ing out of the war, not out of contract, but growing out of the seizure of cotton, the seizure of property, extending its jurisdiction beyond its former scope, which was simply that of a court to try cases of contract, not cases of tort. When the jurisdiction of the court was extended then, the jurisdiction was carefully confined to claims of loyal citizens. The very strongest language that could possibly be used was inserted in the act of 1863 to confine the benefits of that act to loyal persons, those who had not directly or indirectly contributed to the public enemy in time of war. I have not now the language of the act of 1863 before me.

Mr. TRUMBULL. I have just read it.

Mr. SHERMAN. I was not in at the moment; but it was as clearly expressed as you could possibly make human language that nobody should sue in this court unless he should not only swear but prove affirmatively that he had not participated, directly or indirectly, in the rebellion or aided the rebellion. That was the general purport.

on the action of the Court of Claims at all. But if the decision of the Supreme Court opens the door of the Court of Claims to all cases of captured and abandoned property, then what will be the judgments of the Court of Claims? Twenty, thirty, forty, fifty, or sixty millions will be liable to go out of the Treasury. It is true there is the limitation I will refer to in a moment, that probably would keep out all honest rebels, because they would not swear to a false petition, but it does not keep out the dishonest rebels. No man now can have filed a petition pending in the Court of Claims for captured and abandoned property unless he swore in the first place that he had never directly or indirectly aided the public enemy.

Mr. BAYARD. I ask the honorable Senator from Ohio whether the statute of limitations as imposed by the act of 1863 did not expire in 1868, so that no claims can now be brought, and none can be entertained that were not commenced prior to the spring of 1868?

Mr. SHERMAN. The Senator only compels me to state now a fact that I did intend | to state before, and that is that no man has a suit pending in the Court of Claims for captured and abandoned property unless he swore that he had not participated in the rebellion.

Mr. TRUMBULL. Nor for any other purpose. For captured and abandoned property or for any other cause no man has a standing in that court unless he swore in his petition that he had been loyal.

Now, if we have no power to limit the jurisdiction of this court, I am in favor of abolishing it. Congress and the people of the United States will never for a moment tolerate the extension of the jurisdiction of this tribunal beyond the plain letter of the act of Congress. If human language can be expressed in human law, if the courts are bound to construe our laws according to their plain intent, I say that it is as plain as day that the jurisdiction of this court is confined to hearing claims made by loyal people for captured and abandoned property. I have the decisions of the Supreme Court before me. I will not stop now to refine or discuss or contend with the Supreme Court; my respect for authority is too great; but I say one thing: if we have failed by the use of plain, simple language to limit the jurisdic tion of the Court of Claims, and if there is no English language that will limit that juris-operates. Those men who applied by petition diction to the claims of loyal people, then I am in favor of abolishing the court entirely; there is no other way.

With that view, and after an examination of the two cases that I have now before me, the Klein case and the Armstrong case, I believe that the whole difficulty will be met by the provisions of the section proposed by the Senator from Vermont as originally introduced, and that was not to allow this Court of Claims to be governed by what is said to be the legal conclusion from, or the legal effect of, a par don, the Supreme Court having decided that the effect of a pardon is entirely to relieve the party from the burden of proof, from proving the fact which was the basis of the jurisdiction of the Court of Claims. If that be the legal effect of the pardon, all that is required is to go further and say that this court shall not have jurisdiction of the case until they find as a proven fact to be found, as in the case of a special verdict, before they take one single step, that the plaintiff in the case had not directly or indirectly aided the public enemy.

Mr. TRUMBULL. Will the Senator from Ohio allow me to interrupt him for a moment? Mr. SHERMAN. Yes, sir.

Mr. TRUMBULL. When up I endeavored to state what the usual amount of appropriations to pay the judgments of the Court of Claims was, but did not have the statute before

me.

A friend has handed me a statement of the appropriations. For the fiscal year ending June 30, 1871, $100,000 was appropriated to pay the judgments of the Court of Claims; for the fiscal year ending June 30, 1872, $500,000, and the estimate for this year, as the clerk of the Appropriation Committee informs me, is $400,000.

Mr. SHERMAN. The Court of Claims has, in my judgment, been a very valuable and very useful institution. They have obeyed the law as far as I have been able to ascertain in every case. I do not make any criticism

Mr. SHERMAN. I state it, then, broadly that nobody has a claim pending in that court unless he swears that he has never, either directly or indirectly, aided the public enemy. It does seem though that when they come to prove that, some of them have aided the public enemy; and it is in favor of those who have perjured themselves and are unable to prove the allegation they make in their petition that the decision of the Supreme Court

and swore that they had never aided the public enemy, and who cannot now prove that allegation, are the persons who will be benefited by the decision of the Supreme Court. But if you will give a remedy of this kind in the Court of Claims to a man who has thus violated his oath, how can you deny it to those honest rebels who fought out the fight in good faith, and who would not swear to such a petition, and who cannot, therefore, commence their suits within the two years after the close of the war? You cannot do it. The sense of justice of the American people would say that those who were open rebels ought to have a day in court. By your statutes of limitations they never have had a day in court. I say, therefore, the decision of the Supreme Court of the United States only operates in favor of those who have sworn to that which they cannot maintain, and cannot prove, and it is on that account the more objectionable to me, because, if that decision prevails, no man has a right now to commence a suit in the Court of Claims for captured and abandoned property, for no one could have commenced such a suit since August, 1868.

I think the Supreme Court decided the date of the close of the war was August, 1866; no suit could have been commenced since August, 1868; and no suit was commenced before that unless the party swore that he had not participated in the rebellion. If he can prove

that allegation just as he would prove any other allegation in his petition as a fact, no one proposes to interfere with his remedy. Any man who was loyal and true to the country, and whose property was seized or taken, whether captured or abandoned, had a plain | remedy up to the period when the statute of limitations expired. Now, would you open the door wide and give an advantage to the men who thus took a false oath, swearing that they had not aided the public enemy when they had, and deny the same remedy to those

who were open rebels, and yet whose property was captured and whose property was abandoned? Certainly not. The effect of the decision of the Supreme Court is what we have to deal with. I have nothing to do with their logic.

The last clause of the amendment, as amended, it does seem to me goes too far. We recognize the fact that there are proper claims pending in the Court of Claims brought by loyal people for property captured and abandoned during the war. We have given jurisdiction to the Court of Claims to try, hear, adjudge, and pay those claims. The Court of Claims has by its history proved that it is a safe tribunal; that the interests of the Government are protected there. Why should we, therefore, limit or restrain or curb either the power of the Court of Claims or the right of loyal claimants to sue and prosecute their cases to final judgment? Why should we, after they have got the decision of the Court of Claims, add that last clause requiring them again to appeal to Congress for relief, for an appropriation? Why should we deny to them the right to appeal to the Supreme Court of the United States, as we do in effect by that particular clause? The Supreme Court have decided that they will not take jurisdiction of any case where the result of their judgment is not equivalent to an appropriation. I believe that is the substance of that decision. They will not take jurisdiction on an appeal in any case where the judgment of the Court of Claims would not be, if not appealed from, tollowed by a payment from the Treasury of the United States. That I believe is the effect of their decision, although I am not very familiar with it.

I think, with a slight modification of the latter clause, it is the duty of the Senate to put up the bars which have been thrown down by the decision of the Supreme Court of the United States; that it is one of the most important objects which can be attained. If you commence allowing all persons who have lost property during the war, either as captured or abandoned, to recover the proceeds, what is the extent of those claims? The cotton claims alone amounted to $70,000,000, The amount at one time carried to the Treasury, if I remember aright, was some forty million dollars. Every one of these claims will be thrown open. All other property was included in this law. The very sweet potatoes that my friend from Missouri [Mr. BLAIR] ate on his way through Georgia were "captured" and "abandoned,” abandoned by the fleeing rebels; the very turkeys and chickens and plunder" that the army lived upon in their march to the sea was captured and abandoned property. If the Court of Claims is to be opened for suits for this kind of prop erty, where is to be the end of it, and why should not these men have a remedy just as much for property captured and abandoned in this as any other way?

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Mr. HILL. Will my friend from Ohio allow me to say that I think there is a very wide distinction where no money went into the Treasury from the captures and where it did go as in the case of cotton? The capture of turkeys, chickens, &c., did not bring anything into the Treasury.

Mr. SHERMAN. The law of 1863 did not make any distinction in regard to going into the Treasury. The distinction was this: that where a loyal man in the South was compelled to flee by rebels from his property and abandon it to the rebels, the loyal man should have a remedy; but the law was not intended to say that if rebels fled from Union soldiers and abandoned their property they should have a remedy. The Supreme Court gives them that. There is the gist of the whole case. The decision of the Supreme Court is an entire reversal of the policy of Congress during the whole

war.

When the Senators and Representatives from the South were here they said "We have Union

"If my constituents are compelled to fly from their homes, if their property should subsequently be taken possession of by the United States, why should the United States make money out of their misfortunes when they are compelled to fly from rebel bullets and rebel bayonets, and they are compelled to abandon their property to the hands of rebels; you subsequently come in, take that property into your possession, and give them a remedy."

That was done by the act of 1863. It was a remedy in favor of loyal people against the depredations of rebels. But now, by the decision of the Supreme Court of the United States, it is converted into an act making the Government of the United States pay for the property of rebels who are fleeing from loyal people, thus entirely turning the stone upside down. If that is the effect of the decision, and there is no other way of meeting it, I am in favor of abolishing the Court of Claims. I am in favor of limiting its jurisdiction just so far as is necessary to deny any remedy whatever to disloyal people during the war, and we cannot with safety stop short of that before this session closes, because if this court once gets jurisdiction of all the class of cases that are included in the decision of the Supreme Court, it is only necessary then to extend a little the limitations imposed by the act of 1863, so as to give these people two years more to sue in, and you would have the Treasury overburdened with a debt that you can scarcely count by millions. That is the effect of it.

I am perfectly willing in good faith to carry out the policy of the act of 1863, giving to all loyal men who suffered by this class of depredations the plain and clear remedy it provides, and let the money be paid from the Treasury of the United States; but I will not extend it one inch beyond that. I know that sometimes an argument is made of this kind: that there were thousands and tens of thousands and hundreds of thousands of people in the southern States who were not guilty of any moral turpitude in being engaged in the rebellion. I will not stop to argue a question of morality, a question of ethics, how far a man is justified in going with the State or community in which he lives; but I know one thing, that by the laws of war recognized among the most Christian and civilized nations of the world, where a man rightly or wrongly, with good or bad motives, takes sides with an enemy, his property is to a certain extent exposed to seizure and confiscation, and the laws of war alone are to be admitted to decide in such a case. No nation engaged in war undertakes ever to do equal and exact justice to a public enemy.

Mr. BAYARD. Is not private property exempt from capture?

Mr. SHERMAN. Certainly, generally.

Mr. BAYARD. Do I understand the Senator to say that it is the law of Christian warfare that private property shall be seized and taken?

Mr. SHERMAN.

Certainly.

Mr. BAYARD. Is not allowance made to the owner always for its use?

If we

Mr. SHERMAN. Not in all cases. took the cotton of a disloyal man in a southern State, a man then waging war against us, and used it for breast works for our soldiers against the bullets of the owner, we were not bound to pay for it. Certainly there are thousands of cases where no such obligation exists. The general rule of the law of war is one very dif ficult to be defined. I take it that when men are engaged in war they will do that which strikes the hardest, pierces the farthest, ruins the most. The only way to carry on war is to carry it on relentlessly.

Mr. BAYARD. Against the public enemy, not against private individuals.

Mr. SHERMAN. Who is the public enemy but individuals?

Mr. BLAIR. Will the Senator permit me to say that a very large proportion, if not the largest of all this property that was captured, was taken after the war had actually closed? Now, what excuse was there for taking abandoned property after the war had actually closed upon the ground? Could it then be taken by the Government or anybody else?

Mr. SHERMAN. If there are any cases of that kind, I do not know them. The property could not be taken under this law except where it was captured or abandoned; captured by the military authority or abandoned by the owner, and then seized and taken possession of. If there are other cases, they do not fall under this law. But I do not want to wander into tedious tracks; I come back to the simple proposition that it was the intention of this act of Congress to give to the Court of Claims the power to hear and examine certain classes of cases. They were cases brought by loyal owners, who swore in their petition that they were loyal owners, and they were required to prove that they were the loyal owners of this property. In such cases as that the Court of Claims was authorized to hear their claims and pay them the amount.

Now, by an unexpected decision of the Supreme Court of the United States the juris

diction of the Court of Claims is extended so as to reach the claims of disloyal owners, thus defeating the very purpose of Congress.

Sir, whether it was rightly or wrongly done, representing one coördinate branch of the Government, the legislative power of this country, I would not allow the judicial power to step in and defeat the will of Congress in a matter in which we have plain, palpable, and exclusive jurisdiction. No man can sue the Government of the United States for any purpose except in pursuance of an act of Congress. A Government cannot be sued according to the general principle. Its acts are supposed to be governed by higher motives. But in modern times Governments are sued; different nations have allowed themselves to be sued by their own citizens as matter of justice between the nation and the citizen. So of late years the United States, by the establishment of the Court of Claims, has for the first time in our history allowed itself to be sued. It stands as a defendant before a court of its own making under a law defining the jurisdiction of that court. That court is simply subject to the power of Congress. Its jurisdiction is conferred by Congress; the salaries of the judges are paid by the United States, its power is lim ited to claims against the United States by loyal citizens, and if we cannot limit the jurisdiction of the Court of Claims, then what in the name of Heaven is the operation of our laws?

Mr. President, I do not care to discuss this matter further. I think the last clause of the amendment ought to be modified. I am not now prepared precisely to modify įt; but my general idea is this: that in all cases where judgments are rendered in favor of loyal peo ple, where loyalty is found as a proven fact, they should be paid by the Secretary of the Treasury precisely like other judgments of the Court of Claims in other cases which do not grow out of captured and abandoned property. That restriction which requires these suitors after the long agony of a protracted suit to await then the slow action of Congress for an appropriation, and the effect of which is to deprive the Supreme Court of the United States of an opportunity to review and rehear the case, it seems to me is a substantial denial of justice, and is not necessary in this case. If without that last clause the section could be added and the Supreme Court of the United States by some technical reasoning, or by some good or bad reasoning, should again overrule the plain and manifest purpose of Congress, we then might seek to find stronger language; perhaps we might go to the extent

of repealing and abolishing the Court of Claims entirely.

Mr. BAYARD. I am sorry, on this question, to feel obliged to again trouble the Senate with a few remarks. Yesterday the honorable Senator from New York, [Mr. CONKLING,] in speaking of suits permitted by a Government to be brought against itself by its citizens, said:

*

*

"The judgment of civilized man has long denied the citizen the right or permission to sue his Government as he may sue his fellow-man for injuries or debts." The judgment of those who constructed the Government under which we live accepted and adopted the propriety of this denial." In this regard, our governmental idea is the idea of modern Governments in general. Ifthere be exceptions, by statute or otherwise, those exceptions do not deny the general rule.

The Congress determined recently to erect a tribunal unknown before, to be called the Court of Claims, and, to declare that in that court certain citizens might sue the United States. The creation of this tribunal was in derogation of common right. It was in derogation of public law, natural law, as the publicists call it. It was in derogation not only of prior law, but of the comity which had long prevailed."

Further, the honorable Senator spoke of the constitution of this tribunal as being in derogation of common right. He did not give us any authority for the assertion that the estab lishment of a tribunal for the vindication of justice between a Government and its citizens or

subjects was in derogation of right at all. I assert that so far from being in derogation of right, it was simply the creation of a tribunal in furtherance of right, in furtherance of national justice, a tribunal created out of the debt due to justice.

In 1870, in the Court of Claims, this same character of objection was raised by the representatives of the Government for the purpose of restricting the jurisdiction of the court, and showing that all statutes relating to the institution of the court were liable to a strict construction. This led to the examination of the laws of other nations. I read from the report of the case of Brown vs. United States, to be found in the sixth volume of Nott and Huntington, and from the fifth section of the syllabus of the case:

"It is now judicially ascertained and established that the legal redress given to a citizen of the United States against the United States is less than he can have against almost any Government in Christendom, and that the Government of the United States holds itself, of nearly all Governments, the least amenable to the law."

In delivering the opinion of the court, Judge Nott, in adverting to the history of the Court of Claims and the necessity for its creation, for the prevention of frauds upon the Treas. ury, and for the establishment of a tribunal competent and fit to entertain and adjudicate such questions as are embraced by claims of citizens against the Government, and adverting also to the history of the creation of that court, used the following language:

"In the great arrogance of great ignorance, our popular orators and writers have impressed upon the public mind the belief that in this Republic of ours private rights receive unequaled protection from the Government; and some have actually pointed to the establishment of this court as a sublime spectacle, to be seen nowhere else on earth. The action of a former Congress, however, in requiring (act July 27, 1868, 15 Statutes-at-Large, page 243) that aliens should not maintain certain suits here unless their own Governments accord a corresponding right to citizens of the United States, has revealed the fact that the legal redress given to a citizen of the United States against the United States is less than he can have against almost any Government in Christendom. The laws of other nations have been produced and proved in this court, and the modifying fact is judicially established that the Government of the United States holds itself, of nearly all Governments, the least amenable to the law.'

Then he passes into a review of the laws of other nations, beginuing with the laws of the present empire of Prussia, where a court is established termed the Fiscus, which stands in the place of the Government; and for the purpose of compelling the payment of demands against the Government the Fiscus is substituted for the State itself:

"I know of no restriction of the rights of the sub

jects of Prussia to maintain any suit against the Fiscus. Foreigners as well as subjects, any man, can sue the Fiscus; the power to maintain a suit against the Fiscus is a matter of absolute right."

This was the language of a lawyer who was also distinguished as a writer, who was exam ined in the Court of Claims for the purpose of proving the existence of this foreign law and the practice under it:

"In Hanover and Bavaria the redress is substantially the same."

*

"In Holland, the Netherlands, the Hanseatic provinces, the free city of Hamburg, and probably in all countries which have inherited the perfected justice of the civil law, the Government is in legal liability thus subject to the citizen. Even in France, under the late empire, there was a less circumscribed means of redress, a more certain judicial remedy, a more effective method of enforcing the judgment recovered, than has been given to the American citizen, notwithstanding the pledge of the Constitution. Of all the Governments of Europe it is believed that Russia alone does not hold the State amenable in matters of property to the law. Of all the countries whose laws have been examined in this court, Spain only resembles the United States in fettering the judicial proceedings of her courts by restrictions, and leaving the execution of their decrees dependent upon the legislative will."

What authority, then, can there be for assuming that the proceedings in our Court of Claims or the creation of the Court of Claims and the permission given to citizens to sue in the Court of Claims are in derogation of common right?

"Admonished by the common law of England and by the jurisprudence of nearly the whole civilized world, we hold that this action of the claimants to recover of the Government their own money, unlawfully withheld by its officers, is a suit founded in justice and in right. We believe that it comports not with the honor and dignity of a republic to refuse to its citizens legal redress where their money or goods are in its hands, more than with the honor and dignity of a king."

I read this as a reply to the remarks of the honorable Senator yesterday, in which he considered it a mark of extraordinary favor that any citizen should be permitted to obtain from his Government the money that was due to him as a debt of justice. The tribunal was created in furtherance of justice, and in administering the laws which are made by Congress for the regulation of the proceedings in that tribunal, the great principles of justice and equity must be administered; otherwise the court would. be unworthy of the name of a court of justice.

It seems to me if there is to be any logical result and inference to be drawn from the remarks of the Senator from Ohio who last addressed the Senate, it is that Congress not only shall be authorized to create this court and classify its jurisdiction, but absolutely and in terms to control, in addition, the character of its judgments. That they cannot do. That court, if it be worthy of the name of a court of justice in this country, is to decide upon the principles of justice; and I am glad to hear such an enunciation from the tribunal itself, which is to be found on a subsequent page of the report in this same case:

"The Court of Claims was established to give legal redress to the citizen as against the Government where he would have had legal redress as against another citizen. We cannot give legal redress except upon legal principles. We cannot sustain a defense on the part of the Government where, if set up by an ordinary defendant, it would be held illegal, inequitable, unconscionable."

Therefore it would be, in my opinion, a far better act, more bold, less reprehensible in every particular, if Congress should wipe out of existence this Court of Claims and say that all the reasons for its establishment have been found to be wrong. They cannot blot out from the memory of the American people the justice that has been performed by that court, the eminent service that has been rendered to justice by its administration. They may, however, abolish the court itself; and it would be far more respectable, and, to use my former language, far less reprehensible, for them to abolish the court itself, than to make it a tribunal which shall be fettered by the instructions which they may choose to give, which they import into their law.

If decisions are to be had in that court,

I

hope and pray while it exists they will be decisions based upon the principles of justice, and not adapted to the passing temper and caprice of the legislative body. Among them all I can consider no defense so just, so imperative to be entertained by the court, which they never are at liberty to disregard, as the plea raised by any claimant that the Constitution forbids an interpretation which is sought to be given either by the direct or inferential meaning of the words used by Congress. If they shall put unconstitutional prohibitions upon it, I trust the court in determining justice to the citizens of this country on the principles of justice will hold that the Constitution of the United States shall at all times override the acts of Congress, and that wherever the acts of Congress shall be found in any degree to infringe upon the prerogative, whether it be of the judiciary or of the Executive, or upon the rights of the citizen secured to him, they will look to the Constitution and declare the act of Congress to be invalid. If this be not so, then no longer term it a court of justice. It is unworthy of the name.

The PRESIDING OFFICER, (Mr. ANTHONY in the chair.) The question is on the amendment of the Senator from Vermont, on which the yeas and nays have been ordered.

Mr. ALCORN. I move to amend the amendment by adding the following proviso:

Provided, That the provisions of this section shall not extend to claims for property seized or taken by the military forces of the United States or any officer of the same, or seized, taken, or impressed by any agent or agents of the United States Government at any time after the proclamation by the President of the United States declaring the war to have ceased; but claims for property so seized or taken may be prosecuted before the Court of Claims by any citizen of the United States at any time within twelve months from the approval of this act, and in all such cases an appeal from the judgment of the Court of Claims shall be maintained.

Mr. President, it does not lie in my mouth to suggest to the Government of the United States the policy that it shall be proper to pursue toward that class of people yet declared to be rebels. The anomaly of my position would forbid that I should assume the place of one who is here to dictate that policy. But I am here in the interest of my constituency and of my people, and to speak for them upon this subject.

That the Government of the United States had the right to seize the property of rebels while the war was progressing, no one denies; that it had the right to fix the terms upon which that property should be seized, there is no question. It had the power to spare and to deny the right of the Army to take private property. It had the right and the power to treat the people of the southern States differently from the course which it saw proper to pursue toward the Mexicans during the Mexican war. The Government of the United States then protected private property, recognized private property, and paid for all property taken, even to the extent of paying for that which was necessary to the support of the Army. The Government had the right to pursue a course toward the southern people different from that which William of Prussia pursued toward the French in the late war between France and Prussia, wherein he paid for all the property that was taken for the support of his army, and wherein he respected to the letter all private property.

The Government have the power and the right to assume their own course, their own position with regard to the southern people. They declared as one of the results of the war that slavery should be abolished, and it was done. The southern people were no more responsible for slavery than were the people of the North, where first it had its resting place, and from which it had been transported to the southern States at the cost of the slave to the southern people, which inured to the profit of the northern people; but the Government had the power and the right to demand as one of the results of the war that

slavery should be abolished, and it was abolished. The widows and the orphans whose whole property consisted in slaves, guaranteed and protected by the Constitution of the United States, opposed to the revolution, if you please, incapable of giving aid and comfort to the enemy, yielded to the power of the Government and gave up their property. They had also, under the mandate of this Government, to yield up all their private property which was taken by the Army. Stripped of their wealth, poor and penniless, in the weeds of mourning, those who can may exult over their misfortune. I am not here to speak of that.

I say, that the Government could do this and assume their own position with regard to the southern people, no one questions. They had the right to hang every man in the South if they had seen proper to do it when the war ended. It was a question of statesmanship, and for them to consider as one of statesman. ship and one of safety to the Government of the United States as to the course to be pursued; and after having taken one poor, miserable vagabond from a southern prison, and brought him here and tried and executed him, they declared that they would not hang any one else; they extended a pardon to all the rest of the southern people. Whether the extension of that pardon to the southern people was a blessing or a curse to some of them, I will not pretend to say. In their poverty they were left. In their distress and in their misery they yielded, I will say, with a cheerfulness and obedience unexampled by any people who were ever subjected to a similar ordeal. It was one of the results of the war, and as the southern people had staked their all upon the war, they complained not.

But I come to speak of this question in another aspect. After the war had ended, when the President of the United States had declared that the war was at an end, then it was that officers of the Government of the United States, disregarding that proclamation, agents sent out by the Government of the United States in the interest of certain parties who were here about the capital, and to further their own schemes, seized the property of the poor people in the South who were impotent to assert their rights, and who, under the terror that existed on account of the exercise of the bayonet, yielded to the demand of these officers. Their property was taken. When the Government of the United States assumed the right to take the private property of individuals after the war had been declared to have ceased, that became robbery, and it was nothing but robbery.

Mr. HILL. I wish to ask my friend from Mississippi if he sees any good distinction between cotton taken after the 1st of May or the 1st of June, 1865, by Treasury agents or by officers of other Departments going about that country without authority, and cotton and property taken after this proclamation was signed? I think myself the Government in justice ought to pay back in the first case quite as readily as in the second. I can see no distinction. Actual hostilities had ceased. There is the point. If the termination of the war was not proclaimed by the President as early as the summer of 1865, it was an actual existing fact, nevertheless; and I do not think the Government had the right to take and appropriate the property of citizens then, when there was no flagrant war, any more that it had after the proclamation of the President.

Mr. ALCORN. I have spoken of the power to do and the right to do, and it may be that there is some confusion in my statement on those points. The principle that I attempted

to assert was that the Government of the United States being the victor, had the right to declare when the war had ceased. It was not when the armies had surrendered, perhaps, that they would have seen proper to declare that the war had ceased. The Government might have declared that the war did not cease

until 1867. If that had been the case, the property taken up to that time, although there were no hostile armies in the field, would come under the rule which I understand the Government has laid down for its guidance; but after the war had been declared to have ceased by the President of the United States, then, I say, I have not understood it to be the policy of this Government to declare that there should be no remedy to the citizen. But such is the effect of the legislation upon the subject.

Without the color of authority, except simply the power that resided with the military officers, or with the agent of the Government of the United States, to whose assistance the bayonets at any time could be called to enforce his demand, property of the southern people was taken, was sold, converted into money, and the proceeds placed in the Treasury of the Government of the United States. I wish to know whether the Government is disposed to declare that they are entitled, under their own rulings, to property of this kind, or the proceeds of property of this character.

Remember that I am not complaining at all of the rule that the Government has laid down for its guidance up to the time that the war was declared by the President to have ceased. I am speaking after the fact, when the war had been declared to have ceased, when the proclamation of the President had been made, when the citizen was declared to be under the protection of the civil power of this nation. Then it was that officers of the Army and agents of this Government came, and, disregarding this proclamation, seized the property of an unarmed, a prostrate, a conquered, a subjugated, a poverty-stricken people, and of the least intelligent class of that people all over the land. If the Government of the United States sanctions this, I simply wish to know it; and as in everything else we have yielded, I shall bow to it, because there is no remedy but the will of the nation. The Government, it was said by the Senator from New York some time ago, has exercised a humanity that is unparalleled in the history of civilized Governments, and the evidences, that Senator saw proper to say, were now pres ent of the humanity of that Government. I stand in the presence of the Senator confessing the fact that I feel that in many things the Government has been up to the demands of civilization. I have so argued, so spoken, and I so feel to-day; but the Government has not been in all its legislation without some evidences of passion in that legislation.

Mr. CONKLING. Did the Senator refer to me in the remark he made a moment ago? Mr. ALCORN. Yes, sir.

Mr. CONKLING. Will the Senator tell me on what occasion I ever made the remark he quotes?

Mr. ALCORN. It was in the month of December; I am not able now to state the day; but it was upon the discussion of the political disability bill at the time that the Senator from Massachusetts [Mr. SUMNER] offered his amendment.

Mr. CONKLING. And the remark that the Senator attributes to me is, that the evidences were present of the mercy of the Government?

Mr. ALCORN. Yes, sir; so I understood. I have not seen the remarks of the Senator in the Globe, but I certainly so understood him and feel that I cannot be mistaken. If, how ever, the Senator asserts that I am mistaken, I very cheerfully withdraw what I have said on that point.

Mr. CONKLING. It is quite an unimportant matter. I was struck with the novelty of the Senator's remark if applied to me; and when I asked whether I was right in supposing the Senator attributed the remark to me, and learning that I was, my surprise did not diminish at all. I make no point with the Senator about it, however.

Mr. ALCORN. As the matter, then, is not

important to the Senator from New York, it is equally unimportant to me, except that I desire to be within the limits of the truth. If

I am mistaken, the Globe will, perhaps, correct me; but I certainly cannot be mistaken in the language used by the Senator. I paid especial attention to what he said, and yet I may have misunderstood him.

I was going forward, Mr. President, to say that there was some evidences of passion in the legislation of the Government. If I have a voice here that is worth anything at all, I trust that it will always be heard in the direc tion of a course calculated to pacify and harmonize the sections of this country. It is important to the southern people that it should be so, and I maintain that it is no less important to the northern people that it should be so. It is a necessity to this nation that the war should cease, that the memories of the war should cease, and that we of the South should cease to feel that we are under the heel of the Government. We wish to cease to feel that. It is offensive to us that we should be called rebels to-day; but we have to submit to that. We failed in the rebellion. We recognized all that that failure implied, and we have submitted ourselves as well as we could to all that was implied in that failure. Can we do more? We have come forward and proposed to support this Government. We have given, some of us, the evidences of our sincerity. We have done everything that the Government asked us to do; and yet it seems that in some portions of the country there is a feeling against us, that we are yet the rebel portion of this country. We wish to feel that we are loyal people; we wish to be recognized as loyal people; and not as hypocrites who come here to make professions to the Government that we do not feel.

now.

We are not particularly afraid of anything The war is ended, and there is no penalty prescribed against a man's delivering now whatever sentiments be chooses.

To assert as a fact that we are disloyal to this Government is an imputation upon our truth. To assert that we are enemies to this Government charges us with falsehood. We declare ourselves to be the supporters of this Government; we have none other. When the war ended we returned to the flag of our fathers and embraced it, feeling that we yet had a Government capable and willing to protect us; and each and every advance of that Government toward us in the spirit of humanity, commiserating with us in our misfortunes, has touched our hearts, and we have sought to respond to that demonstration of the Government in a way that became us.

But, as I said, the Government has shown some temper in its legislation. When the fourteenth amendment was submitted to the southern people I know it was complained that they refused to accept it. But, sir. they were told by the President of the United States at that time that it was not proper for them to accept it. They were not willing themselves, as a question submitted to them, to accept the fourteenth amendment, because its provisions were to disqualify those who had been their favorites, those who had been their political idols, if you please, from holding office. They did not wish to do that. No reasonable man would suppose that there was any one in the South who was willing, if the matter was submitted to him, to vote for a provision like that of the fourteenth amendment, and certainly the southern people could not have been expected to accept that fourteenth amendment when the President of the United States himself declared to them that it would not be proper for them to do so, that they would not be required by the northern people to accept the fourteenth amendment. To then go forward and accept the fourteenth amendment would have been to humiliate themselves; it would have been a self imposed humiliation, and they did not see proper to do

that. But when the northern people declared in the election of 1866 in favor of the fourteenth amendment, the southern people then came forward and accepted it as the law of the nation expressed toward themselves. What were they to do? Then there came the reconstruction acts. The reconstruction acts were the result, as I think, of the passions of the southern people. I have ever blamed the southern people, and given to them their share of the responsibility for the reconstruction acts. They showed passion in their legislation in the humiliation which they felt, and they manifested in that legislation that they were called upon to share in the southern States a spirit of irritability, a spirit of resentment which developed itself toward the colored people of the South, in which the southern people in the hour of their passion wrote a false chapter in their own history. Sir, their legislation toward the colored people was cruel. I say it was a legislation that was false to themselves. It was not the feeling of the southern people to have so legislated, but they did it, and they were responsible for it.

Congress then saw that one of two things was necessary: they had either (and they had a right to so feel) to send an army there to protect the colored people, or they had to give the colored man the ballot to protect himself. The first was not to be thought of in a republican Government, and the only remedy that Congress had was to give the colored man the ballot.

It had not been the purpose of this Government to extend the franchise to the colored people. As late as 1865, when Congress met, there were but seven men in this body and some fifteen in the House of Representatives who were in favor of extending the franchise to the colored people. As a southern man I was at that time in favor of it. I believed that it would prove to be a necessity, and I urged the southern people to extend the franchise to the colored men. But the North was not in favor of it. The necessity for so extending the franchise was made. The North in truth could not avoid it. The colored man was allowed to vote.

Then came the reconstruction acts. The reconstruction acts provided that any person who was inhibited from holding office under the fourteenth amendment should be inhibited from voting upon the question of the restoration or reconstruction of the southern States. Pardoned though I was by the grace of this nation, an advocate of reconstruction, an advocate of colored suffrage, nevertheless I had no right to vote at the election; and such was the legislation of the Government that while I could be subsequently a candidate for Governor and accept and qualify in the office of Governor, I was not in truth a voter, and could not vote, the reconstruction acts having made no exception in favor of any one under the disabilities imposed by the fourteenth amend

ment.

But now I say, in the face of this legislation upon the part of the southern States, which was cruel toward the colored man, Congress disfranchised the southern people, gave the ballot into the hands of the colored people, placed the political sovereignty of this nation in their hands, provided that the constitution adopted by them should be submitted here, and that it should be republican in its form, and then left the southerner with his property, that little which had been left to take care of himself, in the hands of the colored people.

Then there were those who came among us who sought to stir up ill feeling between the colored race and the southern people, between the propertied class and the unpropertied class of voters, the property class being disqualified from voting, and the propertyless class being enfranchised.

Mr. MORTON. Will the Senator allow me a question?

Mr. ALCORN. Yes, sir.

Mr. MORTON. I wish to understand the Senator. I like the spirit of his remarks very much; but I wish to inquire, was there any other disfranchisement imposed by the reconstruction acts, so far as voting in the process of reconstruction was concerned, than that of the fourteenth amendment, or embracing those who were embraced by the fourteenth amendment?

Mr. ALCORN. No; but the fourteenth amendment did not disfranchise anybody from voting.

Mr. MORTON. No, that did not, but the reconstruction acts did-those who were embraced in it.

Mr. ALCORN. In that particular election, but no further, wherein the question of the fundamental law of the State was submitted to the people, enacted by the people, framed by the people, that class of people who by the fourteenth amendment were inhibited from holding office, were not entitled to vote. Now, I say this placed the southern property-holder in a helpless minority. It placed the white people in the minority. It placed them in the minority at a time when the colored man remembered the legislation that the southern man had inflicted upon him in the hour of his passion in the Legislatures of 1865. It was a fearful ordeal to which we were subjected.

But, sir, I say that then the colored man, as he has ever proved himself to be, showed himself not as some imagined he would show himself, the enemy of the southern people, the enemy of his old master, but his friend; and, as Mr. Douglass said the other day in New Orleans, when we cried out, "Save us Pompey or we perish," Pompey came. Without property, with a remembrance of the legisla tion, as I said before, that had emanated from the passion of the southern people fresh upon his mind, he came to our rescue. He is our friend to-day, and we are friends. The col ored people and the old slaveholders of the South are bound together to-day, not by the ties of master and slave, not by the power of master and slave, but the ties that bind them are from a common suffering and common trials, for that suffering which the white people of the South have felt is a suffering that has been shared by the colored people.

Left with his freedom, given his freedom, in his nakedness and his rags the colored man was told, "You have your equality before the law," an equality implying the fact that his labor was his own, that he had a right to go to work, and with his muscle and his sweat earn for himself a living in the land. But the Government saw proper to impose upon the production of the southern people, colored and not colored, a tax which ground the colored man and the white man both together into the dust-a cotton tax-in what I conceive to be, and at the time conceived to be, and so protested, a vio lation of the fundamental principle of this Government. A production of the South, the only production of the colored people in the South, was selected for taxation, and a tax placed upon it that ground the white people and the colored people together in the dust.

Mr. CONKLING. Will it incommode the Senator if I ask him to yield to me for a moment?

Mr. ALCORN. No, sir; not at all.

Mr. CONKLING. A few moments ago the Senator alluded to me, and ascribed to me aremark discourteous in its character. He said that according to his memory I had referred to the mercy—or magnanimity may have been his word-of the Government, and had referred to persons present, thereby meaning, if I appre hend him, members of this body as being evidences of the mercy of the Goverement. inquired of him, and he fixed the occasion to which he referred as being on the introduction of the amendment offered by the honorable Senator from Massachusetts to the political disability bill in December last. I have before me the record of the proceedings of that day.

I

I have taken the trouble to scan it, and I find that the Senator is totally mistaken in imputing to me any remark in reference to those who were present, in reference to members of this body. The nearest approach to anything such as he supposes which I have been able to find, or which has fallen under the eye of a friend who has also run over the debate, is to be found in the words which I will read to the Senator:

"I make this remark, Mr. President, to appeal to the friends of amnesty not to lose sight of other things which may be important in this bill, either to gain time to-day or to accelerate the speed with which an act of crowning grace is to go out to men who to-day are walking monuments of the mercy and the magnanimity of the American people."

I can find nothing except that to which the Senator could possibly refer as having been uttered by me in that debate. I need not say to him or to the Senate that these words are not the words which he mentioned, nor do they in any way allude, as it would have been discourteous to allude, to any member of this body as one of the evidences, as the Senator said, of the mercy and magnanimity of the American people. I referred, of course, to the general fact that at the end, and some time after the end of a great rebellion no man had been punished for participation in it, and that the whole people of the South, in so far as

they participated in the rebellion, were living

monuments of the abstinence and magnanimity of the American people, living monuments of the fact that the same punishment, the same vengeance, if the Senator would so deem it, which history records in other cases as having been visited upon those engaged in like or lesser acts had never been inflicted upon them. It cannot be that the Senator from Mississippi from this did understand, if he heard me aright, or would now understand, that I intended any such reference as he supposed, which I think would have been discourteous in its character.

Mr. ALCORN. I certainly did not intend to misrepresent the Senator from New York. I did understand him as I expressed myself, and I would have gone forward before and said to him, if he had permitted me to say so, that I did accept his explanation and was willing to state that I was mistaken; but he stated that it was a matter without importance, and therefore I did not think proper to follow the question any further. I now see how I may have mistaken, and undoubtedly did mistake the meaning (for I did not state that he alluded directly to members of this body) of the phrase, walking monuments"-"monuments," as I understood him, present," but but that word is left out. I therefore take great pleasure in correcting myself before the Senate and withdrawing anything that may be calculated to reflect upon the Senator. I trust, if I shall gain no other reputation while I am here, I shall gain one for courtesy. I shall at all times, however, be found ready to resent a discourtesy to myself. But enough on that point.

66

I was going on to show that at the time I mentioned the southern people were left at the mercy of the colored people. The Senator from New York says in the remarks that he quoted awhile ago, and in the statement he made upon those remarks, that these people had gone without punishment. I would attempt to show that the southern people have suffered a punishment, and a terrible punishment on account of their rebellion against this Government, a punishment that ought to satisfy this nation, however much it may have desired that each and every man in the South should feel that punishment. In money they lost $2,000,000,000 in their slaves. They lost $1,000,000,000 in their personal property. They lost their sons. They lost their most valued citizens. They lost the cause for which they had struggled. They lost all that they had to stake upon the result, save the lives of those who remain. Have they not been punished? Do they feel their punishment? The woman

who was raised in affluence and wealth, and whose daughters had grown up in the idea that they should have wealth to support and maintain them in the position they had been taught they should occupy in society, is to-day without the means of giving them an education. In their poverty to-day they drag their lonely way. They are living evidences of the punishment that has been brought upon the southern people by reason of the revolution. Oh, Mr. President, we feel it. There is no heart in the South that has not felt that punishment which we have all endured on account of that mistake, not made by the people of the South, but made by the politicians of the country, into which the people were dragged and made to go forward.

And now that there is a way open for some of them to recover, if you please, their property, what I protest against is that you shall not open the door and ask them to come stripping themselves of their manliness and their honor. When these people who lived in the South and remained in the South during the war come here and declare that they were not sympathizers with the rebellion, and that they gave no aid or comfort to the enemy, there is, prima facie, fraud and corruption stamped upon their brows, in my judgment. They

were he southern people believed, their poli

all rebels. It was a war of sections;

ticians taught them to believe, that their slave property was in danger, and they felt that they had the right to protect their property, and they made the war in defense of that property. Right or wrong, whether it was necessary or unnecessary, they made their war nevertheless in defense of their property, and they were all rebels, because they felt that they had a right to protect that property, and all engaged in the assertion of their right to protect that property. If they had succeeded they would have been patriots; but as they did not succeed they were rebels. There is but one step from the sublime to the ridiculous; one step from the patriot to the traitor. It all depends upon

success.

Now, sir, the object of my amendment is this: when Congress gave the right to bring a suit in the Court of Claims they provided that the suit should be brought within two years. The condition-precedent cited by the honorable Senator from Illinois was stated in the petition. The condition-precedent set out that the petitioner should declare himself to have been loyal and should prove the fact. That condition is applied to the man whose property was taken after the war had ceased, after the proclamation of the President that the war had ceased, when he was under the protection of the civil power of this nation, under the protection of its laws and its Constitution, the war having ceased. The law provided that he should not bring suit for his property or for any property taken unless he could make oath to the fact and prove the fact of his loyalty. It was a demand that should not have been made of the man who lived in the South after the revolution had ended. It was a demand that should not have been made of the citizen there whose property was taken after the war had ceased. It was in obedience to the force used that the citizen gave up his property, and when he appealed to the Government, when he was about to assert his claim, he found that the first thing he had to do was to declare that he was loyal.

I contend that it is not the purpose of this Government (for if it had been the fixed and settled policy of the Government to go forward I would not have said a word) to demand from the citizen from whom the property was taken after the war had ceased an oath that he was loyal. He was under the protection of the law at the time, and there were no conditious to be exacted of him at that time. I wish you to make an exception for him. He could not take the oath and the two years expired. The two years expired before he had a knowledge