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ans. It is not very much for each Indian, but it shows the peculiar mode of making treaties with them. We gather these Indians together at various forts of the United States under military authority; we there feed them for twenty or thirty days, we furnish them blankets and clothing, &c., and then our commissioners-I do not know who they arewrite out a treaty of peace, and the Indians sign it, ignorant of its provisions, unable to read, poor, miserable creatures as they are admitted to be; and that treaty is sent to the Senate of the United States, the highest polit-port ical body in this nation; and how is it considered here? It is ratified, as a matter of course. I remember that in one case when I was a member of the House of Representatives, five Indian treaties were ratified, as I was informed by a Senator, without their being read in the Senate, on the last day of an executive session, and when we came to make up the estimates to carry those treaties into execution, they were so large that they were actually suspended, and not carried out for a time. That was the Oregon case. I believe there was a misunderstanding in regard to the terms of the treaty, and finally it led to a war.
this whole subject ought to be transferred to the War Department. The negotiations ought to be made through military officers, the commanders of troops face to face with the Indians. Then you will have some check on the expenditure. The Senator will see himself that there will be no check here on the expenditure of the money about to be appropriated. In the subsistence department no ration can be drawn except in pursuance of law, and there are forms and modes of checking officers, so that there is a system of accountability which it is almost impossible to overcome. It is almost impossible that frauds can be perpetrated in the Subsistence Bureau of the War Department. So in regard to transportation; that is done under a system of accounts and checks, so that money appropriated for the quartermaster's department is certainly applied to the purposes to which it is appropriated, though sometimes frauds may perhaps be committed. This appropriation, however, will be to another Department of the Government, for supplies of a character over which that Department has not usually had any supervision. These estimates provide for six Indian treaties with the aggregated Indians that have been invited to participate to the amount of something like ten thousand.
The estimates are given in detail in the papers furnished to the Committee on Finance, and show that these Indians expected to be aggregated in masses, men, women, and children meeting together at five or six different forts of the United States, from fifteen hundred to two thousand at each fort, and they are there to be fed on pork, bread, coffee, and the ordinary rations of the Army for a certain time, and treaties of peace are to be negotiated with them. There is no mode of transporting those provisions from the settlements to the forts except by new agencies. The quartermaster's department has its contracts for the transportation of supplies in which competition has been had, proposals have been invited, contracts have been made. But in the transportation of these supplies there will be no competition. The very necessity of immediate action will compel the Department to transport these supplies at whatever cost. The expense of transporting the supplies will be almost equivalent to their original cost. One of the bills presented here shows corn used by one of the scouts sent out cost the Government eight to nine dollars a bushel, when we all know that in Iowa corn is now being burnt for fuel-it is so stated in the papers; and certainly it is not worth over twenty cents a bushel.
Mr. DOOLITTLE. Allow me to state that the corn which feeds the horses of the Army out there fighting the Indians costs from five to ten dollars a bushel. That is one reason we do not want to go out there with horses fighting the Indians. It costs just as much when the Army transports it out there as when anybody else transports it. In relation to this matter of transportation. I suppose the same price will be paid as for Army transportation.
Mr. SHERMAN. There is no limitation of that kind.
It seems to me that a system like this conducted in this manner ought to be put a stop to. I have not the information on which I can say that this sum ought not to be appropriated; indeed, it seems that the Government have placed themselves in a position where they have agreed to meet these Indians in council in the way they have heretofore made treaties with them. The stipulation has gone out with the assent of the President of the United States, and the military authorities have undertaken to convene the Indians en masse at various forts of the United States, and I do not see but that we Mr. SHERMAN. I will call the attention are bound, under the circumstances, to approof the Senate also to the character of the priate the money in some form, either to give presents estimated for as part of the $121,000. it to the military authorities, or to the Indian I will give only a few of the items-thirteen Bureau. It is, however, a fair illustration of hundred pairs of blankets, to cost $9,750; the manner of our dealing with the Indian one hundred and twenty dozen scarlet shirts, tribes. I have been in hopes for some years cotton handkerchiefs, woolen blouses, thirty that the Indian Committee would report some thousand yards of fancy prints, and various measure by which the Indians might be transpresents, amounting altogether to about thirty ferred to the Military Department, there to be thousand dollars, for some ten thousand Indi-governed by military law until they should be
Mr. SHERMAN, But done under and in pursuance of law which requires the quartermaster's department to contract. This would not be under that law. Mr. DOOLITTLE. Still there is a law for contracts in the Interior Department just as much as in the War Department.
Perhaps this is as good an occasion as any to say that there ought to be an end to this mode of dealing with Indians. I have no doubt these five treaties to be made by General Curtis and others-and no man could be selected in the United States whom I would more cheerfully trust with any power than General Curtis, whom I have known for many years-will be made in this way, and will probably entail on the Government an annuity for a number of years amounting perhaps to from $100,000 to $500,000; I cannot tell how much. The expense of our Indian service now is between two and a half and three million dollars, and the whole number of treaty Indians, so far as I can gather from the best information I can get, does not exceed one hundred and twenty-five thousand; there are other Indians, with whom we have no treaties; so that the cost of governing our Indians is greater than the cost of governing this country during the late war. It amounts probably to from ten to twenty dollars a head; and in addition to that are all the vast sums that are expended through the Army to keep the Indians in subjection. The amount actually appropriated every year for the benefit of the Indian service proper is from two and a half to three million dollars, and that merely to carry into execution treaties and to pay the expenses of agents and superintendents. The number of Indians that are included in our treaty, stipulations has been variously estimated from one hundred to three hundred thousand, but I believe it has been more accurately estimated at the lower number, because they are constantly diminishing in number. Then the Indians with whom we have no treaty stipulations are now constantly, year after year, making treaties, thus adding to the expense of our Indian relations.
Mr. DOOLITTLE. The Army transportation is always done by contract.
absorbed in the general population of our Territories to be governed by civil law.
I know that some objection has been made to transferring the Indians over to the territorial authorities and to the authorities of the new States, on the ground that there is an antag onism between the whites and the Indians that will lead the white man to disregard the rights of the Indians; but I believe it would be wiser and better to give to the infant States and Territories of the West a portion of the money now appropriated by the Government for the sup
of the Indians, and trust to the people of the infant States and Territories to govern those tribes, and disband our whole Indian system; or, if that cannot be done on account of the autagonism between the whites and the Indians, then to transfer this whole Indian service to the Army, and let them govern the Indians as subjects of the United States; but the present system of governing the Indians by treaty stipulations, by bribes and presents, beans and corn and pork, furnished at the enormous expense of from ten to twenty dollars a head to every Indian in the United States, is a system that ought not to be tolerated longer.
I will take this occasion to inquire of the honorable chairman of the Committee on Indian_ Affairs whether a proposition to transfer the Indian service to the War Department is not now pending in that committee.
Mr. DOOLITTLE. Yes, sir; there is a proposition now pending before the committee to transfer the Indian Bureau to the War Department; but that is not involved in this question.
Mr. SHERMAN. It is not involved, but this is the only manner in which we shall have the question of the Indians before us. We have no opportunity to discuss these Indian matters except when appropriations come before us; and they never come before us unless when there is such an urgent and pressing necessity to make the appropriations that we cannot for humanity's sake stop to deliberate on measures affecting the Indians. A year ago every Senator will remember that a proposition was made to pay over to the Cherokees and other Indians of the Southwest enormous sums of money to relieve them from immediate distress. We had no time to deliberate because the demand was made off us in the name of humanity to feed starving Indians, some of whom had been true and loyal. Indeed, these Indian questions are never brought before us until under such urgent circumstances that we cannot deliberate. There are very few Senators, probably, who would have been willing to authorize the convocation of these Indians en masse in the various forts of the United States for the purpose of making new treaties with them, and the question is now presented to us in such form that we cannot deny the appropriation, simply because the executive author. ities of the Government have directed the convening of the Indians and we are bound to feed them while they are there; we are bound to carry their stipulations into effect; we are not left to legislate or to judge in regard to the
Perhaps these remarks may be considered as rather out of order, as they do not affect the immediate question before the Senate. I do not wish to stand here as opposing this appropriation. Probably the faith of the nation is bound to feed these Indians and take care of them in the usual way. So we shall probably be considered bound to ratify the treaty when made, and we shall be bound to appropriate money to carry the treaty into execution. We never shall have a change in this system until one of two policies is adopted, either to transfer the whole Indian service to the War Department, or else to transfer the Indians to the charge of the people of the States and Territories where they live, and that is a proposi tion which I hope will be adopted before long. I am willing to leave to these new States and Territories the government of the Indian population, and if necessary to give the aid of the Army to govern the Indians, and if it is needed,
to distribute to them the $3,000,000 the Indians now cost us to enable them to administer government over them. The system of bribes. treaties, and presents, ought to be abandoned by the United States.
ation bill, and no one can resist an Army appropriation bill. Indeed, the Senator from Ohio, representing the Committee on Finance, will not stand up here to resist an Army appropriation in time of peace or at any time.
Mr. President, in relation to what my friend has said about our treating with the Indians, I wish to say that that has been the uniform practice of the Government from the beginning and from before the beginning. The colonies treated with the Indians. The colonies were weak; the Indians were strong. The colonies were glad to treat with them; they were regarded then as to the colonies as independent and hostile powers such as the colonies were content to live upon terms of peace and amity with, and they made their treaties. I believe that if we kept our treaties now in all respects as faithfully with the Indians as the Indians keep their treaties with us, we should have little complaint. I believe that the difficulty has been more on our part; and that the breach of treaties, the breach of faith is as much to be attached to the Government of the United States as those who act in its name, and indeed more than to the Indians themselves.
Mr. DOOLITTLE. Mr. President, some of the remarks of my friend from Ohio, 1 think, challenge a moment's consideration. I do not look upon what we give to the Indians as in the nature of bribes. I do not think that the presents which are given, that what we contract to pay them annually in the shape of provisions and clothing, (for the payment of money to Indians has been almost entirely abandoned; what annuities are paid are paid in clothing, or in provisions, or in some articles which contribute to their support,) should be regarded as bribes. The truth is, the Indians inhabited all this vast country. I do not claim that they held it by a title such as that by which the civilized man holds his land in fee-simple; but they existed, lived, and occupied the country. The Indian thinks, and the world believes, and mankind must admit, that the Great Father above gave him his life, his existence, upon these vast plains, and in this rich and beautiful country. Our people, full of the Anglo-Saxon blood and the AngloSaxon disposition to make aggressions everywhere, powerful, increasing, spreading, aggrandizing, press in upon the plains and the prairies and among the mountains to dig for the gold and the silver of the mines of those mountains, where the Indians and their fathers before them perhaps for a thousand years, have lived and held undisputed control. Now, if we enter into all this goodly land, and by our going there, cut off the game upon which the Indian lived, surround him with the institutions of civilization, which are death to the savage man, surround him so that he cannot live in the way in which he was accustomed to live, do we owe him nothing? Is it just in the sight of God or man for us to say that we owe nothing to these people whose land we are appropriating at our pleasure? I cannot feel in that way. I think, therefore, that all we give the Indian, if we give him ten times as much as we do, would not pay him any more than the debt that we really owe.
My honorable friend says we should put this whole service into the hands of the War Department. I do not now discuss the question whether the Indian Bureau would be better managed under the War Department than under the Interior Department. That is not the question that arises on this appropriation bill, and I do not propose to discuss this question in advance of the action of our committee. It is one of the serious questions pending before our committee on which we mean to make a report during the present session for the tion of Congress. But, sir, putting the control of the Indians into the hands of the War Department is by no means certain to reduce the actual expenditures of the Government. I will tell you what it may do. It may reduce very much the troubles of Congress; it will certainly reduce the troubles of the Indian Committee; it will reduce the applications for special appropriations in reference to Indian tribes, because the estimates of the War Department will all be made in one grand sum, for the commissary department so many millions, for the quartermaster's department so many millions, for the payment of troops so many millions more. That will involve all your dealings with Indians, and in those great sums you will not see them, you will not feel them, and you will think nothing about them, and say nothing about them. They will come up in the regular Army appropriation bill, and it will all be done in an hour.
Mr. NESMITH. I desire to suggest to the Senator from Wisconsin that expenditures of this very kind were made for similar purposes last year out of the Army appropriations.
Mr. DOOLITTLE. Yes, and Congress never heard of it, Congress knew nothing about it, because it was in the Army appropri
But, Mr. President, I have taken up more time than I intended.
Mr. POMEROY. I rise to say but a single word. While I have not much confidence in the making of these treaties, I yet believe that the Indian department, so far as the transpor tation of supplies is concerned, has as economical and as regular a system as the War Department. The Senator from Ohio intimated very clearly that this was inaugurating a new system of transportation. It is not so at all. The Indian department advertises every year, as regularly as the War Department, for transporting all their goods, so much per hundred pounds per mile; and it happens that their bids this year, and I do not know but that it is so every year, were a little lower than those of the War Department. It is as economical a system of transportation as any in the War Department or any other Department.
Mr. SHERMAN. I ask if those contracts will cover subsistence like this.
have no hesitation in saying that the whole system is an absolute failure. It simply involves the extermination of the Indians and the extermination of a very large number of white people. Peace lasts while your provis ions last. When the provisions run out, in order to get more the Indians commence murdering, and before you have any notice of it whole neighborhoods are cut off, women and children are slaughtered, and war is inaugurated for the purpose of their being bought off. The Indians understand it perfectly well. They boast of it. They say if they do not get their presents they will do these things, and they will get their revenge. I have been acquainted with several chiefs who told me how they intended to manage, understanding it perfectly.
The whole system is wrong; it corrupts your agents; corrupts the men you send to the frontier; corrupts the Indians; causes a large number of persons to be murdered every year. It is a long distance off, and you hardly realize how many people are murdered on your frontiers yearly. Probably a great many more whites are killed in battle and murdered on the frontiers than Indians. Undoubtedly in all your Indian wars five white men are killed to one Indian. The Indians, however, are destroyed by whisky and by feeding them for a time to excess and by the habits and diseases that they acquire from the white people. Small-pox and other diseases are carried among them, and they are carried off in large numbers. Virtually you kill them in that way, and they murder your white people. That is the system that is going on. You murder them by the whisky you carry among them, and they retaliate by murdering your women and children. That is the system, and I do not think any system can be devised which is any worse than this. I think the Committee on Indian Affairs should bring in a plan for a change. If you turn it over to the military you will make it somewhat better, because then you will have a Department more responsible than any you can organize for this special purpose. I think it would be still better to turn them over to the new States and Territories, and let them take care of them. That would be better than the way you are doing, and more humane. The present plan is the most inhuman, the most degrading, and the most lamentable in all its consequences you can conceive of. You cannot make it any worse by any change. But now, inasmuch as there is an agreement made with these Indians-and if we do not carry it out on our part, there will be immediate and terrible consequence visited upon the innocent that are upon the plains under the impression that they are to be protected, and that there would be treaties made-we are bound to vote the appropriation.
Mr. POMEROY. Precisely. All their transportation is included in their advertisement, and those who get the contract will have to carry these goods with any others the department desire to send, because they have entered into contracts to do all the transportation of the department at so much per hundred pounds per mile, the same as is done in the War Department, only that the price is a few cents less. Then so far as relates to transportation there can be no objection to having the Indian department do it.
But, sir, I confess that I have very little faith in the system of treaty-making with these Indians. These Indians are very badly demoralized, and if you make a treaty with them it will not be really a treaty with the Indians but with a few white men who have got among them who want some goods and who use the Indians for their purposes. If there had been no white men mixed up among these Indians we should not have had half the trouble we have had. Bad men have gone out and got in with these tribes and demoralized them. The only result of arrangements of this kind is that they keep the peace while the goods last; the Indians will behave very well as long as they are fed. I have seen many treaties made, and I confess that I have but very little confidence in them. When the Indians are hungry again they will commit more depredations.
Mr. STEWART. I think there is no doubt that we shall have to make this appropriation, inasmuch as there is an agreement to collect these Indians and feed them, and the consequence of a failure to do so would be terrible to persons now on the plains exposed; but having lived for the last fifteen years in an Indian country, and having seen more or less of the practical operation of the present system, and having conversed with a large number of persons who have seen more than I have of it, I
The joint resolution was reported to the Senate without amendment, ordered to be engrossed for a third reading, read the third time, and passed.
CONTRACTORS FOR VESSELS AND MACHINERY.
The PRESIDENT pro tempore. The order of the day will now be resumed, having been informally laid aside by common consent, being Senate bill No. 220, for the relief of certain contractors for the construction of vessels-ofwar and steam machinery.
Mr. WILSON. We had up yesterday morn ing a motion to reconsider the vote on the Colorado bill. I desire to take that up and have the question taken on the reconsideration, if possible, this morning. I should like to have the other matter go over if the gentlemen who have the care of it will agree to that. The PRESIDENT pro tempore. The special order is before the Senate. Does the Senator make a motion to postpone it?
Mr. SUMNER. I hope not.
Mr. WILSON. I give notice that I will call up the motion to reconsider to-morrow morning.
The Senate resumed, as in Committee of the Whole, the consideration of the bill (S. No. 220) for the relief of certain contractors for
that there might be a change, that as far as the law is concerned, as between the Government and the contractor, there would be no obligation to pay anything except for the extra work.
But we all know, and if we did not know it the facts stated in the report bring it before us very satisfactorily, that there must have been in some of these cases a loss where there was no failure at all on the part of the contractor. The work which these contractors undertook to perform was a novel one. As the honorable chairman of the Committee on Naval Af fairs told us the other day, no such vessels as those that we desired to obtain had ever been built before, or if ever built before they had never been built in the United States, and our mechanics were therefore in a great measure inexperienced in what would be the cost of vessels of this description, and the Government were equally inexperienced. It was impossible, therefore, that they should be able to make any exact, accurate estimate, as they are able to do in relation to work the nature of which is fully comprehended. They went on therefore from time to time to change very materially the model not only of the hulls of these vessels, but of the engines, until they succeeded in obtaining, as I believe they have, vessels equal if not superior to any to be found elsewhere, and they rendered us very material service during the late civil war. That service was not only the service of putting it in our power to terminate the war perhaps sooner than otherwise it could have been terminated, but it was in placing us before the world as a maritime Power of the very first rank, and that fact alone gives a pledge I think of safety so far as foreign wars are concerned. Nothing but absolute necessity, a necessity growing out of some imputation on the honor of other Governments, or some gross violation on our part of what is due to the other nations of the world, would induce them to engage in a war with the United States; and as I do not apprehend that any such wrong will be done on the part of this Government, I feel sure that none of the nations of the world will ever engage in war with the United States if they can honorably avoid it; and that security has been accomplished in a great measure by the success of these vessels.
the construction of vessels-of-war and steam machinery, the pending question being on the amendment of Mr. NYE to the amendment of Mr. GRIMES, to strike out "twelve" and to insert "fifteen" before " "per cent.
Mr. JOHNSON. Mr. President, before the vote is taken upon either of the amendments, or the bill itself, the Senate will indulge me with a word or two upon the merits of the proposition contained in the report. The Senator from New Hampshire [Mr. CLARK] must have satisfied the Senate yesterday that some of the claims should not be allowed unless some explanation can be given in relation to the particular claims to which he called attention that is not to be found in this report. It is not necessary that I should call the attention of the Senate to the two cases to which he adverted, because he did it so clearly yesterday that it must be fresh in the minds of the Senators who were at that time present. The honorable member from Massachusetts [Mr. SUMNER] seemed to suppose-and that was the case with one or two other Senators-that what the Senate has already done and what has been done under the authority of the Senate's resolution exclude us from the right to inquire into the justice of these claims, that we are bound to allow everything that was allowed by the commissioners appointed under the authority of the resolution of the Senate. If I took the same view of that resolution as was taken by the Senator from Massachusetts, I should certainly vote accordingly; but I do not so understand the Senate resolution of March, 1865. The resolution is:
"Resolved, That the Secretary of the Navy be requested to organize a board, of not less than three competent persons, whose duty it shall be to inquire into and determine how much the vessels-of-war and steam machinery contracted for by the Department in the years 1862 and 1863 cost the contractors over and above the contract price and allowance for extra work, and report the same to the Senate at its next session. None but those that have given satisfaction to the Department to be considered."
The whole authority communicated to the board by the resolution was to ascertain, first, what the contract price was, and second, to ascertain what in point of fact was the whole expenditure under the contract made by the contractors; but why the expense exceeding the original contract price was a matter not submitted to them. The Senate wished to know whether the expenditure exceeded the contract price as a fact, reserving to themselves the right to decide, if it should be ascertained that the amount did exceed the contract price, whether the difference should be made up by the Government, or how much of the difference should be made up by the Government; and either of these questions would necessarily involve a further inquiry not submitted to the board by the resolution, what were the reasons which induced an expenditure exceeding the contract price. The reasons suggested in the two cases referred to by my friend from New Hampshire yesterday, in the first place, were not submitted to the board to inquire into; and in the next place, if they had been submitted to the board, they would clearly have committed an error in supposing that they constituted any ground at all binding the Government to pay the difference between the contract price and the actual expenditure. I feel, therefore, under no obligation to allow what was allowed by the board; and the question before the Senate is one to be decided under all the circuinstances of the case. Is it right that these contractors should be allowed more than the contracts with the Government entitled them to demand? That they have no legal right, I suppose will be admitted, because, although as between the contractor and the Government any alteration in the vessels not stipulated for in the contract would bind the Government to pay the additional expense consequent upon the alteration, and perhaps would bind them to indemnify the contractor for any expense consequent upon the delay in the completion of the work because of the change of the model of the vessel or the engine, it is perfectly certain, as all these contracts provided
I hold in my hand, Mr. President, a statement of the reasons which in a particular case led to an expenditure much exceeding the amount of the contract price; it is upon the part of the contractors in the city of Baltimore who built the machinery for the Mackinaw, machinery, as I understand, that has turned out to be as perfect, and a great many think more perfect, than any machinery that has been built elsewhere for any of these vessels. They were engaged in very profitable business at the time they entered into this contract; they were solicited to enter into the contract by the Navy Department; the works of the Navy could not supply the immediate demands of the service, and all the other works, private as well as public, were oppressed by the urgency of the demand, and these gentlemen were applied to to build this machinery. Their statement is this-and the Senate I am sure will credit their statement, because two more honorable men are not to be found anywhere. The parties to whom I allude are Poole & Hunt, who built the machinery for the United States double-ender Mackinaw. They say:
1. Poole & Hunt accepted this contract at the solicitation of the Navy Department, at a time when the navy-yards and private marine engine building establishments of the country were found to be inadequate to meet the exigencies of the public service.
2. No specifications or drawings had been prepared by the Navy Department, for want of time. The price to be paid for the machinery, namely, $82,000, was fixed by the Department, and Poole & Hunt assured by said Department that the price thus fixed would be ample, and the case of the Paul Jones, then but recently completed, was cited as proof.
3. The specifications subsequently furnished to Poole & Hunt by the Navy Department required in their fulfillment much heavier and consequently more expensive machinery than Poole & Hunt had supposed from the representations of the Department that they would be required to furnish.
4. The cost of the machinery to Poole & Hunt was
greater than to some other contractors, for the reasons, first, that they were not regularly engaged in marino engine building, and had to expend sums in rental of wharf property, erection of shears for hoisting, &c.; and secondly, that the hull of the vessel, which was built at one of the Government navy-yards, was not delivered to Poole & Hunt for months after the appointed time, during which time materials and labor had advanced in price far beyond all anticipations.
5. Poole & Hunt during a period of great public necessity devoted their workshops to the construction of this machinery, to the exclusion of other orders from private parties, upon which a fair business profit could have been made, and in estimating the cost make no charge for their own services, but include only the items of expense directly and justly chargeable to this work, and which determine the actual and positive loss.
6. Poole & Hunt do not ask to be paid a profit upon the cost of the machinery, but having faithfully supplied said machinery, at the positive loss as set forth in the report of the naval commission, and having had from the Navy Department no other orders upon which a profit could be made to offset the loss made upon the contract in question, only claim to have said actual loss reimbursed to them."
The actual loss as made to appear to the satisfaction of the board I think was between forty-two and forty-three thousand dollars.
As I have said, Mr. President, there is no legal claim perhaps to make this demand; but it seems to me very clear that in relation to contractors having a claim under the facts stated by these particular claimants, it is but right that they should at least receive some indemnity; and under all the circumstances perhaps it would be a fair settlement of the whole concern to give them a certain percentage above the amount of the contract price. I should prefer the percentage of fifteen per cent., but if the Senate are unwilling to give the fifteen per cent., of course I would vote for the proposed percentage of twelve per cent. I could not vote for the whole amount proposed to be given by the committee of this body, not only because it is perfectly evident that in some cases there is no claim for any amount, but secondly, because in a case of this description it is fair that where there is a mutual mistake there should be a compromise; and a compromise, as I think, can be made so as to do something like justice to both parties by giving twelve or fifteen per cent.
Mr. HENDRICKS. I think that a decided majority of this body believe that some relief ought to be given to these parties; but exactly upon what terms and in what way the friends of the relief are not fully agreed. I think that an understanding can be arrived at which will be satisfactory to all the Senators who believe that something ought to be given. With a view to that I move that the bill be continued as a special order until to-morrow at one o'clock.
The motion was agreed to.
THANKS TO GENERAL HANCOCK.
Mr. WILSON. I move now to take up the joint resolution, reported by the Committee on Military Affairs and the Militia, of thanks to General Hancock.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H. R. No. 88) expressive of the thanks of Congress to Major General Winfield S. Hancock. The resolution is in the following words:
Resolved, &c., That, in addition to the thanks heretofore voted by joint resolution, approved January 28, 1864, to Major General George G. Meade, Major General Oliver O. Howard, and to the officers and soldiers of the army of the Potomac, for the skill and heroic valor which at Gettysburg repulsed, defeated, and drove back broken and dispirited the veteran army of the rebellion, the gratitude of the American people and tho thanks of their representatives in Congress are likewise duc, and are hereby tendered, to Major General Winfield S. Hancock, for his gallant, meritorious, and conspicuous share in that great and decisive victory.
The joint resolution was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed.
Mr. JOHNSON subsequently said: I thought that the resolution which the Senate has just passed, of thanks to General Hancock, stated on its face that it was unanimously resolved. It does not, and it will not appear that it was passed unanimously unless we amend it.
Mr. WILSON. By common consent it can
Mr. GRIMES. Why do you not make a report, so that we may have it upon record? Mr. JOHNSON. Is there no report from the House?
be amended by inserting the word "unanimously." I do not know of any opposition to it.
Mr. JOHNSON. I move to insert the word "unanimously."
Mr. WILSON. That will render it necessary to send the resolution back to the House. Mr. CONNESS. That will not delay it. The PRESIDING OFFICER, (Mr. ĎOOLITTLE in the chair.) The Chair is informed that it is not usual to insert the word "unanimously in a joint resolution. Mr. JOHNSON. It can appear on our Journal that it passed unanimously.
The PRESIDING OFFICER. It will pear on the Journal that it was passed unanimously by the Senate.
Mr. JOHNSON. Very well.
Mr. WILSON. No, sir; but I have stated the facts. It appears that this gentleman was appointed by the Governor of New York chaplain of the one hundred and twenty-eighth regiment of New York volunteers, went into the field, and served for nearly four months; but when the time came for him to receive his pay, notice was given by the War Department that by the strict letter of the law he was not entitled to pay because he had not been recomap-mended, before the appointment had been made, by the officers of the regiment, although those officers and everybody concerned, as I understand, were satisfied with his appointGeneral Ketcham, of New York, who knows the man, the regiment, and the case, says it is a most meritorious case.
I have no objection to the
Mr. WILSON. If any member of the Senate
SOLDIERS' NATIONAL ASYLUM.
Mr. WILSON. There are two or three other small matters reported from the Committee on Military Affairs that I desire to dispose of. I move to take up the joint resolution (H. R. No. 108) appointing managers for the National Asylum for Disabled Volunteer Soldiers.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the joint resolution, which proposes to appoint the following persons managers of the National Asylum for Disabled Volunteer Soldiers, under the provisions and conditions af the third section of the act approved March 23, 1866: Richard J. Oglesby of Illinois, Benjamin F. Butler of Massachusetts, and Frederick Smyth of New Hampshire, of the first class, to serve six years; Lewis B. Gunckel of Ohio, Jay Cooke of Pennsylvania, and P. Joseph Osterhaus of Missouri, of the second class, to serve four years; John H. Martindale of New York, Horatio G. Stebbins of California, and George H. Walke of Wisconsin, of the third class, to serve two years.
The joint resolution was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed.
Mr. WILSON. I now move to take up the Senate joint resolution (S. R. No. 57) appointing a board of managers for the National Military Asylum, which has been reported upon adversely by the Committee on Military Affairs, with a view to move its indefinite postponement in order to get it off the Calendar.
The motion to take up the joint resolution was agreed to.
Mr. WILSON. I move that it be indefinitely postponed.
The motion was agreed to.
REV. HARRISON HEERMANCE.
Mr. WILSON. I now move to take up House joint resolution No. 107.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H. R. No. 107) for the relief of Rev. Harrison Heermance, late chaplain of the one hundred and twentyeighth regiment New York volunteers. It requires the Paymaster General of the Army to adjust and pay the account of Rev. Harrison Heermance, late chaplain of the one hundred' and twenty-eighth regiment of New York vol unteers, for such period as it shall appear that he actually rendered service as chaplain of the regiment, and for which he received no pay by reason of defective muster, or otherwise, through no fault of his own.
Mr. GRIMES. Let us have the report read. Mr. WILSON. This resolution came from the House of Representatives. There is no report accompanying it, but the facts are these: this gentleman was appointed chaplain of a regiment, and went out and served with it three or four months, and has never received any compensation for his services. It is stated by those who are conversant with the case, among others a member of the House of Representatives who served in the Army, that this gentleman was a most excellent man, performed good service, and everything in the case is supposed to be correct.
Mr. SHERMAN. I will move to postpone the pending and all prior orders with a view to take up the Post Office appropriation bill.
Mr. WILSON. Will the Senator allow me to recommit this bill for the purpose of having a written report made?
Mr. SHERMAN. Certainly.
Mr. WILSON. I move to recommit the bill for that purpose.
The motion was agreed to.
POST OFFICE APPROPRIATION BILL.
Mr. SHERMAN. I now move to postpone all prior orders and take up House bill No. 280, the Post Office appropriation bill.
Mr. TRUMBULL. I hope that will not be done. There is a bill that has been partly considered, of a very important character, that ought to be passed. I get letters about it every day.
Mr. SHERMAN. I can assure the Senator that this bill will take but a short time.
Mr. TRUMBULL. The bill to which I refer is the one in relation to the habeas corpus. It is a bill to protect Union men in the South, and I think it ought to be acted upon. I imagine every member of the Senate would be willing to vote for it in some form.
Mr. SHERMAN. I will state that I have been requested to call up this bill.
Mr. TRUMBULL. I do not suppose it is of any importance to pass this appropriation bill now.
Mr. SHERMAN. We desire to hurry on their engrossment. We wish to put the appropriation bills forward.
Mr. TRUMBULL. It is a bill to make appropriations for the next fiscal year.
Mr. SHERMAN. The chairman of the Committee on Finance requested me to call it up. It will occupy but a few moments. I apprehend it will only take the time occupied in reading the bill. It is very short.
Mr. TRUMBULL. If the Senator persists in his motion I will not antagonize with him, but this other bill has been up, and I suppose it is of no sort of importance whether the Post Office appropriation bill passes now or a month hence; it will certainly pass at some time.
Mr. SHERMAN. It will take but a few
minutes to dispose of it, and as I have the floor I insist on my motion.
Mr. TRUMBULL. It will probably prevent our considering the other bill to-day.
The motion of Mr. SHERMAN was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending the 30th of June, 1867, and for other purposes.
The Committee on Finance reported the bill with amendments. The first amendment was in section two, line five, after the word "appropriated," to strike out the words "to take effect so soon as Brazil shall have performed the condition on her part provided in the law authorizing said service," and at the end of line nine to add the following proviso:
And be it further enacted, That in all cases in which persons have been appointed as assistant postmasters, either during the session or the recess of the Senate, and whose appointments have been submitted to the Senate and rejected or not consented to before the adjournment of the Senate, no money shall be drawn from the Treasury to pay the salary of such person, under such appointment, or under any previous appointment as such postmaster, after said adjournment.
Mr. JOHNSON. Two or three of the Attorneys General-I forget who they were-and the President has acted upon it from time to time, have held that an appointment made during the recess continues up to the close of the next succeeding session, whether the nomination has been submitted to the Senate and rejected or not. This is the received opinion now of the Government, and has been acted upon from the days of General Washington, I believe, but certainly from the days of Mr. John Quincy Adams; but this amendment, if I understand it, holds a doctrine directly the reverse of that.
Mr. HENDERSON. No, sir. The salary may be paid until the adjournment.
Mr. JOHNSON. I ask for the reading of the amendment again. Perhaps I did not understand it.
The Secretary read the amendment. Mr. HENDERSON. The Senator will observe that the last words of the amendment
ing to have an office when there is no such office. The Constitution of the United States authorizes the President of the United States to appoint all officers created by that instrument or which shall be established by law; but he cannot appoint to an office that is not established by law. Another clause of the Constitution directs that officers shall be appointed by and with the advice and consent of the Senate; and still another clause that the President may make temporary appointments to offices in cases of vacancies which occur during the recess of the Senate, and the appointee shall hold his office until the close of the next session of the Senate. That is a valid appointment, and such an officer is authorized to be paid. But if the vacancy exist while the Senate is in session, it is the duty of the Executive to fill it, and he has no authority to fill it afterward. The Constitution of the United States vests him with no such power. It is only when a vacancy happens during the recess that he can fill it without the advice and consent of the Senate. If, then, a vacancy exists now or before the Senate adjourns, while it is in session, there is but one way under the Constitution of the United States to fill that office, and that is, by and with the advice and consent of the Senate; and if the President omits to make a nomination, or makes a nomination which is rejected by the Senate, the office must go vacant until the Senate shall meet and confirm the appointment.
are "after said adjournment;" that is, after the adjournment of the Senate. The Senator will see that it does not interfere with the payment up to the date of adjournment. I drew it in reference to that. I drew it in a great hurry, My intention was to permit the salary to be paid until the last day of the session, but, beyond that it is not to be paid. The amendment does not conflict with the opinions to which the Senator refers.
Mr. NESMITH. I will inquire of the Senator from Missouri, if it is contemplated by this amendment to prevent the payment of salary to a person if he should be reappointed after the Senate adjourns.
Mr. HENDERSON. Certainly not. We have no control over that.
Mr. TRUMBULL. I hope the amendment will cover the case suggested by the Senator from Oregon, else it will be a useless provision. If the President the moment the Senate adjourn can reappoint whom he pleases when the vacancy has previously existed, and pay him, the confirmation of the Senate amounts to nothing, and the Senator's amendment amounts to nothing. I think it ought to embrace those cases. While I am up, I wish to suggest to the Senator from Missouri another amendment which I think is necessary. Some years ago, I think in 1863, a provision was inserted in an appropriation bill to prevent the payment of salaries to persons who were appointed as officers in cases where no such office existed, and also to prevent the payment to persons who were appointed to fill vacancies, which vacancies had existed while the Senate was in session and were not filled until after its close. That provision, I think, read something like the one which the Senator from Missouri has now introduced. It prohibited the drawing of any money from the Treasury, as I recollect it, to pay those officers. But the point to which I desire the attention of the Senator from Missouri is this: notwithstanding that provision of the law, the Government found no difficulty in paying the persons whom it undertook to make officers without authority of law, out of the departmental contingent funds. The money was not drawn for that purpose; it was drawn as "a contingency, to pay the contingent expenses of the Department, and was then taken to pay these persons, who were not officers at all; for the President of the United States has no more anthority to make an officer, when the office is not established by the Constitution or by law, than he has to make a king. I will call attention to that provision of the statute.
Mr. HENDERSON. Do you allude to the stitute of 1863?
Mr. TRUMBULL. Yes, sir.
Mr. HENDERSON. It is on page 646 of the twelfth volume of the Statutes-at-Large. It was attached to the Army appropriation bill.
Mr. TRUMBULL. This is the provision: "That no money shall be paid from the Treasury of the United States to any person acting or assuming to net as an officer, civil, military, or naval, as salary in any office, which office is not authorized by some previously existing law, unless where such office shall be subsequently sanctioned by law; nor shall any money be paid out of the Treasury as salary to any person appointed during the recess of the Senate to fill a vacancy in any existing office, which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate."
Mr. GRIMES. I suggest to the Senator that we let this bill go over and have the amendment printed, in order to take up the habeas corpus bill.
Mr. TRUMBULL. This is, perhaps, a matter of some importance, and I think, as my friend from Iowa suggests, that we had better let it go over and let the amendment be printed, so that we may consider it carefully. I think this amendment ought to be so worded that under no circumstances could the money of the people be taken to pay persons who are holding positions not provided for by law, or are holding them contrary to the Constitution and the law. I move that this bill be postponed until to-morrow, and that the amendment offered by the Senator from Missouri be printed, in order that we may see exactly what it is.
Mr. HENDERSON. I have no objection to that course being taken, and I will add a slight amendment to the amendment as it now stands.
The PRESIDING OFFICER. It is moved that the pending bill be postponed until to-morrow, and that the amendment of the Senator from Missouri be printed. The motion was agreed to.
MESSAGE FROM THE HOUSE.
A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House of Representatives had passed the bill (S. No. 248) for the relief of James G. Clarke.
ENROLLED BILLS SIGNED.
The message further announced that the Speaker of the House of Representatives had signed the following enrolled bill and joint resolution; which were thereupon signed by the President pro tempore of the Senate:
A bill (S. No. 248) for the relief of James G. Clarke; and
Notwithstanding that statute, persons were paid out of the contingent fund, as we have learned in response to our resolutions of inquiry, introduced at the present session, I think, by the Senator from Massachusetts, [Mr. SUMNER.] The different Departments admit that they have been paying officers
Mr. SUMNER. In violation of law? Mr. TRUMBULL. They have done it, I think, out of the contingent fund. I believe their responses show that. I think it is a virtual violation of the law; it is a violation of the spirit of the act. But I would take away the subterfuge; I would provide in this section that no money shall be drawn from the Treasings in certain cases,
ury for that purpose, and no money shall be paid out of any fund whatever to persons claim
39TH CONG. 1ST SESS.-No. 127.
A joint resolution (H. R. No. 102) for the relief of Alexander Thompson, late United States consul at Maranham.
PROTECTION OF UNITED STATES OFFICERS. Mr. CLARK. I move that the Senate now proceed to the consideration of House bill No. 238, in relation to the habeas corpus.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the bill (H. R. No. 238) to amend an act entitled "An act relating to habeas corpus, and regulating judicial proceedapproved March 3, 1863, the pending question being on the amendment reported by the Committee on the Judi
ciary to add at the end of the first section the following:
But no such order shall be a defense to any suit or action for any net done or omitted to be done after the passage of this act.
Mr. EDMUNDS. I propose to amend the amendment reported by the committee by inserting in line eighteen, after the word "shall," the words "by force of this act or the act to which this is an amendment;" so that it will read:
But no such order shall, by force of this act, or the act to which this is an amendment, be a defense to any suit or action for any act done or omitted to be done after the passage of this act.
Mr. CLARK. I think there is no objection to that amendment; I believe, on the whole, that it is proper.
The amendment to the amendment was agreed to.
The amendment, as amended, was adopted. Mr. EDMUNDS. I now move, in section one, lines three and four, to strike out the words or other trespasses or wrongs done or committed."
The object of this amendment is, not to diminish the scope of subjects upon which this section operates, but to take out from the section what is a manifest admission that certain trespasses and wrongs have been done and committed which Congress is asked to justify by a mere enactment or edict. For one, I do not admit that the searches, seizures, arrests, and imprisonments which we design to reach are either trespasses or wrongs; and it will be anomalous, it appears to me, in legislation to declare in a law which we pass, that we do justify, even if we have the power, anything which is a trespass or a wrong, an act for which a citizen is entitled, by all the principles of law, to redress. Therefore, my design is that these obnoxious words, to me, may be stricken out, so that the section will read: "that any search, seizure, arrest, or imprisonment made, or any acts done or omitted," &c., without giving character to the act. Let the law decide that.
Mr. HOWARD. I see the object of the Senator from Vermont, but it occurs to me that we should retain the words "trespasses or wrongs." The language of the section applies it only to cases of search, seizure, arrest, or imprisonment; that is to say, that will be the application if the amendment is carried. It' seems to me I would not narrow it down to that particular description of acts. There may be some acts performed which are neither searches, seizures, arrests, nor imprisonments, which ought to come within the purview of the act. I therefore venture to suggest to the honorable Senator that he modify his amendment so as to insert the word "alleged" before "trespasses;" so that the section would read, "or other alleged trespasses or wrongs done or committed." Will not that meet the idea which the Senator entertains?
Mr. EDMUNDS. It appears to me that the terms following the words "imprisonment made," which are," or any acts done or omitted to be done during the said rebellion," &c., are as broad as language can possibly be made. They are words of the most general character; and therefore my friend from Michigan is mistaken when he supposes that this section will be confined to searches, seizures, arrests, and imprisonments, merely; because then, with the amendment, the bill proceeds to declare in the broadest possible terms, "any acts done or omitted to be done during the said rebellion." If we desire by language which is perfectly supreme in its scope to cover every species of act which may be done, I am sure no more chosen or fit language could possibly be adopted; and therefore it appears to me for the sake of good taste, as well as for the sake of consistency, we ought not to begin an enactment in this Congress by declaring that we justify by a mere edict anybody's trespasses or anybody's wrongs.
Mr. CLARK. I think this is mainly a question about the construction of the bill, or rather a question of verbiage more than anything else,