'CONGRESSIONAL RECORD-SENATE. 1891 … · · 2018-03-201878. 'CONGRESSIONAL RECORD-SENATE. 1891 a...

1878. 'CONGRESSIONAL RECORD-SENATE. 1891 a bill to amend an act of the Wyoming Legislature-to the Committee on the Judiciarv.

By Mr. CRAVENS: The petition of W. W.Joyceandothers, against the passage of Senate bHl No. 490,relating to the Bot Springs, Arkansas-to the Committee on Public Lands.

By Mr. CUTLER: The petitions of James Jones and 400 others, and of }rank Beattie and 500 others, workingmen and operatives engaged in the silk mills at Paterson, New Jersey, against any change in the tariff on silk-to the Committee of Ways and Means.

By Mr. FINLEY: The petition of the superintendent of the Ohio Institute for the Blind, for an appropriation to print books for the blind-to the Committee of Ways and Means.

By Mr. FORNEY: The petition of citizens of Cleburne County, Alabama, for the creation of a fund from the sales of public lands and other sources, to be distributed among the States in aid of popular education-to the Committee on Education and Labor.

Also, the petition of citizens of Talladega, Alabama, that aid be extended the Texas Pacific Railroad, provided the eastern terminus of said road be located on the east bank of the Mississippi River, at. Vicksburgh, Mississippi-to the Committee on the Pacific Railroad.

By Mr. GARTH: 'fhe petitions of L. R. Davis, J. A. Moore, and other citizens of Limestone County, and of Neander II. Rice, J. K. Jackson, James R. Price, and other citizens of Lauderdale Connty, Alabama, relative to the distribution of the proceeds of the sales of public lands among the several States for educational purposes-to the Committee on Education and Labor.

By Mr. GAUSE: The petition of Juliet Campbell, administratrix, &c., for compensation for stores taken during the late war-to the Committee on War Claims.

By Mr. HALE: The petition of Paine Brothers and others, against transferring the life-saving service to the Navy Department-to the Committee on Commerce.

By Mr. HARRIS, of Georgia: The petition of 200 citizens of La Grange, Georgia, for the passage of the Texas and Pacific Railroad bill-to the Committee on the Pacinc Railroad.

By Mr. HENKLE : The petition of consumers of vinegar for areduction of the duty thereon-to the Committee of Ways and Means.

By Mr. HEWlT'l', of Alabama: The petition of M. T. Porter, Alberto Martin, E. K. }'olton, Peyton G. King, and 24 other citizens of Birmingham, Alabama, that such aid be extended the Texas Pacific Railroad as will secure its early completion-to tht) Committee on the Pacific Railroad.

By Mr. HEWITT, of New York: Memorial of a committee of the medical society of the county of New York, New York, asking an appropriation to complete the subject catalogue of the National Medical Library of Washington, District of Columbi~to the Committee on Appropriations.

By Mr. ITTNER: The petition of citizens of Saint Louis, against reviving the income tax-to the Committee of Ways and Means.

By Mr. JACOBS: The petition of the publisher of the Statesman, Walla Walla, Washington Territory, for the abolition of the duty on type-to the same committee .

.Hy Mr. JONES, of Alabama: The petition of L. E. Brooks and other citizens of Mobile, Alabama, that aid be extended the Texas and Pacific Railroad-to the Committee on the Pacific Railroad.

Also, the petition of citizellB of Clarke County, Alabama, for the diMtribution among the several States of the proceeds of the sale of public lands, in aid of popular education-to the Committee on Education and Labor.

By Mr. KETCHAM: The petition of Smith Brothers, Eastman & Lace, and 132 others, citizellB of Ponghkeepsie, New York, that provision be made for the redemption at their full value of the threecent silver coin now in circnlation-to the Committee on Coinage, Weights, and Meaaures. 1 By Mr. KILLINGER: The petition of citizens of Pennsylvania, against the revival of the incometax-totheCommitteeof Ways and Meall8.

By Mr. LANDERS : The petition of W. R. Cone and 152 others, of Hartford, Connecticut, against reviving the income tax-to the same committee.

By Mr. LINDSEY: The petition of the publishers of the Farmington (Maine) Chronicle, for the abolition of the duty on type-to the same committee.

By Mr. LUTTRELL: The petition of the mannfacturers of linen collars, &e., at Troy, New York, for a reduction of the duty on linen fabrics-to the same committee.

Also, the petition of James Purcell and 30 other citizens of California, against the extension of time to the Southern Pacific Railroadto the Committee ou the Pacific Railroad.

By Mr. McCOOK: The petition of 150 citizens of New York City, for the passage of the bill (H. R. No. 2488) to amend title 53 of the Revised Statutes relating to merchant-seamen-to the Committee on Commerce.

By Mr. MORRISON: Tho petition of the publi8her of the Virden (Illinois) Record, for the abolition of the duty on type-to the Committee of Ways and Means.

By Mr. MORSE: The petition of the mayor of Boston, Massachusetts, and others, for a survey of Charles River to the head of tidewater with a view to the improvement of navigation-to the Com-mittee on Commerce. .

By Mr. NEAL: The petitions of J.P. Sampson and 33 others, and of Joseph Longstreth and 75 others, citizens of Hocking County, Ohio, against any change of the tariff-to the Committee of Ways and Means.

By Mr. O'NEILL: The petition of a large number of printers, stereotypers, electrotypers, booksellers, engravers and others, against the action of the Committee of Ways and Means in not imposing a. duty on imported stereotype and electrotype printing plates-to the same committee.

By Mr. REA: Three petitions from citizens of Holt and Gentry Connties, Missouri, for the application of the proceeds of the sales of public lands to educational purposes-to the Committee on Educa--tion and Labor. .

By Mr. SPARKS: The petition of John Thompson, J. F. Kenn{'dy, and others, of Illinois, in relation to diseases of swine-to the Committee on Agriculture.

By Mr. STENGER: The petition of 328 citizens of Hnntingdon Connty, Pennsylvania, against any change in the tariff laws-to the Committee of Wflys and Means.

By Mr. TUCKER: Papers relatin~ to the war claim of Samuel H. Sonner-to the Committee on War t;laims.

By Mr. WILLIAMS, of Alabama: Petitions from citizens of Cullman and other counties of Alabama, that aid be extended the Texas Pacific Railroad-to tht\ Committee on the Pacific Railroad.

Also, a paper relating to the establishment of a post-route from Elba, Alabama, to Ucllee Anna, Florida-to the Committee on the Post-Office and Post-Roads.

By Mr. WILLIAMS, of Michigan: The petitions of Robert Smith and others, of A. K. Burnham and others, of Timothy Welsh and others, of George E. Lillie and others, of Thomas Zim her and others, of Michael Blum and others, of Marks B{'armaun and others, of A. Taunenbalz and others, of M. Truba and others, of James Burns and others, of Charles Lanthier and others, and of Alfred Rooks and others, all of Michigan, for the passage of the bill (H. R. No. 292) to incorporate the National Iron Molders' Union of North America-to the Committee on Education and Labor.

By Mr. WILLIAMS, of Oregon: The petitions of the publishers of the Coos Bay News, Marshfield, Oregon, and of the Corvallis (Oregon) Gazette, for the abolition of the duty on type-to the Committee of Ways and Means.

IN SENATE. WEDNESDAY, March 20, 1878.

Prayer by Rev. J. N. DAVIS, of Baltimore. The Journal of yesterday's proceedings was read and approved.

PETITIONS AND MEMORIALS.

Mr. HAMLIN. I present the memorial of William W. Thomas, of Portland, Maine, and something more than 200 merchants, bankers, and b11Biness men of that city, remonstrating against the revival of the income tax. I wish to say that these memorialists are among the most intelligent and active business men of that city, and I think their remoDBtrance entitled to respect if there is any class of men in our community whose opinions are to be respected. They remonstrate against it, first, because such a tax is impolitic; second, because it is unjust; third, becallBe its fair collection is impossible, and I think that will meet the approval of every intelligent man who observed the enforcement of the late income-tax law ; and fourth, beca118e it is unconstitutional. I move that the memorial be referred to the Committee on Finance.

The motion was agreed to. Mr. SPENCER presented the petition of John M. Judah and others,

citizens of New York City, and heirs of Samuel Judah, deceased, praying cornpell8ation for supplies furnished to the continental army during the war of the Revolution; which was referred to the Committee on Military Affairs.

Mr. BUTLER presented the memorial of J.D. Charles and others, workingmen of the Reedy River Fact.ory, South Carolina, engaged in the manufacture of cotton, remoll8trating against a reduction of the duties on foreign imports, and against the reimposition of the war tax on tea and coffee; which was referred to the Committee on Finance.

Mr. EATON presented the memorial of Cornelins O'Neil and others, business men of Connecticut, remonstrating against the passage of any act imposing a tax on incomes; which was 1-eferred to the Committee on Finance.

Mr. M~Y presented the petition of A. A. Kennedy & Brother, of Dallas County, Texas, praying compeDBation for cotton taken from them by the United States military forces at Rome, Georgia, during the late war, and that the papers relating to the case now on file iu the Treasury and War Departments be called for and made part of the petition; which was referred to the Committee on Claims.

Mr. MORGAN. I present the petition of J. C. Compton and others, citizellB of Alabama, praying an appropriation by Congress to aid in the CODBtruction of the Texas and Pacific Railway from Vicksblll'~h, Mississippi, to San Diego, Cl:lolifornia. I wish tq state at th~ j;afll~

1892 CONGRESSIONAL RECORD-SENATE. MARCH 20,

time that I disapprove of the sentiments of the petitioners. I move the reference of their petition to the Committee on Railroads. · The motion was agreed to.

:Mr. COCKRELL. I present a memorial signed by R. M. Parks, 0. Garrison, Webb M. Samuel, A. B. Garrison, and 2'2 others, citizens of Saint Louis, Missouri, protesting against the passage of any bill reviving tho income tax. The memorial is printed, and of the same form as those which have been sent out from the ru!SOciation, I believe in Boston. I thought I had the circular which accompanied it. I present the memorial and ask its reference, without in any wise committing myself either to the reasoning or the law, as stated in it.

The 'VICE-PRESIDENT. The memorial will be referred to the Committee on Finance.

Mr. MATTHEWS presented the memorial of B.S. Nichols & Co. and others, of Burlington, Vermont, boiler-makers, machinists, and others using steam in their operations, remonstrating against the imposition of a ~~her rate of duty on wrought-iron lap-welded boiler :fines and tubes tnan is charged on other manufactures of iron as proposed in the pending tariff' bill; which was referred to the Committee on Finance.

Mr. HOAR presented the memorial of William 0. Kelly and others, workingmen of Fitchbnrgh, Massachusetts, engaged in the manufacture of carpet-warp, remonstrating against a reduction of th_e duties on foreign imports and against the reimposition of the war tax on tea and coffee; which was referred to the Committee on Finance.

Mr. HOAR. I also present the petition of R. B. }..,orbes and others, citizens of Boston, Massachusetts, praying that the life-saving service be continued under its present management. This petition is signed by pilots and other persons who are familiar with the sea and coast, master-mariners of great experience, and many ship-owners. The first petitioner, Mr. R. B. Forbes, is perhaps as hi~p an authority on this subject as any man in the United States. lie is an aged man, who baa beenaverydistinguishedship-master and merchant for many years. He hllB been the president or leading manager of the Humane Society in Boston, and be is the gentleman who a generation ago was deputed by our Government to take command of the ship which bore the relief at the time of the famine in Ireland. Mr. Forbes accompanies this petition with a very well-reasoned and sensible communication setting forth his reasons against the transfer of the life-saving service, and conveying the opinions of some naval officers of great distinction.

The VICE-PRESIDENT. The petition will lie upon the table, the bill to which it relates having been reported to the Senate.

Mr. ARMf:lTRONG presented the memorial of Aldus Eckman and others, citizens of Missouri, remonstrating against the passage of any act imposing a tax on incomes; which was referred to the Committee on l'inance.

Mr. GROVER presented the petition of C. H. Woodward and others, citizens of Portland, Oregon, praying that the Territory of Alaska be attached to the district of Oregon for judicial purposes; which was referred to the Committee on the Judiciary.

He also presented a resolution in the nature of a petition of the commissioners of Umatilla County, Oregon, praying to be allowed ihe right to construct a road through the Umatilla Indian reservation, and to construct a bridge across the Umatilla River, in that State; which was referred to the Committee on Indian Affairs.

Mr. JONES, of Florida, presented a joint resolution of the Legislature of Florida, in favor of the pMBage of an act by Congress authorizing the State of Florida to incorporate the seminary fund and the agricultural college fund of that State into the common school fund, and for the application of the income thereof to the support of common schools, &c.; which was referred to the Committee on Education and Labor.

Mr. :MITCHELL presented the petition of James C. Fox, of Oregon, praying for compensation for the destruction by fire of his vessel, the steam-tug Sedalia, while in the employ of the United States as a -tender to the United States dredger employed in dredging the Columbia and Willamette Rivers; which was referred to the Committee on Claims.

Mr. DAVIS, of Illinois. The Chamber of Commerce at Cairo, Illinois, have determined to memorialize Congress to pass the bill presented by the senior Senator from Missouri [Mr. CoCKRELL] the other day in relation to the improvement of the navigation of the Mississil'pi River. They consider the provisions of the bill as wise and calculated to insure the object desired. I present their memorial in favor of the passage of the bill, and move its reference to the Committee on Commerce.

The motion was agreed to. REPORTS OF Cm!MITTEES.

:Mr. McMILLAN, from the Committee on Claims, to whom was referred the bill (S. No. 250) for the 1·elief of the National Bank of Western Arkansas, submitted an adverse report thereon, wilh a recommendation that the bill be indefinitely postponed.

Mr. GARLAND. I desire that the bill be placed on the Calendar. The VICE-PRESIDENT. The bill will be placed on the Calen

dar with the adverse report of the committee, which will be printed. .Mr. CAl\1ERON, of Wisconsin, from the Committee on Claims, to

whom was referred the petition of Isaac Bloom, of New Orleans, Louisiana, praying compensation for personal property alleged to

have been taken and used byth0Army of the United States at Jackson, Mississippi, in lf:l63, submitted an adverse report thereon; which was ordered to be printed, and the committee were discharged ~rom the further consideration of the petition.

Mr. WINDOM, from the Cominittee on Appropriations, to whom was referred the bill (H. R. No. 3846) to provide for a deficiency in the miscellaneous fund of the Honse of Representatives, reported it with an amendment.

Mr. TELLER, from the Committee on Claims, to whom was referred the bill (S. No. 913) for the relief of Nicholas Wax, Michael Granary, and Moline Lange, reported it without amendment, and submitted a report thereon, which was ordered to be printed .

.Mr. HOAR. I am instructed by the Committee on Claims, to whom was referred the bill (S. No. 61) for tlie relief of the Richmond Female Institute of Richmond, Virginia, to report it without amendment, and submit a report thereon. I desire that the report shall be printed with a previons report made by the Senator from Missouri LMr. COCKRELL] in the same case.

The VICE-PRESIDENT. The reports will be printed and the bill placed on the Calendar.

.Mr. HARRIS, from the Committee on Claims, to whom was referred the petition of T. A. Walker, praying to be reimbursed for the amount of certain moneys paid by him for clerk hire while acting as register of the United States land office at Des Moines, Iowa, submitted a report thereon, accompanied by a bill (S. No. 954) for the relief of Thomas A. Walker.

The bill was read twice by its title, and the report was ordered to be printed.

He also, from the same committee, to whom was referred the bill (H. R. No. 2000) for the relief of James Fishback, late collector of internal revenue, tenth district, State of Illinois, reported it without amendment, and submitted a report thereon, which was or<lered to be printed.

Mr. SPENCER, from the Committee on Military Affairs, to whom was referred the bill (S. No. 937) to recognize and pay certain claimB due by the State of West Virginia to citizens thereof, for services rendered in suppressing the late rebellion, and which are properly chargeable to the United States, with certain papers connected with those claims, asked to be discharge(l from its further consideration and that it be referred to the Committee on Claims; which was agreed to.

Mr. ALLISON, from the Committee on Indian Affairs, to whom was referred the bill (S. No. 366) for the relief of Rollin J. Reeves, asked to be discharged from its further consideration, and that it be referred to the Committee on Claims; which was agreed to.

:Mr. INGALLS. House bill (No. 1135) to authorize the issue of a patent of certain lands in the 13rothertown reservation, in the State of Wisconsin, to the persons selected by the Brothertown Indians, was referred, by order of the Senate, to the Committee on Indian Affairs. As the Brothertown Indians have dissolved their tribal relations and have been absorbed into the body of the citizens, and as there are no records before the Indian Department affecting the title to their lands, the committee believed that the bill should properly go to the Committee on Public Lands.

The VICE-PRESIDENT. The Committee on Indian Affairs will be discharged from the further consideration of the bill, and it w-ill be referred to the Committee on Public Lands if there be no objection.

Mr. SARGENT, from the Committee on Naval Affairs, to whom was referred the petition of Passed Assistant Engineer Absalom Kirby, United States Navy, praying the pay of his present grade from October 11, 1866, to the date of his commission as a passed assistant engineer, submitted an adverse report thereon; which was ordered to be printed, and the committee were discharged from the further consideration of tho petition.

Mr. MORGAN, from the Committee on Claims, to whom was referred the bill (S. No. 271) for the relief of W. B. Gasa, Michael Calla-ghan, and the estate of John Waters, deceased, aske<l to be discharged from its further consideration, which was agreed to; and he submitted certain reports, which were ordered to be printed, accompanied by the following bills; which were severally read twice by their titles :

A bill (S. No. 955) for the relief of the estate of John Waters; A bill (S. No. 956) for the relief of W. P. Grace, as the administrator

of W. B. Gasa; and A bill ( S. No. 957) for the relief of Michael Callahan.

BILLS INTRODUCED. Mr. BURNSIDE asked, and by unanimous consent obtained, leave

to introduce a bill (S. No. 958) for the relief of George Clendenin, jr.; which was read twice by its title, and refened to the Committee on Claims.

Mr. MITCHELL asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 939) for the protection of homestead settlers -on the public la.nds; which was read twice by its title, and referred to the Committee on Public Lands.

He also asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 960) for the relief of James C. Fox; which was read twice by its title, and referred to the Committee on Claims.

He also asked, and by unanimous consent obtained, leave to intro·

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1878. CONGRESSIONAL RECORD-SENATE. 1893 duce a bill (S. No. 961) for the establishment of a certain post-route in the State of Oregon; which was read twice by its title, and referred to the Committee on Post-Offices and Post-Roads.

Mr. FERRY asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 962) granting a pension to William Criddle; which was read twice by its title, and referred to the Committee on Pensions.

:Mr. SAUNDERS ~ked, and by unanimons consent obtained, leave to introduce a bill (S. No. 963) to amend the record of a naval officer; which was read twice by its title, and, with the accompanying papers, referred to the Committee on Naval Affairs.

:Mr. SPENCER asked, and by unanimou.s consent obtained, leave to introduce a bill (S. No. 964) for the relief of the owners of the bark Grape-shot; which was read twice by its title, and referred to the Committee on Commerce.

?tir. BRUCE asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 965) for the relief of Ennice J. Stockwell; which was read twice by its title, and referred to the Committee on Claims.

Mr. JONES, of Nevada, asked, and by unanimons consent obtained, leave to introduce a bill (S. No. 956) to establish certain post-routes in the State of Nevada; which was read twice by its title, and referred to the Committee on Post-Offices and Post-Roads.

Mr. ALLISON asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 967) to repeal the pre-emption laws, and to provide for the sale of timber upon the public lands of the United States; which was read twice by its title, and referred to the Committee on Public Lands.

Mr. KERNAN asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 968) to provide for the appointment of two additional district judges in and for the second judicial circuit; which was read twice by its title, and referred to the Committee on the Judiciary.

Mr. VOORHEES asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 969) granting a pension to Mrs. N. E. Belrichards; which was read twice by its title, and referred to the Committee on Pensions.

Mr. PLUMB asked, and by unanimous consent obtainedz leave to introduce a bill (S. No. 970) for the relief of Samuel B. Bnghtman; which was read twice by ita title, and referred to the Committee on Military Affairs.

WITHDRAW .AL OF PAPERS.

On motion of Mr. McPHERSON, it was Ordered, That permission be granted to withdraw from the files of the Senate

papers relating to the claim of A. Henderson, late consul at Londonderry, Ireland.

PRINTING OF PAPERS.

Mr. MORRILL. I am instructed by the Committee on Finance to ask an order to have some tables and statements made to the Committee on Finance by the Secretary of the Treasury printed for the use of the committee. I submit that motion.

The motion was agreed to. . DEBATE ON APPROPRIATION BILLS.

Mr. WINDOM. I submit the following resolution, and ask for its present consideration:

Resolved, That durin" the present session it shall be in order a.t any time, pend. in~ an appropriation bill, to move to confine debate on amendments thereto to five mmutes by any Senator on the pending motion, and such motion shall be decided without debate.

The VICE-PRESIDENT. Is there objection to this resolution f Mr. SARGENT. What is the proposition T The VICE-PRESIDENT. It will be again reported. The Chief merk read the resolution. Mr. WINDOM. The Senator from California will see that it is not

applied to any particular bill Mr. INGALLS. Does it mean the session of to-day! Mr. WINDOM. It includes the whole of this session of the Senate.

It applies to any appropriation bill, and it may be applied at any time pending the consideration of such a bill.

Mr. INGALLS. I think it is too early to adopt such a rnle. I object. Mr. WINDOM. I want to appeal to the Senator a moment and I

think he will not object. I think the Senate will bear me witness that this five-minute role has. not been misapplied or used in any means to prevent proper debate. I ask that the resolution be put on its passage now so that hereafter when a majority of the Senate desire to enforce the rule they can do so.

Mr. SARGENT. If it shall not apply to the pending appropriation bill I have no objection to it.

Mr. WINDOM. The rule maybe applied at anytime by a majority of the Senate.

Mr. MORRILL. It may not apply to the pending amendments. Mr. WINDOM. lt may not be applied to the pending amendments

on the bill which is under debate, if Senators desire. Mr. SARGENT. All right. Mr. WINDOM. If there is objection the resolution must go over,

of course. Mr. SARGENT. I do not object1 with the limitation stated. I do

not want to be cut off on the pending appropriation bill. Mr. WINDOM. It is the same role heretofore adopted. '

Mr. INGALLS. I object. The VICE-PRESIDENT. Objection being made, the resolution goes

over. TIMBER CULTURE ON PUBLIC Lllt."'DS.

Mr. PAD DOCK. I move that we again proceed to the consideration of Senate bill No. 39().

The motion was agreed to; and the Senate, as in Committee of the. Whole, resumed the consideration of the bill (S. No. 395) to amend section 2464 of the Revised Statutes, relating to tho cultivation of timber on the public domain.

Mr. PAD DOCK. I ask for the reading of the bill as amended. The VICE-PRESIDENT. The Secretary will report the bill as

amended. The Chief Clerk read as follows: Be it enacted, &c., That section 2464 of the Revised Statutes be, and the same is

hereby, amended so as to read as follows, to wit: ''Every person who plants, protects, and keeps in a healthy growing condition for

ten years ten acres of valuable forest timber, the trees thereon not being more than four feet apart each wa.y, on any quarter.section of the public lands, shall be enti· tied to a patent for such quarter section at the expiration of ten years, on making proof of such fact by not less than two credible witnesses: Provided, That only one quarter in any section shall be thus granted, and that only one quarter section shall be thus granted to any one person: And provided further, That any person who shall have heretofore planted and cultivated trees not more thn.n twel¥e feet apart each way to the extent of twenty acres or more on one quarter section, and who shall in all ot-her reapect.a comply with the requirements of this act, shall be entitled to ita privileges and benefits." -

The VICE-PRESIDENT. The pending question is on the amendment proposed by the Senator from Kentucky [Mr.13ECK] to strike out all of the bill after the enacting clause ancl insert:

That section 2464 of the Revised Statutes be, and the same is hereby, repealed.

Mr. BECK. Mr. President, during the discussion yesterday when the Senator from West Virginia [Mr. HEREFORD] was stating what I thought to be very valid objections to the bill, a suggestion was made that a proposition embodying the idea. of my amendment should be presented in the proper form for discUBsion. I therefore offered the amendment substantially agreeing with the idea. I desire now to say to the Senate that I am not in a position to be informed relative to the merits of this bill nor am I sufficiently informed as to the effect of the repeal of the section. It is a question that I have not studied at all. I merely presented the amendment in order that it miglit provoke some discussion and to see what ought to be done with. the subject. I ask, therefore, the leave of the Senate to withdraw the amendment. I do not desire t. o antagonize the Committee on Public Lands.

The VICE-PRESIDENT. The Senator may withdraw his amend-ment without the leave of the Senate.

Mr. BECK. I withdraw it. The VICE-PRESIDENT. The Senator withdraws the amendment. The bill was reported to the Senate ~ amended, and the amend-

ments made as in Committee of the Whole were concurred in. :Mr. SARGENT. After the' word "person" in ine 6, I move fur

ther to amend by inserting "being an adult citizen of the United States, or who has declared his intention to become a citizen;" so as to rea.O.:

Every person being an adult citizen of the United States, or who bas declared his intention to become a citizen, who plants, p-:-otects, and keeps in a healthy growing condition for ten years ten acres of valuable forest timber, &c.

The amendment was agreed to. Mr. SAULSBURY. Mr. President, I shall vote against this bill. I

do not see any propriety in giving away all the public lands upon every possible pretext that can arise. The proposition of the bill is simply that when any person goes on the public domain and plants a certain quantity of trees and keeps them for ten years, the land shall be given to him. There has been a large donation in one way or other of the public domain, and this is another effo£t to take a slice off the public lands of this country. I do not believe that it is wise legislation to be giving away the public lands, which in years past were a source of revenue to this Government, and the proceeds from the sale of them came to the relief of the tax-payers of the country. I see no advantage whatever to arise to the Government in consideration of this donation of the public lands. It is simply a g~atnitv to any one who will go upon land and plant trees, for he 1s to become the owner of a certain tract of land at the expiration of ten years. I therefore, for one, shall vote against this bill.

:Mr. PAD DOCK. I want to say just one word in answer to the Senator from Delaware. While ·the legislation he speaks of seems to be improvident and too generous, I wish to state to him that by reason of just such liberal legislation as that there has grown up west of the Missouri River the State of Nebraska, which to-day in respect of internal revenue paid for the support of this Government stands the t~ntieth on the list. It pays more money into the 'freasnry of the United States through its revenue than sixteen or seventeen States, among which I may name the State that my friend represents. It pays more in the way of internal-revenue taxes than the entire aggregate paid by eight of the older States which I could name.

Mr. SAULSBURY. It may be true, Mr. President, that the State which the Senator represents pays a large amount in the public Treasury; but I do not see that because her people pay their just proportion of the public expenses the Government of this country is under obligation to donate to every citizen of Nebraska or Kansas or any of the Western States a. portian of the public domain. The States

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along the Atlantic coast to which the Senator has referred have been exceedingly liberal. They have had no grants of public lands for educationaJ purposes or otherwise; and yet the State which the Senator represents and other States have had large donations of the public lands for educational pnrposes and for railroad purposes and for vnriouR other purposes.

Besides that, I say the history of this country proves that a very large proportion of the public domain has been given as gratuities to corporations and to the citizens of those Western States; and it ill becomes the ~nator, because they have grown under the liberal patronage of this Government into large States, paying large amounts of revenue, now to rise in his place and say that his State pays a much larger revenue than many of tho States in the eastern section of the country. Why, air, but for our States aJong the cast~rn border, the thirteen original States, that sent out there colonists and planted the new States, they would not have been in existence to-day. 'Ve have been exceedingly liberal to them and are willing to be perfectly just; but we are 11ot willing, after there has been such bounty and liberality extended toward the Western States, that they shall come in here and demand a larger slice of the public terTi tory.

I shall call for the yeas and nays on the passage of this bill, so that we may see who is willing to give away more of the public domain.

Mr. PAD DOCK. I just want to say that I did not mean to speak one word of disparagement of those States. I only wished to remind them that we bad used the opportunities which they had given us most v.aluably for the Government and the country.

Mr. 'WINDOM. Mr. President, so much has been said within the last two days in the line of remark pursued by my friend from Delaware that I feel inclined to say a single word on the same subject. For one, representing a new western Stato, I want to thank our friends from the older States for their wise statesmanship. I think they have dealt generously with the new States of the West; hut when it is stated, as it has been by the Senator from Delaware and others, that all these grants of lands are gratuities, I must be permitted to take exception to that word. The grants made for railroads in the West are not gratuities. They were not so regarded when they were mad~. The principle upon which they are made shows that they are not now regarded aB gratuities; they never have been so regarded. When you granted tho odd sections you doubled the price of the even sections, so that you get from the settlers precisely the same as if you had never granted one acre of land to railroads. Is that then a gratuity f I think not, Mr. President.

It was said by several Senators yesterday that by the homestead act you gave away the lands to the western settler. Upon what condition did you do itT Upon the principle proclaimed at the time that five years' occupation and improvements were of more value to the Government than the lands themselves. I believe that is the fact today. Every acre of land settled upon under the homestead law has been of more value to the Government than if sold for one dollar and a quarter an acre. So that I do not see where this gratuity comes in. I nmst say that onr friends have dealt fairly andhonorauly and generously, but we have paid, back a full eqnivaJent, yes, more than a hundred-fold in the increase of natural weaJth, in widening the basis of tax:ltion and in actual taxes paid for every dollar that has been voted as so-cal1ed g~:atuities. That is all I want to say.

Mr. SARGENT. Mr. President, what is the condition of the bill T Has it been ordered to be engrossed yet T

The VICE-PRESIDENT. It has not. The question is, shall it be engrossed for a third reading. · (

:Mr. SARGENT. Defore that question is taken I wish to move an amendment to insert in the last line, after the word ''benefits," the words "to the extent of one quarter section only." I have no doubt the friends of the bill will accept this in the sa-q~.e spirit in which they accepted a previous amendment I offered, pronding that only one quarter section in a section shaJl be granted, and that only one quarter section shall be granted to a single person.

Mr. President, of course the friends of the bill in the Senate desire that there shall be honest tree-planting, that forest culture shall take place upon the prairies; and that will be a very great State benefit, and induce important climatic changes as well as furnishing valuable wood for commercial purposes and for mechanical and other purposes; but they do not desire that the bill shall be made a means of speculation, or that under the cover of this bill persons who heretofore have strained previous legislation for speculative purposes for their benefit shall receive at our hands now a sanction of such conduct. I provide that persons who have heretofore planted and cultivated trees twelve feet apart shall have all the benefits of this bill to the extent of a quarter section, which is all the benefit to be allowed to any one hereafter planting trees under it. I think there can be no objection to it.

The VICE-PRESIDENT. The question is on the amendment of the .Senator from California.

The amendment was agreed to. · Mr. MORRILL. I propose to amend the bill by inserting after the

word "timber,'' in line 7, the words "not including cottonwood, poplar, and willow." I presume, as a matter of course, the friends of the bill desire to have some sort of timber that shall be of some value, if planted and cultivated for ten years. Now, it is a very easy matter to take a kind of timber that can be grown by cuttings and sticking down a single joint of it over .ten acres of land.

Mr. SAIDH>ERS. What kind oi timber. Mr. MORRILL. Take the poplar or willow. I only suggest this

to the friends of the bill. I think it ought to be something of some value, and not merely sticks. Of course, there is a great variety of forest trees, and some of them are worth twenty and even forty times more-than others. Take the ailanthus, that seems to be under the ban here; yet if it is grown in quantities, after a reasonable time it becomes valuable timber, and that can be grown as easily as willow or poplar.

The VICE-PRESIDENT. The question is on the amendment of the Senator.from Vermont.

Mr. PAD DOCK. Mr. President, !would much rather the bill should be defeated altogether than that the amendment should be adopted. If my friend from Vermont waa as wise in reference to the cultivation of timber in the West, particularly upon the plains west of the Missouri River, as he is with reference to ita cultivation in the State of Vermont, be certainly would consider that he had moved a very absurd amendment. The cottonwood is the pioneer tree of the plains; its growth is rapid, its shade is delightful; it is a valuable tree for lumber and for fuel; the most valuable tree we can have on the plains, that we can produce rapidly ; and it would be the severest bardshi p upon the forest-culture of that region if the cottonwood should be excepted. ·

Mr. MORRILL. Does the Senator object T Mr. PADDOCK. I will state to the Senator in addition that I have ·

on my farm in the State of Nebraska a grove of cottonwood that I \alue as highly aa I should one of any other varieties of trees that could be placed upon the land.

Mr. MORRILL. Does the Senator atta~h the same value to the willow and to the poplar T

Mr. PADDOCK. Willow and poplar have not been cultivated there yet at all, and I do not know. It is well enough to leave it as it is and let those who are interested in forest-culture in that country determine for themselves what varieties they will select. They will be sure to select those varieties which will grow most rapidly and be most productive and useful to them when grown.

I hope my friend will withdraw his amendment. Mr. McMILLAN. I certainly concur with the remarks made by the

Sen a tor from Nebraska with reference to the kind of tim bertha t should be planted there. The cottonwood tree should not be excluded from the kind of trees to be planted under this act. As I understand it, the cottonwood tree is used even for lumber, sawed into lumber and used for building purposes.

Mr. PAD DOCK. In large sections of my State that is true. Mr. McMILLAN. And it is certainly a very fine shade-tree; and so

far as the cultivation of forests on the prairies is concerned for the purposes of moisture, it is very valuable. These trees are cultivated in my own State. The tree is regarded as a very valuable tree in the West, and I should be very sorry to have such an exception made.

Mr. MORRILL. I modify my amendment by striking out "cottonwood;" so as to read, "not including poplar aod willow."

Mr. PADDOCK. I hope my friend the Senator from Vermont will not insist on any such amendment. I am sure, if ~ were familiar with the prairie country, where thereiaan entire absence of trees, he would not insist on any such amendment as this • .

Mr. GROVER. If this bill is to become a law, I think the exclusion proposed by the Senator from Vermont would be improper. In the western country there are many classes of land which will not produce every kind of trees. The cottonwood is the most favored tree in some directjons as to its growth, and it will grow in some places and not grow in others. In California there is the eucalyptus tree; it is imported from Australia, and will grow very rapidly and furnishes valuable timber. In Oregon we can grow the cottonwood in certain districts where we cannot grow other trees. As to limiting the bill to any particular class of trees, I think it would be improper, for the reason that the settler will grow the most valuable timber the land will produce.

Mr. SAUNDERS. I hope that the amendment offered by the Senator from Vermont will not prevail. The advantage of this bill to the settler is to give h,im in the first place timber. It gives it to the country as well as to the individual; but the advantage is that it gives him timber. The quickest growth we ha.ve, the most rapid growth we have in the West at any rate, is our cottonwood; and a man can in a very few years, in fact in two or three years, raise his own fire-wood out of cottonwood, using it for stove purposes, while be cannot with other kinds, the more valuable, such as walnut and oak and the like. It takes a. number of years, twice aB long, three times as long probably, to raise it. The object of this is to secure the cultivation of timber, to encourage the settlement of the conntry, and cause the land to be cultivated.

I will say to Senators that no man can afford to take advantage of this bill for the speculation in it. He has got to wait ten years before be can get title to the land, and a man had better go and pay $200 for his tract if be has the money at all. The cultivator of the land, the planter, will be more interested than any body else in the kind of timber he puts out, and certainly it would he no advantage to him to pnt out that kind which would be valueless. He wants a certain amount, at any rate, of these rapid growths of timber, and on that account I hope this amendment will not prevail. · I will state while on the floor just this one thing, which baa not

1878. ~CONGRESSIONAL RECORD-SENATE. 1895 been noticed by some other Senators, that this is not a gratuity or any great advantage to the West more than it is to any other part of the country. We are inviting immigration; we are inviting settlers to our country, and we invite them from Delaware and from Vermont, and every other State, and they have the same advantages exacMy that we of the West have or that our people have! ~d consequently this is a thing, if there is any gratuity about it, wnich belongs to the whole nation, and to no one State or one Territory alone.

I hope this amendment will not prevail, and that the bill will paas as it has now been reported.

The VICE-PRESIDENT. The question is on the amendment proposed by the Senator from Vermont.

The amendment was rejected. The bill was ordered to be engrossed for a third reading, and was

read the third time. The VICE-PRESIDENT. The question is, Shall the bill pass f Mr. KERNAN and Mr. SAULSBURY called for the _yeas and nays,

and they were ordered ; and being taken, resulted-yeas 39, nays 12; as follows:

YEAS-39. Anthony, Conover, Kellogg, P~llins, .Armstrong, Dorsey, Lamar, Sargent, Barnum, Eustis, McCreery, Saunders, lllaine, Ferry, McMillan, Spencer, Booth, Garland, Matthews, Teller, Butler, Gordon, Mitchell, Voorhees, Co.meron of Wis., Grover, Morgan, Wadleigh, Chaffee, Hoar, Monill, Windom, Cockrell, Howe, Paddock, Withers. Coke, Jones of Nevada, Plumb,

NAYS-12. Bailey, Eaton, Hill, Menimon, Beck, Harris, Johnston, Saulsbury, Davis of W. Va., Hereford, Kernan, Whyte.

ABSENT-25. Allison, Davis of lllinois, Kirkwood, Thmsom, Bayard, Dawes, McDonald, Shllron, Bruce, Dennis, McPherson, Thurman, Burnsille, Edmunds, Maxeb, Walla.ce. Cameron of Pa., Hamlin, 0.1des y, Chrisfumcy, Ingalls, Patterson, Conkling, Jones of Florida, ~dolph,

So the bill was passed. MILITARY ACADEMY APPROPRIATIO~ BILL.

The VICE-PRESIDENT appointed Messrs. WINDOM, BLA.INE, and WITHERS as the conferees on the part of the Senate upon the disagreeing votes of the two Houses on the bill (H. R. No. 2507) making appropriations for the support of t.he Military Academy for the fiscal year ending June 30, 1879, and for other purposes.

MESSAGE FROM THE HOUSE. A message from the House of Representatives, by Mr. T. F. KING,

one of its clerb, announced that the House had passed the following bills; in which it requested the concUITence of the Senate:

A bill (H. R. No. 3972) fixing the fees of clerks of the United States district and cir8Uit courts; and

A bill(H. R. No. 3973) fixingcompensationofUnitedStatesmarshals and deputies, and for other purposes.

The message also announced that the House had passed the joint resolution (S. R. No. 21) filling an existing vacancy in the Board of Regents of the Smithsonian Institution.

ENROLLED DILLS SIGNED.

The messa.ge further announced that the Speaker of the House had signed the following enrolled bills; and they were thereupon signed by the Vice-President:

A bill (H. R. No. 2887) to authorize the granting of an American register to a foreign-built ship for the purposes of the Woodruff scientific expedition around the world; and

A bill (S.JSo. 611) to extend the charter of the Franklin Insurance Company of the City of Washington.

ROBERT H. CHILTON.

The VICE-PRESIDENT. The morning hour haa expired. Mr. GORDON. I aBk the Senate to take up House bill No. 3721. Mr. THURMAN. Mr. President--Mr. GORDON. I will state that it will take but a moment. It is

a bill I have been seeking to have passed for some time, removing disabilities.

:Mr. THURMAN. If it gives rise to debate I reserve the right to call for the regular order.

The VICE-PRESIDENT. If there be no objection; the bill referred to by the Senator from Georgia will be considered as in Committee of the Whole.

There being no objection, the bill (H. R. No. 3721) to remove the political disabilities of Robert H. Chilton was considered as in Committee of the Whole.

Mr. GORDON. I ask for the reading of a telegram from the War Department in order to give the information which is usual.

The Chief Clerk read as follows : [From the War Department.l

llon. J. B. GoRDOY, United Statu Senate :

Paymaster Robert H. Chilton tendered his resignation in April, 1861. There-

port made at the time before his resignation was that he had no unsettled accounts with the Treasury.

GEO. W. McCRARY, Secretary of War.

The bill was reported to the Senate, ordered to a third reading, read the third time, and passed by a two-thirds vote.

JUDGE W. R. WffiTTAKER.

Mr. THURMAN. I call for the regular order. The VICE-PRESIDENT. The regular orderis the bill reported from

the Committee on the Judiciary relative to the Pacific Railroads, on which the Senator from Oregon [Mr. MITCHELL] is entitled to the floor.

Mr. HOWE. I ask the Senator from Ohio to allow me to offer a. resolution at this time simply to have it printed, and not for consideration.

Mr. THURMAN. I have no objection to that. Mr. HOWE. I offer the following resolution: Resolved,, Thllt the President be requested, if not incompatible with the public

interest, to inform the Senaoo whether W. R. Whittaker, who recently presided iu the SUJ?erior criminal court of the parish of Orleans, was formerly employed either in the mt~rnal-revenua service, or as assistant trea~nrer at New Orlrans ; if eo, dur-ing what period of timo; whether in either of said capacities the said Whittaker is a default~ to the United States, and to what amount, and under what circumstances; whether legal proceedings have been taken against said Wbittaker, either civil Qr criminal, and with what result; whether such proceedin~ are still pending, or, if discontinued, when they were discontinued, and by whoso direction.

The VICE-PRESIDENT. Is there objection to this resolution f Mr. HOWE. I simply ask that the resolution may lie on the table

and be printed, and I want to say this at home, and here, and elsewhere. I have been accused from time to time of not having yielded that cordial support to what is known as the President's polic.y which was due from me as a republican of some standing; and if it would suit the convenience of the Senate, on Monday next at one o'clock, I would like to take up this resolution and submit some remarks by way of excusing myself so far aa I am able.

The VICE-PRESIDENT. Is there objection to the sugg.estion of t.he Senator from Wisconsin that he be allowed to call up this resolution on Monday next after the morning hourf 'l.'he Chair hears none. It will be regarded aa an order of the Senate, and meanwhile the resolution will lie on the table and be printed.

ORDER OF BUSTh"ESS. Mr. WINDOM. I ask the Senator from Oregon to yield to me for

a moment. Mr. MITCHELL. Certainly. Mr. WINDOM. I desire to ask the consent of the Senate that at

the close of the remarks of the Senator from Oregon the railroad bill may be laid aside informally and the appropriation bill be proceeded with.

Mr. THURMAN. I have no objection to that. The VICE-PRESIDENT. To the suggestion of the Senator from

Minnesota the Chair hears no objection. THE PACIFIC RAILROADS.

The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 15) to allier and amend the act entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to tho Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes," appro't"ed JuJy 1, 1862, and also to alter and amend the act of Congress approved July 2, 1864, in amendment of said first-named act.

Mr. MITCHELL. Mr. President, the questions present.ed for the consideration and determination of the Senate by the two bills now under consideration are of no ordinary character. On the contrary, they are of vital interest to the Government, involving matters of pecuniary account with its Treasury of over $150,000,000. It is therefore a subject that well challenges the most serious attention of every Senator. From every stand-point, its every phase, its length, its breadth, its height, ita dept.b, its present attitude, and its future probabilities and possibilities, it.a effect upon the nation's Treasury, its relations to paat legislative a~tion, its bearings on contracts between Government and citizens, its inflnence on vested rights and obligations attached, and its status as aftected by legislative reservations in the congressional enactments out of and from which the whole subject of present controversy emanated, t!hould, and I doubt not will, receive the closest scrutiny of all.

Any question that involves, as does this one, the adoption of means whereby the enormous sum of over 150,000,QOO may be saved to the Treasury of the United States embarrassed as is the Government in this instance by prior liens, adverse decisions of the highest courts in the land, and divers other complications of eqna.llYgra.ve ch3.l'acter, is one that iruperati vely calls for the exercise of the very highest order of statesmanship. That in a case so complex in its very nature and of snch immense magnitude there should be differences of opinion as to the methods that should be adopted and the ways and means that should be incorporated into law, is not by any means strange. The very fact that the members of the great law committee of the Senate, composed, as is the Judiciary Committee of this body, of Senators pre-eminent in the profession of the law, should, after wrestling in little less than mortal agony over this great subject for four months and nineteen days, be unable to agree as to the true extent of power which Congress can rightfully exercise in reference


to this question, and which it ought to exercise in point of practical economy and business sense, must conclusively show, at once and to all, the gravity of the questions involved, whether regarded fi·om a constitutional or economic stand-point. Nor is it less strange that npon the one great fundamental proposition, namely, the imperative duty resting upon Congress to take immediate steps by the prompt «1xercise of whatever power we possess, our action being molded in the light of reason and justice and right and fair dealing and financial honesty and financial sense, to ~nard the Treasury of the United States by the creation of a fund for the liquidation of this enormous indebtedness, there should be no difference of opinion whatever. Upon this proposition we are all united; in reference to this there is no diversity of thourrht.

This being so, we have before us two bills, both having in view the s\\me purpose, each looking to the same common end; that purpose being the preservation of the rights of the Government, the final reimbursement to the Government of the loan made by it to these corporations in aid of the construction of a transcontinental highway.

Ha.ving said this much, I pass directly to the subject before us. The amount of bonds issued by the United States upon the lines now comprised in the Central Pacific Railroad under what are known as the Pacific Railroad acts of Congress, were the Central Pacific Railroad Company of California, on main line from Ogden to Sacramento, 2.\885,120; the Western Pacific Railroad Company, on 123t miles,

from Sacramento to San Jose, and which wa.s consolidated with the Central Pacific Railroad Company in comformity with the laws of the State of California, June 22, 1870, 1,970,560; making a total to what is now the Central Pacific Railroad Company of $27,855,680. The subsidy in United States bonds loaned to the Union Pacific Railroad · Company was 27,236,512.

These bonds mature on an average about the year 1898. The Government is and has been paying the interest thereon. The Supreme Court of the United Statest as stated by the honorable Senator from lllinois [Mr. DAVIS] the otner day, and who was an honored member of that court when the decision was made, has decided in the case of The Unitedr States vs. The Union Pacific l{ailroad Company (1 Otto, 72) that the Pacific Railroad Companies are not bound to pay or refllnd the interest to the Government before the maturity of the principal of the bonds issued to them by the United States. -.r'here is therefore, tmder the Pacific Railroad acts of 1862 and 1864, as colliltrued by the Supreme Court of the United States, no part of either principal or interest of these bonds due or payable from the railroad companies to the Government untH the maturity of the principal of the bonds, save and except an amount equal, as the same may accrue, to the oneha,}f of the Government transportation account, and 5 per cent. on the net earnings of the company. And no present security for any part of this vast amount of money when due, save a second mortgage on the rights and property of the companies, subordinate as it is to a. prior lien of an amount equal to the principal of the Government bonds nnd such annual amount as may arise from the one-half of the cost of Gevernment transportation, and 5 per cent. of the net earnings from the date of the completion of the road.

Considering, therefore, the vast sum total of this indebtedness when it matures; amoun~ity, as it will at maturity, after crediting all payments the companies are bound to make under existing laws, to about 120,000,000; and considering the very unsatisfactory, insufficient, and precarious security for ita liquidation when it does mature, whatever. may be the limits or non-limits of congressional power in the premises, it occurs to me, inasmuch as doubts of the gravest character must and do unquestionably exist as to the question of jurisdiction in Congress to compel arbitrary terms of settlement, it becomes of paramount importance to the interests of the Treasury, that if any measure can be devised that will by any reasonable possibility meet with the approval and co-operation of these companies and in the end cancel this indebtedness by the payment to the Government of every dollar, principal and interest, that it should at once receive tbe legislative sanction of Congress. It is wise, and just., and right, that we should go to the extreme limit of undisputed legisl&tive power in compelling these corporations to reimburse the Government for its munificent aid in the construction of this great transcontinental highway. It is no more than the dictate of self-protection, of wise statesmanship, of simple justice to the Treasury, and the whole people, that we should step to the very verge of our unquestioned constitutional authority in the creation of methods whereby the interests of the Government shall be protected against the inevitable results of what perhaps may be considered by many as hasty, improvident, and unwise legislation fourteen and sixteen years ago.

'l'o do this is to hasten the end of a controversy tbat for the past ten years has been a disturber of legislation in Congress and in State Legislatures, a.nd a standing obstruction to speedy justice in other cases in our forums of justice, State and Federal; a controversy wherein the Government has almost invariably come out second-best, as will be seen by a. reference to two instances. 'l'be Government claimed that interest on the United States bonds was payable by the companies to the United States, as the same was paid each six months to. the bondholder. The companies contended that the interest was not due until the principal of tbe bonds matured. Congress and the Treasury Department took the side of the Government as against the companies. 'fhe companies appealed to the common arbiter, the Supreme Court

of the United States, and what was the result f The claim of Congress and the Treasury Department went down before the unanimous decision of that court as unfounded and one that could not be maintained.

Again, the Government insisted that the 5 per cent. of the net earnings should be computed from the date of continuity of rail between Omaha and San Francisco. The companies denied the claim and again appealed to one of the circuit courts of the United States, insisting as they did that the payment of the 5 per cent. should not commence until 1874, at which time the road was accepted as completed by the Government, and again the court decided against tho claim of the Government, and the railroad companies triumphed and with fresh courage went forth, I doubt not, determined to dispute to the end every inch of disputable ground whenever they conceived their rights under former guarantees of the Government to have been infringed. And who can blame them, I inquire, for prolonging a controversy in reference to what they claim to be their vested rights so long as the highest courts in the land decide unanimously in their favor.

For Congress, therefore, Mr. President, in its attempts to protect the Treasury by the creation of a sinking fund, to tread upon seriously disputed ground of constitutional power will, in my bumble judgment, so far from accomplishing its purpose, but serve to perpetuate in these halls a controversy which year after year will obtrude its hydrabeaded presence at every· session and to the serious obstruction of public business; whose Briarean arms will beat back year after year the necessary legislation of the land, while your courts from San Francisco to Boston will not be free for the next generation from the presence of these giant suitors.

If it be true that Congress has the power, clear and indisputable, to compel these companies to conform to such terms as we may dictate, and this exercise of power is one that the courts will unq uestionably sustain and enforce by judicial decree, and such exercise is not in contravention of the principles of natural justice and equity and fair dealing, then unquestionably there should be no hesitation upon the part of any Senator to vote such a proposition. But if this is not so, if this power is one full of doubt and uncertainty, one that may lead to conflict of opinion among judges and to diverse decisions of courts, then by its exercise we not only fail to accomplish the desired end, but instead give vitality, longevity, and magnitude, if not immortality itself, to the greatest judicial, administrative, and legislative controversy of the age.

If then, Mr. President, we can secure the passage of a measure for the creation of a sinking fund that will at the maturity of this indebtedness eit.ber pay the whole debt, principal and interest, dollar for dollar, or do that which is equivalent, pay at maturity dollar for dollar over two-thirds of the whole amount or over 100,000,000, and amply secure the payment of the balance with interest thereon payable semiannually-and this is precisely what the substitute which I favor proposes-with areaaonable prospect of securing the assent and co-operation of the companies, thus putting an end forever t6 this great liti- · gation, will it not, I inquire, be intinitely betterfor the Government, better for the Treasury of the United States, better for all concerned1 than it would be to trench upon constitutional ground of doubtfUl character, enact a measure for a sinking fund that will encounter continued and prolonged litigation and controversy in Congress, in the administrative departments of the Government, and in State Legislatures; with no certainty as to the result, or uniformity of decision; or I will add, even though a result favorable to the Government could after years of litigation be expected in the end f

And this leads me to speak of the two measures proposed -the one report-ed by a majority of the Judiciary Committee, the other unanimously by the Committee on Railroads, the latter of which is now pending as a substitute for the former by the motion of the honorable Senator from Ohio, who reported it, [Mr. MATTHEWS.] lshallspeak of them separately, and first as to the biU reported from the Committee on the Judiciary. Aud here I must be permitted to state that no Senator on this floor not a member of that committee, much less one so bumble as myself, ought to attempt to criticise a measure reported by that committee in reference to the legal propositions inYolved without the utmost diffidence and most profound respect. I am not insensible to the fact that the chairman of that committee stands, ::1.nd justly too, at the American bar as well as in the American SenatE~, conceded by all, as one of the clearest, ablest, and most profound of the constitutional and statutory lawyers of his time. Nor am I unmindful of the fact that able, experienced judges and profound jurists are his.companions and co-workers on that committee; and knowing this, I would hesitate long before joining issue with their repprt were it not for the fact that issue has already been joined in judgment and opinion, as I am advised not only by very many aule lawyers of the Senate not members of that committee, but also by others who e ability as constitutional and statutory lawyers no one will question, wbo are members of that committee.

While, therefore, Mr. President, I favor tbe creation of a sinking fund that will fully indemnify the Government dollar for dollar for the 150,000,000 and over that will be due from these companies about the year 1900, I oppose the measure reported from the Judiciary Committee; first, because I believe it to be a measure clearly beyond our constitutional power to enact; and, second, because! believe it to be one, even had we the power to pass it and compel its enforcement

1878. CONGRESSIONAL RECORD-· SENATE. 1897 ~

against these companies through the judicial tribunals, that is unjust1 oppressive, and contrary to the true spirit of our institutions, an<l above all one that is not in the true interests of the Government ; a measure that the companies could, if disposed, by a manipulation of their various accounts of operating expenses, construction accounts, accounts with branch roads, &c., evade and render inoperative to a very great extent in so far as any good results to the Government are concerned.

But to the principal objection, and first as to the question of power. By the acts of 1862 and 1864, known aa the Pacific Railroad acts, the United States said to these companies in substance and effect, You are authorized to build a railroad across the continent from the Missouri River to the Pacific Ocean. You are authorized to issue your bonds to an amount per mile equal to an amount the Government will issue in your aid. Yon can mortgage your road and property to secure the payment of the principal and interest of your first-mortgage bonds. The Government will aid yon with its bonds to a large amount and will pay the interest semi-annually. These bonds and accrned interest shall at the maturity of the principal of the bonds be refunded to tho Government by the comp_anies. The only provision that the companies by this legislation were called upon to make for the liquidation of these advances by the Government, was the one-half of the Government transportation account, and 5 per cent. of their net earnings from the time of the completion of the roads. The road was to be bnilt within a certain time and upon certain conditions, the Government was to have priority of the use of the same, and it was to be kept in ''repair and use," and they were not to permit it to remain "out of repair and unfit for use."

The companies accepted these terms and built the road, several years prior t-o the time fixed for its completion in the charter; and it is not contended, I believe, that they have not maintained it in all respects, in so far as these questions are concerned, in accordance with the terms of the charter. Now, then, what is the proposition of the bill of the J ndiciary Committee! It is, in brief, as I understand it, a proposition t-o compel these companies, without their consent, first, to submit to a retention by the Government of the whole amount of money earned by them for Government transportation, the one-half of which is to be applied at once to the payment of interest paid and to be paid by the Government on the bonds issued in aid of the companies, and the other half to remain in the Treasury as a part of the sinking fund-which, by the way, is in direct conflict with the act of UlG4, under which these companies built their road, which provides that one-half of the transportation account shall be paid over to the companies; ~econd that these companies shall pay, respectively, into the Treasury of the United States toward such sinking fund, semiannually, such sum as shall be necessary to make the 5 per cent. of the net earnings of its road payable to the United States under the a-ct of 1862, and which is still to be applied to interest as heretofore; and the whole snm earned by them respectively as compensation for services rendered for the United States, together with the sum so paid in overy six months, amount in the aggregate to 25 per cent. of the whole net earnings of such companies, respectively.

And, third, the net earnings are defined by the bill to mean such amount as shall remain after deducting from the gross amount of the earnings the necessary expenses actually paid within the yMr in operating the road and keeping the same in a state of .repair, and also the same paid by the companies respectively within the year in discharge of interest on their first-mortgage bonds, whose lien has priority over the lien of the United States, and excluding from consideration all sums owing or paid by said companies respectively for interest on any other portion of their indebtedness.

These are the principal salient points of the measure. There are oth(\r most extraordinary, and as I think I shall be able to show in some respects incongruous sections and solecistic provisions to which I shall a.tt.ract attention as I shall proceed with my argument. For the present I confine myself to the three principal points named in considering the question of the power and right of Congress to pass the bill reported by the Judiciary Committee. That this bill proposes in these essential particulars to make a new contract with these companies without their consent, it seems to me is too plain for serious argument.

It is not a mere exercise of legislative control over the earnings or assets of a corporation for the benefit of its creditors where the Legislature from which the corporate existence 15pr~ng is not bound by 1J1e fetters of its own previous stipulations and solemn agreements. It is another and entirely different case. It increases the amount of the annual payments; it contravenes the terms of the original contract between the Government and these companies by withholding t.he whole instead of tho one-half of the moneys earned for Government transportation. It virtually sets aside the decision of tho Supreme Court of the United States in providing in efl'ect for tho payment of interest years before it is due. My friend from Michigan makes a note of that assertion. I admit it does not provide in terms, bot it does provide in effect, just as I have stated. It impairs the obligation of the original contract in various ways. It encroaches upon the rights of the prior creditors and bondholders of the companies in taking possession by force of law of the assets to which they Lave a right to look not only for the payment of their annual interest but for the ultimate redemption of their bonds at maturity, and which assets or earnings they have a right to expect shall only be controlled, managed, and disposed of by their debtors or with their consent.

Again, it invades the sanctity of judicial domain unwarrantably as I believe with the strong arm of arbitrary legislative power and by legal enactment attempts to declare what shall constitute the net earnings, not of a corporation to be created--

Mr. CHRISTIANCY. For the future only. Mr. MITCHELL. I am coming to that. I will say to my friend

from Michigan, not in reference to matters arising ont of future contract and future operations under a new contract, but of a corporation created sixteen years ago and in reference to corporate operations carried on in pursuance of a contract in esse made between the Government and these companies by solemn legislative enactment.

Admit, as suggested by the gentleman, that the provisions of the Judiciary Committee bill only apply to the earnings in the future, that does not help the matter by any manner of means; it does not change the principle. It is therefore, in my judgment, and in the judgment of the committee of which I happen to be chairman, a forced sequestration of the private property of a corporation in payment of a debt not due, either principal or interest, for twenty years to come, not only without its consent but in plain derogation of the rights of other and preferred creditors, and creditors so preferred not at the mere will of the corporations themselves bot by the solemn act of the legislative and executive branches of the Government in 1864.

No order of sequestration, in my judgment, of any military commander during the late war, invaded the domain of private right . with more aggressive assumption than does t-his measure. It not only trespasses upon the rights of the prior bondholders in one respect by depriving their debtor of the management of its own funds, but gives such bondholders unwarrantable preferences over the GovernJDent in another respect, in the distribution of the fund, but by excluding from consideration in the determination of what are net earnings any interest paid to the innumerable other creditors of the companies, it diminishes the means fort he payment of these principal debts and tends inevitably to postpone their payment, and in this manner affects injuriously the rights of creditors both here and for aught I know in other lands, who have contracted with these companies in various ways without any knowledge or expectation of this proposed legislativ-e sequestration of the property of their debtor; and upon the credit and status of which companies and their financial condition, responsibilities, and powers, as fixed by the terms of the acts of Congress of 1862 and 1864, and their acceptance of the same and the rights that had grown up thereunder in favor of such companies, their credit was extended to them.

It is therefore, in short, a proposed legislative confiscation of private property under the pretense of creating a sinking fund to liquidate at maturity a now immature indebtedness. Can such a proposition stand in law! Will it successfully resist the application of sound principles of legal jurisprudence when applied to it by the conrt from the bench t I apprehend not; and in addition to these objections, there is still another of grander import, of weightier interest and more far-reaching in its baneful consequences, as affecting the credit of the nation itself, and that is, in my judgment it tramples with impunity upon the faith of this Government, which in 1862 and 1864 was through the solemnity of the highest exercise of legislative power voluntarily pledged to these companies.

That Legislatures, and Congresses, and courts, if not restricted by the very terms of the charter, or by rights that have lawfully vested in the rightful exercise of corporate franchises under the terms of the charter, may exercise a certain control over the earnings of corporations for the preservation of such corporate earnings and the protection of the rights of creditors, there can be doubt. Such an exercise of such a power in such a case is but an incident properly attaching to all corporate rights, the enforcement of which is reserved to Legislatures and courts under well-recognized principles of legal jurisprudence applicable to corporate existence, but like all other reservations of power, whether implied or expressed, it may be restricted, limited, or altog.ethe~ suspended or absolutely destroyed; not only by the express or 1IDplied terms of the charter itself, under which sacred rights of property have vested, and solemn obligations have been created, but by the contract itself.

In this case, Congress, in the acts of 1862 and 1864, after defining the character and extent of the aid it gave these companies, namely, certain bonds and interest thereon, no part of which with certain exceptions named should be repayable to the Government by the companies for thirty years, proceeded to define the character and extent of the obligations of the companies with reference to the cancellation of this loan. The maximum limit of these obligations prior to the maturity of the whole debt was the payment to the Government of one-half of the earnings for Government transportation and 5 per cent. of the net earnings from the date of the completion of th.o road. These items, and these alone, by the terms of the original contract were to be contributed by the companies toward the redemption of this loan until the loan itself matured.

Does not this, then, constitute a clear limitation of the power of Conp;ress and upon the riO'ht of Congress to compel tho payment of a greater snm-a. sum equai to 25 per cent. of the net earnings-under the pretense of creating a sinking fond t But what is the answer to this argument t I shall endeavor to state it fairly and give to it the benefit of all that can be said in its favor. It is that the reservation in the Pacific Railroad acts of the right to ,alter, amend, or repeal is itself a part of the original contract, and that therefore, under such reservation, Congress may impose new terms and conditions of the

~--------------------------------------------------------------------~---------------------------- -----


contract; and that, although rights of property may have vested under the terms of the original charter, although obligations may have been created, still the right to alter, amend, and repeal being part of the law of the original contract, as it is claimed, a part of the contract itself, that therefore new terms and conditions may be imposed notwithstanding the fact that they may impair or even utterly destroy what nnder other circumstances wonld be vested rights and contract obligations.

I know my friend from Michigan nndertook to draw a fine distinction between snch rights as these· and rights that were vested as rights of property, and he instanced a case. He said if the companies had used the moneys they earned and invested tho same in lands and received a title to the lands, theu that wonld have become vested property.

Mr. CHRISTIANCY. Or so of personal property either. Mr. MITCHELL. Yes, the Senator went that far, including lands

and personal .property; bnt he neglected to state that money or the right to money, or the right to earn money, the right to reduce it to possession and to have it and own it, was as much property as land or as personalty ; and while according to his proposition a right wonld be a vested right if it was a property that was acquired by the earnings of these companies either real or personal, he failed to apply his logic or his law to the right to money itself, which is as much property as I conceive as land or personalty or goods of any kind.

It is upon this theory, aud this alone, as I understand the honorable Senator from Illinois, LMr. DAVIS,] to whom was assigned the duty, in the first instance, of presenting to the Senate the legal aspects of this case, and the le~al basis upon which the bill of the Judicia.ry Committee is to rest, fixes his right to pass this bill; although be implied by his remarks, as I will show-and a clause or two in the report of the committee assumes the same position, and I will give this attention further on-that even in the absence of these terms, of reservation in the Pacific Ra.ilroad a~ts, the power to pass this bill would be complete nnder the sovereign legislative power of Congress, and this is the view advanced generally by those favoring the Judiciary Committee bill.

I must except from this, however, the .argument made by the honorable Senator from Alabama [Mr . .MoRGAN] yesterday, because he, it will be remembered, ignored this theory of the Judiciary Committee. He said that the Government of the United States could not reserve to itself in the passage of the law a right to change that law, but that it bad the right independent of any reservation, over and beyond any reservation in the charter. The argument of the honorable Senator from Alabama yesterday, as I nnderstood it, and I listened to it pretty carefully, ignored the whole theory presented by the Committee on the Judiciary. But, as I have said, so far in the argument, with the exception of the argument made by the honorable Senator from Alabama yesterday, the case is rested mainly, if not solely, on the reservations in the original a_cts of the right to alter, amend, or repeal.

With great respect, and not without much diffidence, I feel compelled to dissent fl'Om this view, both on principle and authority. I deny that these words of reservation confer any authority whatever upon Congress, to strike down in the least degree, much less arbitrarily, the terms of the 01iginal charter, where those terms have been accepted by the companies, and by an exercise of the corporate powers conferred have ripened into vested rights and grown into contract obligations, and what constitutes vested rights and contract obligations I will discuss later. While I accept a1:1 law the several decisions of the Supreme Court of the United States and of the State court6 quot.ed by the honorable Senator from Illinois, and the honorable Senator from Michigan, [Mr. CHRISTIANCY,] and other Senators, in support of their theory, I deny that their application in this case will enable Congress rightfnlly to wipe out of existence individual rights of property that have vested in pursuance of law and upon a valuable and sufficient consideration, or to even so legislate as to impair these rights to any extent whatever; which rights of property are, in their sacredness, above and beyond the reach of even the strong arm of sovereign legislative power-rights that so far from being constant.ly imperiled, even in the slightest degree, by the caprice of Congress or courts are by every consideration of jnstice and right, by every just system of jurisprudence, in all lands and in every age, entitled to their protection and vindication. .

That the power of Congress to alter, amend, or repeal any law within certain limits passed by a former Congress is inherent and indisputable, whether there be an express reservation of that right or not in the law itself, no one, I presume, will deny. There are limits, howover, to this exercise of power, and those limits are, that rights vested under such law and obligations created in pursuance thereof shall not be impaired or destroyed. The power of one Congress to bind its suc-cessors for all time by a mere failure to insert an express reservation of the right to alter, amend, or repeal, is a proposition that conld not be maintained for a moment. The power to repeal within certain limits is one that needs not to be perpetuated by special reservation, for it is a power that iB inherent in the legislative department of government, and one that never dies.

This being so, it may well be doubted whether the express reservation of this right confers any greater power upon Congress than it otherwise would have by virtue of that ever-living, never-dying principle of government that prevents one Congress from binding the representatives of all posterity by any law which to them may seem

unjust, unwise, or oppresSive. I will say right here, in addition, thn.t if the words contained in the reservation in the Pacific Railroad acts are to give to Congress any greater power than it would otherwise possess under what may be said to be the sovereign power of Congress, then what must that power be that is added to the Government by these words of reservation f It could only be the right to go a step further and interfere with vested rights or impair contract obligations, and most certainly the able lawyers of the Judiciary Committee will not contend that they go that fari although that is the end to which their law and their logic inevita.b y leads.

But I desire to call attention to another principle in our jurisprudence equally honored, equally immortal, equally just, being that which fetters the hands of future Congresses and prevents them from in any manner by legislative repeal invading the sacred precincts of vested rights or from impairing or destroying the obligations of a contract. But whatever additional power, if any, the Government may possess by reason of express words of reservation, it has it in this case, and by the construction that should rightfnlly attach to these words Congress should be governed. And in determining the effect of this reservation I assume, for the present, for the sake of the argument, the position assumed by the honorable Senator from illinois, namely, that the reservation in the act of 1864, being the last expression of the legislative will, and the two acts of 186~ and 1864 being construed i1t pari materia, that therefore the reservation as to both acts iB to be construed in the light of the words used in the act of 1864, which are wiLbout limitation, and which read :.

That Congress may at any time alter, amend, or repeal tb.i.s act.

While I agree the two acts should be construed in pari mate~'ia, I do not think, as a matter of fair statutory construction, it follows by any manner of means that the reservation in the act of 18G2, limited and qualified as it unquestionably is, must necessa-rily be considered as blotted out by ·the reservation in the act of 1864 merely because the latter is the last expression of the legislative-will. On the contrary, construing the two acts in pa1'i -materia, as I concede they should be, would it not rather follow as a necessary, logical, and legal sequence that the reservation in the act of 1864, which standing alone is unlimited in terms, would be limited and controlled by the conditions and restrictions in the act of 1862, namely, by the worus:

To promote the public interest and welfare by the construction of said railroad and wlegraph lino, and keeping the same in working order, and to seoure to the Government at all times (but particularly in time of wal') the use and benefits of the same for postal, military, and otber pnrposes, Con~s may at any time, having due regard for the rights of said e9mpanies named herem, alter, amend, or repeal this act.

This I believe t-o be the correct construction, but for the sake of the argument, I admit the construct~ou given by the friends of the Judiciary Committee bill, namely, that the reservation is in terms unconditional, and unrestricted, and shall proceed to inquire what is its effect. .

Does this reservation of power in statutes, I inquire, enable Congress at its sovereign will to strike from the statute-books of the conntry any and every law in existence ~ which the reservation is made, and in so doing to obliterate vested rights and loosen existing obligations that may have rightfully accrued or been legitimately contracted in virtue of or in pursuance of such legislation ; o1· to even so legislate as to affect these rights and obligations to the least possible extent; because the extent to which they may be affected, whether great or small, cannot affect the application of the principle. No; the claim of the Judiciary Committee does not, as 1 understand it, ostensibly go to that extent, although in effect it does. Such a doctrine, even in the jurisprudence of despotic ~overnments, would be regarded as monstrous. Most assuredly such 1s not the office of such a reservation in statutes. On the contrary, it simply confers the power on a future Congress to alt-er, amend, or repeal any law in which the reservation exists that bas been enacted by a preceding Congress; provided always that in such repeal vested rights are not destroyed or the obligations of the contract impaired. The law may be abrogated, bot tho vested rights of property under the Law must not be affected or disturbed by such repeaL

The franchise may be repealed, the charter may be revoked, but the rights that have vested by a legitimate exercise of the franchise, or obligations, which have legitimately been created under the charter, are by every consideration of law and justice, and equity and ri~ht, both legal and natural, above and beyond the reach of the repeating power. Any other construction would imply the right to divest a corporation of property legitimately acquired under a. law authorizing it to acquire it while such law was in full force and operation. I do not deny that under this reservation, or even witbont it, it is an incident to every law nnder which a contract is made, or by which one is made, that it ma.y be amended or repealed at the will of tho Legislature; but I do most emphatically deny that in every contract made nnder a law that is repealable, the power to repeal is one of the conditions entering into the cont.ract, thus rendering the contract itself repealable to the injury or destruction of rights that may have grown out of it. ·

Such a doctrine, followed to its legitimate conclusions, would place the construction of all corporate contracts and the aunihilat.ion or confiscation of all corporate property at the will of the Legislature. The law by which or nnder which a contract is made is one thing, and may under this reser-Vation of power be legitimately swept from the statute-book; but the contract made under the law in all its executed

1878. CONGRESSIONAL RECORD-SENATE. 1899 terms and conditions is quite another and different thing, and is, and ought to be, far above and beyond the touch of legislative power. A law tendering a. contract, or under which a. contract may be made by a corporation, may, if not accepted, remain a dead letter upon the statute-book for ages, just as the act of 1862 might have remained until to-day a. dead letter had its terms not been accepted by these companies and its provisions acted upon. Bot nevertheless it would have been as much a. law, no more, no less than it is to-day, and under the reserva.tion liable to absolute and unconditional repeaL

Bot in that case no contract would have been created, no obligation incurred, no right vested. But, the propositions contained in the law having been accepted by the companies, a contract was at once created from that date, and not from tile date of the law; and while it is no part of the law itself, it is a. legitimate result of an execution of the powers conferred by the law; and while you may alter, amend, or repeal the law, the contract cannot be interfered with nor can its terms be changed by amending the law in such manner as to impose new or increased liabilities upon parties to the contract.

Such, Mr. President, I believe to be the true construction which, on every principle of justice and right, should be placed on the words "alter, amend, or repeal," as used in the Pacific Railroad acts; and such also, I insist, is the construction placed upon such reservation of power by the very authorities that have been quoted in support of the rigllt to pass the J odiciary bill. And I propose now briefly to examine these authorities as quoted by the honorable Senator from lllinois and the honorable Senator from Michigan in their very carefully prepared speeches on this subject.

And here it should be borne in mind that the controversy over this question of power is not so much one as to what the law really is, as it is as to the application of the law as it is conceded by all to be to the particular facts of each particular case. For instance, in all t.hese cases decided in State courts, and in the Supreme Court of the United States, where the q oestion involved was as to whether a State law impaired the obligation of contracts, there could, as a mutter of course, be no room for dispute as to the absolute want of power in a State Legislature to pass such a law, from the fact that the Stat~s are positively inhibited in this regard by a. provision of the Constitution of the United States. But the question has invariably been whether. as a matter of fact, the State law in dispute did, or did not, under the special circumstances of the particular case under consideration, impair the obligation of a contra<Jt, or rather, to state the issue more correctly, whether the state of facts in a particular case constituted in law such a vested right of property or created snch contract obligation as Legislatures have not the power to impair.

In all these cases, therefore, quoted by the learned Senators from Illinois a.nd Michigan, namely, the case of The Attorney-General VB.

The Railroad Companies, 35 Wisconsin; The Commonwealth 'VB. Essex Company in Massachusetts, 13 Gray 231'3; In Holyoke County VB.

Lyman, 15 Wallace, 500; Miller vs. The State, 15 Wallace, 498; Tomlins VB. Jessup, 15 Wallace, 454; and tho two recent cases in 4 Otto, of Peck vs. Chicago and Northwestern Railroad Company, and Chicago, Milwaukie and Saint Paul Railroad Company -vs. Ackley, upon which so much stress is laid, in support of the authority to pass the bill reported by the Judiciary Committee, the question was not--

Mr. CHRISTIANCY. Will the Senator allow me to say-Mr. MITCHELL. I will yield at the end of the sentence. The

question was not as to the power of a State Legislature to pass a law impairing the obligation of contracts, because upon that there could be no two opinions; bot the question invariably was, Did the particular law in question as a matter of fact s6 trench upon the terms of existing contracts, so invade the domain of existing vested rights of property as to in fact and law impair the obligation of such contracts, or amount to an invasion of the rights of propertyT Or rather did the facts as presented by that case-and I now refer to the Wisconsin transportatiOn case iii fourth Otto-show that the corporation had such a right to fix its own rates of transportation and freight in the future aa to constitute in it such a vested right of property, such a contract with the State, or did those contracting with such corporation in view of the laws onder which the corporation was created,

·possess such contract obligations as could not be impaired by the Legislature under the reserved power in the constitution of that State to alter, amend, or repeal any law under which a corporation was created T

Mr. CHRISTIANCY. Will the Senator now allow me to interrupt himf

Mr. MITCHELL. Yes, sir. Mr. CHRISTIANCY. The Senator cites me among others as hav

ing quoted a certain case from Massachusetts, the case of the Essex Company and a certain case in Wisconsin. I cited no State report.

M.r. MITCHELL. I ask pardon of the Senator from Michigan. He is ondon btedly correct. I was led into the error. The Senat-or from Illinois [.Mr. DAVlS] quoted those cases.

Mr. CHRISTIANCY. The Senator from Ohio [Mr. MATTHEws] cited particularly the Essex case.

Mr. MITCHELL. The Senator from illinois-! cannot be mistaken about that-cited all the cases, every one of them, which I have quoted. I was under the impression that the Senator from Michigan had cited the same ca.ses.

Mr. CHRISTIANCY. I do not remember how that was in regard to the Senator from Illinois, bot I did not.

Mr. MITCHELL. Of course as the Senator says he did not cite those State cases, I stand corrected in that particular; bot the Senator from Illinois did cite, aa I have stated, every caae to which I have called attention. I now refer to the transportation case in fourth Otto that the Senator from Michigan referred to, and I am now going to comment on that. The Senator from Illinois and the Senator from Michigan both appeared to rest their whole case upon the two or three cases reported in fourth Otto, as I understood them.

Mr. CHRISTIANCY. Then, Mr. President, the Senator will allow me to say that he is entirely mistaken. I argued the case upon principle and said that if I were arguing the case in the Supreme Court · I should not cite a case. I then went on to say that according to those principles the court had decided; that is all.

Mr. MITCHELL. Yes, the honorable Senator from Michigan laid down a role, advanced a theory upon which he claimed that Congress had the right and the power to pass the bill reported by the Judiciary Committee, and then in support of that theory he cited the Wisconsin cases as reported in 4 Otto.

Mr. CHRISTIANCY. Undoubtedly. That is true. Mr. MITCHELL. Why did be cite them T He cited them because

they were decisions of the Supreme Court of the United States, and because he sought to have the Senate understand that the doctrine of the law as promulgated in those cases by a proper and legitimate application would sustain the bill of the Judiciary Committee. That is what the Senator from Michigan claimed. I do not wish to misrepresent him, and will not if I know it. If lam wrong at any time I ask that he may correct me, as he did correct me just now.

This was the question in the Wisconsin case referred to, as I stated it. It was simply a question whether the Legislature could, under the reserved power in the constitution of the State to alter, amend, and repeal, fix the n&aximum of jutu1·e passenger and freight charges, and 'IIOt a proposition such aa is prt'.sented by the bill of the J odiciary Committee, which is in effect to sequester and appropriate t-o the use of the Government in payment of a debt not yet doe the absolute earnings of companies which are the result of a business conducted, in so far as its charges are concerned, in strict accordance with the terms of its charter ; and which earnings have been reduced to possession by the companies, and become as to them vested property rights.

.Mr. CHRISTIANCY. I should like to understand the Senator, bot I will say nothin~ if it interrupts the Senator at aU.

Mr. MITCHELL. Not at all. Mr. CHRISTIANCY. Does the Senator claim that the bill of the

Judiciary Committee takes hold of the earnings which have already been receiYed and realized, and that it does not apply to the future J

Mr. MITCHELL. I do not claim any such thing. Mr. CHRISTIANCY. I thought the Senator did not, but his lan

guage implied it. lli. MITCHELL. I understand the bill of the Committee on the

Judiciary perfectly and the position of the honorable Senator. I say that the bill of the Judiciary Committee undertakes by the strong arm of legislative power to lay its hands upon money hereafter to be earned, and which the committee admit that the companies in a proper exercise of their corporate franchises have a right to earn and reduce to possession. That particular kind of property the Judiciary Committee proposes by this law to take possession of and hold in payment of a debt which it is conceded is not doe for the next quarter of a century. That is what I say.

The case, therefore, as presented by the facts and the principles of law involved, is flot, as is claimed, alter idem to the case presented by the bill of the J ndiciary Committee ; and in most, if not all the cases quoted, the courts held that there was no such invasion of the obligation of contracts as would render the act of the State Legislature obnoxious to the constitutional inhibition against States passing any law impairing the obligation of contracts.

The great difficulty, therefore, is not so much what is the power of the Legislature or of Congress in these respects, bot rather what in fact and law in any given caae constitutes a right or obligation that cannot be impaired or destroyed by the legislative power under a reservation of a right to alter, amend, or repeal. And a careful comparison, therefore, between the character of the rights which it was claimed were affected in the Wisconsin transportation cases by the legislative enactments brought in question in those cases and the character of the rights which are assailed by this bill, will at once conclusively show that they are not by any means parallel, and that the application of the law in the one case is not necessarily or at all the application in the other case.

The question in the Wisconsin case, as held by a majority of the court, and which by the way was earnestly and ably disputed by Justices Field and Strong, was simply this: that where a corporation bad been chartered under a. State latO which authorized it to demand and receive souh sum or sums of money" for the transportation of persons and property aR it shall deem desirable;" the Legislature could, by a subsequent act, under a. reservation in the constitution of the State to the effect that "all acts for the creation of corporations within the State may be altered or repealed by the Legislature, at any time after their passage," pass a law fixing the limits of fare for the transportation of persons, claasifying freights, and prescribing the maximum rates therefor.

The Supreme Court of the United States held by a majority of its

1900 CONGRESSIONAL RECORD-SENATE. MARcH 20,

judges that such a law could rightfully and constitutionally be passed; but does it follow, I would respectfully inquire, because the Legislature could do this-because the Legislature, in the interest of the public and for the common good, may legally prescribe (in the language of the Supreme Court) "a limit beyond which any charge would be unreasonable ; " upon the same theory that Legislatures may by law regulate or prescribe the maximum of rates for public ferries, bridges, turnpikes, wharfingers, hackmen, draymen, and interest on money; does it follow, I say, because the Legislature may do this, antl its action receive the sanction of the highest court in the land, that therefore Congress may, under the reserved power of the right to alter, amend, or repeal, in the Pacific Railroad acta, constitutionally enact a law that will compel these companies, without their consent, to surrender to the Government, out of moneys already earned by them in a proper exercise of the functions conferred by the very terms of their charter, and which have in every constitutional, legal, and moral sense become their property, not only in respect of title, l.mt possession also, millions of dollars annually in liquidation of a debt, which, according to the decision of our highest judicial tribunal, is not due or payable for nearly a quarter of a century f

Because of the rule laid down by the Supreme Court in the Wisconsin cases does it follow by any legitimate reasoning or fair logic or correct rules of legal interpretation that the terms of this contract between the Goverument and these companies-a contract perfect in all its parts, and free from ambiguity in its most essential features; a contract that is an entirety; a contract which in its most important stipulations ha..q years ago become fully executed-can, under the reserved right to alter, amend, or repeal the charter, be changed by the act of one party to the contract, without the consent of the other, so 38 to increase the pecuniary liability of such party, either 38 to the amounts of the payments to be made, or what is equivalent in point of law, by shortening the time within which they shall be made t

With the same propriety, :Mr. President, might it be said that a legislative grant of public lands to homesteaders could, under a reserved power to alter, amend, or repeal, be repealed in such manner as to destJ:oy the rights and unsettle the homes of millions, who acting upon the faith of the nation in making the grant had aooepted its terms and established themselves on the public domain.. Rights acquired, Mr. President, under legislative grants, as well as those acquired under a law, as Chie£-J ustice Marshall said in Fletcher vs. Peck, 6 Cranch,

- 103, which" is in its nature a contract" and which rights" have vested under that contract" are not held durante bene placito of the law-making power. Such a doctrine, as stated by Justice Story in the case of Terrett vs. Taylor, 9 Crauch, 50, "would be utterly inconsistent with a great and fundamental principle of republican government, the right of the citizens to. the free enjoyment of their property legally acquired." The construction for which I am contending, as to the eftect of the reservation of the right to alter, amend, or repeal, has been repeatedly andJ think I may say almost uniformly sanctioned by the courts.

In 15 Munroe's Kentucky law and equity reports, the court said: A reserration by the Legislature in a charter to alter, amend, or repeal, does not

imply the power to alter or change the vested rights acquired by the corporation under the charter.

Again, in the often quoted caBe of The Commonwealth VB. Essex Company, 13 Gray 253-and which caBe, by the way, is relied on by the friends of the J udicia.ry Committee bill-Chief-Justice Gray in his able opinion in discussing the power reserved in the words " the right to alter, amend, or repeal," after usinW this language, "it seems to us that this power must have some limit,' concludes in these words:

The rule to be extracted is this: that where under power in a charter, rights have been acquired and become vested, no amendment or alteration of the charter can take away the property or rijZhts which have become vested under a legitimate exercise of the powers granted.

:Mr. HOAR. The Senator from Oregon has attributed the la.D.o4TD.age that ho quotes to the wrong magistrate. That decision was long before Chief-Justice Gray's time. It was by Chief-Justice Shaw.

Mr. MITCHELL. Chief-Justice Shaw. That is correct. 1\!r. TELLER. It is equally good authority. Mr. :MITCHELL. Bot it is equally good authority of law. Mr. HOAR. Perhaps the Senator from Oregon will indulge me in

calling his attention, as that ca-se has been so often cited, to one fact. In that case the Legislature had in the charter of the Essex Company provided that the company should construct such a fish-way as the coonf.y commissioners of the county should decide was reasonable, and then that all persons who were affected injuriously by the fisheries above on the Merrimac River should have a right of action and should be paid damages by the company. It was after the company bad complied with the decree of the county commissioners and after they had paid damages to the owners of the fisheries above that the Legislature undertook to require them, (thereby, of course, purchasin~ in substance of these owners the fish-rights,) to re-establish the fisn-rights by opening their dams. The same chief-justice rendered a decision in a later case whel'O t.he Hospital Lifo-Insurance Company had been granted the right to insure lives, a monopoly, on condition that they should pay one-third of the net profits to the :Massachusetts Genera] Hospital, a charitable institution. The company had ac<:epted that charter and gone into operation under it. The court held that under the authority f,o alter or amend the charter the Legislature might lawfully increase the proportion of the net profits which should be paid over by the company as a condition of its doing busi-

ness. That seems to be the exact caBe which is now before the Senate in substance.

?tfr. MITCHELL. I have not examined the case referred to by the honorable Senator from Massachusetts, that is the later case to which he has attracted attention. In the case which I have quoted the learned chief-justice of the State of Massachusetts was discussing the effect of the words to alter, amend, or repeal reserved in a statute. Without going into the question as to what the particular facts of that particular case were, we have his opinion here very clearly to the effect that there is a limit to be ascribed to these words, and that it does not confer unlimited, unrestricted power on the Legislature. And so in Miller VB. The State, 15 Wallace, 498, the Supreme Court of the United States held that" the power to legislate upon such a reservation in a charter to a private corporation, is certainly not without limit, and it may well be admitted that it cannot be exercised to take away or destroy rights acquired by virtue of such charter, and which by a legitimate use of tho powers granted have become vested in the corporation.

I respectfully insist, then, Mr. President, that no snob power is reserved to Congress by the reservation of the right to alter, amend, or repeal aB used in the Pacific Railroad acts, as is contended for by tho friends of the Judiciary Committee bill. And it is upon this reservation mainly the right to pass their bill is baBed.

It was said, however, but not argued by the honorable Senator from Illinois, [Mr. DAVIS,] that inasmuch as the constitutio·nal prohibition against the enactment of laws impairing the obligation of contracts was only operative upon the States, and not on the Federal Government, that therefore (to use his own language)" it is not necessary to rest the right to pass this bill on the reservation contained in the eighteenth section of the act of 1862." And a clause in the printed report of the Judiciary Committee, I call the attention of my friend from Ohio [Mr. THURMAN] to this printed report. I am about to adver~ to a clause in the printed report of the Judiciary Committee, to which I invite the special attention of the Senate; it is to the same effect.

:Mr. THURMAN. "What pagef 1\Ir. MITCHELL. It is the last page; it is the winding-up when

yon are speaking about the power of Congress; it reads as follows: Baing fully satisfied that Congress, under the reserved rights to alter, amend, or

repeal the charter of these companies, possesses the right to pass this bill, we do not consider it necessary to say what would be the-case were that reservation not in the charter. Had it been omitted, it might still be argued with much force that the !>Ower to alter, amend, or repeal legally existed. No State can make a Jaw impairmg the obligation of a contract, because that is prohibited by the Federal Con· stitution.

But-And now this is what I call attention toBot-Says the committee-

there is no such prohibition upon Congress.

What is the argument, Mr. President, conveyed, or sought to be conveyed, by this most remarkable portion of the report of the committee t It is thjs, and this alone; it cannot be anything else-that while it is true that no State can pass a law impairing the obligation of contracts, from the fact that there is a constitutional prohibition against it, that therefore Congress has the power to pass such a law for the reason (to use the language of the committee)" that there is no such prohibition upon Congress/'

This, Mr. President, is the inevitable conclusion to which the argument of the committee leads; and aiter having stated the proposition, the committee, as if startled by the very enormit.y which its announcement must suggest to every mind, in a measure apologized for having advanced it, by the statement in the report a few lines later, as fol-lows: ·

But we do not deem it necessary to expl'ess a definite opinion upon this point. It is sufficient that in this caae the power to alter, amend, or repeal, is expressly reserved.

Mr. THURMAN. Will the Senator allow me to interrupt him. If it will disturb him, I shall not say a word.

Mr. MITCHELL. It will not disturb me at all. Mr. THURMAN. I should like to ask the Senator if he asserts that

in no case Congress can impair the obligation of contracts t Mr. MITCHELL. No, sir, I do not assert any such thing, because

there is an express grant in the Constitution to Congress to enact bankrupt laws, which can impair and which do impair the obligations of contracts.

Mr. THURMAN. Is that the only case f Mr. MITCHELL. That is one case. Mr. THURMAN. Is there not another f Mr. :MITCHELL. I have not the time to stand here and instruct

the Senator from Ohio on the Constitution of the country; life is too short for that. He asked me the question whether I contended that there was no power in Congress in any case to pass a law impairing the obligation of a contract f I said no, I did not contend any such thing, and I pointed out an instance whero Congress had the right clearly by express grant to impair the obligation of a contract under that clause in the Constitution which says that Congress may enact bankrupt laws. I do not propose to stand here ant.l. enlighten my friend all day on this question. ·

1878. CONGRESSIONAL RECORD-· ·sENATE. 1901 Mr. SARGENT. Congress has no right in morals to violate its own

contract. Mr. MITCHELL. Congress ha~ no right in morals to violate its

own contract in any respect, nor with any person. That my friend will concede.

Mr. THURUAN. If my friend will look at the decision of the Supreme Court in the Legal-Tender Cases be will find that there are half a dozen cases in which Congress can impair the obligation of a contract.

Mr. MITCHELL. There is no room for any argument on that point. I will admit that in some respects by indirection contracts may be affected by law; you cannot get up any argument with me on t.bat point. Right here, before I leave this point, I want to ask my friend from Ohio a question if it does not disturb him, and that is, whether the Committee on the Judiciary, or the honorable Senator who drew that report, intended to have the Senate understand, by the clause in the report that there was no prohibition upon Congress to pass a law impairing the obligations of a contract, that he had reference to the specific cases in which Congress bad the power under special grant to interfere with the obligation of contracts, or whether, upon the contrary, he and his committee did not mean to convey tbe impression to the Senate and to the country that because there was no inhibition in the Constitution against Congress passing a law impairing the obligation of a contract, that therefore in this particular case Congress might pass a law impairing the obligation of a contract!

Mr. THURMAN. If the Senator had read one or two lines lower down in the report he would have seen what we thought about that.

Mr. MITCHELL. I think I do see what you think about it and what you said about it. .

Mr. THURMAN. First, we do not think there is any impairing of the obligation of the contract at all in repealing or amending the corporate franchise grant~d by Congress. 'fhe committee say:

But there is no such prohibition upon Congress; and as it is a fundamental principle that one Congress cannot limit the constitutional powers of a subsequent Con~ess, it may be argued that no mero corporate franchise can be granted by one Con!!ress that a subsequent Congress may not alter, amend, or repeal. This is a ' 'ery different proposition from an as~ertion that Congress may, at its p1eaaure, destroy vested nghts of property. It may be argued that, except by a bankrupt act, Con~ress cannot impair the obligation of a contract for want of a delegation of power to do so. But to impair the obli~tion of a contract is one thing and to altt!r, amend, or repeal a corporate franchise granted by Congress is another and a different thing, especially when the corporation is public or quasi-public.

I think a lawyer has no difficulty in understanding that. Mr. MITCHELL. No, I do not think a lawyer has. I underst-ood

· it before the Senator repeated it and I understand it now. I say this, that it is asserted in that report positively, for what purpose I will leave the Senate to judge, that while it is true that there is a clause in the Federal Constitution prohibiting States from passing a law impairing the obligation of a contract, there is no such provision prohibiting Congress from passing a law impairing the obligation of a contract.

Why, Mr. President, if it is true that Congress, because there is no constitutional inhibition against it, can pass a law impairing the obligation of contracts, whence does it derive the power T I had supposed that the Government created by the people, and the embodiment of which is found in the Constitution of the United States, is one of limited apd enumerated powers; that what by the express terms of the Constitution, or by necessary implication, are not delegated to the United States, nor prohibited by it, to the States, are reserved to the States respectively, or to the people; and that Congress therefore possessed no power to pass any law which is not expressly conferred, or which is not necessary to the execution of one expressly conferred. And of this doctrine I had supposed the honorable Senator from Ohio, who reported this bill, [Mr. THURMAN,] had been an able and consistent champion for the last thirty years; and therefore the suggestion be makes in his report is all the more startling, coming as it does from him.

And I submit in all confidence that there is no grant of power, either expressed or implied, within the folds of the Constitution of the United States that confers upon Congress the power to pa.ss a law impairing the obligation of contracts, if we may except that clause alone in section 8 of article 1, which provides that "The Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States." Under this clause CongreSB undoubtedly in one class of cases may so legislate as to impair vested rights; and the very fact that this express power is given in one case excludes the idea that it exists even by implication in any other. Nor can any such power be claimed for Congress under the general grant of legislative powers.

"AU legislative powers," says the Constitution, "herein granted shall be vested in a Congress," &c. Not all legislative power, not unlimited power, not unrestricted legislative power, but all legislative powers "herein granted;" and in no pbce from the beginning to the end of the Constitution is there any power therein granted that would authorize Congress to pass a law impairing the obligation of a contract, except as I have stated.

Duer on constitutional jurisprudence, page 357, states the constitutional doctrine in these words: .

The power possessed by a State Legislature, to which everything not expressly reserved is granted, and the temptation to abuse that power, render express restric·

tions, if not absolutely necessary, at ]east pruaent and useful; but the Nat:Umal Legislature has no poweT to interfere with contracts eueptwhen it is expressly given to it. * * * But Congress is expressly invested with this power in regard to bankruptcy as an enumerated and not as an implied power, and in 1w other f01m can it impair the obligation of a contract.

Again, in Calder vs. Buel, 3 Dall., 388, in speaking upon this very subject, of the power of Congress to pass a law impairing tb.e olJligation of contracts, the court said:

They [referring to Legislatures] may command what is right and prohibit what is wrong, but they cannot change innocence into guilt or punish innocence as a. crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our Federal or State Legislature possess such powers, if they ha.d not been expressly restrainell, would, in my opinion, be a political heresy altogether inadmissible in all free republican governments.

And yet in the face of these decisions, the Senator from Ohio,·who reported the bill from the Judiciary Committee, says in his report, ''no State can make a law impairing the obligation of a contract, because that is prohibited by the Federal Constitution; but" says be further, " there is no such prohibition upon Congress;" thereby arguing, as I have said, that because there is no such prohibition upon Congress, it may pass such a law. And again, in his speech on this bill the other day, the honorable Senator in speaking upon this same point said:

lli. President, as I said before, I shall not now speak upon-the power of Congress to pass this bilL My object ha.s been simply in the opening of the discussion to e:xplain the bill I shall not speak upon the power to-day for another reason, and that 1s that the Senator from illinois, [Mr. DA VIB,] who is on tbe .Judiciary Committee, ha(l prepared some remarks upon that 11ubject, aud I hope that he will take the floor when I conclude and give the Senate the benefit of his opinions upon the legal question. For myself I have only to say that tiJ me nothing in the world is clearer than that we have the right and would have it if there was no reservation in t-he charter of a right to alter, amend, or repea~.

It will not do, therefore, now for the honorable Senator from Ohio or for any of the honorable Senators who gave their sanction to that report to say this bill does not impair the obligations of a contract, does not interfere witllvested rights, and attempt by elaborate argument and fine-spun theories to justify the measure on the general doctrine of the right of the Government to exercise certain control over the management of corporations for the purpose of promoting the common good and protecting the rights of its creditors. Such arguments come with awkward grace in the face of a report which, if it means anything, asserts unqualifiedly the existence of a right upon the part of the Congress in tltis case to pass a law impairing the obligation of contracts.

But, Mr. President, if it be said, aa it is said, that the Judiciary bill does not impair the obligation of a contract, that although it authorizes the Government to retain all moneys arising from Government transportation, when the contract says that the one-half only shall be retained ; although it requires millions of dollars to be paid over annually by the companies to the Government out of their earnings, to be held, managed, and controlled by the Government, for the purpose of a sinking fund for the payment, not of a debt due the United States, but for the purposes of providing a fund to meet the payment first of the claims of third parties-creditors of the companies, whose debts are not due for over twenty years; the balance to go to the payment of the Government indebtedness when it matures~ then in the light of the changes which this bill proposes to make in the terms of this contract, and in view of the law a~ I have stated it, I would ask the attention of the Senate to what the Supreme Court of the United States, in 4 Wallace, 5.1)2, said in speaking of what constituted an impairing of the obligation of a contract. The court says:

The objection to a law, on the ground of its impairing the obligation of a con· tract, can never depend upon the ea;tent of the change which the law effects in it . .Any deviation from its terms b:y postponing or accelerating the period of performance which it prescribes, impoSlllg conditions not expressed in the contract, or dispensing with those which are. however minute or apparently immaterial in their effect upon the contract of the parties, impairs it.

The Supreme Court, in the case of the Loan Association vs. Topeka, 20 Wallace, 662, in speaking of the powers of Legislatures under general and plenary grants of legislative power, says:

There are limitations on such power, which ~rfOW out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.

And Chief-Justice Marshu.ll, in the case of Fletcher V8. Peck, 6 Crancb, in discussing this question, uses this language:

It may well be doubted whether the nature ·of society and of government does not prescribe some limits to the legislative power, and if any be prescribed, where are they to be found if the property of an individual. fairly and honestly acquired,. may be seized without compensation i

In speaking in this case of the Legislature of the State of Georgia, Chief-Justice Marshall said:

To the Legis~ture all legisl~tive power i.s granted, but the question whether the act of transferring the property of an individual to the public be in the nature of & legislative power 1s well worthy of serious reflection.

On no possible theory, then, Mr. President-and I would not have referre<.l at all to this last phase of the case had it not been for the clause in the report of the committee, to which I have called attention, and the remark made by the honorable Senator from Ohio, in his speech upon this question-in my judgment, can the right of Congress t<> pass the bill reported by the Judiciary Committee ue vindicated; neither under the power conferred by the reservation in the charter of the right to alter, amend, or repeal, nor by reason of any supposed, expressed, or implied grant of the Constitution of the

1902 CONGRESSIONAL RECORD-SENATE. MAROH 20,

United States, much less for the reasons suggested in the report of the Judiciary Committee, and in the speech of the honorable Senator from Ohio, as well as in the speech of the honorable Senator from lllinois, that there is ''no such: prohibition upon Congress" as rests upon the States, prohibiting them from making laws impairing the obligation of contracts.

I now attract attention to another feature of this bill which I regard as indefensible in law and opposed to reason. I refer to the attempt to define by law what the net earnings of these companies are, or rather what shall constitute net earnings in the future. My first objection is because it is a. purely judicial question-one to be determined by the courts and not by Congress, by giving construction to the terms of a contract between the Government and these companies aa it now exists. And I understand there are now pending in the Supreme Court of the United States two cases-those of the Sioux City Railroad Company and the Kansas Pacific Railroad Companyin which this very question arises as to what shall constitute net earuinus under the Pacific Railroad acts. Shall Congress in advance of thes~ decisions assume the role of the judiciary and attempt to give definition to these terms-a definition that may or may not accord with the judgment of the court f

Mr. CHRISTIANCY. The question is what the law now is, not the power of changing it.

Mr. MITCHELL. Yes, I will show in a moment what the Judiciary Committee thinks the law is, and what that Bame committee thought the law was on that same question twenty months ago; and I will show that the two opinions do not accord very well.

Mr. President, the definition of "net earnings" as given in the first section of the bill of the J ndiciary Committee is either right or it is wrong. It is either a correct or an incorrect construction of the terms of an existing contract. If it is right, then, perhaps, in so far as this question is concerned, no rights of any one may be infringed; if it is wrong, then unquestionably the opposite result must follow. If wrong it may injuriously affect the rights of the United States or the riuhts of the companies. And the complete somersault made on this q ~estion by the Judiciary Committee proves one of two things, either that the committee are wrong in their definition, or else they were not right in their definition as given us in the bill reported from that same committee less than two years ago.

Mr. THURMAN. Will the Sentaor-Mr. MITCHELL. In a. moment, when I get through with this sen

tence. In the bill of two years ago in defining "net earnings" under these acts, that committee excluded from the gross earnings," all lilUms owing or paid by said companies as interest on any portion of their indebtedness;" while in their bill of to-day, in defining what shall he" net earnings," they deduct from the gross earnings not only the necessary expenses actually paid within the year in operating thliir roads and keeping them in a. state of repair, as was done in the bill of two years agof but also the sum paid by them within the year in discharge of interest on their first-mortgage bonds, whose lien has priority over the lien of the United States.

In other words, the net earnings as defined by these two bills, each receiving the sanction of the Judiciary Committee of the Senate, and each advocated by its promoters with a zeal that as a rule speaks conviction, is for a single year about $3,305,531less in one than in the other; being the amount of interest that the two companies pay annually on their first-mortgage bonds, and making a difference in the amounts to be paid into the sinking fund ammally by these companies under the two bills of$826,382, less only the proportionate share of the 5 per cent. on the net earnings, whatever they may be, and the proportionate share of the amount earned during the year on Government transportation. Only a alight difference, Mr. President, of over 3,300,000 in the net earnings of these companies in any given year, no matter what the gross earnings may he, under the two definitions of the Judiciary Committee as to what in law a11d equity shall constitute "net earnings," and which definitions have been reported to the Senate within twenty months of each other.

1\lr. THURMAN. Now, will the Senator allowmetointerrnpthim f Mr. MITCHELL. In a moment. -This fact proves two thingsMr. CHRISTIA.t~CY. In the first place it is not a fact. Mr. MITCHELL. If it is not a fact, there is plenty of time to cor

rect me in the next two or three weeks, although I am willing to be corrected now when I get to the end of this particular point. This fact proves two things: first, that even a committee of the great legal learninu of the Judiciary Committee of the Senate, like other committeet of less learning and ability, sometimes at least falls into error; because we are bound, in proper respect to that committee and its report, to assume that the first bill was· an error, otherwise it would have been adhered to, and, in the second place, that, like all good committees of the Senate, its members are ready and willing to correct an error whenever convinced they have committed one.

But, however this may be, I insist that the term "net earnings" from the moment the contract between the Government and these companies dated its existence by the acceptance of the terms of the charter, by the companies, had a definite, fixed meaning in law.

Mr. THURMAN. I do not suppose the Senator from Oregon intends to do injustice to the committee.

Mr. MITCHELL. Not at all. Mr. THURMAN. He snrely has never read this report; or, if he

has, he hW3 reau it in so perfunctory a manner that he does not under-

stand it. The Judiciary Committee has never, either in the report it made nearly two years ago, or in the report that it has made now, or in the bill reported nearly two years ago, orin the bill now reported attempted for one single moment to define what are "net earnings ,J under the terms of the acts of 1862 and 1864. On the contrary, they have asserted in the mo.'lt enresR terms that their provisions as to net earnings are not a definition or an interpretation under the acts of 1862 and 1~64, but are an exercise of legislative power to declare what shall be net earnings in the future. They have said so in so many words. In the last report, after stating wherein the law officer of the Government and the companies diff~r as to what constitute net earnings, the committee Ray :

The ri~ht to the 5 J?er cent. is giTen by the sirlh section of the act of 18G2, andJ reading that section m connection with the eighteenth section, we are not preparon to admit tho claim of the company. But whatever may be the true interpretation of these sections, we are of the opinion that, under its reserved right to alter, amend~ or repeal, it is competent for Congress to define, for the future at least, what snail be deemed to be net earnings. And, in view of the rights of the fil'Stmortgage bonclholders, and as a fair adjustment of the conflicting claims of the (i()vernment and the company, we think it would be right to deduct in fntUTe not merely the operating expenses but also the interest on the first mortgage; and the amendment we report is to that effect. As to the past, we leave the question upon the Jaw as it now stands to the decision of the Supreme Court in the case pending before it.

That this bill is more lenient to the companies than the bill reported nearly two years ago is very true, and the reasons for that I am ready to state whenever it is necessary to do so.

Mr. MITCHELL. I do not wish to misrepresent the committee, but the Judiciary Committee of the Senate cannot escape from their positions upon this question by any such arguments as are advanced now by the Senator from Ohio. There is no escape from the recorde<l facts of history, which are to this efl'ect, that twenty months ago the Judiciary Committee of this body undertook to define what should constitute net earnings in the future by giving a construction to the acts of Congress under which these companies were organized, and they have done the same thing to-day. I do not care whether you call it a definition or whether you say in the language of the committee that the net earnings .shall be oonsidered to be so and so hereafter. The fact is all the same. The purpose of the committee and the purpose of this bill is to define by legislative enactment what shall constitute the net earnings of these companies from this time on; and their rights and the rights of the Government are to be determined according to tho definition. Bot however this may be, I insist that the term "net earnings" from the moment the contract between the Government and these companies came into existence by tho acceptance of the terms of the charter by the United States had a definite, fixed meaning in law. I call the attention of the committee to that proposition.

If snch meaning was doubtful or ambirnous, what person or what power shall remove the don bt f Can either of the parties to the contract, without the consent of the other, define it, so a,s to bind the other! If Congress can define it, then why not the companies f There is nothing in the sovereign power of Congress that gives to it more power than a private individual, in so far as giving construction to a contract between the Government and the citizen is concerned; beca.use, as I will show, when the Government makes a contract with its citizens it divests itself of its sovereignty in this respect and is clothed with no greater power than an indiviuual. The truth is, neither Congress nor the companies can give a definition to this term that is binding on the other, from the simple fact that the question is one for the courts and not for Congress; it belongs ,to the judicial and not to the legislative department of the Government.

It bas been ruled over and over again that the Government by becoming a party to a. contract with its citizens, ipso facto divests itself of its sovereignty with respect to the terms and conditions of the contract, and stands henceforth in the same position as a private person in respect to such terms and conditions, and its construction and interpretation. In the case of The Commonwealth vs. Proprietors of New Bedford· Bridge Company, 2 Gray, 339, in speaking npon this very question, the court said:

The Commonwealth and the defendants are but parties t"() a contract. Each bas equal rights and privileges under it~ and neither can interpret its terms authoritatively, so as to control and bind tbe rights of the other. TbA Commonwealth bas no more power or authority to construe the cbart~r than tho corporation. By be· coming a party tQ a. contract with its ci~na the (i()vernment divests itself of ita so>erei~ty in respect of the terms and conditions of the contract and its construction anu int~rpretation, and stands in the same position as a private inuividun.L Hit were otherwise, tho rights of parties contracting with the Government would be held at tho caprico of the sovereipt and exposed to all the risks :uisingfrom the corrupt or ill-juugetl use of misgniuod power. The interpretation and construction of contracts, when drawn in question, between the parties, belongsexclusi vely-

1\!ark the language-to the judicial department of the Gi>vernment. The Legislature bas no more power to construe their own contracts with their citizens than those which individ· un.ls make with each other. They can do neither without exercising judicial powers, which wonltl be contrary to the elementary principles of our Government. * * * H the Legislature have the power to decide upon the true meaning of the te:r:ms oftbe contract, IUld to determine what shall be deemed suitable in the construction of the bridge and draws, thero can be no limit placed on the exercise of this power.

And now, Mr. President, in this connection I call attention to what it seems to me is a most inexcusable solecism iu the bill reported by the Judiciary Committee. My friend from Michigan in discussing these measures on day before yesterday, became very sarcastic as welL as facetious, over what he conceived to be the absurdities of the bill

1878. _. cONGRESSIONAL RECORD-SENATE. ·1903 reported by the Railroad Committee. He as~omed for ~is bill a virtue, even if it had it not., w hilo he. sought to fairly de~ol~sh the ~ther, not uy argument, but with scathmg sarcasm, a~d blm~mg sallies of wit of which he is so great a master. Had the JOCularity of my venerable friend been imparted in a less degree than it evi~ently was to the framework of the l>ilJ, to which he doubtless contnbuted much, it would not perhaps to-day be regarded a~ presentin~ in some of its provisions the extremely ludicrous aspect 1t unquestionab~y does. I now contrast the provisions of section 1 with those of sectiOn 5 of the bill of the Judiciary Committee. Section 1, i!l defining _what shall constitute the "net eamings" of these compames, states It shall be what remains of the gross earnings, after deducting the necessary expenses actnallr paid ~vithin the year in ope~atin_g ~ho road, a~d keeping the line m reparr; and also the sum pa1d Withm the 'ear m discharge of interest on their first-mortgage bonds, whose hen h~.s priority over the lien of the United States. Very well, so far as this defines what shall constitute net earnings it is perfectly clear, and I have no criticism to offer~,. save and except that it is barely possible if not probable that the ruJe invoked in the definition is not correct. Now we come to section 5, which provides:

Tba.t whenever it shall be made satisfactorily to appear to the Secretary of the Treasury by either of sai<l companies, that 75 per cent. of its net earnitlgs as herein beforo dotine<l for an;v current year a1 e or wer~ insnfficient to pay tb~ in~erest for snob year upon tbeobltgations of such company, tn respect of whtch. obltgations there may exist a lie-n. paramount to that of the United States, and that s~ch mteres~ ~as been paid out of such net earnings, s:nJ Secretary is hereby authonzed, and 1t 1s ~ade his duty, to remit for such current year 80 much of the 2i per cent. of netearnmgs required to be paid into tho sinking fund as aforesaid as may have been thus applied and used in the payment of interest as aforesaid.

Now then, can mortal man in reading this section tell from the langn;ge used what" obligations of such contpany" the committee who drafted this bill refer to 7 Does it or does it not refer to or include the first-mortga<Ye bonds of the companies referred to in section 1 of the bill and the~ interest on which is to be deducted from the gross earn~ngs, before there can be under the committee's definition any net earmngs. whatever!

The clause in section 1 is : Their first mortgage bonds, whose lien has priority over the lien of the United States. While the language in section 5 is: The obligations of such company, in respect of which obligations there may exist

a lien paramount to that of the United States. Does or does not, I inquire, this latter clause include within its

meaning the first-mortgage bonds described in section 1 f If it doesand I can see no reason, by any fair rule of legal and statutory construction, why it does not, for, in truth, there are no obligatiOns of such companies whose lien is paramount t.o that of the United States, save and except the first-mortgage bonds of such companies-then the committee that reported this bill has been guilty of that which, were it not the work of such a distinguished committee, would be regarded as the flagrant absm·dity of first saying that the interest on a certain class of indebtedness should be paid out of the gross earnings before tht're should be any net ea1•nings, and then, in the next breath, of declaring that if 75 per cent. of the net earnings were not sufficient in any year to pay thi8 same intel'est, and it ·should be made satisfactorily to appear to the SecretaJy of the Treasury that such interest has been pai(l out of the net earnings, that then be shall remit so much of the 25 per cent. of the net earnings to be paid into the Treasury as may have been thns applied.

Whatever may be said, Mr. President, of the legal ability manifeste<l in drawins this bill, surely the ~mmittee ha\"e se~ured i~mort.ality to the1r fame for the rngenmty they have manifested m the presentation of a business proposition.

In this respect my honorable friend from Ohio, the venerable daddy of this uill, if I may so speak, as I do with all respect, and his equally venerable but more facetious co-worker, my distinguished friend from Michigan, are justly entitled to the endurin~ gratitude of the economist and the lasting devotion of the finanCial and business world.

But suppose the construction is different. Suppose the committ-ee did not intend in the words employed in the fifth secUon to refer to or include the first-mortgage bonds of tho company as designated in the first section, then what in the name of common reason did they refer to, as no other such obligations are in existence ! And in this aspect of the case the dilemma of the committee becomes more apparent than ever, and while the logic of this bill in this respect may not be illustrated by Dogberry, it may, I apprehend, by the controversy related by Johnson in his writings as having occurred betwe.en the young rhetorician and the old sophist. A young rhetorician said to an old sophis~: " Instruct me in pleadi~g aml I .will pay you when .I gain a cause." The master gave the rnstruct10n and sued for hiS pay, and the scholar attempted to elude the claim by a dilenlma. "If I gain my cause," said he, '' I shall withhold your payJ because the award of the judge will be against you. If I lose it, I may withhold it because I shall not have gained a cause." The master replied, "If yon gain your cause yon must pay me, because yon are to pay me :when yon gain a cause; if yon lose it you must pay me because the JUdge will award it."

But, then, what more could be expected., Mr. President, of that committee in the shape of either law or logic if we may believe the reported statement of its chairman in regard to the manner in which, under the peculiar state of mind of several of its members, it is compelled to transact its business. Of course I do not pretend to vouch

for either the truth of the statement itself or of the matters averred in it but give it as I find it in the Washington correspondence of the Buffalo Commercial Advertiser. The ar~icle is headed "P1·esidenti{l.l Bee-Buzzing," and reads as follows:

Senat.or EDMUNDS ao.ys there are 80 many presidential candidates on tho Committee on Judiciary tbat busilless is very much behind. He says that on the day when the committee meet.s, COl\"KLING will come in first and find a slim attendance. H6 will sit a little while impatiently an<lsay:

"W. ell, I don't supposo there will be a quorum this morning, and I have other matters to atten<l to. TI DAVIS and THUlWAN would drop their p,residential aspirations and attend to committee business we could do somethin~. '

And be will go out. Then Tau~ will come in and ask: "Where's CONKLIXG W" When told that be had been in and left to look after other matters, be will say: "Where's DAVIS! " · "DAVIS hain't come." "Well" TH1JRl1AN will say "COl\"KLLNG and DAVIS have Jl;Ot the Presidency on

the braui, and of course we can't ~pect anything of them. Call me when you get a quorum."

And be will go out. Then DAVIS will come in and say: "Well CONKLING and THURMAN are absent again. Those two men are so busr,

working'np their presidential campaigns tbat they neglect their Senatorial d uti ea. ' And 80 it goes every week, EDMm-ns says.-Wa.shington letter to Buffalo OoJn.m.er

ciaZ Advertiser.

I now, Mr. President, desire briefly to call attention to the bill reported from the Railroad Committee. It is a bill intended not onJy to protect the Government in the .~ll an.d !lnal l?n.yment into its Trea.sury of nearly $155,000,000, but It IS a Lillm tht. mterest of peace, a proposition looking to a full, final, and complete settlement of a controversy, the very existence of which, if perpe.tuated, will in~vitably result in very great loss to the Government, if not of the entrre sum i have named. It proposes, as does the bill from the Judici~ry Committee, to create a sinking fund, the nest-egg or nucleus of whteh shall be at least $2,000,000, and as much more as the Government shall be owin(J' these companies for Government transportation, on the 31st day of the present month; that is, the one-half of the whole amount earned by the companies for Government transportation; it may swell the amonnt moat probably to over $3,000,000. It cannot be less than $2,000,000.

In addition to this, each of the companies shall pay into the sinking fund which shall be controlled and managed by the Secretary of the Trca~ury, and upon which interest shall be credited and added semiannually at the rate of 6 per cent., the sum of $500,000 until the year 1900. That ia to say, the two companies shall pay to this fund $1 000 000 every six months or $2,000,000 annually until the year tooo-'october 1, 1900-when the principal and interest of all the bonds shall have matured. Then settlement is to be made, the amount of the sinking fund at that date with its accumulations, and ~hich will then amount to over $100,000,000 of money absolutely m the Treasury of the United States, shall be deducted from the whole amount then due from the companies to the Government, which at that time will include not only the principal of the bonds together with all interest represented by the coupons paid by the Government, but also interest on the whole amount of principal from about July, 1898, the average date of the maturity of the bonds. '

The balance shall then be paid by the companies in fifty equal semi-annualinstallments, together with in teres~ on the whole amount of principal remainin,. unpaid, payable every SIX. months, the rate of interest to be the sam~ that the United States shall then be paying on the greater portion of its i~debtedness. These .payments to. b~ in lien of all payments now reqmred of the compames under eXIstmg laws. Ample provisions are made in the bill for the protection of the interests of the Government and the enforcement of its rights in tho event of a failure on the part of either or both of these companies to comply with the conditions imposed by this bill-the criticisms of my friend from Michigan to the contrary notwithstanding, and which of course were not intended to be serious, as that was simply the funny part of his speech.

Mr. CHRISTIANCY. Mr. President, I disclaim that. I was entirely in earnest when I used that illustration, because I thought the case deserved it.

Mr. MITCHELL. Of course I take it for granted, becanse the Senator now says he was in earnest and that he was not funny the other day, that he was in earnest, and I will say this to him simply upon that point: if that is the only criticism which can be found with the bill of the Railroad Committee, if it is a good bill, one in the interest ef the Government, and the provisions in relation to the rights of t.he Government, conferring on the Governmen~ the power to enforce tho provisions on the company, are not suffic1ently strong, why, then, does not the Senator from Michigan offer any amendments that he thinks proper and right f Of course they will receive consideration, because I can assure him that for one I have no disposition to permit these companies to escape from any obligations that may be rightfully and justly imposed upon them by any weakness in the law by which they may be compelled to perform these conditions.

'l'be present statutory lien in favor of the Government is not only preserved in all its vigor as to existi?tg obligations and rights, but is, b:y the very terms of this bill, extended in its operation so as to cover in its grasp in favor of the G~ver?ment all the ·new ~blig_ati_ons imposed on the companies by thUI bill. The fourth section IS m these words:

That the morlrrage of the Government created by the fifth section of the net of July 1 1862 :llitended by the act of July 2, 1864, shall not be in anywny impaired or ~oteakd by the operations of this act until the whole am01mt of tho prin-

1904 CONGRESSIONAL RECORD-SENATE, MARCH 20,

cipal of saitl bonds, with the interest thereon paid by the United States as aforesa.ill, shall bo fully paid; but said mortga~e shall remain in full force and virtue, and, upon the failure of either of said companies to perform the obligations imposed upon 1 hem by this act, said mortgage may also be enforced a!!ainst such def&ulting company for any such default; the Government, however, di"ily crediting and allowing to the company upon said mort~a~e all payments which may have been made in part execution of this ac~ and interest thereon to be credited and added thereto semi -annually as hereinbefore provided.

Mr. THURMAN. I do not pretend any Sllch thing. I have been a strict constructionist all my life.

Mr. MITCHELL. So I supposed, and therefore I have been the more astonished. ...

And the fifth section is in these words:

Mr. THURMAN. But I do say that no one Congress can grant away ~he powers of Congress so as to tie up a subsequent Congress and deprive it of its legitimate constitutional power. I say that an act of Congress grantin~ a franchise is, like any other act of Con-

That this act shnll take effect upon its acceptance by said railroad compa- gress, subject to alteratiOn, or amendment, or repeal by Congress, nics, or if accepted bf only one of said companies, then as to the company so t b th b · · · th C · t" · h accepting the sa.me, which acceptance shall be filed with the Secretary of the Trea.s- excep w ere ere may e a proviSion lD e onstltu ton of t e urywit.hrnfourmonthsfrom thepassageofthlsac~ andshallshowthatsaidcompanx United States that to some extent may prohibit it. That is one ques· or said companies have agreed to the Ba.me at a. meeting of stockholders; and if tion; but a question of divesting rights is another question; a quessaid companies shall make punctual 'Payment of the sums herein provided for, and tion of impairing the obligation of contracts is a wholly different perform all the conditions hereof, this act shall be deemed and construed to be a t" final settlement between the Gi>vernment and the company or companies so per- qnes IOn. forming the sa.me, in reference to all matters relating to a reimbursement to the But what I want to call the attention of the Senate to is that the Government by said companies; but in case of failure so to do, Congress may at Committee on the Judiciary did not pretend to decide the question; any time alter, amend, or repeal this act as to such company so making default. they only suggested it for the consideration of the Senate, tbemsel ves

These are, in brief, the principal features of the bill reported by relying on the reserved power to alter, amend, or repeal, contained the Committee on Railroads. The bill proceeds on the theory that in the charter. the relations existing between these companies and the Government Mr. MITCHELL. May I inquire of the Senator what it has to do are those growing out of contract; that no change in that contract with this case, what it was brought in here for, unless some claim in any manner affecting its terms and conditions so as to impair its was made based upon it f obligations can be made by any act of the Government to which the Mr. THURMAN. I will tell the Senator what it was brought in companies do not give their assent. It recognizes the fact that the here for. If he bad listened to the speech made yesterday he would hands of the Government, in so far as possessing any power by its own have found out what it was brought in here for. mere act to modify the terms not merely of the franchise but of a Mr. MITCHELL. I did listen. contract made in pursuance of the charter, dictated by itself and Mr. THURMAN. I for one say if the reserved power was stricken vitalized by the solemn act of its Congress and Executive over four- out of this charter our power would be just as ample as it is now. teen years ago, are paralyzed by the consequences of its own act. Mr. MITCHELL. Then where does Con~ess get it f Does it get

It reco~izes, furthermore, the paramount duty of Congress to main- it from an express grant of power or from Its inherent sovereignty f tain the mtegrity of the Govermhent, and preserve its faith with its Mr. THURMAN. Where does it get it f If my friend is not sumcontractors and debtors by holding inviolate the terms of all its com- ciently grounded in the fundamental principles of constitutional law pacts; and not to permit either the honor or the interests of a great to ~now that the -granting of corporate franchises by an act of legisnation to be sacrificed in an hour of feverish excitement and menac- lation cannot bind another Congress to let them stand forever, then ing unrest either upon the dangerous altar of modern agrarianism, or I despair of ever putting an idea into his head. yet by making unreasonable concessions to the unjust demands of cor- Mr. MITCHELL. Very well. porate power. It recognizes the fact that a prolongation of the con- Mr. THURMAN. The corporate franchises, the whole of thorn, we troversy between the Government and these companies will result, in may repenJ. Let me put the questiou at once-great probability, in a loss to the national Treasury of over $100,000,- Mr. MITCHELL. Allow me to put a question to the Senator right 000, while its settlement under the provisions of this bill, by the here. Take the case of a legislative grant of land; does the Senator time the debt matures, will pay into the Treasury of the United States bold that it may be repealed so aa to destroy the rights vested under in money on that debt over 100,000,000. While the payment of the that grant f balance then remaining due and unpaid will, with interest thereon, Mr. THURMAN. No. payable semi-annually, be abundantly secured to the Government. Mr. MITCHELL. Why f ·

As a fair business proposition for the settlement of a great contro- Mr. THURMAN. Because there is an express provision of the Con-vcrsy, a settlement fair to the companies and just to the Government, stitution that prevents that. When Congress has made a legislative the Committee on Railroads, after weeks of careful investigation of grant of land, the title is vested in the grantee; it becomes his propthe whole subject, submit it to the consideration of the Senate and of erty; and then comes in the provision of the Constitution that private tho country; and as chairman of that committee and in vindication property shall not be taken for public use except upon just compenof its action, I have deemed it my duty to say this much. sation. I say the title would be just as good without that, because

Mr. THURMAN. Mr. President, I do not rise to discuss these bills no power is delegated to Cottgress to take away from me my farm or further now. When the proper time comes, I shall endeavor to prove ruy house. There is not one lawyer who argued the Dartmouth Col· to the Senate several propositions. I shall endeavor to show to the lege case who pretended for one single moment that if it were not for Senate that the Railroad Committee bill is a new subsidy to these the provision in the Federal Constitution that no State should make two companies very nearly equal in amount to the bond subsidy any law impairing the obligation of a contract, the act of the New originally granted. I shall endeavor to show to the Senate that it Hampshire Legislature would not have been perfectly valid. I do would be better for this Government to lose every dollar that it has not see fit to go into that. I do not want to do so. I on1y want to ever loaned to the two companies than to give up, as the Railroad show my friend from Ore~on that if be wishes to express horror at the Committee bill does give up, the right of Congress to alter, amend, ideas that are contained m this report he bad better go further, and or repeal these charters. But I do not rise for the purpose of dis- go for the Supreme Court of the United States, who have gone a long cussing that to-day. I only rise to notice two things said by the way beyond anything that is contained in the report of the CommitSenator from Oregon. tee on the Judiciary. Let us see what Judge Strong, delivering the

The Senator seems horror-stricken at a remark in the report of the opinion of the majority of the Supreme Court, said in The LegalJ ndiciary Committee that there is no prohibition in the Federal Con- Tender Cases, 12 Wallace, 549, 550: stitution upon Congress impairing the obligation of a contract. One Nor can it be truly asserted that Congress may not, by its action, indirectly imwou1d think that if he felt that horror he would not have been con- pair the obligation of contracts, if by the expression be meant rendering contract.s tent with the mere expression, but he would have pointed out the fruitless or partially fruitless. provision in the Federal Constitution that contains such a prohibi- Mr. MITCHELL. I inquire of the Senator from Ohio if he concurs tion. in that opinion.

Mr. MITCHELL. I did not claim that there was any such pro- .Mr. THURMAN. I am not speaking of myconcurrence I am show-vision in the Constitution. ing you that the Supreme Court of the United States have gone a

Mr. THURMAN. That is jus~ what I said. Then the Senator ought great deal further than the Judiciary Committee have gone. I do not not to have expressed so much horror that the Judiciary Committee know that I am here to express any opinion about that. They have have said precisely what the Senator now says; but the Judiciary rendered a great many decisions that, in my judgment, were wrong, Committee have not asserted or att-empted to assert as a broad propo- and it is possible that they were ri~bt. .. sition that Congress can impair the obligation of contracts-nothing lfr. EATON. They were wrong m that one. of the kind. The Judiciary Committee have only suggested, what Mr. THURMAN. They have rendered a. great many decisions that was no new idea at all, that where corporate franchises are granted my friend from Connecticut would not ha.ve delivered, and yet they by the legislative body and there is no prohibition in the Constitution may have been right and be may be wrong. At all events, their de-that forbids that legislative body to alter, amend, or repeal them, it cisions are the law until they are repealed or reversed, and that is has the right inherent in it in the very nature of government to alter, sufficient for me. to amend, or to repeal. That iF! it. Anybody who listened to my Nor can it be truly asserted-friend from Alabama yesterday could not have misunderstood what Says tho court-that argument moons.

Mr; MITCHELL. Will the Senator allow me to ask him a ques- that Congress may not, by its action, indirectly impair the obligation of contracts, if by the expression IJe meant rendering contracts fruitless or partially fnritless.

tion f Directly it may be, confessedly, by passmg a bankrupt act, embracin.g pastas ~ell Mr. THURMAN. Certainly. as f~tnre transa~tions. This~ obl!tera_tin~ contJ:lcts ent~ely. So It may relieve Mr. MITCHELL. Does he pretend to maintain here that Con(J'ress parties from their apP.:l.l'ent obligations J.?directly m a. multit!-lde of ways. It mav

• • • . . • h. declare war, or, even m peace, pass non-mtercourse acts, or direct an embargo. All. C!ln do everytbmg It IS not prohibited from dorng by the Conatitu- such measures may and must operate seriously upon existing contracts, and may twn f , not merely hinder b11t relieve the parties to such contracts entirely from perform·

1878.· CONGRESSIONAL REOORD-SENATE. 1905 ance.. It is, then, clear that the powers of Congress may be exerted, though the eft'ect of such exertion may be in one case to annul and in other cases to impair the obligation of contracts. And it is no sufficient answer to this to say it is true only when the powers exerted were expressly granted. There is no ground for any such uistiuction. It has no warrant in the Constitution or in anv of the decisions of this court. We are accustomed to speak for mere convenience of the express and implied powers confened upon Congress. But in fact the auxiliary powers, those nel:es~:~ru:y anu appropiiate to the execution of other powers singly desc1·ibed, are as ex pres ly given Ul.i is the power to declare war or to establish uniform laws on the subject of bankruptcy. They are not cntalogued, no list of them is made, but they are grouped in the last olause of section 8 of the first article, andcf!!Tallted in the same words in which all otherpowersaregranted toCou~ess. An this court bas recognized no such distinction as is now attempted. An embamo suspends manv coutracts and renders performance of others imiJossible, yet tile power to enforce it has been declared constitutional. The power to enact a law directing an embargo is one of the aux:iliary powers, existing only because appropriate in time of peace tot·egulate commerce or appropriate to carrying on war. Though not conferred as a substantive power, it bas not been thought to be in conflict with the Constitution, bec.'luse it iml>airs indirectly the obligation of contracts. That discovery calls for a new reading of the Constitution.

If, then, the legal-tender acts were justly char~eable with impairing contract obligations, they would not, for that reason, be foroidden.

Now, my friend must quarrel with th~ Supreme Court of the United States, and settle the question with them before he undertakes to rebuke the Committee on the Judiciary for merely suggesting the question, and much more when the Judiciary Committee have explained that the power to alter, amend, or repeal a charter is a wholly different question from the power, where there is no constitutional provision, to impair a contract between A Band CD.

One word more. The Senator from Oregon undertook to be facetious over that provision in the Judiciary Committee bill that relates to the 75 per cent., and thought that the committee had fallen into a very singular error in that-the error, as I unde1-stood him, of apparently deducting twice the interest on the first-mortgage bond of the companies. There is nothing at all in that. It is simply "Qecaose the Senator uoes not understand the bill. The first section of the bill does authorize the deduction of the interest on the first-mortgage bonds before the computation of the 5 per cent. begins. That is for the reason stated in the report-a reasonable adjustment of the difference between the Government and the companies. Then comes the fifth section, which is that if 75 per cent. of the net earnin~s of the companies shall not be sufficient to pay the interest on the firstmortgage bonds-for they are also referred to in tha.t fifth section ; they are all, as the Senator himself truly stated, obligations whose lien is prior to that of the Government-if 75 per cent. of the net earnings is not sufficient to pay the interest on the debt, then the Secretru:y of the Treasury, upon being satisfied of that fact, may make an abatement of the amount which the companies are required by this bill to pay into the sinking fund.

1\!r. MITCHELL. Just there-Mr. THURMAN. Do not stop me till I explain. Mr. MITCHELL. You stopped me a great many times. Mr. THURMAN. Let us see if that was not a necessary provision.

Suppose that in any given year there should be no net earnings at all, there would then be no computation of 5 per cent., and it might be that there would not be a sufficient n.mount of earnings to pay the interest on the first-mortgage bonds; it might be that aft.er deduct" ing the operating expenses the resiuue would not be sufficient to pay the interest on the first-mortgage bonds. Such a thing as that might well be in some given year. It is the case now with a large majority of the railroad companies in the United States, and it might be with one of these companies. If this fifth section were not in the bill in that very case the Union Pacific would be required to pay still in that very year $850 OUO into the sinking fund, and the Central Pacific

1,200,000; and if they diu not do it their charters would be forfeited. Was it not then a necessary provision f Was it not a wise provision T It was a wise provision to put in there for their safety in case sudden calamity should befall them, so that 75 per cent. of their net earnings in any year would not suffice to p~y the interest on the first-mortgage ')ODdB.

Mr. MITCHELL. Will the Senator allow me now a monent f Mr. THURMAN. Certainly. Mr. MITCHELL. I confess I am more surprised than ever, now

~that the Senator from Ohio has admitted that the construction to be placed on the fifth section is just what I contended was the legitimate construction; namely, that the obligations referred to in that .:~ection, and designated as obligations whose lieu is paramount to that of the United States, are the same ouligations referred to in the first section, namely, the first-mortgage bonds of the companie'i. Now, Mr. President, see the absurdity of the provisions of the fifth section. The Judiciary Committee provide that there shall be no net earnings whatever until the interest on the first-mortgage bonds is paid. That is provided in the first section; and then in tho fifth section they say that if 75 per cent. of the net earnings is not sufficient to pay the interest on these very same ouligations then there shall be a deduction made by the Secretary of the T1·easury from the 25 per cent. net earnings which the compauies, unuer the Judiciary Committee bill, are to pay into the Treasury of the United States. Mr. President, the provisions of thiM bill are a monstrosity. There is neither . law nor logic upon which they can find a resting-place, and I have nothing to take back but much to add, had I the time, to my criticisms upon those provisions.

Mr. TELLER. Mr. President-

VII-120 ~ ·

Mr. HOAR. I desired before the Senator from Oregon left the floor to put a question to him in regard to his view upon this matter, and I hope the Senator from Colorado will permit me to do it now.

Mr. TELLER. I yield for that purpose. Mr. HOAR. I desire to inquire of the Senator from Oregon, as I did

of the Senator from Ohio [Mr. MATTHEWS] the other day, whether he means seriously to deny as a power of Government, without any regard to the question of impairing or affecting contracts, to Congress the right to enact that the pub lie corporations which it has itself created for publi0 purposes shall protect themselves from insolvency by setting apart a portion of their earnings in a sinking fund to secure their creditors instead of dividing them in dividends among the stockholders t In other words, without any regard to any reservation in the charter, cannot the Congress of the United States constitutionally require that the national banks should devote a certain portion of their profits as a reserve, or keep on hand a certain quantity of specie, or should establish a sinking fund of a certain character for the purpose of security to their bill-holders'

Now, as I understand it, the proposition of the Judiciary Committee is nothing more nor less than that. It does not devote this sinking fund to the payment of the Government loan; it does not pay n. dollar of the Government indebtedness before it is due, taking the claim of the railroad companies as to the time when that indebtedness falls due to be sound and correct; but it simply enacts that a company created for this great public purpose, to wit, the maintenance of the railroad connection between the two seas, (a purpose which must fail when the solvency of these companies ceases,) shall be required to keep up its solvency in the future. Has not Congress power to do that by en actin~ that instead of dividing all their earnings. they shall set a-part a portion of them as a sinking fund to meet this vast future obligation f · ·

Mr. MITCHELL. I do not know that the Senator from Ma.ssachusetts had any special right to ask me a question after I had finished my speech and sat down. At the same time I waive that and will answer in a word. The Senator !tsks me whether I deny the power on the part of Congress to -provide for a sinking fund to meet this ind~btedness when it is due; or rather he puts an abstract case. I do not deny that .in the case of a corporation cha1·tered by authority of the General Government, where there are no restrictions in the charter itself or iu the terms of the contract that has been made in pursuance of the terms of the charter, Congress would have abundant and ample power to provide for a sinking fund and to exercise control over the earnings of the r.oxrlpany so n.s to preserve the righta of the Government and protect · its claims n.s against the company; but the difficulty is that in my judgment that ·is not this case. That is where the difficulty comes in. My understanding of this case is that a contract has been entered into by virtue of the provisions of this charter, that the terms of that contract are specific, and that those very terms exclude the idea of any 1·eserved power in Congress to do anything different.

Mr. HOAR. Where is there any contract on that subjectf Thn.t is what I have sought; and I listeneu to the Senator's speech in vain to find. Congress undoubtedly contracted at what time and on what terms the Government debt shall be paiu; that it may be conceded Congress ought not to attempt to alter; but my question is where is there any contract that this corporation shall not prepare itself in a particular mode to be able to pay the debt which is to fall due in 1900, or about that time.

Mr. WINDOM. I rise to a point of order. Has not the Senator from Oregon concluded the speech which he commenced at one o'clock?

The VICE-PRESIDENT. The Chair supposed he had. Mr. WINDOM. Then is not the appropriation bill before the Sen

ate by agreement T The VICE-PRESIDENT. The Chair has recognized the Senator

from Colorado. Mr. TELLER. I took the floor to speak on the railroad bill. I do

not desire to speak upon it to-night if it is understood that I have the floor for to-morrow.

The VICE-PRESIDENT. Then, by the order of the Senate, House bill No. 310'2 is before the Senate.

Mr. THURMAN. It is understood the railroad bill is laid aside only informally.

The VICE-PRESIDENT. That is the understanding .

.APPROPRIATIONS FOR DETECTING TRESPASSES, ETC.

The Senate, as in Committee of the Whole, resumed the consideration of the bill (H. R. No. 3102) authorizing the Secretary of the Treasury to employ temporary clerks, and making appropriation for the same ; also making appropriations for detecting trespass on public lands, and for bringing into market public lands in certain States, and for other purposes.

The VICE-PRESIDENT. The penuing question is on the amendment of the Senator from Kentucky [Mr. BECK] to add to the amendment reported by the Committee on Appropriations to the second section of the bill after the word " export" the wordB " from the Territory where the timber grew." ·

Mr. BECK. Would it be in order now for ine to modify that amend-ment!

The VICE-PRESIDENT. Certainly.

1906 CONGRESSIONAL RECORD-SEN ATE. MARCH 20,

Mr. BECK. I desire to do so by adding after the words "Territory where the timber grew" the words: ·

.A71d pro'~Ji.dedfurther, That in the event it shall be exported from the Territory, it shall be liahle to seizure by United States anthority wherever found.

The VICE-PRESIDENT. The Senator from Kentucky modifies his amendment·, and the amendment, as modified, will be read.

Tbe CHIEF CLERK. The amendment to the amendment, as modified, uow reads:

.After the word "export," insert: From the Territory where the timber grew: And provided further, That in the

event it shall be exported from the Territory, it shall be liable to seizure by United States authority wherever found.

Mr. BLAINE. That is a Yery proper amendment. Mr. TELLER. Yesterday, Mr. President, when the Senate adjourned

I wa~ about to submit a few remarks upon this question of cutting timber on the public lands. I have tried on one or two occasions to submit my views briefly on this question. I find, with all deference to the members of the Senate who have spoken on this subject or talked about it, that there is a general misapprehension as to the condition of the timber lands in what is known as the Rocky Mountain region. I find that the Senators from the New England States, with rare exceptions, insis~ upon treating the whole subject 38 if the physical geography of the Rocky Mountain region,from the foot-bills clear back almost to the Pacific coast, was identical in character with that of New England, both as to soil and climate, and in fact, everything else is compared with that of New England; and whenever any one from the West speaks about the timber and the necessity of cutting it, they immediately insist that the same condition of affairs exists out there with reference to the population that exists in New England.

Mr. MORRILL. The Senator refers to the New England Senators "with rare exceptions." I am not aware that over two New England Senators have spoken on tbis bill.

Mr. TELLER. I did not speak simply of the Senators who had spoken upon this bill; bnt I said those who had spoken to me about the bill, who had spoken privately and otherwise in my presence on this timber business. I do not intend to charge that it grows out of a hostility on the part of New England Senators, or New York Senators, or eastern Senators, but from a misapprehension, as I stated, of the physical geography of the country and necessities of the inhabitants.

It is said in New England, in New Hampshire for inst..'l.nce, that in twenty years timber cut off will grow again; it is said that the proper rule to be followed in the cutting of timber is to go into those forests smd t:..ke out the dead and decaying timber and leave the young and growing timber. No man would make that statement who had trav~rsed those mountainous regions, who had ever seen the pine trees growing upon the side hills, upon the mountain ledges, and upon the few plain~:~ that are found on the tepa of those mountains and few valleys between the mountains.

If Senators would bear in mind that the Rocky Mountain region, commencing in the neighborhood of Denver clear through, with the exception of t.he valleys, is an elevated region, and that the valleys are elevated plateaus and all the rest of the country is a rough mountain country of granite formation, they would understand the difficulties that t.hese men have in getting the timber and in cutting it off; and if they understood the climate and the fact that these small pine trees have been growing probably one hundred years to attain 1he size of an ordinary fire-wood stick in the States, they would not suppose that we could go into a pine forest and cull it for the purposes of mills or for the purposes of domestic use or anything else of oltl and decayed or dying timber. It cannot be done.

The Secretary of the Interior labors under that same ignorance of the physical condition of that country. He supposes, too, that the condition of climate and of soil in Colorado, in Montana, in Idaho, in Nevada, is like it was in the Kingdom of Prussia, from which he came. He supposes-at least that is the way he treats it-that the climate is the same; and I believe he has before the Senate somewhere, slumbering in some committee, a proposition that there shall be twenty-five forest~rs appointed each year to go out in that western country and take charge of the timber growing on the public lands.

The report submitted to the Senate a short time ago developed the fact that in the Territory of Mont.'lna, one of the extreme northwestern portion~:~ of this country, wood men, "a wood ring," as it is said, had got together the enormous quantity of forty -four hundred cords of wood, cot and piled up where it was proposeu to make a corner on the wood market I Forty-four hundred cords of woods in the whole Territory of Montana is all that is reported cut and corded for winter use; and if the Government should succeed in this laudable enterprise of collecting from those settlers a dollar a cord stumpage, there wonltl. be due to the Treasury of the United States the magnificent sum of S4,400, less what the agents would appropriate and absorb.

1 said yesterday it was a small business. It is a contemptible business, Mr. ·President, whether it comes from this Senate and the House or whether it comes from the Secretary of the Interior. Forty-four hundred dollars from .Montana, and perhaps an equal amount from Colorado and an equal amount from Idaho. The vast int~rest that this vigilant Secretary of the Interior, as the Senator from Massachusetts [Mr. HoAR] says, is now looking after, is the great timber interest of the United States; and be is preventing these plunderers, as the ~enator from Massachusetts [Mr. DAWES] who first spoke men-

tioned, from destroying and dismantling these hills of their green coveiing, and he is entitled, I suppose, to the everlasting thanks of all people who are in favor of forest-growing in this country. I do not object to the Secretary of the Interior preventing trespasses upon the public lands where the lands are surveyed and where the timber land can be put into the market and purchased.

However great the hardship is upon the people then the officials are perhaps or will be justified in insisting that they shall buy it in such cases; but wbt-re there is no law at all I say it is exceedingly hard, it is exceedingly cruel to make these men pay for the wood or to treat them as the Senator from Massachusetts who was first on the floor would treat them, as men guilty of plundering the public lands, and he asserted in a speech which followed, that was made with considerable deliberation aft-er I had called his attention to the fact that these men oug-ht not to be called plunderers, that he woulU treat them, if he ba.d the power, exactly a.s he would treat trespa sers on private property.

Why, Mr. President, be would dismantle the towns on the public lands, he would tear down the dwellings of the hardy settlers in my State and in the Territories, and he would tear down their churches and their school-houses that would be an honor to his State in any town of equal size, because the timber had been cut on the public lands.

Then he goes further and says he does not care what anybody says about him who is so steeped in crime-referring to me, referring to ruy people-who are so sl;eeped in crime that they do not know that this is robbery of the public property, or words to that effect.

The Senator who is associated with him from that State [Mr. HOAR] followed. Not content with branding thetie men as trespassers, not content with calling them simply thieves in the ordinary senstl, thtl honorable Senator hunts up the statute_and be announces to the Senate that they are not simple plunderers, but these men ou the public lands, these citizens f'"om all 'the States who have gone out tbertl to make their homes with a laudable ambition to bettrr their condition, are guilty of a felony, and he follows it with a declaration that the Secretary of the Interior would have been guilty of a violation of the high trust reposed in him by the President when be was selected, if be did not prosecute and punish these intruders upon the public lands and these despoilers ·of the public property.

Mr- President, since I have been a member of the Senate I have heard on two or three occasions complaints that the people in the West were hostile to the East. I have heard it through the public press, and I have heard it upon this floor. I want to take occasion now to deny it once for all. There i~:~ no hostility on the part of the people in the great West to the people of the East. Who are the · people in Colorado; who are the people in Montana, in California, and in Idaho f These communities are made up of people from the East. In the State that 1 represent there is not a single State in the Union, there is not a single organized Territory but one, which has not its representatives in that State. They make up the whole population of that country ; and to say that they are hostil~ to t.htl East is the greatest absurdity in the world. But, Mr. Presidtlnt, I do not promise that they will continue their attachment to the people of the East., whether th~y come from Massachusetts or whether they comtl from New York or Illinois, when the representatives of Mas aclmsetts on this floor brand them not simply as plunderers, but brand them as felons. When I called the attention of the Senator from Massachusetts to the fact that ther~ was a law which, whether it took away the guilt of tresp388 or not, left them simply trespassers at most, and certainly would relieve them from the imputation of he.ing felons, he declined to consider it and said that did not enter into his consideration ; and I knew it did not. I knew it did not beca.u e he wanted to say something unkind and unfair of these people in the West.

Now, Mr. President, I am as free from sectionalism as any man, and I will not say anything against Massachusetts, and I could not say anything against Massachusetts if I would. I am too nearly connected by ties of blood with honorable people from that State. I am not'a west~rn man myself; I was born in the East, and nine-tenths of my blood relatives are still living in the East ; but it does not sit any more easily npon my mind, and it does not make me feel any better, from the fact that I have relatives in Massachusetts or· in New Hampshire, to hear the people that I represent on this floor, who are the equals in every respect of any other people upon the face of the earth, branded as thieves and roiJbers and de~poilers of public property. And it does not quite snit me to have it said, when I stand on this floor to make a defense that I feel I should be a coward and an ingrate if I did not make, that it is because), too, am so steeped in crime that I do not know another man's property from my own.

Mr. President, that is what we were compelled to hear from the honorable Senators from Massachusetts yesteruay. I repeat again that it comes from a lack of knowledge on their part, more I hope than anything else. The honorable Senator from Massachusetts who first addressed us upon that subject said the Government has given the settlers magnificent homes, has given them magnificent donations of land in that country. Holllesteads in the Rocky Mountains, Mr. President! Homesteads on those high and barren hills I If the honorable Senator will go to Professor Hayden's office be will find a section of Colorado forty miles square there delineated, and if he will ask the artist who can ba found there, he will tell him that every acre of it is more than ten thousaQdJeet. above the level of the sea, and these crags and these

.; .

1878. CONGRESSIONAL RECORD-SENATE. 1907 mountains are filled with hardy men, with men who went out from Mas ·aclmset.ts and from New Hampshire and other States, the graduates of their colleges and the very best portion of their community, who are delving and digging in those rocks for :).living to better their condition. And yet the one honorable Senator from Massachusetts would drag them out of that place by the strong arm of the law, and be would punish them as trespassers, and the other honorable Senator wo·uld mete out to thrm tlle judgment of felons!

Mr. President, if 1bis is a Jair sample of the sympathy that these men may expect from Massachusetts, the time may come, as I have before said, when we shall forget, smarting under such unjust accusation here, that we have blood relatives still living in the East. The as ociations that we have made in tllat country bring around us ties that are as strong as those that cluster around our birthplaces. We have stood side by side in the struggle to ~:;ettle up a country that in a few years, in the days that I expect to live and tha.t most members of the Senate will live, will have within its borders a population equal in numbers, equal in intelligence, equal in virtue to all New England, and they will be as patriotic and as devoted, I have no don bt, to the interests of New England then as New England is to theirs now. Like begets like, and Senators should remember that when they bring up these sectional issues and charge against a whole class of people it may return to them again.

Sir, I only ask for the people in the West fair play. I only ask, as the Senator from California. [Mr. SARGENT] said ye&terday, that the same rule be meted out to them t.hat wns meted out to the people of the Atlantic coast as they swept their lines of emigration westward and settled up .Massachusetts in the way we are asking to settle up that country, using so much of the public timber on the public lands as shall be essential and necessary to the proper settlement of the country, but no more. And when Congress shall have made laws by which we can make title to the timber lands, if we do not make it;, then brand us as thieves. Strange as it may seem the two honorable Senators from .Ma1:1sacbnsetts, who have led oft' and borne the brunt of these accusations against us, have been members, lo these many years, of Congress and were sworn to do justice to us out there when we bad no voting representative in the other Honse and no repre-

. sentative at all ou this floor, and there are hundreds of tllousands of American citizem; yet in that country who have no person accredited by them on this tloor, nobody to speak for them here and nobody that can vote for them in tlle other Honse. Have they lost their rights, are they simply aliens now because they have gone out to build up an empire in the wilderness f Have they not the same rights that the Massachusetts Senators have Y Are tlley not entitled, for they are their equals in every respect, to the same protection before the lawt

I submit, :Mr. President, that there is more hardship in this than is sometimes thought, and if we grow warm over it from the West, yon ought to remember that we have been laboring under these accusations for many years, when we have bad very little opportunity to be beard, and we have done our part in the State of Colorado and the Territories, discharging all the duties of good citizens. For years, when Colorado was unrepresented, slle paiu more taxes to the General Government than either oue of five States was paying. We so paid taxes at a time when we were not beard here and when we were treated as Senators now insist the people of Montana shall be treated, as having no rights that Congress is bound to respect.

.Mr. HOAR. Mr. President, I do not suppose that any o~hr Luman being who beard anything I said yesterday except the Senator who bas just addressed the Senate understood me to say anything of the kind be bas stated. Therefore I certainly cannot undertake to reply to him.

Mr. TELLER. The RECORD will show what the Senator said. Mr. HOAR. I said that it seemed to mo that when the statute

made a certain act a crime w bich Senators said was a necessity of life to certain settlers, the manly way was to repeal the Jaw or bolcl responsible the Congress that had made it, and that in spite of warnings bad left it on the statute-book unrepealed, and not to attack an officer who enforced it. Now, 1 cannot conceive the state of mind of a man who, listening to that speech or reading it in the REcoRD, can undertake to say that I or my colleague charged these gentlemen of our own blood and kindred, ,who are settling these new States, with being thieves or plunderers, or that there was any sort of occasion or right on the part of the Senator to make such an imputation as that. There was nothing in my thoughts, nothing in my speech, nothing iu any inference that any body bau any right to draw from the speech, which justified any such su(J'gestion.

Mr. TELLER. I ask the Senator if he did not refuse absolutely to hear any explanation Y I called the attention of the Senator, when he was branding these men as felons, to the i'act that there was a law which gave them power to go on the land. I claimed then, as I claimed before, that it ga>e. them the privilege of cutting the timber the cutting of which be was charging to be a felony, and he said he declined to enter into that consideration at all.

Mr. DAWES. Mr. President, in answer to so much of what the Senator from Colorado has said as refers to me, I desire simply to read from the RECORD just exactly w bat I did say covering this whole matter:

Mr. Presidoot, if the amendment was capable of no more than what the committee suggest, I should be vecy glad to support it, because the object which the com-

m.ittee seem, I have no doubt in good faith, to desire to accomplish, is ,lust what is reasonable and fair. Where a settler in a Territory finds it necessary, for immediate use and for comfort and as a part of the necessaries of life, to avail himBelf of the timber upon the public land.s which are not surreyed so that he can become the owner of them, it seems fair enough that he should be permitted, in a limited quantity, to use the timber.

Mr. President, not one word did I say yesterday in1Conflict with that statement. I have read over to-day every word I said yesterday, and I can find in no part of it that I called any man a plunderer, a thief, or any of the opprobrious epithets the Senator from Co1orado has used. I may have been mistaken in reading it over, but I read it over for the purpose of examining.

.Mr. TELLER. I should like to call the attention of the honorable Senator to a statement he made.

Mr. DAWES. I wish to say, before the Senator proceeds--Mr. TELLER. I want to call attention to this. I ask the Senator

if he is not reported as using this language on page 35 of to-tlay's REcoRD:

In this attempt to justify, to find protection and obtain :protection for an unwarranted and unlawful body of people in the new Territones and-to insist upon it that they have a right to . appropriate the proceeds of the public 1:mds of the nation without cost and for their own profit and their own gain, gentlemen who oppose that attempt are not to de deL erred trom suggesting to the country that it is quite worth while, while we do bold the public domain, to protect it ana to protect the value of it.

Then subsequently he used the followiug language, as reported: But because I am not quite ready, as a plain, home-spun New England man, to

justify the plunder of the public domain any more than the plunder of private property, while I insist upon it that trespasses upon the public clomain shall be treated like trespasses upon private property, I am quite content that the Senator from California or any other Senator shall bold me up to ridicule or hold up the section of country I come from to ridicule, or to ex.cit~ if he can the contempt of anybody so steeped in that kind of. business that he cannot understand the respect due to the property of another.

That was the language of the Senator. Mr. DAWES. Most certainly, and I repeat it to-day. Mr. TELLER. I have no doubt of that. Mr. DAWES. I have nothing that I said yesterday to take back.

I said everything that I said yesterday with the qualification that it was perfectly right and proper to grant what the committee meant ; and I think as now qualified the amendment of the committee covers just exactly that. I said that if the amendment of the committee was designed to furnish to a settler his daily necessity I was for it; if it is to justify the appropriation of the forests that be]ong to the United States to the profit and the gain of any individual, I am no more for it to-day than I was yesterday ; and I am not to be deterred in expressing that opinion by any suggestion from any quarter that the interests of the section which I may represent are hereafter not to be considered upon their merits and according to the good of the whole people, but upon w bether or not the section that I represent shall get down upon their knees and beg.

Sir, the State of .Ma-ssachusetts, which bas formed the body of the Senator's remarks, comes here begging for nothing, comes here to weigh each question presented upon its merits and in reference to its bearing upon the whole country, and asks that any suggestion it may make shall be weighed in the arne manner; but it does not intend to concede or give up its convictions of what is right and proper for the whole country in order to obtain what it may deem just and proper for its section in common with the whole country. Sir, there is an oldfashioned notion in Massachusetts, there is some distinction which they desire to keep up, of the law of meU1n and tuunt, and they do not intend to be scared out of it or ridiculed out of it. They do not have the sligbest idea that the Congress of the United States will ever be led into legislation in reference to New England by any other considPration than what the whole United States shall deem to be the best for New England and the whole country. They have no apprehension upon that point; and the suggestion of the Senator from Colorado that we bad better be careful how we express our convictions on such subject.s as that lest, as they increase in numbers and in power, the West may turn and visit upon the little section to which I belong any other than that rule of justice and right that commends itself to highminded legislators, has no alarm in it for the ears of New England.

Sir, thi!i is not the first time that cry baa been sounded, ancl it is not the first time that it has fallen on ears that heeded it not, ears that have endeavored to listen only to considerations broad enough to cover the whole country.

Sir, I say in conclusion, as I said in the beginning, that so far as the necessities of the settler in the West, so far a-s his immediate wants are concerned, so far as it is necessary to carry on the great plan of immigration and filling up the new States and Territories, they are welcome, so far as I or my vote is concerned, to take from the unsurveyed pllblic lan<l whatever · they may require. But, sir, that is not what is the trouble; thJt is not what the Secretary of the Interior bas been intemling to put a stop to. It is because beyond that limit there bas been growing, year after year, a disposition of quite another character, that finds some difficulty now in the administration of the law, that this anxiety is manifested and this attack is made.

:Mr. WINDOM. Mr. Presid~nt, the debate on this little amendment has already rnu a considerable portion of two days. It certainly is not a very importa!lt matter. It is only a provision that the iunds ap_propriated for the next three months shall not be used in a certain way to prevent people from getting their fire-wood in the Territories

1908 CONGRESSIONAL RECORD-SENATE. MAROH 20,

of the United States. I think there is really nothing in itt.hatjustifies another hour of discussion in the Renate ; and may I not properly appeal to t.be Senate to let us have a vote on this question f

Something bas been said about the design of this amendment being to make war upon the Secretary of the Interior or something of that kind. I thin}r I can say, so far as my connection with the committee is concerned, that there is no such design. I run very certain I had none. The Secretary of the Interior in the administration of the law upon this subject has done some things in my own Sta~ which I do not approve, bot I think no one doubts that he hn.s honestly performed them and with an intention to carry out tlJe law. I think he has made mistakes. I certainly had no design to make an attack npon the Secretary, and I think no member of the committee had. Now we have debated this question for two days. Can we not haye a vote f I will not prevent it by my discussion.

Mr. BECK. I object, and I object because I introduced the pending amendment, and all day yesterday and part of the time to-day I have been endeavoring to state why I introduced it, and I am only objecting until I can be heard to state why I did it. I do not think I shall speak five minutes. 'fben I shall hav.e no further objection.

Mr. WINDOM. I have no right to insist. It was only an appeal I made that we might have a vote.

Mr. BECK. I supposed if an amendment was proposed the Senator proposing it ought at least to be allowed to tell, and at once, why he did so. I have never had that opport.unity yet, and I want now to state why I offered it. It is simply an amendment limitin~ the operation of the amendment of the Committee on Appropriat10ns to the use of timber by the people of the Territories and not for export to foreign countries or to other Stntes or Territories. I was not present at the time the amendment was adopted in committee, unfortunately, and supposed that the amendment was a proper one, and I have not yet heard an objection to it from any quarter; but it seems whenever the name of the Secretary of the Interior is brought up, or any suggestion in regard to his conduct is alluded to, with many Senators it is like shaking a red rag in the face of a bull. It seems, too, that whenever we strike timber, the ·Senate is lost in the woods. [Laughter.) There has not been a word said about th~ amendment or the bill, nor a single suggestion why the amendment should not be adopted, but everything else bas been discussed, and New England Senators and western Senators seem to have thought it a proper occasion to bandy words that perhaps might as well have been omitted.

I have modified my amendment to-day, because of information received from the Department through a Senator that it was proper to so modify it as to allow timber that was exported from the Territory where it grew to be seized by the United States wherever it. was found, and I have no doubt that is a proper modification of the amendment. I first thought that sale as well as export ought to be prohibited, but when I heard the Senator from Maine [Mr. BLAINE) and other Senators suggest that the blacksmith, the mechanic, and others .had no means either of · employing hands or going themselves and cutting the necessary timber for tb.eir fire-wood in that portion of the conn try where they were not allowed to buy it, and that it might be a hardship to them, I withdl·ew that portion of the amendment and thought perhaps we were accomplishing all the object any gentleman desired by preventing timber thus cut from being exported from the Territory. I believe the lands of the United States ought to be surveyed as promptly as possible; I believe they ought to be put into market, and I believe the settlers ought to be allowed to buy them at some price1 so that they could supply themselves without trespassing on tb.e public domain.

As this only applies to the Territories and only applies to lands which are not surveyed, I do not think there can be any serious hardship growing out of the provision as now amended. But there is a difficulty Senators ought to observe in four or five of the States as well, which will perhaps come up hereaft-er and may be the subject of discussion. The next section of the bill provides-

For the necessary clerical force to enable the Commissioner of the General Land Office to carry into effect the act of Congress approved Jane 22, lb76, for bringin~ into market the public lands in the States of Arkansas, Louisiana, 1tfississipp1, Alabama, and Florida., $25,000. ·

All the public lands in those States were withdrawn from sale and were restored by the act of June 22, 1876, by a bill which became a law without the signature of the President; but up to this time they b.ave never been surv!3yed, except in the State of Arkansas; and there is no provision made whereby anybody can purchase them.

Mr. JONES, of Florida. .My connection with that· bill enables me to state Romewhat intelligently its provisions. All the public lands in the five States mentioned were, by what is known as the homestead law, withdrawn from market, and not one foot of land in those States could be acquired for any purpose except in accordance with the provisions of the homestead law. In 1876, with a view of putting the lands in those States on an equality with those in the West, I with others labored very hard to carry that bill through Congress; and there was an amendment put on the bill providing that those lands, before they should be put on terms of equality with the lands in the West, should first be offered for sale at public auction, to see if they would not bring sums of money above the minimum price. The appropriation in this bill to which the Senator from Kentucky has referred is in order to enable the Commissioner of the General Land Office to wake a list of those lands and hstve them offered for sale; they are

already surveyed. To carry out the provisions of that law this appropriation has been made necessary.

Mr. BECK. I was endeavoring to state, perhaps a little confusedly, that there are great hardships yet in those States, and many of the depredations committed there perhaps, if they may be so termed, grow on t of thatr difficulty. Section 2303 of the Revised Statutes provided that-

All the public lands in the States of A.l.a.bama, .Mississippi, Louisiana, Arkansas, and Florida shall be disposed of in no other manner than according to the terms and stipulations contained in the preceding provisions of this chapter.

· Which provisions limited the occupation to pre-emptors. Then the act to which I referred endeavored to restore them to market, as explained by the Senator from Florida, bu~ we have made no appropriation up to this time whereby the Commissioner of the General Land Office has been enabled to put them back into the market except in the. State of Arkansas; and, therefore, as the work is so far behind and the lands cannot b~purcha.sed because those lists cannot be made out, many persons no doubt have been cutting timber on those lands which are a& much reserved from sale as the unsurveyed lands of the country. It occurs to me that we shall have no general settlement of this matter until those lands are restored and surveyed, and lists made out, and men have a right to purchase them. So far as the timber lands in the Territories are concerned, we shall have nothing but trouble until they are surveyed and put into t.he market, and settlers are allowed to buy them. In the mean time, the amendment I suggested, and which I hope will be carried, limits the right to the use of timber on the public Jands to persons residing in the Territories; and that is all there is of it, and that is all I desire to say about it.

Mr. SARGENT. Mr. President, I have but very little to add to what has already been said in this debate. The coru-se of the debate last night seemed to indicate that certain Senators believed that the recent proceedings iu the Department of the Interior were necessary administrative action, and reference was made to a statute of 1831 giving the power to the Secretary of the Interior to do certain things with reference to the public lands. No Senator denied that that statute existed, :tlthough it was questioned whether under it the Secretary of the Iuterior could exercise the power. I claimed, however, that, so far as its application to the general public lands was concerned, it was an obsolete law; but the jnnio,r Senator from Massachusetts [Mr. H6AR] seemed to think that it was the bounden duty of the Secretary of the Interior to enforce that law, it being on the statute-book, whether it was dn.ted in 1831 or at any other period. He was not willing to admit that there could be such a thing as an obsolete law; that there could be any impropriety, and I do not know but what he might go so far as to say injustice, to be complained of, where a law that had been in comparative desuetude for two generations was suddenly brought forward to surprise the people of the States and Territories ; that this was at all a matter of complaint or just criticism. Now, I can show the Senator, his own recollection will show him if he will recur to it one moment-

Mr. HOAR. The Senator from California will permit me to say that I think he totally misapprehends the point. My statement was that a law passed in 1831, expounded by the Supreme Court a few years after, put in force by circulars in 1t:55, sought in vain to be repealed within the last eight years, and re-enacted in the Revised Statutes in 1873, was not an ohsolete law ; but the point was that the chief blame of this condition of things rested upon Congress when they failed to heed the appeal of the Senator from California which he himself described, rather than upon the officer who, after giving full notice of what he deemed his duty, undertook to enforce it. That was my proposition.

Mr. SARGENT. Mr. President, the Revised Statutes were a species of drag-net that caught everything. We found here the other day that under the Revised Statutes, according to the construction of some Senators, a man on the retired list receiving an enormous pay entirely in the nature of a pension, could receive a pension besides. Yon will find all sorts of anomalies in the Revised Statutes, and it requires the executor o£ the l:l.w to use some discretion in enforcing them. The decision of the Supreme Court followed two years after the original statute. The circulars from the Land Office several years thereafter were the commencement of an attempt to re-enforce it which ceased suddenly. Those same circulars were issued on another occasion in the early history of my State, when I w~ a member of the Thirty-seventh Congress, and I called the attentwn then of the Department to the fuct that our people had no method of defense in the matter. The lands were unsurveyed, and if surveyed they could not buy them and they could not live without the timber. !said, "There is the law, and I will try to get it repealed. Do you want to enforce that and depopulate my State f Do you want to stop every mining claim where they use a flume f Do you want to deprive our people in winter of all the wood they have cut around their cabins for fireside usef" They said, ''No," and they stopped attempting to enforce it against such, because they otherwise would have worked injustice. ·Except one or two fruitless attempts since the time it was enacted, .that law has never been enforced, and the policy of the Government has been to the contrary. Furthermore, by our whole legislation we have recognized the fact that it was in desuetude. The very act we have discussed here so much to-day, the second Pacific Railroad act of 1864, contained a provision looking to a practice existing with the miners and the agriculturists in the Territories and in the State of California to be trav·

1878. CONGRESSIONAL RECORD-SENATE. 1909 ersed by the Pa-cific Rwoad of cutting timber on Government land to support their improv~ments. .It will not be insisted that. the Government intended to g~ve to mmers and others on . the l_ine of t~e railroad more favors than to others. The law that I will read IS valuable as showing the Government recognition and sanction of timber and wood cutting by miners and farmers:

.And :my lands J!l'a.Dted by this act, or the act to which this is an ~endment, sba.ll not defeat or impair a.ny pre-emption, homestead, swamp land, or other lawful claim nor include ~y Governmt>nt reservation or mineral lands, or the improvemen~ of any lxma ji.de settler, or any lands returned and denominated as mineral lands and the timber necessary to support his said"'fmprovements as a miner, or ngricillturist, to be ascertained under snch rules as have been or may be establiShed by the Commissioner of the General Land Office, in conformity with the provisions of the pre-emption laws.

Directly looking to this very practice, which I say has grown into a sanctioned practice by the Government of the United States, and is sanctioned by this act:

Provided, Th~t the «lua.ntity thus extlmpted by the operation of this act, and. the act to which this act 18 an amendment, shall not exceed one hundred and sutyh acres for each settler who clainls as an a:nicnlturist. and snob quantity for eac settler who claims as a miner, as the said Conuni ... •:1sioner ma.y establish by general regulation.

That it.aelf, with numerous other statutes that might be pointed out, touches upon the gist of this matter, and shows the existing custom known by Congress, sanctioned by the Department. It was just the same a.s that in reference to the mineral lands which grew up. As I said yesterday, it was just as much an offense a,grunst the law to dig gold from the public lands as it was to cut timber therefrom ; but the practice grew up, and finally Congress began legislating in such ways as they did in reference to timber, and it got to be understood that it was an honest occupation, and that men who dug for gold were not felons, and that came to be understood before the law passed authorizing the survey and the sale of mineral lands. Would it have been just, would it have been tolerated in any man coming from Massachusetts or any other place, to have got up and denounced the people of Californ.ia as plunderers upon the public domain becam;e they took out millions of money in gold, and poured it through the arteries of trade ' What did we do with it T It did not enrich the poor: hardy miner who by his calloused hands and rude appliances worked for it, living in an bumble cabin and ea1.ing the poorest fare, ·his only luxury a few books t.hat be saved from his school-boy days, and bad brought with him across the plains or around the Horn. No, sir; it went into the business of the country ; it went to buy the manufactures of all the eastern States; it went to enrich everybody except the miner. The necessity of that business to the rest of the country was evident when the loas of a single steamer, the Central America, with a few · millions of treasure in the Atlantic, caused a iinancial panic throughout all the Atlantic States.

It was recognized that it was a necessary business, and Congress licensed the occupation of the mineral lands long before it passed the law for their sale, licensed it by its silence, and it was so recognized by the Departments. The comts themselves held tha.t this silence on the part of Congress gave a right, and the rules of the miners were enforced in the supreme court of California. and recognized by the Supreme Court of the United States before the date of the passage of tbe act that authorized the sale of the mineral lands.

By just exactly the same reasoning and in exactly the sa.me manner the miner bas been allowed to use the timber to support his improvements, not that he was to erect a saw-pit of his own and saw out every board that he needed, but that be could buy of his neighbor who devoted himself to that business. That bas got to be the practice and has been the pra-ctice for years, and it is only by the sudden revival of what I say are these obsolete laws, obsolete notwithstanding they are now incrusted in the Revised Statutes, obsolete so far as being put in operation is concerned, that the practice is sought to be made illegal. Misery, distress, n·nd bankruptcy follow in a dozen States and Territories, calling down curses loud and deep on the authors of the ruin wrought, and against which the people had no means of protection by purchasing the lands; and yet there is stupid wonder that this Administration is unpopular.

Mr. CAMERON, of Wisconsin. If the Senator from California will allow me I desire to call his attention to one or two sections of the Revised Statutes which I am afraid he has overlooked. Section 1625 provides:

Every able. bodied male citizen of the respective Stat~s, resident therein, who is of the age of eighooen years a.nd under the age of forty-five yea.rs, shall be enrolled in the militia..

Section 1628 provides : Every citizen shall, after notice of his enrollment, be constantly provided with

a good musket or firelock of a bore sufficient for balls of the eighteenth part of a. pound, a. sufficient bayonet :md belt, two spare flints, and a. knapsack, a pouch with a. box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelook, each cartridge to contain a. proper quantity of powder and ball; or with a. good rifle, knapsack, shot-pouch, and powder-born, twenty balls suited to the bore of his rifle, and a q~r of a. pound of powder, &o.

What I wish to inquire of the Senator is whether or not this provision of the Revised Statutes has been enforced.

Mr. SARGENT. I suppose that the Cabinet officer who does not enforce that is derelict in his duty, and tb:it there has been a censure implied upon him by the extravagant praise of another Cabinet officer who picks up an equally disused la.w and enforces it at the expense of the people! Talk about obsolete laws I It was not until theRe-

vised Statutes of the District were p388ed that a law in the District of Columbia with this heading was repealed: "An a-ct to punish blasphemers, swearers, drunkards, and Sabbath-breakers, and for repealing the laws heretofore made for the punishing such offenders;" and the first section of this law, which was good according to the logic of my friend from MaBSachusetts down to within two or three ye~s, read as follows:

That if any person shall hereafter, withln this province, wittingly, maliciously, and advist>dly, by writiDg or speaking, blaspheme or curse God, or deny our Saviour Jesus Cl:iriet to be the Son of God, or shall deny the Holy Trinity, the Father, Son, and Holy Ghost, or the Godhead of any of the three persons, or the unity of the Godhead, or shall utter any profane words concerning the Holy Trinity, or_ ~y the persons thereof, and sba.ll be thereof convict by verdict, or confession, SJlall, for the first offense, he bored through the tongue and fined twenty pounds sterling to the lord proprietor to be applied to the use of the county where the offense shall be committed, to be levied on the offender's body,l!oods and chattels,Lwds or tenements, and in case the said fine cannot be levied, the offender to suffer six months' im.J>risonmentwitbout bail or mainprise; and that for the second offense1 ~he offender bemg thert>of convict as aforesaid, shall be sti~atized by burning in tne forehead with the letter B and fined fortylounds soorling to the lord proJ?rietor, to be applied and levied as aforesaid, an in caae the same cannot be lev1ed, the offender shall suffer twelve months' imprisonment without bail or mainprise; and that for the third offense, the offender being convict as aforesaid, shall suffer death without the benefit of the clergy.-OompilatWn of Laws of the District of Oolumbia in force Aprill, 1868, page 136.

I am informed by excellent authority that that was the law of this District at the time of the revision of the laws of the District in connection with the Revised Statutes in 1873. How derelict were our officers for not taking men and hanging by the neck till they were dead, or branding them with the letter B in their forehead for questioning the doctrme of .the Holy Trinity in tbiB District or for profane swearing. My friend from Indiana [Mr. McDONALD] asks where would Bob Ingersoll have been [laughter] and all the persons who crowd his audiences, many of whom sympathize with his ideas, which I do not. I say there was a specimen of an obsolete law. Was there any duty enjoined by an oath or offici..1l duty on any officer of this District to enforce that law 7 The only wonder is that it did not find ita way into the Revised Statutes.

Every Senator's experience will bring to mind in his own State laws of this kind. I hold in my band a law of the State of Illinois, passed in 1845, fourteen years · after the one which the Senator from Massachusetts thinks is so young and vigorous yet, wherein it is made a crime-

To utter or pass in this State, as or in lieu of money, any bank bill or note, made or issued by any banking institution, or purporting to have been made or issued by any banking institution, of a. less denomination, or for a less sum than $5.

And then it provides the manner of punishment for that atrocious offense, and I am told that that is the law of illinois at the present day ; that it has never been repealed. Why do they not enforce the law t Who is derelict in his duty t Who violates his oath T What a pity for the State of Illinois it is that the admired Secretary of the Interior has not an official position in that State with an opportunity to revive and enforce that law l What a pity for the United States also!

Sir, the section is in the Revised Statutes, like the militia law, and therefore it is necessary to count the cat-sticks which the miner uses to boil his pot, and this is worthy administration of public affairs! As I said yesterday, if the whole country had been treated in this manner from the time the landing wa.s made at J a.mestown or at Plymouth Rock, it would have been impossible for it to have become populated. We ru:e plunderers of the public lands, are we f I do not know that ever in the West a.n incident occurred like that where a bargain was made with the Indians, that the Indians for a certain consideration should sell ibe land that should be covered by an oxhide and the bargain being assent.e.d to the whites cut the ox-hide into strips to encircle aa much land as the thin strips would contain and claimed that that was covered by the ox-hide.

Mr. HOAR. The Senator from California refers to the celebrated Indian, Dido, Queen of Carthage! I think that is where it was done.

Mr. SARGENT. Yes, sir; so says the fable, but uur eastern progenitors imita.ted them or are belied.

I was about to say that it would have been impossible to settle any county in Massachusetts upon any such principle. In the first stern winter after the passengers from the-Mayflow& landed, more than half their number died and the stoutest spirits fainted. They would have all died under the rule prescribed for Montana by the Secretary of the Interior. If you follow the history to the West, to State after State, you will find they have all been popnlated and built up into States by mea.ns ofthis license which the Government has given to the occupiers of the la.nd. It was so in the State of Iowa. A man went from somewhere in the Ea.st, say from New York State, with his family in a wagon and perhaps with a hundred dollars in his pock~t. He could buy eighty acres of prairie laud, but there would not be a stick of timber upon it. He had no house, no fences, and he was compelled to go upon the timber lands belonging to the Government and cutdown the timber to make the rails to fenco his farm and the logs to build his house, and until that was done to live in his wagon. He had no money to pay for it; his money a.ll went for the price of his land. That was the way tha.t Iowa was settled up. Why does not my friend from Iowa [:Mr. KIRKWOOD] rise and n,pologbe for these spoliations upon the public lands T Why, sir, your people were plunderers upon the public land. They did not know the difference betweon ·meunt and tuun~. They were so steeped in degradation that they could not,


understand that they were stealing. That is the logic of the argument of Senators.

But what was the result f Look at that magnificent State of Iowa, with its beautiful cities, its flourishing towns, its fine farms, its schoolhouses, families, churches, everything that adorns and embellishes civilized life! Would it have been worth while to have stopped them, I ask my friend fTOm Iowa, [Mr. ALLisoN,] from cutting the timber on the public lands there! You could not have had this settlement and kept the tim ber,for the people could not have populated the Srote and settled it. Now this is more true of Montana and the other Territories in the mountains of California than of Iowa, because no timber grows upon any agricultural lands there; none grows below sixty-five hundred feet abovu the sea-level. It grows upon inhospitable and almost inaccessible places. To get the timber, poor, miserable, and scrubby as it is, most of it cottonwood, you are compelled to dig the road first up the mountain-side and np the canons, to go up steep hills to almost inacce sible places, and there the sparse trees are cut down with great labor and loaded upon the ox-cart, which goes creeping back to the town. One day is consumed in going for the wood and another in returning. These men engaged in that business are the wood rings, and the men who have so little moral perception thnt their contempt is of no account to Senators! As myfr~end from Connecticut suggests, most of the fire-wood, necessarily from the inaccessible places where it is obtained, is carried on the backs of mules and horses, and _sometimes of men, which is slow and laborious work. Go and charge them a dollar a cord for stumpage, by :ill means, and let us replenish the Treastiry of the United States!

I said that there were many statutes showingthattbe Government intended to license the occupation of these lands, both surveyed and unsurveyed. I call attention to the provision found on page 251 of the fourteenth volume of the statutes, "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes," which provides:

That the mineral lands of the public domain, both surveyed and unsurveyed-

That is a generic name applying to all these Territqries. They do not mean by mineral lands merely the place where a mine actually (\xists, but the lands in which mines may be found. They withdraw whole townships, they in fact withdraw whole counties under the designation of mineral lands, because mineral may therein be found. Now what do they do with those mineral lands f

That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby decla.I'('.d to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also t.o the local customs or roles of miners in tbe several mining districts, so far as the same may not be in conflict with the laws of the United States.

Now, then, the public lands, surveyed and unsurveyed, are open for exploration and occupation. By what means 7 How is a man going to occupy the land unless he can use that which it contains and sustains t Unless he can use the timber to bnild his house, how iM the country to be occupied or this law to be executed t There is no law on the statute-book to buy it. These laws were probably intended as a substitute for it, being long steps to make a legislative lict>nse to that end.

The Senator from Mas achusetts [Mr. DAWES] said yesterday that although I had urged upon Congress the relief of the people of my own State and those Territories in this matter, I bad been unable to satify the majority of either branch that it was worth while to make a change. That was a very careless statement, Mr. President. I had said before, that such a measure had twice passed the House of RE~presentatives. I will simply say in reply to that statement, if it is worth reply, tbat if the Senator will turn to the proceedings of the second · session of the Forty-first Congress, 1869-'70, he will find that the matter was fully debated at that time, intelligently understood by the House of Representatives, and that a bill for the relief of the States and Territories in this respect was passed. I want to say in justice to the Senator from Maine, [Mr. BLAI~E,] who at that time was Speaker of the Honse, in reply to a remark that he himself had not sought to remedy these things, that I did receive in the conduct of that bill from the Speaker in the chair all the help that the Speaker could give in his position, and it was very valuable in securing the attention of the House and in enabling me to have the bill passed.

Now, Mr. President, after language to which we objected applied to our people in the West, any reference to Massachusetts or any eastern part of the country is resented as an impertinence on our part. We are told, I find by reference to the REcoRD afterward, that this is assailing the States where we were born, &c., some violence done to our mother, or something of that kind. I never knew that a mother had any more right to n.buse the child than the child to abuse the mother. The Western States are the children of the eastern States, and we have a right to the same consideration from them that they have from us. Although I did not understand my friend from Colorado to make any threat---

:Mr. TELLER. I did not. Mr. SARGENT. With regard to feelings that might be excited in

the West toward tbe eastem States, I did understand him to say that a sense of continued injustice, of unmerited abuse, of denial of ordinary rights which every other State has had, might lead to an alienution of feeling. Senators 1·eply to that in a lofty way, thatt.hey are

not to M intimidated, and that they will abuse us as much as they please and take the consequences. Very well, if the consequences are of their seeking they probably will come. I do not desire that they should come, but I do desire that when my people are spoken of in this Senate that it shall not be upon the assumption that they are either plunderers or felons. Wherever I hear that imputation made ~ shall repel it, in parliamentary language if I can ; I shall repel it w any event.

Mr. BLAINE. I would not now occupy the floor a single moment ifa vote could have been reached, but partly in the RECORD and partly in the public press, the statement is made that the junior Senator from MassachuRetts [.Mr. HoAR] yesterday said, and apparently that I acquiesced in it, that the duties imposed by sections 2461, 2462, and 2463 of the Revised Statutes upon the Secretary of the Navy, were transferred to the Secretary of the Interior. Did I understand the Senator from Massachusetts to so maintain f

Mr. HOAR. I do not think I understand the Senator's question. Mr. BLAINE. I refer to the sections of the Revised Statutes relat

ing to the protection of ship timber, sections 2461,2462, and 2463, defining certain modes of protecting the public timber, and especially putting that matter under the control of the Secretary of the Navy. I see the Associat.ed Press has fallen into the blunder of making us agree that this control was transferred to the Secretary of the Interior.

Mr. HOAR. I did not understand the Senator :from Maine to maintain that.

Mr. BLAINE. Nor do I understand the Senator from Massachusetts to so maintain.

Mr. HOAR. No, I do not. Mr. BLAINE. I do not concede it, and the Senator does not main

tain it, a.nd therefore we agree. The vrovisions of those sections are distinctly under the Secretary of the Navy.

Mr. JONES, of Florida. I move that the Senate do now adjourn. ["No!" "No!"] We cannot get a vote to-night.

Mr. PAD DOCK. Had we not better try to reach a vote on this bill!

Mr. WINDOM. I think we can reach n. vote in a few moments. Mr. JONES: of Florida. I think not, from my knowledge of those

who want to speak upon the question. The vindication has been all on the side of'the 'Vest. The South is interested in this matter, and we propose to say a word about it, but do not propose to go into a discussion of the question at this late hour.

Mr. WINDOM. It is very difficult to imagine that anybody wants to say anything more on this amendment.

Mr. MATTHEWS. I desire to offer an a.mendment after the amendment of the Senator from Kentucky is disposed of, on which I propose to addreRS the Senate.

Mr. WINDOM. I do not object to the motion to adjourn under the circumstances now indicated.

Mr. ROLLINS. Will the Senator from Florida yield to me a mo-mentf -

Mr. JOl\TES, of Florida. I will yield for a moment. Mr. ROLLINS. I det~ire to move that the Senat.e take up for pres

ent consideration House bill No. 2371. ["No!" "No!"] It will take but a moment.

Mr. JONES, of ~,lorida. I object. Mr. ROLLINS. There will be no objection to the bill when it is

read. Mr. SARGENT. I move that the Senate proceed to the considera

tion of executive business. Mr. ROLLINS. I am sure the Senator from California will not

object to the consideration of this bill. Mr. SARGENT. I understand that objection is made by Senators

all around me. Mr. ROLLINS. It is necessary that the bill should pass at an early

dav. It will take but a short time. ~fr. JONES, of Florida. There will be ample time to-morrow to

take up t.he bill. Mr. ROLLINS. That has been the reply of Senators to my request

every day that I have tried to get it up. Mr. ALLISON. What is the billY Mr. SARGENT. What is the bill about Y • Mr. ROLLINS. It is a bill in reference to taxation in the District

of Colnm bia. Mr. KERNAN. That will take a little time. Mr. ALLISON. I object to its consideration now. Mr. ROLLINS. It is absolutely necessary that the bill should pass

at au early day. Mr. JONES, of Florida. Mr. President-The PRESIDING OFFICER. The Senator from Florida has the

floor, if he refuses to yield to the Senator from New Hampshire. ISLAND OF CUBA.

Mr. CONOVER. I ask my colleague to yield to me a moment that I may offer a resolution which will create no debate.

Mr. JONES, of Florida. Very well. Mr. CONOVER. I submit the following resolution, and ask for its

present consideration : Rrsolved, 'l'bat the President is hereby requested to communicat-e to the Senate,

if not incompatible with the public interest, such information as the Government bAA roceived respecting the Wrn18 n.nd conditions nuder which the SUl'renderof the

1878. CONGRESSIONAL RECORD-HOUSE. 1911 Cuban insurgents hBB boon made Wj!ether with such other information in his pos; session respecting the future policy of Spain in the government of the island of Cuba.

The PRESIDING OFFICER. The Senator from Florida asks for the presentcondiderationof this resolution. Are there objectious to itf

Mr. CONOVER. There will be no objection to it, I am sure. It cannot interfere with the public interest in any way. Mr~EATON. 1 object. . The PRESIDING OFFICER. Objection being made, the resolution

goes over. l\fr. JONES, of Florida. I renew my motion to adjourn. The PRESIDING OFFICER. The question is on the motion of the

Senat.or from Florida that the Senate do now adjcurn. The motion was agreed to; and (at five o'clock and fourteen min-

utes p. m.) the Sen~te adjourned. ·

HOUSE OF REPRESENTATIVES. WEDNESDAY, March 20, 1878.

The House met at twelve o'clock m. Prayer by the Chaplain, Rev. W. P. HARRISON.

The Journal of yesterday was read and approved. PUBLIC GROUNDS IN CIDCAGO.

:Mr. LIGON, by unanimous consent, reported from the Committee on Public Buildings and Grounds, as a substitute for House bill No. 500, a bill (H.' R. No. 3979) to confirm and release to the city of Chicago, Illinois, the title to certain public grounds; which was read a first and second time, ordered to be printed, and recommitted, not to be brought back on a motio11 to reconsider.

JOHN M. KNOTT.

Mr. PRICE, by unanimous consent., introduced a bill(H. R. No. 3980) authorizing the CommiBSio11er of the General Land Office to issut} a patent to John M. Knott for the northeast quartAr of northwest quarter section 7, township 81, range 4 east; which was read a first aml second time, referred to the Committee on Public Lands, and ordered to be printed.

INDF..X OF JOUIU~ALS OF CONGRESS.

Mr. STEPHENS, of Georgia, by unauimoue consent, submitted the following resolution; which was read, consiuered, and agreed to:

R~solved, That the Committee on Rules be, and they are hereby, instructed to inquire into the expediency and propriety of having prepared for publication a general index of the Journals of Congress from the organization of the Government to the present time, and report to the House such recommendation as they may find proper for effecting that purpose.

TIMBER LANDS, ETC.

Mr. PATTERSON, of Colorado, by unanimous consent, reported from the Committee on Public Lands, as a substitute for House bills Nos.1157, 1755,2412,2864, and 3235, a bill (H. R. No. 3D81) for the sale and disposition of timber lands anti for the timber growing thereon, and for other purposes; which was read a first and second time, ordered to be printed, and recommitted, not to be brought ba~k on a motion to reconsider.

Mr. WIGGINTON, by unanimous consent, reported from the same committee, as a substitute for House bill No. 3~ and all other bills on the same subject, a bill (H. R. No. 3982) to amend an act entitled "An act to encourage the growth of timber on the western prames;" which was read a first and second time, ordered to be printed, and recommitted, not to be brought back on a motion to reconsider.

SETTLERS ON SOSCOL RANCH, CALIFOR.."'UA.. .

Mr. WIGGINTON also, by unanimous consent, reported from the same committee, as a substitute for House bill No. 3503, a bill (H. R. No. 3283) to indemnify pre-emption settlers on the Soscol Ranch, in the State of California; which was read a first and second time, ordered to be printed with the accompanying report, and recommitted, not to be brought back on a motion to reconsider.

BONDSl\:IEN OF J. D. REY.MERT.

On motion of Mr. HEWITT, of .Alabama, by unanimous consent, the Committee on Public Lands was discharged from the further consideration of the bill (H. R. No. 3063) for tbe relief of the bondsmen of J. D. Reymert, late receiver of public moneys at Hodson, Wisconsin; and the same was referred to the Committee on the Judiciary, J\Ot to be brought back on a motion to reconsider.

LAND GRANT FOR RAILROAD.

Mr. MULDROW, by unanimous consent, introduced a bill (H. R. No. 3984) granting certain public lands in the State of Mississippi to aid in the construction of the Ship Island, Ripley anti Kt3ntucky Railroad; which was read a first and seconu time, referred to the Committee on Railways and Canals, and ordered to be printed.

J. E. BURBANK.

FACILITATION OF PENSION BUSINESS.

Mr. BANNING, by unanimous consent, submitted the following resolution; which was read, considerP.d, and agreed to:

Rrsolved, That the Secretary of War be, and he is hereby-;- re9.uested to inform this Honse whether the transfer to the Pension Office of the medical records of ttle Provost-Marshal-General's Office collected by tbe board of enrollment, and all hospital records pertaining to the ~anting of pensions, would not facilitate the e.xamlDation and decision of applications for pensions now pending and those to bu presented hereafter; also, whether such transfer would not result in the reduction of expenditures, and what, if any, objections there are to making such transfer.

.Mr. BANNING moved to reconsider the vote by which the resolution was adopted; and also moved that the motion to recoDBider be laid on the table.

The latter motion was agreed to. HOT SPRINGS, ARKANSAS.

Mr. COLE. I ask unanimous consent to have a memorial relating to the lea-sing of the Hot Springs of Arkansas read and referred to the Committtee on Public Lands.

The Clerk read as follows: To t1l.e ho-nurable Speaker and members of t1l.e

HO'U.8e of R.epresentatiJJes of t1l.e United Statu: GlnliTLEMEN: The undersigned, citizens of Saint Louie and members of the Mer

chants' Exchange, have learned with great rej!retthat a bill hBB pBBsed the Senate authorizing the execution of a lease of the Hot Sprin~rs of Arkansas to the Hot Springs Mountain Water Company. Believing that the policy of leasing these healiri~ waters, that should be kept free to the use of the public, is oalcu.la.ted to create an offensive monopoly and a wide-spread feeling of dissatisfaction o\"er the entire country, we therefore earnestly protest against such a method of disposing of tbeee valuable mineral waters that by nature were intended to be di.spelli!ed to the afilicted without money and without price.

We heartily approve of the extension of time granted the commissioners, but earnestly protest against the leasing of the Springe to any individuals or corpnra.tion.

JOHN CRANGLE, .ALEX. H. SMITH,

And others.

Mr. GAUSE. Of course, Mr. Speaker, I have no objection to its reference to the Committee on Public Lands, but I wish to st.ate that the recitals in the petition are exaggerated and some of them are altogether false.

Mr. EDEN. Is this question debatablef The SPEAKER. It is not. The memorial was referred to the Committee on Public Lands. Mr. GAUSE. I move, by unanimous consent, to take from the

Speaker's table the bill (S. No. 490) supplementary to an act entitled "An act in relation to the Hot Springs Reservation in the State of Arkansas, approved March 3, 1877," for reference to the same committee.

Mr. BURDICK. I object. Mr. GAUSE. I hope the gentlem~n will not object as the time will

expire in ten days. Mr. BURDICK. I insist on my o~ection.

NEWTON CREEK AND EAST RIVER.

Mr. COVERT, by unanimous consent, submitted the following resolution; which was read, considered and agreed to:

Resolved, That the Secretary of War be request-ed to inform this Honse whether any deposits have occurred at the piers near the junction of Newton Creek and the East River in the State of New York, calculated to obstruct navigation, and if eo the probable cost of removing the same.

Mr. COVERT moved to reconsider the vote by which the resolution was adopted; and also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to.

WILLIAM F. TRUESDALE.

:Mr. DICKEY, by unanimous consent, introduced a. bill (H. R. No. 3986) for the relief of William F. Truesdale, postmaster at Jasper, Pike Comity, Ohio; which was read a first and second time, referred to the Committee of Claims, and ordered to be printed.

JOSEPH CLYMER.

:Mr. BRIGHT, byuranimous consent, from the Committee of Claims, reported back the bill (H. R. No. 686) for the relief of Joseph Clymer, of Texas; which was referred to the Committee of the Whole on tbe Private Calendar, and the accompanying report ordered to be printed.

CHANGE OF REFERENCE.

Mr. BRIGHT also, by unanimous consent, from the same committee, reported back the following bills; which were referred to the Committee on War Claims:

A bill (H. R. No. 3468) for the relief of the estate of E. H. Childress, deceased; and

A bill (H. R. No. 1896) authorizing the Secretary of the Treasury of the United States to pay out of any moneys not otherwise appropriated the sum of $1,850 to Mrs. Clara Ida. Grass, a citizen of Nash· ville, TenneBSee, as full compensation for property taken and destrosecl by the armies of the United States during the war of the late robelliou.

The SPEAKER. Not to be brought back by a motion to reconsider.

Mr. KIDDER, by unanimous consent, introduced a bill (H. R. No. ENROLLED BILL. 39~) for the relief of J. E. Bnrba:rok, late paymaster United States Mr. KENNA, from the Committee on Enrolled Bills, rt}ported tbat Army; which was read. a first and second time, referred to the Com- they had examined and found truly enrolled ~11 act (H. H. No. 2887) to mittee on Military Affairs, and ordAred to be printed. · authorize the granting of an Aluerican register to a foreign-built shlp

'CONGRESSIONAL RECORD-SENATE. 1891 … · · 2018-03-201878. 'CONGRESSIONAL RECORD-SENATE. 1891 a...

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Transcript of 'CONGRESSIONAL RECORD-SENATE. 1891 … · · 2018-03-201878. 'CONGRESSIONAL RECORD-SENATE. 1891 a...