the military service, have been and still are mere usurpers and tyrants, as they have been characterized by the Senator from Pennsylvania? Upon what principle of construction is it, let me ask the Senator from Pennsylvania, that he makes the broad assertion that courts-martial and military commissions are unknown to the Constitution, and that all their proceedings are so many wanton tyrannies and violations of the fundamental law? He tells us that the prohibition is to be found in article five and article six of the amendments, and he reads from each of these to bolster up his assertion. We need but read a very small portion of the fifth article to see plainly that what the honorable Senator has said upon this subject is the merest assumption, the merest begging of the buestion. Articlè five declares:

"No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indietment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."

The Senator forgets the exception which is plainly embodied in this clause of the amendments. He overlooks the exception, I think very ingeniously, and instead of reading the clause with that exception in, he reads it without; and, of course, according to his style of reading the instrument, he makes this clause declare that "no person shall be held to answer for a capital or

otherwise infamous crime unless on a presentment or indictment of a grand jury," and stops there.

Now, sir, in the first place, let me say, the of fenses created by the present bill are not, in the sense of the Constitution, infamous crimes. Were the fifth amendment the only provision on the subject, we might try any crime which is not infamous by a military commission and without a grand jury; we might proceed to punish all such crimes on mere information without indictment, and try the information without the intervention of a petit jury, if we saw fit-I mean to say if this amendment of the Constitution were the only clause concerned. But, sir, it is perfectly apparent from the language itself of this amendment that the Constitution has in view the trial of a certain class of offenses by tribunals other than those in which a jury intervenes. It is certain, from the language itself, that it was expected that military offenses would be tried by courts-martial and military commissions.

If this be the true construction to be given to the Constitution, all that the honorable Senator from Pennsylvania has said in denunciation of the Administration for employing such tribunals is without foundation. We may try offenses committed in the military forces of the United States, or committed in the militia when in the actual service, by courts-martial or by military commissions. We have used and employed this species of tribunals ever since the foundation of the Government, and they are just as well known and recognized in the code of American law as are courts in which juries intervene. They are just as necessary to the public service. Why, then, are we told with so much emphasis that military courts and military commissions are usurpations upon the liberties of the people?

The honorable Senator from Pennsylvania appears to regard the findings of a jury in the trial of criminals as infallible. According to his ideas it is impossible that a jury of twelve men from the vicinage in the finding of a fact can possibly err. Now, the experiences of that learned Senator, like my own, I dare say, teach him that the findings of juries in criminal cases are among the most uncertain means of ascertaining facts; and although undoubtedly the preservation of trial by jury is still regarded as a precious privilege to the American citizen, it is nevertheless true that the legal mind of the country is coming more and more to the conclusion that, after all, facts may be well ascertained by persons other than jurors. I hold it to be competent for Congress to punish as a military offense any act which is connected with the military service of the United States, and to do this by court-martial; that contractors who enter into contracts with the Government for furnishing supplies may be thus punished; that any and every act performed by any and every person, by which the military service of the United States shall be directly or even remotely affected, presents a case arising under this amendment, and may be thus punished. Such has been the practice of the Government for years past. Such is its practice now, and has been during the war; and I believe it to be founded on the soundest principles of constitutional law. We all know very well that it will be utterly impossible to inflict adequate punishment upon the commission of military offenses if it is necessary to resort to the cumbrous machinery of juries and other instrumentalities used in civil tribunals. It would be utterly impossible to bring to justice the hundredth part of the offenders connected with the Army if it were necessary to indict and try and punish them in the counties in which the offense was committed. There must be something more summary.'

The Senator from Pennsylvania reads also from the sixth article of the amendments, " in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district," &c. Certainly, if there be a class of offenses, as there undoubtedly is, which may be punished by proceedings other than trial by jury, then that class of offenses is excepted from the generality of the language of the sixth amendment of the Constitution, so that this particular clause has no bearing whatever upon the argument.

Now, sir, I do not think it necessary, I will not say becoming, that Senators should go out of

their way to make attacks upon the Administration in relation to the administration of military justice, unless the case is a flagrant one. I have yet to learn of a single case of great injustice having been committed by the military tribunals that have sat during the existence of this war. There must be justice in the military service. There must be some way of bringing offenders to justice, to hold them to their criminal responsibility. The Constitution gives ample authority to Congress to enact laws upon the subject, and I think Senators would better consult the interests of the country, if, instead of carping at the military administration of the Government, they would devise some means by which military justice can be meted out better than it is at present, if its present administration be as faulty as it is represented.

For my own part, I think the present bill is a very necessary one, and especially this penal portion of it, which punishes not only recruiting agents and substitute brokers, but all other persons who shall commit any one of the crimes which are defined in section three. We all know that these impositions have been practiced daily throughout the country, not only by substitute brokers and agents for recruiting, but by other persons who have lent their aid toward their accomplishment. There is many a man and many a boy who has been entrapped into enlisting when he was in a state of downright intoxication; many a case in which a deserter has been knowingly reënlisted, and in which all the crimes mentioned in this section have been perpetrated.

I think Congress is but doing its duty in defining these crimes and affixing specific and severe penalties upon them; and I hope the words will

not be stricken out.

Mr. HALE. I confess, sir, that I have been not a little surprised at the speech of the honorable Senator from Michigan. If I made myself understood in what I asked before of the Senate, I think it will need no illustration and no argument. What is proposed by this law? I am content, for the purpose of the argument to-day, that every contractor, every substitute broker, every agent for recruiting, and every man that in any capacity voluntarily connects himself with the naval or military service, should by Congress be made amenable to this law; but I am not willing to see adopted a provision like this, that covers the whole land, that subjects to its operation every man within certain ages who is liable to military duty, and who is compelled to render it; I am not willing that by virtue of this compulsion which the Government has forced upon him, you shall at the same time tear him away from the protection of the ordinary tribunals of the land, and subject him to the tender mercies of a military trial before a court-martial hundreds and hundreds of miles away from the place where he lives.

Mr. President, I protest, and I will protest here always while I have the power to do so, against the right of the Senator from Michigan or any other man on God's earth to accuse me of carping at the Administration or opposing them, because I stand here to-day to invoke for the humblest of my constituents the protection of that Constitution which was won by the bravery of their fathers ages ago.

Mr. HOWARD. I beg

The PRESIDING OFFICER, (Mr. FOSTER in the chair.) Does the Senator from New Hampshire yield the floor to the Senator from Michigan?

Mr. HALE. I would rather not.

Mr. HOWARD. Mr. President

The PRESIDING OFFICER. The Senator from New Hampshire is entitled to the floor, unless he yields.

Mr. HOWARD. I wish merely to say that in my remark I had no allusion to the Senator from New Hampshire.

The PRESIDING OFFICER. The Chair understands that the Senator from New Hampshire does not yield the floor.

Mr. HALE. I cannot tell to whom it alluded. I heard the remark and I heard it with pain, and I said to myself, "Great God, is it possible in this period of the history of the world, in this Senate, in this nation, at this day, that an attempt to throw the shield and the aegis of the Constitution around the humblest of the citizens who owe

it allegiance and to whom the Government owes protection, can be denounced as an attack upon the Administration!" If the Administration have the heart and the feeling and the sentiment which I think they have, they would feel that an attempt to shield them by such an appeal as that would be the grossest attack that could be made upon

them.

Mr. President, when this war is over, if we shall have saved our country and lost our liberties, it will be a matter of speculation by the philosopher and the historians to settle with posterity how much was gained and lost by the result. Is there any necessity for this enactment? Take, for instance, one of the humblest citizens of the humble State that I represent, one of the hardworking, hard-fisted, tax-paying yeomanry of New Hampshire. By virtue of your draft he is compelled to do military service or to furnish a substitute. He comes in the honest discharge of a duty not voluntarily assumed, but imposed upon him by the Government, and brings a substitute. He is no substitute broker; be is no recruiting agent; he is no man who has voluntarily connected himself with the military service; but he comes forward in obedience to a duty which he cannot resist, and brings a substitute, and that substitute is accepted. By and by, in the course of time, it may be three months, six months, or a year hence, some malicious, some evil-disposed person may suggest "that young man whom that drafted soldier brought was intoxicated at the time he was enlisted." What then? Shall you send an inquiry into the vicinage, into the State, into the district? Oh no, sir; but a mere arbitrary order is issued, and he is seized in New Hamp shire and hurried to Philadelphia it may be, to New York, to any other place-God only knows where-away from home, away from his neighbors, away from any of the protections to which he is entitled. He is arbitrarily hurried and put to trial before a court-martial, and if four out of the seven think upon the whole that the man was intoxicated, thereupon the citizen of New Hampshire is sentenced to two years imprisonment in the penitentiary at hard labor.

The honorable Senator says that is not an infamous offense. You make it infamous by the punishment that you annex to it. Now let us look at the provision of the Constitution. I do not know that it is in order to quote the Constitution at this period of our history. [Laughter.] I know that we got to such a stage in New Hampshire once that if you quoted the constitution of the State the judge would laugh in your face. There is a provision on this subject in the original Constitution, independent of the amend

ments:

"The trial of all crimes, except in cases of impeachment, shall be by jury”—

"All crimes," not infamous crimes, but the trial of all crimes, shall be by jury—

"and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

That has not been repealed by the amendments subsequently adopted. Then the fifth and sixth articles of the amendments make further provision on the subject. The fifth article provides that

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentiment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia,when in actual service in time of war or public danger."

Now let me ask if a man in the discharge of a duty imposed upon him by law (that is, to go and render military service or to offer a substitute) is, within the purview of that provision of the Constitution, in the land or naval forces or in actual service in the militia in time of war or public danger? I venture to say, with all that has been said staring me in the face, that the condition of things contemplated by this clause has never occurred in the United States of America. There has never been an extension of the liability to military courts-martial beyond that of makingcontractors liable; but citizens outside of that provision are not liable.

But the Senator says that everybody who has anything to do, directly or indirectly, with the land or naval service, or with raising men for the service, may by Congress be subjected to this provision. That is broad enough; that covers the whole land, because everybody is obliged to pay

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