4 CONGRESSIONAL RECORD-SENATE. MARon 9, 

communication is printed it may be necessary to have printed also some counter-statement in regard to the matters therein contained. 

Mr. HOAR. I suppose the matter to which it relates will come up 

at the legislative session next winter. This paper merely contains some information about the condition of the road, which it will be con- venient for Senators to have in print during the summer. Of course . if there is any other contribution to that matter, which the Senator 

from Nebraska has, it may come in also. 

The VICE-PRESIDENT. If there be no objection, the communication will lie on the table and be printed. -

EXECUTIVE SESSION. 

Mr. EDMUNDS. I move that the Senate proceed to the considera.-

tion of executive business. 

The motion was agreed to; and the Senate proceeded to the consideration of executive business. After thirty-two minutes spent in execu- tive session the doors were reopened. 

ADJOURNMENT TO MONDAY. 

Mr. ALLISON. .I move that the Senate adjourn until Monday next. 

The motion was agreed to; and (at 12 o'clock and41 minutes p.m.) 

the Senate adjourned until ~Ionday, March 9. 

MONDAY, JJiarch 9, 1885. 

Prayer by Rev. J. G. BUTLER, D. D., of the city of Washington. 

The Journal of the proceedings of Friday last was read and approved. SENATOR FROM DELAWARE. 

The VICE-PRESIDENT. The Chair lays before the Senate a com- munication from the Secretary of State, which will be 1·ead. 

The communication was read, and ordered to lie on the table, as follows: 

WASHINGTON, D. C., March 6,1885. 

SIB: I beg leave to notify the Senate of the United States that I have this day 

forwarded to the Legislature of the State of Delaware my resignation as a Sen- ator of the United States from that State. 

Very respectfully, your obedient servant, 

Bon. THOMAS A. HENDRICKS, 

Vice-President of the United States and 

T. F. BAYARD. 

e:v officio President of the United States Senate. 

SENATOR FROM MISSISSIPPI. 

The VICE-PRESIDENT. The Chair lays before the Senate a com- munication from t.he Secretary of the Interior, which will be read. 

The communication was read, and ordered to lie on the table, as follows: 

WASHINGTON, J[arch 6, 1885. 

Sm: I have this day accepted the position of Secretary of the Interior of t.he 

United States, aud in consequence thereof my office of United States Senator 

from the State of Mississippi baa become vacant. Will you be kind enough to inform the executive of that State of this fact? 

Very truly and respectfully, yours, 

To Bon. THOMAS A. HENDRICKS, 

L. Q,. C. LAMAR. 

Vice-President of the United States and Prtsi<knt of tM Senate. 

SENATOR FROM ARKANSAS. 

The VICE-PRESIDENT. The Chair lays before the Senate a com,. 

munication from the Attorney-General, which will be read. 

The communication was read, and ordered to lie on the table, as follows: 

WASHINGTON, Mat·ch 6, 1~. 

Sm: I have this day accep~d the office of Attorney-General of the United 

States, and in consequence thereof my office of United States Senator from the 

State of Arkansas has become vacant. Will you be kind enough to inform the executive of that State of this fact? 

Very truly and respectfully, yours, 

A. H. GARLAND. To Bon. THOIIlAS A. IIENDRICKS, 

Vice-President of the United States and President of the Senate. 

MESSAGE FROM THE PRESIDENT. 

A message fro:m the President of the United States, by Mr. 0. L. 

PRUDEN, one of his secretaries, communicated to the Senate sundry 

messages in writing. . 

BACKBONE AND OTHER RAILROAD LAND GRANTS. 

The VICE-PRESIDENT. The Chair lays before the Senate a resolution introduced by the Senator from Nebraska [Mr. VAN WYOK] on 

Friday last, which went over, because of objection, .under the rule. 

The resolution will be read. 

SENATOR FROM NEW HAl'lfPSIDRE. 

Mr. PIKE. I rise to a question of privilege. 

The VICE-PRESIDENT. The Senator from New Hampshire. 

Mr. PIKE. I send to the Chairthecertificateofappointmentbythe 

governor of the State of New Hampshire of Henry W. Blair as a Senab>r to fill the vacancy in the delegation to the Senate from that State 

by the expiration of the term ending on the 3d of March instant, and 

I desire that the Senator appointed, who is present, may be sworn in, 

if there be no objection. 

Mr. EDMUNDS. Let the credentials be 1·ead. 

The VICE-PRESIDENT. The credentials will be read. 

The C4ief Clerk read as follows: 

STATE OF NEW HAMPSHmE, EXECUTIVE DEPARTMENT • 

To all persom to whom these preunt& shall come, gruting: 

Know ye that the executive of said State hereby appoints Henry W. Blair, 

of Manchester, in said State, Senator of, for, and from aid State to fill the va- cancy happening in the Senate of the United States by the expiration of the term of Henry W. Blair on the 4th day of March, in the year of our Lord 1885, 

during the recess of the Legislature of said State and by the non-election of 

said Blair's successor- To have and to hold said office of United States Senator until t·he next meeting of the Legislature of said State said next meeting being the meeting of the Legislature designated by the laws of the United States for the election of such suc- cessor, and being the first meeting of the Legislature at which such successor could be legally elected, and until the expiration of the time for which the execu- tive of said State is authorized to make a temporary appointment for filling the vacancy now existing. 

Witness .his excellency Samuel W. Hale, governor of New Hampshire, and our seal hereunto affixed at Concord this 5th day of 1\Iarch, in the year of our Lord 1885, and of the Independence of the United States of America the one hundred and ninth. 

rsEAL.] S. W. HALE, Gol!ernor. 

By his excellency the governor: A. B. THOMPSON, Secretary of State. 

Mr. VEST. I move that this paper be referred to the Committee on Privileges and Elections. 

The VICE-PRESIDENT. It will be so referred, unless objection be 

made. 

Mr. HOAR. Mr. President--

Mr. EDMUNDS. We objecttothat. Wewa11.ttotakethequestion on the reference. 

Mr. HOAR. I hope the credentials will not be referred. The Committee on Privileges and Elections has not yet been appointed, and I 

trust the Senator may be sworn in without objection. 

Mr. EDMUNDS. I wish to say to my friend from Missouri that 

whatever question may exist on these credentials arose in the case of 

M:r. Bell under precisely similar circmnstances and the same state of the 

law, and after full discussion on all sides of the Chamber and withont 

any party division it was decided by the Senate by a decided majority-

! do not remember how large-that such an appointment was within 

the Constitution and the duty of the governor. So the Senate having 

settled this question fairly and fully and without party division, I hope 

the Senator will not object to the Senator from New Hampshire being sworn in, and if he thinks on reflection there is enough left of question let him afterward move to have the matter referred to the Committee on Privileges and Elections. 

Mr. SAULSBURY. I am aware that the question arose in a similar case from New Hampshire a.nd that the question was then decided, but 

Senators who were then present remember that the right of Mr. Bell, 

the appointee at that time, wa,s very strongly contested. For the first 

time, I believe, in the history of the Senate it was then decided that 

the governor might commence a term. Prior to that there had never been, so far as my remembrance goes, any decision of the Senate favoring that conclusion. On the contrary, the implication from arguments 

which have been made upon questions of a cognate nature have been 

ad verse to such a conclusion. 

The Senate is not composed to-day as it was at the time Mr. Bell's case was before the Senate, and I think it is eminently proper that the 

motion of the Senator from Missouri should prevail, and that the Senate should upon due deliberation re-examine the question of the right 

of the governor of a State not to fill a vacancy, but to commence a Senatorial term. 

For one I do not hesitate to say, notwithstanding the conclusion at 

which the Senate arrived in the case of Mr. Bell, that my opinion after a thorough investigation of that case remains unchanged. I believe 

that whatever right a governor may have to fill a vaeancy occurring in a term there is no constitutional right or authority in the governor of a State to commence a term, and that it can only be filled by the action 

of the Legislature itself. I hope, therefore, that the credentials will 

be referred. 

Mr. VEST. I was a member of the Senate at the time the Bell case was discussed and ·determined. I remember very distinctly that there was a great dift'erence of opinion among the eminent lawyers of the Senate at that time, and that the weight of authority was against the power 

of the executive of the State of New Hampshire to make that appointment. But whatever may be the legal status of this question, with all 

deference to the· statement of the Senator from Vermont in regard to 

the facts of this case, it seems to me pertinent that the Committee on Privileges and Elections should determine whether this is an identical 

case, and then it will be for the Senate to say what is the weight of the 

precedent, if a precedent has been established. It seems to me that in a question of such grave importance, a question of the highest privilege 

in regard to the representation of a sovereign State, if there is any 

doubt about this precedent it should be investigated and determined 

again. That there is great difference of opinion among eminent lawyers, with the weight of authority against i~ I ~v~ ~o sort;Qf q_uestion. 

For this reason I insist upon the motion. 
1885. CONGRESSIONAL RECORD-SENATE. 5 

1t1r. HOAR. It seems to me the Senate may as well settle this question for itself now. The case of Mr. Bell, which, as has been said, was precisely similar to the present case in all particulars, was considered 

by a Democratic Senate, and a majority of the Senate then of the party 

opposed to Mr. Bell decided that he was entitled to the seat under circumstances like those in the present case, and as I was then satisfied, 

and I believe a large majority of the Senate was then satisfied, the 

question was determined by a clear and unbroken line of precedents 

going back to the beginning of the Government, some ten or a dozen 

cases, in which the same question had been presented-going back to 

the case of Mr. Tracy, a Senator from Connecticut in the very earliest 

days, which settled the law, as was claimed by Mr. Bell and as is now 

claimed in behalf of Mr. Blair. . Therefore I think it is not presumptuous to say there can be no seri- ous question as to what will be the decision of the Senate at the present 

time; and the delay of this gentleman's taking his seat until after the 

committees of the Senate are appointed prevents him and the State he 

represents so far as his right is concerned from receiving a proper representation upon the committees of the Senate; and it will embarrass 

the Senate in framing its committees to postponethequestiontoalater 

day in the session. The Senate certainly is as well prepared to deal 

with the question now as it ever can be. 

Mr. DAWES. Whatever may be the weight which may :finally be 

attached to the objection raised by the Senator from Missouri, according to the uniform practice in both Houses of Congress when a commission is presented under the seal of a State and in due form the precedents are that the person presenting it should be sworn in and the OQjections considered afterward. It seems to me, therefore, that if there 

were any weight to be attached to these objections, they are objections 

which should more properly be considered by the Committee on Privileges and Elections after Mr. Blair shall have been sworn in, following the precedents of the Senate and of the House in those cases with 

scarcely a single exception. 

When a commission is presented in proper form and under the seal 

of a State the member presenting it is always sworn in and his right to 

hold the seat is decided, if at all, after that. It is rare indeed that any 

person presenting such credentials as these is held outside until the investigation of his right to his seat, and when that is done it is under 

circumstances rare, and which do not exist in this case. Here is a cer- tificate in precisely the saine form which has given a member of the 

Senate his place, and after that and after a report from a committee 

and an investigation his right to his seat has been confirmed. 

I think that the Senate would not oDly be justified but would be 

called upon to admit this man to his seat, and then if the Senator from 

Missouri or any one else should suggest a contest of his right to that 

seat it would be perfectly open to him and would be decided in the 

ordinary course. The VICE-PRESIDENT. The question is on the motion of the Senator from Missouri, that the credential be referred to the Committee on 

Privileges and Elections. 

The motion was not agreed to. 

Mr. HOAR. I now move that HenryW. Blair, a Senator appointed 

from the State of New Hampshire, be admitted to take the oath of 

office. 

Mr. VEST. I object; and I ask that the motion lie over until tomorrow. Mr. HOAR. This isamerequestionofSenatorial privilege. I submit that it does not lie over under the objection . . '.fhe VICE-PRESIDENT. Shall the motion be postponed until tomorrow? The Chair understands the proposition of the Senator from 

:Missouri to amount to a motion. · Mr. VEST. I understand that under the rules of the Senate the 

original notice must go over until to-morrow where a Senator objects 

to its consideration. I have no disposition to delay this matter. It 

has been said here that this would deprive a State of its rights and 

would inconvenience the committee who are now arranging the general 

committees of the Senate. It is an open secret that the committees 

will be arranged to-day or to-morrow, and that then if this gentleman 

be admitted he can receive his position. 

Mr. HOAR. I am constrained to say that I understand the rule of 

the Senate to be that the motion which I made, if required to be put in 

writing by the Chair, or without being pot in writing, is in the nature 

of a resolution, and it is the right of any Senator, if he sees :fit, to require its postponement for one day. 

Mr. VEST. That is my understanding of the rule. 

Mr. HOAR. I concede the right of the Senator from Missouri to 

demand that this lie over until to-morrow, but I wish to say to him if 

he will permit me, in all courtesy-- . Mr. VEST. Certainly. 

Mr. HOAR. The only practical effect of the matter will be, unless 

a considerable number of gentlemen on the other side of the Chamber . have changed their minds--

Mr. SHERMAN. Here i rule VI. 

Mr. HOAR. I beg pardon; onder the new rule, Rule VI, it is said 

that all questions made upon the presentation of credentials "shall be 

proceeded with until disposed of." So that is an exception to the general role which I had in mind. 

Mr. VEST. Whatever the rule may be, I want simply to make this 

statement: I am not objecting to these credentials for any purpose of 

delay. I know very well that a majority of the Senate--

Mr. HOAR. If my friend will pardon me, I was about suggesting 

to him that the only practical point of this matter, as we both, I think, . will see, is that the postponement of Mr. Blair's swearing in makesan 

interruption in his term of Senatorial service, so that his place upon 

committees, which he has earned by six years of faithful service, will 

be lost, and he will stand as a new member. It will be an interruption of his Senatorial service, and it would, therefore, of course, be a great personal gratification if without any failure of duty in whatever 

the Senator thinks the public good demands the question might be . 

dealt with to-day, so that that Senator may know where he stands. 

That is all there is of it. 

Mr. VEST. I presume that all of us, no matter what has been our term of service in this body, know how the committees are organized 

and appointed; and I take it for granted that the committee upon the 

part. of the majority of the Senate would not be controlled by any such 

technicality as that stated by the Senator from Massachusetts, but that 

this gentleman, the newly appointed Senator from New Hampshire, 

would be treated in a spirit of equity and of Senatorial courtesy, and 

would receive his place according to his term of service in this body 

without reference to the narrow and contracted rule which is suggested 

by the Senator from Massachusetts. 

There are a number of new Senators here who, whatever may be their 

legal attainments or legislative experience, must :find this a new questiOif to a very large extent. As I said before, I was a member of the 

Senate when the Bell question was considered and discussed, and I con- fess that I should like a · few hours in which to look at that debate, and 

particularly at one argument which ! ·recollect very distinctly, that of 

the late lamented Senator from Wisconsin, Mr. Carpenter, which I 

thought then to be conclusive. 

All I ask is that we may be permitted to look at this question for a 

few hours only, without prejudice to the claims of this gentleman or 

the State he claims to represent. 

Mr. SHER1tiAN. I believe, with the Senator from Missouri, that as a matter of courtesy to that Senator or to any Senator who says he is 

not prepared to vote on the question presented, the matter might properly go over, although I deny that it is the right of any Senator to object to the swearing in of a person appearing to have a prima facie right as a Senatot at the moment he presents his credentials. The rule is 

very clear and very express. It is founded upon the clearest reasons. 

If a single objection could put the question over for a day, a majority 

might put it over for a longer period; one-third of the Senate might at 

the beginning of the session be kept out of their seats by a single objection. If the objection had been made here on the day of inauguration, 

it might have prevented the Senate from being organized except by 

two-thirds of the body. Therefore, the rule was founded upon good 

reason, that any question affecting the right of a Senator presenting cre- dentials should be at once determined without the ordinary delay of 

legislation. 

Still, as it makes no difference at all to the Senator from New Hampshire that he shall be sworn in to-morrow rather than to-day, and as 

the Senator from Missouri desires to look at the authorities, I think it 

is but a reasonable request and that under all the circumstances we 

should allow the delay at this time, bot as a matter of right I should 

insist upon the newly elected Senator being sworn in. I have no objection whatever to conceding a reasonable opportunity to look into the 

authorities. 

Mr. PIKE. If this matter goes over until to-morrow I hope it will 

be the general understanding by unanimous consent that it shall be 

disposed of to-morrow morning without asking a reference to the Committee on Privileges and Elections. This case is precisely like the one 

which occurred six years ago in the Senate in all its particulars, and that was decided after very long and full discussion. It seems to me that 

no new fact can be produced here and no reason assigned why this case 

should not be disposed of to-morrow. I hopei twill be understood that 

the case shall be disposed of then. · Mr. HOAR. I should like for the information of the Senate to read 

from the Journal what the Senator from Vermont[Mr, EDMUNDS] has 

called my attention to as to the point of order. This is the Journal of 

the Senate of October 17, 1877: 

1\Ir. THURMAN presented the credentials of Henry M. Spofford, elected a Sena- tor by the Legislature of the State of Louisiana for the term of six years, com- mencing March 4, lff77. The credentials were read. 

Mr. THURMAN then submitted the following resolution, and asked for its pres- ent consideration: 

Resolved, ThatHenryM. Spofford, whose credentials as a Senator from the State 

of Louisiana have been this day read, be now sworn and admitted as such Sen- ator . Mr. EDMUNDS objected to the consideration of the said resolution this day, and 

raised the point of order that, under the thirty-third rule of the Senate, which 

requires that all resolutions shall lie over one day for consideration, the reBOlution could not now be considered. 

The Vice-President overruled the point of order raised by Mr. EDllroliDS, and 
6 CONGRESSIONAL RECORD-SENATE. MARCH 9, 

decided that, under the seventh rule of the Senate, the presentation of the cre- dentials of a Senator being a. question of privilege, all questions and motions arising thereon were in order at this time, and that the consideration of the res- olution could now be proceeded with. 

The Chair will observe that that was the ruling of Vice-President . Wheeler, · a predecessor of the present occupant of the chair. 

::Ur. FRYE. And Rule VII then referred to is Rule VI now. Mr. HOAR. Yes, the same rule. 

Mr. FRYE. It is practically the &'UD.e rule. 

The VICE-PRESIDENT. Shall the motion of the Senator from Massa<!husetts lie over until to-morrow? Is there objection to that proposition? 

Mr. MILLER, of California. I understand that under the rule the 

question is to be proceeded with, unless by unanimous consent it lies over. If it requires unanimous consent to lay it over, I make objection. 

The VICE-PRESIDENT. Does the Senator from California object? 

Mr. MILLER, of California. I do. If the rule requires that thi~ 

matter must be proceeded with at once until it is finished, it can not 

be laid over without unanimous consent, and I object to its being laid over. Mr. COCKRELL. I think the Senator from California is mistaken 

in saying that it requires unanimous consent to lay the matter over. I presume there is no question that a. majority of the Senate can postpone action upon it until to-morrow. I hope the Senator from California will make no objection, and that the mattiQr will be postponed 

until to-morrow, and then it will be proceeded with as a question of 

privilege. 

Mr. FRYE. That motion should be made. I suggest to the Senator ·to move to postpone further consideration until to-morrow. 

Mr. COCKRELL. I move, then, that the further consideration of 

the matter be postponed until to-morn1W. 

Mr. HOAR. In order to have no question about it, I have put my 

resolve in writing. Then let it be postponed until to-morrow. 

The VICE-PRESIDENT. The resolution offered by the Senator from 

Massachusetts will be read. 

The Chief Clerk read as follows: 

BACKBONE AND OTHER RAILROAD LAND GRANTS. 

Mr. VAN WYCK. I ask for thereadin~ of the resolution offered by me on Friday last, if it is now considered as the unfinished business. 

The VICE-PRESIDENT. The resolution will be read . The Chief Clerk read the following resolution, submitted by Mr. VAN WYCK on the 6th instant: 

Resolved, That the Secretary of the Interior be directed to inform the Senate whether patent.~ have been issued for the lands grant~d in 1871 to the New Or- leans, Baton Rouge and Vicksburg, popularly known as the Backbone Rail- road; if so, for what number of acres, to what corporation or individuals, whose receipt was taken for the same, when signed, whether unusual means were used to hasten the preparation and execution of said patents, whether the clerical force employed worked nights and Sunday so they might be completed before March 4, what day they were ready for the signature of the President, what the necessity for any special exertion to secure the completion and signature before the 4th day of March, whether anything was done to protect the actual settlers in their rights to any of such lands; also, whether previous to the 4th day of March anything was done or written in regard to any other of the unearned laud grants, the forfeiture of which had been considered by the Forty-eighth 

Cong-1-es.s. , 

1\Ir. VANWYCK. Mr. President, it will be considered by the American people a matter of sincere regret that an administration, a successor to tho e commencing a quarter of a century ago to break the power of 

organized capital and check the aggressions of the greatest monopoly 

that ever cast its blight on this continent, should have clouded its good name far more than any word or act of its enemies in the last day of its 

existence; that in the la t agony of dissolution its final act should be 

at the dictation and in the interest of corporate wealth, whose power 

has grown to be as omnipotent and whose aggressions as deadly as those 

of the one overthrown. 

Beginning for the establishment of universal rights, it has traversed 

all zones to the highest elevation, only to be hurled in the end to the 

antipode of abject and humiliating surrender in the face of the nation 

to a more tyrannizing monopoly than dominated the Republic in former 

years. Breaking the bonds of sla,very, it subjugated the nation to the 

fetters of corporations. 

This last chapter is the most remarkable in the mysterious record of 

the Baekbone Raihoad. 

&solved, That Hen ry W. Blair, appointed a Senator from the State of New In 1 71 a. large grant was given this road with condition that it should 

Hampshire, be now admitted to take the oath of office. be completed in five years. During that time not a mile was built; its 

Mr. SHERMAN. Let that go over. only act was to issue millions in bonds. Five more years passed; its 

Mr. HOAR. Now let it go over. grant became doubly dead. Not a rod of road constructed; its route 

Mr. FRYE (to Mr. CocKRELL). Make your motion. had not even been definitely located; it was absolutely bankrupt. 

Mr. COCKRELL. I move that the resolution be postponed until to- Debts for salary of officers, for the pictures which adorned its bonds, morrow. could not be collected. 

The VICE-PRESIDENT. The question is, Shall the resolution be Where were the Executive Departments of this Government then that 

postponed until to-morrow? they did not interfere and protect the public domain and the rights of 

l\1r. TELLER. I am quite willing for one that it shall go over; but the people? It may be. replied, where was Congress then? Cert-ainly. 

I am not willing that the Senate shall make a precedent that anybody But that prince of truthful historians, Huntington, in his interesting 

has a right to put it over. I think .on this side of the Chamber weare letters to his friend Colton, forcibly portrays the management, the 

willing that it shall go over, but not on a motion that will commit the means and cost of controlling legislative bodies; but the people will be 

Senate to the principle that anybody has a right to put it over. slow to belie>e that such influences can reach the Executive Depart- . Mr. HARRIS. I ask the unanimous consent of the Senate that the ments. 

resolution lie over until to-morrow. · It will be claimed that the New Orlean and Pacific in 1881 became 

The VICE-PRESIDENT. The Senator from California has objected. the successor of the Baekbone, and built not the road mentioned in the 

Mr. MILLER, of California. I do not object if consent is asked. If grant but a road on the faith or expectation of this grant, dead and 

all Senators desire that it shall go over, I do not object. I desire to forfeited by reasons of condition twice broken. But mark, this New 

make the same point the Senator from Colorado [Mr. TELLER] did. Orleans and Pacific was incorporated in 1875 as a rival to the Backbone, 

Mr. HOAR. I move t-hat the Senate proceed to the consideration of and commenced work d~ring the lifetime of the grant, and continued 

executive business. its work during the period of the second five years, with bitter deMr. VAN WYCK. Mr. President- nunciations against its rival, and with repeated attempts to have its 

Mr. HOAR. I withdraw the motion for the present. grant forfeited by Congress, and modestly asked the transfer to itself. 

Mr. McMILLAN. Has it been announced that this matter goes over The committee were willing to declare forfeiture but not the transfer. 

by unanimous consent? To the schemers behind the New Orleans and Pacific-the Central and 

The VICE-PRESIDENT. Thatisnotsettled. The proposition now Southern Pacific-it became actually necessary to have a road of their 

is to proceed to the consideration of executive business. own to the Gulf. · And the New Orleans and Pacific boldly proclaimed 

Mr. HOAR. No; that motion is withdrawn. that they had the means and would push the road to New Orleans 

Mr. EDMUNDS. I do not wish to be committed for one to the prop- without land or aid, and they did. 

osition that the Senate can not, a privileged resolution being before it, The Gould and Huntington crowd were scheming with this as they 

postpone it until to-morrow or lay it on the table or do anything else were with Scott and the Texas Pacific-the same tactics and the same that it thinks fit to do with it. I have no objection, on the request of influences. They fought Scott, hoping to secure the large grant. They 

the gentlemen on the other side, to this matter going over until to- •rought the .Backbone, hoping to secure their dead grant. morrow by motion or otherwise, but I do not wish to give in my adhesion They would not consent that Congress should forfeit this grant, un- to the proposition that it is not in thepowerofamajorityoftheSenate less they would at the same time convey to them. This proposition 

to postpone this resolution until to-morro;w or next week or next year was so infamous that Congress, manipulated as Huntington delineates, 

if a majority thinks it fit to do so. would not consent. They preferred to take the chances to force an as- The VICE-PRESIDENT. Shall the resolution be postponed by unan- signment from the bankrupt company of the dead grant. 

lmous consent? It is so agreed. The matter stands until t.o-morrow. Marvelous apology, built on the faith of the dead grant; when they 

T. C. QUANTRILL. 

· Mr. MILLER, ofCalifornia., submitted the followingl'RSOlution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate: 

Resolved, That the Secretary of the Senate be, and he is hereby, authorized and directed to pay out.of the contingent fund of the Senate toT. C. Quantrill the sum of $564 for serVIces as cl rl~ to S~nator J. T. Farley, of CaJifornia, ft·om De· cember 1, 1884, to :March 5, 1885, rnclustve, and one month's extra. pay, as provided for under the provisions of the act making a,ppropriation to supply the deficien- cies for the fiscal year ending June 30, 1885. 

were demanding and, at much necessary outlay of money, convincing 

Congress that this grant in the hands of the Backbone should be forfeited, and in the end received from the same bankrupt road the assignment of this, as claimed by themselves, worthless grant in 1881, when 

the New Orleans and Pacific had nearly completed their road. 

There was never a definite location of the line by either road. The 

Backbone operators were never willing to put money enough in its 

treasury for that purpose, and the New Orleans and Pacific did not con- sider it necessary, as they were antagonizingthe land-grant road; they 

did not attempt to comply with the law, as they knew the only way 
1885. CONGRESSIONAL RECORD-SENATE. 7 

for them to obtain it was by srealing, in which they have partiaJ.lysucceeded, against the pro~t of the nation and a. portion of Congress. 

It is claimed that there was a special meeting of the Cabinet-the last 

act of the last meeting-to legalize this fraud. Did the actual settlers 

on this land hire any advocates there and were their rights protected? 

Under the granting act the right . to pre-emption and homestead was 

guaranteed until the line of road was definitely fixed. The report of 

the Land Office of 1881 said it was not :fixed then; and the opinion of 

the Attorney-General of June 13, 1882, which will probably figure in 

this discussion, stated that it had never been :fixed. The law secured 

this right. Did the Cabinet protect them or were they turned over to 

the tender mercies of this corporation? 

It is further claimed by way of apology or defense that Mr. Kirkwood desired the opinion of the Attorney-General as to the validity of 

this grant. With tew notable exceptions the history of the Land Bureau of the Interior Department is a record of the demands of landgrant corporations and decrees of the Department in obedience thereto; 

but when the demand has been too exacting an opinion of the Attorney-General was sought behind which to escape until the storm of public indignationpassed by. In this case the Attorney-General wasequal 

to the occasion a.nd sustained the reputation of the office in that direction. 

Very learned arguments by Judges Dillon, Greene, and Pierrepont 

on behalf of Gould and Huntington were made before the AttorneyGeneral; but alas! no one appeared on behalf of the people. From all 

the officers of this great nation no one appeared to defend the public 

domain. No wonder the Attorney-General readily accepted the arguments of Gould's attorneys. , 

The ingenuity of an Attorney-General is valuable to suggest doubts 

where none exist and then resolve those doubts in favor of the corporation. In the Forty-eighth Congress the Public Lands Committee of 

the House reported in favor of forfeiture, but by some political legerdemain it was afterward referred to the Judiciary Committee to report 

as to legality of forfeiture, a majority reporting adversely, which was 

sustained in the House by n. close vote. That the symmetry of history 

may be preserved it is hoped that some Huntington may hereafter give 

sketches ofthe means and manner of this achievement. 

The Senate Committee on Public Lands reported a bill forfeiting a. portion of the lands, which was placed on the Calendar but was not 

reached during the short session. 

Fearing an attempt would be made to obtain patents a protest was 

prepared and signed by members of both Houses, mo t of them on the 

Public Lands Committees, respectfully asking that action be withheld, 

as the subject-matter was under consideration in the Senate. The question of forfeiture belonged to Congress. The controversy had not been 

concluded. This grant bad been held for ten years and more without 

any attempttocomplywiththeconditions; and whatrighthad that company or its assigns to stand at the doorway of Congress and demand 

immediate .action at the peril of being compelled to 8.eli ver nearly a 

million acres of land, worth from seven to t en million dollars? By 

what mysterious power could they coerce this Government into an extm 

session of the Cabinet in its expiring days and secure action which will 

be sought to foreclose Congress and the people from effective action to 

rend the spoiler of his prey? What 1·ight has even the President and 

Cabinet to waive broken condition? That power is vested in Congress 

alone. But why this ba.ste? 

Why should clerks work nights and insult the religious sentiment of 

the nation by working on Sunday? What the necessity, public or otherwise? This Republic was not to perish on the 4th of March; its continuity was not disturbed by changing the Executive; there wa.s no suspension of power and duties; all business proceeded as heretofore. Wa 

all other business concluded and finished by March 4 in the Interior 

Department? Did other of the Executive Departments work their 

force nights and Sunday to have the incoming administration start with 

only new business? 

The people will ask, Why thi~ baste? Was it dangerous to trust the 

r~presentatives of the people in the next Congress? Was it dangerous 

to trust the incoming administration to do justice to the men claiming 

this grant? Was there danger the rights of settlers on these lands 

would be recognized and the public domain protected by the incoming 

administration? If so, then it evidently has not been installed too soon. 

I desire to give this public notice that the legality of these patents 

will be contested, so that purchasers of bonds now to be issued may not 

claim the protection accorded to innocent purcha ers without notice. 

Mr. TELLER. 1tir. President, my experience in this body has not 

been as extended astbatofsomewho sit before me; it is something over 

eight years that I have been in the public ervice. I confess to considerable astonishment at this resolution, so di courteous, so unsenatorial, 

directed to 11 co-ordinate branch of the Government. I suppo e, Mr. 

President, it bas accomp:W bed tbepurpo efor which it was introduced. 

It has enabled the mover of this resolution to appear before the public, 

not for the first time, but as he has on various occasions, as the special 

championofthelaboringclasses, thedown-troddenpeopleofthecountry, 

and_ as the special opponent of corporations and corporation influences. 

I presume that the Senator when he introduced the resolution expected nothing more. He hardly expected that any Departmentofthe 

Government would allow itself to be thus assailed and answer the reaolution. Before this discussion is closed, or on some other occasion when. 

I have an opportunity, I shall call the attention of the Senate to the 

very remarkable character of various resolutions coming from this same 

source that have been directed to the Executive Departments of this Government within the last three years, and I want to give notice here to 

everybody that although the administration bas passed into the hands 

of the political party with which I am not affiliated, yet as a Senator, 

having due respect to the dignity of the Executive Departments of the 

Government, I never intend without at least a protest, that that administration shall be treated by resolutions of this Senate as the late 

administration has been treated. 

Why, Mr. President, if you would listen to and believe what this 

honorable Senator bas said to-day you would suppose that in the issuing of this patent or the certification of the land earned by this company there had been something done that had never been done before. 

Sir, every Secretary who has sat in that chair for the last sixteen 

years has done exactly what the Secretary who has just retired has 

done, and during a good portion of that time the honorable Senator 

has been a member either of the other House or of this body and he 

has been 11 member of the Committee on Public Lands, and he never 

before this body or in the committee has been heard to find fault with 

their acts. It is in the public press, it iswherehecan get the credit of 

being the champion of all the down-trodden and oppressed and the opponent of corporations that be is heard. When legislation can be had, 

when the interests of the Government can be protected when it is desirable to protect them, he has been as silent as t..he grave. 

There are on the records of the General Land Office patents for millions of acres of land issued exactly under the same situation that 

this was issued. The company of which I speak appeared as the assignee of a corporation recognized by the act of 1871, known as the 

Texas Pacific act. It was the policy of the General Government in 1871 

to give the people of the Southern section of the country what it had 

given to the Northern section of the country, a continental line to the 

Pacific coast; and for that purpose it recognized certain corporations, 

by name conferred upon them grants. Among others was the New 

Orleans, Baton Rouge and Vicksburg Ra.:ilroad Company, commonly 

called the Backbone Railroad. This railroad company was organized 

under the laws of the State of Louisiana with remarkable powers and 

privileges, and the Congress of the United States provided for it in the 

twenty-second section of the Texas Pacific act, which I will have the 

Secretary read. 

The Chief Clerk read as follows: 

SEC. 22. That the New Orleans, Baton Rouge and Vicksburg Railroad Com- pany, chartered by the State of Louisiana, shall have the right to connect by 

the m o t eligible route to be selected by said company with the said Texas Pa- cific Iroilroau at its ea.steru terminus, and shall have the right of way through 

the public land to the sa.me extent granted hereby to the said Texas Pacific 

Railroad Company; and in aiel of its construction from New Orleans to Baton Rouge, thence by the way of Alexandria., in aid State, to connect with the said Texas Pa.citic Railroad Company at its eastern terminus, there is hereby granted to saitl company, its successors and as igns, the same numbet· of alternate sec- tions of public lands per mile, in the State of Louisiana, as are by this act granted in the State of California., to said Texas Pacific Railroad Company; and said 

lands shall be withdrawn from the market, selected, and patents issued therefor, and opened for settlement and pre-emption, upon the some terms and in 

the same manner and time as is provided for and required from said '.rexas Pa- cific Railroad Company, within said State of California: Pr~rvided, That said company ~:~hall complete the whole of said road withm five years from the pas- sage of this a.ct. 

1tir. TELLER. The whole question arisin~ here is contained in the 

last clause, ''Provided, That said company shall complete the whole of 

said road within five years;" a provision that has been put in every 

railroad grant made from the time when grants were first made by the 

Congress of the United States. The only question befo:re the Department for three years (gentlemen may cover it up and disguise it as they 

may) has been this, whether, having completed the road out of time, 

the assignee of the original company was entitled to the lands as if it 

had completed the road within time. 

The question whether the original grantee had the right to assign, 

as it did assign, to another corporation has been abandoned long since 

by everybody who has been making attacks upon this company. It 

has been settled by the Supreme Court of the United States upon more than one occasion that these grants are grants in prresenti. Every lawyer in this body-and I only regret that every man who speaks upon a 

subject of this kind is not a lawyer, for it would not then be necessary 

to explain per}laps some of the primary principles governing cases of 

this kind-every l:1wyer understands what a grant in prresenti means. 

It means that it conveys to a grantee a present existing interest. Nobody will deny it, not even the Senator from Nebraska. The Supreme 

Court has held it, the Attorney-General has repeatedly so held. If it 

conveys a present interest, then it is a subject of sale and conveyance. 

It may then be bartered or traded; and whatever the original grantee was required to do the assignee is also required to do; and the assignee 

stood in exadly the same position when the assignment wa.s taken that 

the other company did. 

The New Orleans, Baton Rouge and Vicksburg Railroad Company 

weJ:e unable or unwilling-it makes no difference which, whether ox--
8 CONGRESSIONAL RECORD-SENATE. .MARcH 9, 

ganized for the purpose of issuing two millions of bonds or two hundred millions is perfectly immaterial-to complete its road, and it saw 

fit to sen and assign its right to these lands to another company, called 

the New Orleans and Pacific. The New Orleans and Pacific accepted 

in the most formal manner this conveyance. It received the lands, 

and of course received them upon the condition that it would abide 

by the condition subsequent, and that was for the building of the road. 

The company then came to the Department for instructions. After 

this assignment the assignee railroad company appeared before the 

Department of the Interior in 1881, when 1\Ir. Kirkwood was Secretary, and addressed to the Commissioner of the Land Office the inquiries which I will send to the desk, and received from him the letters 

which I will send up to be read. 

The Chief Clerk read as follows: 

DEPARTMENT OF THE L'fTBRIOR, GID<""ERAL LAND OFFICE, 

Washington, D. G., FelJruary 26, 1881. 

Sm: On the 17th instant you filed with me certain papers, showing the trans- fer by the New Orleans, Baton Rouge and Vicksburg Railroad Company to the New Orleans Pacific Railway Company, of the land grant to the former com- pany. You verbally asked me for an expression of opinion as to the effect and 

sufficiency of the transfer. 

On the same day (17th instant) I addressed a letter to Hon. W. H. Barnum, 

president of the first-named company, expressing the opinion that the transfer 

would fully vest in the last-named company, upon a formal acceptance thereof 

by it, all the right, title, and interest of the first named. 

On the 21st instant you filed a letter from Mr. Barnum, dated 19th in tan t, addressed to me, covering a telegram from E. B. Wheelock, president oft-he New Orleans Pacific Railway Company, dated New Orleans, 19th instant, being the 

required acceptance of the t-ransfer. 

By letter to Mr. Barnum, dated 21st instant, I acknowledged receipt of his let- ter and inclosure, and stated that the transfer was not complete. 

On the 24th instant you referred a letter dated New York, 23d instant, addressed to you from William l\1. Barnum, secretary of the New Orleans, Baton Rouge and Vicksburg Railroad Company, covering the origiualofthe telegram 

of acceptance above referred to. Yesterday you telegraphed me, asking if the papers last described had been 

received; to which I at once responded by telegraph in the affirmative. 

All the papers in the case have been filed. 

Very respectfully, &c., 

Hon. J. H. KETcHAM, 

J. A. WILI.IAl\ISON, 

Commiss-ioner. 

House of .Representatives. 

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, 

Washington, D. C., February 17, 1881. 

Sm: In compliance with the verbal request of Hon. J. H. Ketcham I make 

the following statement: By the twenty-second section of an act of Congress, entitled "An act to incorporate the Texas Pacific Railroad Company," &c., approved March 3,1871, a grant of land was made to the New Orleans, Baton Rouge and Vicksburg Railroad Company for the purpose of aiding in the construction of its road. 

At a special meeting of the directors of said New Orleans, Baton Rouge and 

Vicksburg Railroad Compuny, held December 29, 1880, a resolution was adopt-ed 

authorizing the president and secretary of the company to transfer all the right, 

title, and interest of said company in and to said grant to the New Orleans 

Pacific RailwayCompany,and to make and executesuch instruments as should 

be necessary for that purpose. On the 5th day of January, 1881, the president and secretary, pursuant to aid 

authority, executed a deed, in the name of the New Orleans, Baton Rouge and 

Vicksburg Company, conveying all the right, title, and interest of said company in and to said grant to the New Orleans Pacific Railway Company. 

On the 3d day of February, 188l, the directors of the last-named company adopted a. resolution authorizing the president of the company to accept said conveyance, and to execute any documents necessary to evidence the accept- ance. 

There can be no doubt that when the president of the New Orleans Pacific 

Railway Company accepts said transfer the company will be fully ve ted with 

all the right, title, and interest which the New Orleans, Baton Rouge and Vicksburg Company has in and to said grant. 

Very respectfully, 

w. H. BARNUM, Esq., 

J. A. WILLIAMSON, 

Commissioner. 

President of the New Orleans, Baton Rouge and VickslYurg Railroad Company. 

NEW 0RLBANS PACIFIC RAILWAY CoMPANY, 

OFFICE OF THE PRESIDENT, New Orleans, February 19, 1881. 

!:lm: In pursuance of the resolution of the board of directors of the New Orleans Pacific ~ilway Company, passed February 3 1881, I hereby accept, in behalf of said company, the deed and transfer executed by theN ew Orleans, Baton Rouge and Vicksburg Railroad Company, bearing date January 5,1881, convey- ing all its right, title, and interest in, to, and under the land grant made by sec- tion 22 of the act of Congress approved March 3, 1871. 

Hon. W. H. BARNUM, 

THE NEW ORLEANS PACIFIC RAILWAY COMPANY, 

By E. B. WHEELOCK, Preside;nt. 

President N. 0., B. R. and V. R. R. Go., 52 William st., N. Y. 

Received the within acceptance this 23d day cf February,1881. THE NEW ORLEANS, BATON RoUGE AND VICKSBURG 

RAILROAD CO!IlPANY, 

By W1tl. M. BARNUM, Secretary. 

(Indorsements:) 1377, C. 6. Department of the Interior, Lands and Railroad 

Division. Received October 29,1881. 

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, 

Washington, D. C., Febr'I.Lary 21,1881. 

Sm: The president of the · New Orleans Pacific Railway Company has duly 

accepted, in behalf of said company, the deed referred to in my letter addressed to you, dated February 17, 1881, being the deed to the said New Orlean!! Pacific 

Railway Company by the New Orleans, Baton Rouge and Vicksburg Railroad 

Company, of all its right, title, and interest in and to the granttosaidlast·named company by the twenty-second section of an act of Congress entitled " An act to incorporate the Texas Pacific Railroad Company," &c., approved March 3, 1871. 

The transfer by the said New Orleans, Baton Rouge and Vicksburg Railroad 

Company of all its right, title, and interest in and to said grant to the said New Orleans Pacific Railway Company is now complete. 

Very respectfully, 

W. H. BAR:l'."'UM., 

J. A. WILLIAMSON, 

Commissioner. 

President of the New Orleans, Baton Rouge aru:.l 

VickslYurg RailrOAd GompanJI. 

Mr. TELLE.R. Now, Mr. President, this railroad company was prepared to go to work. They had received from the original company the 

grant. There was some delay in the recognition by the Department of 

the transfer. I desire to call the attention of the Senate to the fuct 

that the united delegation of the State of Louisiana, includinghertwo 

Senators, neither of whom now sits on this floor, and all her members 

of Congress, petitioned the Department in a letter that I hold in my 

hand to recognize this transfer and allow this company to go on and 

·build the road. 

1\fr. VANWYCK. Will the Senator allow me a question right there? 

Mr. TELLER. I wiU. 

1'1Ir. VAN WYCK. I understand the Senator to remark that after 

this communication from the Land Commissioner in 1881 this company 

was allowed to go on and construct the road. What I desire to ask iR 

if it is not the fact, as I have already stated, that this company was organized in 1 75, in the lifetime of the grant, and that during the summer of 1875 it did some work in the lifetime of the grant? 

Mr. TELLER. Which company do you speak of? 

?!Ir. VAN WYCK. I mean the New Orleans and Pacific. After the 

letters written in 1881, which have been read, the Senator said the 

company was ready to go on and build this road-the New Orleans Pacific. Now I ask if the New Orleans Pacific was not organized in 1875, 

during the lifetime of this grant, and if it did not do some work on this 

road in 1875 an l <vntinued work on this road down to 1881, when 

these letters were written? 

l.Ir. TELLER. If there was anything that could convince me that 

the honorable Senator from Nebraska has not any conception of this 

case it is the question he has asked me now. I am ready to reply to 

it, but it has nothing to do with this case. The company was jn exjstence, but the company had no right to this grant; it had not been 

named in the act; it appeared then as the assignee. Does the Senator 

say that as the assignee it could not take this grant, that it did not stand 

precisely in the same situation that the old company would have stood 

if it had completed the line? If he does, he has parted company with 

everybody else on his side who has been attacking this grant. 

Ur. VAN WYCK. Now, if the Senator will allow me right there, I 

will ask him further if this New Orleans Pacific was, as is true, organized in 1 75 before the grant made the Backbone road expired, if they 

did work in 1875 and continued work until 1881 without this grant 

and fighting it, was there any pretense for them to claim any land adjoining the road they had built at the time when: they were fighting 

the grant? 

Mr. TELLER. This company have claimed nothing except for the 

road they have built after receiving this grant, and the Senator knows 

that. An attempt to make it appear here that they have claimed anything else is unworthy of his position. He knows very well that that 

was the question submitted to the Attorney-General. Having earned 

this grant, having finished this road subsequent to the purchase of the 

grant are they entitled to the land? The Senator has been heard on 

the stump, he has been heard in the newspapers, and he has been heard 

e"'"erywhere claiming that this was a precedent "1br the granting of 15,-

000,000 acres of land to the Texas Pacific Company. I excuse the gentleman. I do not charge that he ever stood up and willfully made the 

statement, for I doubt to-day whether he can appreciate the difference 

between this case and that of the Texas Pacific or Southern Pacific, 

although the Attorney-General, ex industria in this case, declared that it 

was not a case similar to the Texas Pacific and the facts are as widely 

different as it is possible. 

The Southern Pacific built the road on the route of the Texas Pacific, 

not having any privity of estate or connection with the grant made to 

the Texas Pacific-not having any interest that enabled them to perform the condition, and that is the difference between the Texas Pacific . 

and this case. This company claims nothing except that it had done 

a little work; it had completed no portion of its road; and if the Senar 

tor makes that statement it is utterly untrue, and without a foundation 

of fact, and he ought to know it. 

l.Ir. VAN WYCK. Right thereThe VICE-PRESIDENT. Does the Senator from Colorado yield to 

the Senator from Nebraska? 

Mr. TELLER. Yes, sir. 

M:r. VAN WYCK. r ask the Senator as to the road constructed by 

the New Orleans Pacific from 1875 down to 1881, whether there was any more privity 9r connection between the New Orleans Pacific and 

the Backbone in the work done between these periods of time than 

there was between the Southern Pacific and the Texas Pacific? 

Mr. TELLER. I reply that not an acre of land has been granted 

conterminous With any portion of the road that was not built after they 

had received their e:rant from theotbercompany; and that ought to be 

answer enough. The sixty-eight miles that they bought they have 
1885. CONGRESSIONAL RECORD-SENATE. 9 

bad no land for, and the Attorney-General declared that they were not 

entitled to land for that. 

Mr. VAN WYCK. Have they received for the balance beSides the 

sixty-eight miles? 

Mr. TELLER. · They have received just as much land as they were 

entitled to by the side of the road built after the grant was issued to 

them, and no more. 

Mr. VAN WYCK. Let me ask--

The VICE-PRESIDENT. Does the Senator from Colorado yield? 

Mr. TELLER. I decline to yield unless the Senator founds his 

question on facts. 

Mr. VAN WYCK. Let me ask another fact. I ask whether the 

New Orleans Pacific, beyond the sixty-eight miles the .Attorney-General said they were not entitled to lands for, have received a grant for 

all the miles of that road beyond the sixty-eight? 

Mr. TELLER. I do not know how many miles they have received 

for. It j utterly impossible for me to say; but I do know this, that 

the order was that they should receive for so much as they had built 

subsequent to the assignment, and they have received no more. 

Mr. VANWYCK. Now,onemoment. Allowmethere. The sixtyeight miles the Attorney-General spoke of were built by the Morgan 

Company in Louisiana. That had no connection either with the Backbone road or the New Orleans Pacific. That is one point. But the 

point which I was endeavoring to get the attention of the Senator to was this: Have they built beyond the sixty-eight miles up to the year 

1881, with no privity between these roads but in antagonism, as there 

was between the Southern Pacific and the Texas Pacific. I ask him 

now again ifpatents have been granted to them for that portion of the 

road? V!e shall see when the answer comes to the resolution from the 

Interior Department. 

Mr. TELLER. I say that lands were granted for only so much of 

the road as they built and constructed after purchase of the grant as 

the assignee of the grant. Now, the gentleman ought to be satisfied 

with that. On other parts they had done some work; but the road 

had not been constructed and was not built. 

When this company came before the Department in the fall of 1881 

they camejust as twelve or fourteen other roads had come claiming to 

have built the line out of time; they came just as.several other roads 

had come claiming to have built the road as the assignee of the original 

grantee, and the question was never raised in the Department whether 

they had the right to b"uild out of time and thus claim title; but the 

question was raised whether as the assignee they had the right, and 

this question was raised by the original company or the bondholders 

or stockholders thereof. Thereupon the Secretary of the Interior, my 

predecessor, submitted that question to the Attorney-General to determine whether theyhadarightto the land thattheywereclaiming or not. 

I do not think I need say to the American Senate that when resort is 

had to the provision thatauthorizesand in some instances requires the 

head of a Department to inquire of the Attorney-General the law of a 

case, by common courtesy, by common decency, if not the very terms 

of the law, that head of Department is bound to recognize that opinion 

as the law of the case in which the inquiry is made. 

If that is not the law, then for the many years that the Departments 

have been in the habit of havingquestions of this characterdecidedfor 

the government of the other branches of the Executive Departments 

than the Department of Justice by the Attorney-General the various 

Executive Departments have been in error; then all the Executive 

Depa:rtments ofthe Government haveproceeded upon afalse basis; and 

it is left to the distinguished lawyer from Nebraska to overrule the 

precedents of many years and insist that it was the right, nay, that it 

was the duty, of the Interior Department to say to the Deparlment of 

Justice, "Notwithstanding we have asked your opinion upon the law; 

notwithstanding we confessed that we had not confidence in ourselves 

to determine so grave and weighty a question, when you have determined it we will turn around and say your law is bad, and we decline 

to be governed by it." That never has been the p:ractice. 

But I do not desire to shield the Interior Department under the opinions 

of the Attorney·General. I make no such defense as that. It was the 

bw, settled and adjudicated, that these men had this grant, having 

bought it. Does anybody deny that it was assignable? That point was yielded by the House Committee that made a. report, five in favor 

of the company and six against it, yet the majority of the House committee declared that it was an assignable grant. They said there is a 

present interest in the Vick burg company, ·and there being a present 

interest, they may sell and assign to somebody else, suhject only to the 

conditions of the grant. 

Why, Mr. President, I should be ashamed to cite an authority upon 

such a proposition. It has never been questioned since the days of 

Coke. It has never been questioned by any reputable lawyer, it has 

never been questioned by any court. Where there is an interest coupled with a condition, the party holding the interest may perform the 

condition. And there is another principle as well understood by lawyers-! do not know how it is in Nebraska, but I know where people 

study the p:rofession and where people understand the law it is under:. 

stood-that a condition attached to an estate once performed is pe:.:-

formed fo:reve:r. The:re is not anywheye a dissent from that doctrine. 

A subsequent condition, says the Supreme Court, is a condition a_ttached 

to the estate, and until the grantor shall step in and re-enter or by 

some act equivalent to a re-entry shall declare that the condition can 

not be fulfilled hereafter, it is to be considered as still existing, and its 

performance at any time is a perfo:rmance forever and deprives the 

grantor of the right of re-entry. 

Mr. President, this question of assignment I Sa.id was submitted to 

the Attorney-General, and of course all the other questions were submitted, too, especially, however, that of the assignment. Various questions were submitted to the Attorney-General, who, after months of 

attention to the matter, returned i.t with the declaration: 

First, that the grant of lands was a. grant in prresenti; nobody doubted 

it. 

Second, that the assignment was a valid assignment; nobody ought 

to have doubted it. 

Third, that this company was entitled to these lands as the assignee, 

having pe:rforme<J the condition subsequent attached to the grant. 

The .Attorney-General distinguished in that opinion the difference 

between that case and the case of the Texas Pacific and the Southern 

Pacific. It has always been distinguished in the Department. It was 

not a precedent recognized as ha-ving any bearing upon the question of 

the :right of the Southern Pacific. I ask that the Attorney-General's 

opinion be put in the RECORD, but not read, for it is too lengthy. I 

have no doubt it has been read by everybody who gives any attention 

to this matter, but it is too lengthy for me to wait now to have it read. 

In order to make up the history of this case I deshe that it shall go 

into the RECORD. · 

The opinion is as follows: 

DEPARTMENT OF JusTICE, Washington, D. 0., June 15,1882. 

Sm: By a letter dated the 5th of January last, your predecessor submitted to me a number of questions arising upon an application of the New Orleans Pacific 

Railway Company for certain lands claimed under the land grant made to the New Orleans, Baton Rouge and Vicksburg Railroad Company by the act ofCon- gress of March 3, um., chapter 122. · The land grant mentioned is contained in the twenty-second section of that 

act, which provides: 

"That the New Orleans, Baton Rouge and Vicksburg Railroad Company, chartered by the State of Louisiana, shall have the right to connectJ>y the most eligible route to be elected by said company, with the said Texas racific Railroad · at its eastern terminus, and shall have the right of way through the public land to the same extent granted hereby to the said Texas Pacific Railroad Company; 

and in aid of its construction from New Orleans to Baton Rouge, thence by the way of Alexandria, in said State, to connect with the said Texas Pacific Railroad 

Company at its eastern terminus, there is hereby granted to said company, ita successors and assign , the same number of alternate sectionsofpubliclandsper 

mile, in the State of Louisiana, as are by this act granted in the State of California to said Texas Pacific Railroad Company ; and said lands shall be withdrawn from market, elected, and patenta issued therefor, and opened for settle- ment and pre-emption, upon the same terms and in the same manner and time as i provided for and required from said Texas Paeific Railroad Company 

within so.id State of California: Provided, That said company shall complete the 

whole of said road within five years from the passage of this act." 

The eastern terminus of the Texas Pacific Railroad, as fixed by the same act, was a point at or near Marshall, Tex. The New Orleans, Baton Rouge and Vicksburg Railroad Company was incorporated by an actofthe Legislature of Louisiana passed December30, 1869, which 

authorized it to con truct and operate a railroad 11 from any point on the line of 

the New Orleans, Jackson, and Great Northern Railroad, within the parish of 

Livingston, running from thence to any point on the boundary line dividing the 

State of Louisiana and Mississippi," the route here indi<.'ated lying east of the 

Mississippi River. It was lllso authorized to constru<'t and operate a branch railroad from its main line (above described) to the city of Baton Rouge; and for the purpose of connecting its railroad with the railroads of other companies, &c., it was furthermore authorized" to construct, maintain, and u e, byrunning thereon 

ita engines and cars, such branch railroads and tracks as it may find necessary and .expedient to own and use; " and such branch railroads were, for a.ll the pur- po es of the a(;t, to be deemed and taken to constit ute a part of the main line of 

its railroad within the State of Louisiana. 

On November 11, 1871, that company filed in the General Land Office a map designating the general route of a road projected thereby from Shreveport, by way of Alexandria to Baton Rouge, and thereupon a withdrawal of -the public 

lands along the so.me was ordered, which became effective in December following. 

Subsequently by an act of the Legislature of Louisiana, passed December 11, 

1872, the same company was given "full power and authority to commence the 

construction of their road in the city of New Orleans or Shreveport, or at any intermediate point on their line of road, as may best suit the convenience of 

said company and facilitate the speedy con truction of a continuous line from 

the city of New Orleans to the city of Shreveport, or perfect railroad communication with the Texas Pacific Railroad, or any other railroad in Northwestern 

Loui iana, at or near the Louisiana State line: Provided, however, That the said company shall con truct the line of its road between the city of New Orleans 

and the city of Baton Rouge on the east side of the Mississippi River, to the 

corporate limits of the said city of Baton Rouge, or adjacent thereto." In the mean time, by the act of Congress of l\Iay 2, 1872, chapter 132, the Texa.~ 

and Pacific Railway Company (formerly styled the Texas Pacific Railroad Com- pany) was "authorized and required to co nstruct, maintain, control, and op- erate a road between 1\Iarshall, Tex., and Shreveport. La., or control and op- erate any existing road between said point , of the same gauge as the Texas and Pacific Railroad." The same act mrther provided that" all roads terminating at Shreveport shall have the right to make the same running connections, 

and shall be entitled to the same privileges, for the transaction of business in 

connection with the said Texas Pacific Railway, as are granted to roads intersecting therewith.' ' On February 13, 1873, a second map was filed in the General Land Office, by 

the New Orleans, Baton Rouge and Vicksburg Railroad Company designating 

the general route of a road projected thereby from New Orleans to Baton Rouge, 

and a withdrawal of the public lands along the same wos ordered, which took 

effect in April, 1873. The route between tho e places, those designated , lies on the eastside of the Missis ippi River. "That company has not con tructed any part of its road either on the route between New Orleans and Baton Rouge or on the route between the latter place and Shreveport; nor, indeed, bas there 

been a definite location of its road anywhere between the pointa mentioned." 

Nothing beyond the designation of the general route thereof appears. Pursuant to a resolution of its boe.rd of directors, adopted December 291 1880, 
10 CONGRESSIONAL RECORD-SENATE. 

aJl the right, title, and interest of that company in and to the aforesaid grant of 

public lands made by the act of March 3, 1871, were deeded by it to the New 

Orleans Pacific Railway Company. This action of the board of directors and 

officers of the former company was afterward approved and ratified by the stockholders thereof at a meeting held in December,1881. 

TheN ew Orleans Pacific Rail way Company was originally incorporated under 

the general laws of the State of Louisiana in June,1875. Its charter was subsequently amended by acts of the Louisiana Legislature, passed February 19, 

1876, and February 5,1878: It is thereby authorized to construct a railroad "beginning at a point on the Mississippi River at New Orleans, or between New 

Orleans and the parish of Iberville, on the right bank of the Mi si.ssippi and Baton Rouge on the left bank, &c., or from any point within the limits of this 

State, and running thence toward and to the city of Shreveport," which is made 

its northwestern terminus. 

The route of this company as projected is understood to extend from New Orleans to Baton Rouge, and thence by way of Alexandria to Shreveport. Be- tween New Orleans and Baton Rouge it lies on the west side of the Mississippi River, while the designated route of the New Orleans, Baton Rouge and Vicksburg Railroad Company between the same points lies on the east side of that 

river. Between Baton Rouge and Shreveport its general course and direction 

correspond in the main with the route designated by the last-named company. It is throughout its entire length from New Orleans to Shreveport within the 

limits of the before-mentioned withdrawals of public lands .• In October, 1881, the president of the New Orleans Pacific Railway Company made affidavit that three sections of its road were then completed and ready for 

examination by the Gove1·nment; whereupon a commissioner was appointed to examine the same, the result of whose examination appears in a report made 

by him to the Secretary of the Interior under date of the 26th of that month. 

One of the sections embraces si.:xty-eight miles of road, beginning on the west bank of the Mississippi River, opposite New Orleans, and ending near the town of Donaldsonville; another embraces twenty miles of road near Alexandria, 

and the third embraces fifty miles of road terminating at Shreveport. For each 

of these sections lands are claimed by that company under the aforesaid land 

grant as assignee of the New Orleans, Baton Rouge and Vicksburg Railroad 

Company. 

No map of definite location of any portion of its road haS been filed, other than 

those of constructed portions. It appears that in February, 1881, the New Orleans Paciftc Railway Company 

purchased from Morgan's Louisiana and Texas Railroad and Steamship Company the road constructed on the west bank of the Mississippi River by the 

New Orleans, Mobile and Te.:xa.s Railroad Company, from Westmego to White 

Castle, a. distance of sixty-eight miles, and that the same has become a part of 

the main line of the road of the New Orleans Pacific Railway Company. The following are the questions submitted: . "1. Was the grant to the New Orleans, Baton Rouge and Vicksburg Railroad 

Company a grant in prresenti, "2. Had the New Orleans, Baton Rouge and Vicksburg Railroad ComP.any, at the date of its alleged transfer of lands to t.he New Orleans Pacific Ra1lwa.y Company1 such an interest in the lands, under said aet, as was assignable? "3. Is tne New Orleans Pacific Railroad Company such a successor to or a ignee of the New Orleans, Baton Rouge and Vicksburg Railroad Company as is contemplated by said act? 

"4. ::Should it appear that the si.xty-eight miles of the New Orleans, Mobile 

and Texas Railroad was constructed prior to the act of March 3, 1871, granting 

lands to aid in the construction of the New Orleans, Baton Rouge and Vick - burg Railroad, can the New Orleans Pacific Company (its assignee) claim any 

benefit from the grant T Or in case of such prior construction, and the non-con- struction of any portion of the New Orleans, Baton Rouge and Vicksburg road, 

has the purpose for which the grant was made failed, and the grant conse- quently lapsed? "5. If the New Ot·leans, Mobile and Texas road was constructed subsequently to the date of said act, is so much of its road a-s is now owned by the New Orleans Pacific Company such a road as is contemplated for acceptance by the 

President within the meaning of said act, and may patents issue to the latter 

for lands opposite to and conterminous with such constructed portion of road?" 

These questions are accompanied by a request for an opinion upon such other 

questions of Jaw as ma y suggest themselves touching the transfer of said land 

gt-ant to which refere nce is above made. 

Of the above-stated que tions the first three may be considered together in connection with the following inquiry, which presents itself at the outset: whether the assent of Congress to the transfer made by the New Orleans, Baton Rouge and Vicksburg Railroad Company of all its interest in said land grant to the Ne w Orleans Pacific Railway Company is necessary (by reason of anything in the provisions of the grant itself) to entitle the latter company to the benefit 

of said grant in aid of the construction of the road projected by it? 

'£he act of March 3, 1871, passed to the New Orleaus,l."'.a.ton Rouge, and Vicksburg Railroad Company a present interest in a. certain number of alternate sec- tions of public lands per mile within the limits there prescribed. Its language is "there is hereby granted to the said company" the number of alternate sec- tions mentioned; words which import a grant in p1·re!enti, and not one in futuro, or the promise of a grant. {97 United States Report, 496.) But the grant thus 

made is in the nature of a float. It is of sections to be afterward located, their 

location depending upon the establishment of the line of the road. Until this is 

definitely fixed the grant does not attach to any specific tract of land. Upon the 

line of road being definitely located the grant then first acquires precision, and 

the company becomes invested with an inchoate title to the particular lands 

covered thereby, which can ripen into a perfect title only as the construction of 

each section of twenty miles of road is completed and approved, when the right to patents for the lands opposite to and conterminous with such constructed sec- tion accrues. The proviso in the grant that the company shall complete the whole of its 

road within five years from the date of the act is a. condition subsequent, the 

failure to perform which does not ipso facto work a forfeiture of the grant, but 

only gives rise to a right in the Government to enforce a forfeiture thereof. Yet in order to enforce a forfeiture such right must be asserted by a. judicial proceeding, authorized by law1 or by some legislative actionamountingtoaresumption of the grant. (Schulenoerg vs. Harriman, 21 Wall., 44.) Hence, until advantage is taken of the non-performance of the condition, under legislative authority, the interest of the grantee in the grant remains unimpaired thereby. Such being the nature and effect of the grant and its accompanying condition, 

and no action having been taken either by legislation or judicial proceedings to enforce a forfeiture thereof, it follows that at the period of said transfer by 

the New Orleans, Baton Rouge and Vicksburg Railroad Company this company was invested with a present interest in the number of alternate sections of public lands per mile granted by the act of 1871, notwithstanding it was already in 

default in the performance of the condition referred to, and that it still retained a right to proceed with the construction of the road in aid of which the grant was made until advantage should be taken of the default. But as it had not then definitely fixed the line of its road, although a map designating the gen- eral route thereof was duly filed, that interest did not attach to any specific tracts of land. but remained afloat, as it were, needing a. definite location of the 

road before it could beoome thus attached. Was the interest here described as- signable to another company, so a.s to entitle the latter to the benefit of the 

grant in aid of the construction of its road between the placeR no.merl therein, 

without the assent of Cong1·ess? Doubt has perhaps &risen on this point in view of the fact that in ono or two 

instances it has been thought expedient to obtain legislation by Congress con- firming or authorizing a. similar assignment (see section 2 of the act of March 3, 

1865, chapter 88, and section 1 of the act of March 8, 1869, chapter 127), and also 

in view of the adverse ruling of this Departmeu t fn the case of the Oregon Central Railroad Company. {13 Opin., 382.) However, a similar assignment mo.de 

in 1866 by the Hannibal and Saint Joseph Railroad Company to the Pike's Peak 

Railroad Company, afterward known as the Central Branch Company, was held to be valid by Attorney-General Stanbury in an opinion given to the Secretary of the Treasury under date of July 25,1866. In the latter case the Hannibal and Saint Joseph Company, which was incorporated by the State of .Missouri, with authority to construct a railroad between 

Hannibal and Saint Joseph within that State, was, by the Pacific railroad act of July 11 1862 (section 13), '

1 authorized to extend its road from Saint Joseph1 via Atchison, to connect and unite with the road through Kansas, ~ • • ana may for this purpose useanyrailroadcharter which has been or may be granted by the Legislature of Kansas," &c.; and by the fifteenth section of the same act it was provided that "wherever the word company is used in this act it shall be 

construed to embrace the words their associates, successors, and assigns, tho same as if the words had been properly added thereto." 

Subsequently, in 1863, an assignment was made by that company of all ita 

rights under said act (which included an interest in both a land and a. bond subsidy) to the Atchison and Pike's Peak Railroad Company, a company previously organized under a charter granted by the Legislature of Kansas. The lat- ter company, having constructed a section of twenty miles of the proposed road west from Atchison, claimed the benefit of the grant made to the Hannibal and 

Saint Joseph Company, as its assignee, and this claim was recognized and al- lowed, in accordance with the opinion of the Attorney-General. It will be observed, however, that the Hannibal and Saint Joseph Company was authorized to "use any railroad charter which has been or may be granted by the Legisla- ture of Kansas," and this, together with the provision in the fifteenth secUon 

quoted above, may have been regarded as sufficient to sustain the assignment. In the case of the Oregon Central Railroad Company, mentioned above, a grant of a right of way through the public lands, and also of alternate sections 

thereof, was made to that company, "and t-o their successors and assigns," by 

the act of May 4, 1870, chapter 69, for the purpose of aiding in the construction of a. raih·oad and telegraph line in certain places in Oregon. In August following an instrument was executed by the company assigning all its interest in the 

grant to the Willamette Valley Railroad Company and thereupon the question arose whether the grant was susceptible of being thus transferred. The Attorney-General (Mr . .Akerman), to whom the question was submitted~ after reviewing the val'ious provisions of the act, some of which (see section 5J imposed cer- tain duties and required certain important acts to be performed by the company, 

decided in the negative, holding that, upon consideration of those provisions, the Oregon Central Company was alone within the contemplation of Congress 

in respect of the donation made and duties imposed by that act. The words 

"their successors a.ud assigns," as used in the act, were regarded a.s words of 

limitation merely. · But the grounds upon which that decision appears to have been based are not found to exist in the case now nuder consideration. Here a grant of a cer- tain number of alternate sections of public lands per mile is made to the New 

Orleans, Baton Rouge and Vicksburg Railroad Company, its successors and as- signs, in and of the construction of a road from New Orlean.sJ by t-he route indicated, to connect with the eastern terminus of the Texas ana Pacific Railroad, 

which land are required to be" withdrawn from the market, selected, and pat- ents issued therefor, and opened for settlement and pre-emption upon the samo terms and in the same manner and time as is provided for and required from 

said Texas Pacific Railroad Company." 

The grant is coupled with no special duties or trusts for the performance of 

which there is reason to believe the particular company named therein was more acceptable to Congress than any other. Its purpose is to secure the con- struction of a railroad between the points designated, and whether this purpose be fulfilled by that company or by another company must be deemed unimpor- tant in the absence of any provision indicative of the contrary. The interest 

derived by the grantee, though it remain only afloat, is a vested interest, and it 

is held under the same limitations which apply after it develops into an estate in particula1·lands until extinguished by forfeiture for non-performance of the 

condition annexed to the grant. I perceive no legal ob tacle arising out of the 

grant itself to a transfer of s uch interest by the grantee to another company, and 

should the latter construct the road contemplated agreeably to the requirements 

of the grant, and thus accomplish the end which Congress had in view,! submit 

that it would clearly be entitled to the benefits thereof. 

The question of the assignability of the interest of the grantee would be more difficult if, after definitely locating the line of its road, and thus attaching the 

grant to particular lands along the same, it was proposed to transfer that intel'- est to another company for the benefit of a road to be constructed by the lR.tter on a different line, though following the general course of the other road. But in the present case the faets give rise to no such difficulty. The grant had not previous to the transfer become thus identified with a particular line of road' 

and was thereafter susceptible of location upon the line of the road projected by the assignee {the New Orleans Pacific Company), provided this road met the 

requirements of the grant in other respects, as to which no doubt is suggested. 

My conclusion is that the assent of Congress to the assignment made by the 

New Orleans, Baton Rouge and Vicksburg Railroad Company, as above, is not necessary in order to entitle the assignee to the benefit of the land grant in ques- tion. 

The remaining questions relate to the sixty-eight miles of railroad formerly 

belonging to the New Orleans, Mobile and Texas Railroad Company, but now owned by the New Orleans Paeific Company,and made a pll.l't of its main line 

between New Orleans and Baton Rouge. 'l'he land grant in question was, as its language imports, made in aid of the 

construction of a railroad between certain termini, contemplating a. road to be 

constructed, not one already constructed. It has not been the policy of Congress thus to aid constructed roads. Had a constructed road existed at the date 

of the grant, which extended from one terminus to the other, and afterward 

the New Orleans, Baton Rouge and Vicksburg Railroad Company, instead of 

entering upon and completing the construction of a road, had purchased the 

road already constructed, this, it seems to me, would not have satisfied the purposes of the grant so a.s to entitle the company to the benefit thereof. 

The same objection would apply where the constructed road extended over only a. part of the route contemplated by the grant. So far as I am advised, the a<> tion of the Government hitherto hns accorded with this view. On the other 

baud, if such road was constructed subsequently to the date of the grant, and is 

owned by the grantee or the assignee of the latter, I see no ground for excludIng it from the benefit of the grant should it otherwise fulfill the requirements thereof. 

Agreeably to the foregoing views, and in direct response to the several ques- tions submitted, I have the honor to reply a.s follows: 

The first1 second, and third questions! answer in the affirmative. The fourth 

question (mcluding the alternative added thereto) I answer in the negative. The fifth question I answer in the affirmative-assuming, as I dol the company named therein to be an assignee of the grantee in the act referrea to. I have the honor to be, very respectfully, BENJAMIN HARRIS RRF.WSTER, 

Atluntt.y-6eneraL lion. II. i\1. 'fJJ:L.LER, 

Secreta111 of 1M lnteroior. 
1885. CONGRESSIONAL RECORD-SENATE. 11 

This came to the Interior Department on the 15th of June, 1882. 

Congress was in session; it was the Forty-seventh Congress. There were 

bills pending in both branches of Congress, or had been recently, to forfeit the grant. Originally bills were introduced in the Forty-f!Ith !Jongress to forfeit this grant for the express purpose ?f transfe~nng 1t. to 

the present corporation, the ~ew Orleans and Pacifi~. A ?ill was m- troduced into the Senate calling upon Congress to giVe thlS grant by 

statute so that the latter company might hold it as well by grant from 

this Gdvernment as by assignment, and that bill went to the approprio.te committee. A memorial to forfeit the grant was sent to the Senate 

of the Forty-seventh Congress. On the 7th day of June, 1882, the Committee on Railroads of this body, to which the memorial had been referred by Mr. Jonas, then a Senator from Louisiana, presented to the 

Senate a report, iu which the committee declared unequivocally that 

this railroad company, as the assignee of the Vicksburg Company, was 

entitled to these lands, and the Senate accepted that report. Let me 

read it: 

1\:lr. Jonas, from the Committee on Railroads, submitted the followio~ report: The Committee on Railroads, to whom the subject wa.s referred, subm1t the following report: A petition has been referred to the Committee on Railroads of certain citizens 

of Louisiana asking for the forfeiture of the land grant Illil.de to the New Orloons Vicksburg and Baton Rouge Railroad Company by the ninth section of 

the a~t entitled • 'An act t{) incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes," approved 1\larch 

3 1871 on the ground that the company to whom the grant was made has failed 

k, bulld the road within the time prescribed by the act. The grant was made to the New Orleans, Baton R{)uge and Vicksburg Railroad Company, its successors a~d. assigns. That company was incorporate~ by an net of the Leooislature of Lomsmna, approved December 30, 1869. The object 

of Congress in ~a king the grout was to aid in the construction of the proposed 

road from New Orleans, via Bat{)n Rouge, Alexandria, and Shreveport, to con- nect with the eastern terminus of the Texas Pacific Railroad, and thus connect that road with the 1\:lis issippi River and the Gulf of 1\:lexico. 

The committee find that this connecting road, on almost the same line, and 

between the same points (if not built by the original grantees), has ueen built by 

the New Ol"leans Pacific Railway Company, which was organized under a char- ter confirmed by an act of the Legislature of Louisiana, approved February 19, 

1876. This road is now completed and running between New Orleans and the eastern terminus of the Texas Pacific Railroad, at or ncar Marsha ll, Tex., its route being yia, Baton Rouge, Alexandria, and Shreveport. 

The New Orleans, Baton Rouge and Vicksburg Railroad Company (which still 

bas corporate existence), by ueed dated the 5th day of January, 1&3 1, gT::tn ted 

and tt-ansferred to the New Orleans P<"lcific Railway Company all its right, title, 

and interest in and to the lands granted to it by the before-mentioned act of 

Conaress incorporating the Texas Pacific Railroad Company. This transfer was app;oved ratified and con11rmed at a meeting of the stockholders of the New Orleans, Baton &::uge and Vicksburg Railroad Company by a vote of two-thirds 

of its entire capital sbock. The transfer was formally accepted by the board of 

directors-of the New Orleans Pa.~fic Railway Company. The deed of transfer, a certified copy of the resolution of the stockholders of 

the New Orleans, Baton Rouge and Vicksb~rg Railroad Companr ratifying the 

transfer and a certified copy of the resolutiOn of the board of d~rectors of the New Orieans Pacific Railway Company accepting the transfer, have been filed 

in the Department of the Interior. A commissioner to inspect a portion of the railroad built by the New Orleans 

Pacific Rail way Company ~as, upon the application of that co~paoy, ai?~inted 

by the President of the -p-mted States, ~nd the rep~rt of t~e satd comm~ 10ner, 

approving the constructwn of the portwn of the railroad mspected by hrm, was duly filed ~n t~e Department of th~ Interior. . ApplicatiOn ts now made for the lB ua.nce of patents to theN ew Orleans Pacific 

Railway Company for the lands granted by Congress to the New Orleans, Baton .Rouooe and Vicksburg Railroad Company, and by the last-named company as- signed to the New Orleans Pa<lific Railway Cm:npany, as heretofore state~. The grant was originally made to the New Orleans, Baton Rouge and VlCksburg Railroad Company, its successors and assigns, for the purposes above 

st~~~~oadhas been built by the assignee of the grantee, and the objects of the 

grant have been fully attained. No forfeiture of the grant was made before the completion of the road on the 

grounds alleged, and we think it would be unju t and inequit.ab_le to make such 

forfeiture now when the work has been completed by the ass>6nee company, which has built the road in good faith and in full expectation of receiving the 

benefit of the grant which remained unforfeited and assignable in t-he control 

of i~:r c~::~~t~~e think no consideration of public policy requires the forfeiture 

of the grant, and they reco~end that the committee be discharged from further 

consideration of the memorml. 

This repod had been made to this body eight days before the Attorney-General's opinion came, but when the opinion of the AttorneyGeneral came to the Department of th& Interior it was supposeu by 

every body in that Department, by every lawyer certainly, by every clerk, 

by the head of the Department, that common courtesy required at least 

that the opinion should be enforced. There was not upon the records 

of that Department another C.O'lSe where the Attorney-General had cer- tified that a road was entitled to lands-and there were several such 

cases-that it had not been carried out according to the opinion of the 

Attorney-General. Had that been· in an ordinary period when there 

was not a pressure of business I have no doubt the patent would have 

issued, or, which was the same thing, the certification. would h:1.ve been 

made at once. Later in the season a distinguished member of the Judiciary Committee of the Honse of Representatives addressed a letter to the President and Secretary of the Interior aaking that there might be no patents 

issued, saying that he doubted the law as laid down by th~ AttorneyGeneral and he wished further to examine the case. Nothmg further was do~e in the Interior Department during the rest of the Fortyseventh Conaress, which adjourned on the following 4th of March. On 

the 13th of March, 1883, the Secretary of the Interior addressed a letter 

to the President of the United States, in which he recited the fact that 

there was not then pending in either branch of Congress any bill to 

forfeit this grant. He cited the fact that the opposition which had 

been made to it had been withdrawn. In the Forty-seventh Congress 

there wa.s pending before the Judiciary Committee of the House a resolution to forfeit this grant. 

That resolution was disposed of by the consent of that committee, as appears unanimously, by allowing it to be withdrawn by the mover 

thereof: Now I ask to have inserted in the RECORD this letter of the 

Secretary of the Interior to the President, and also the President's approval thereon declaring that this company was entitled to these lands; 

and now, mind you, there was nobody in this broad land that could 

be heard against the grant, there had been no steps taken to prevent the 

issuing of this patent when that letter was sent to the Pre ident and 

the President approved of it. 

The letter and approval are as follows: 

DEPARTMENT OF THE lsTERIOR, Washington, March 13,1883. 

Sm: The New Orleans Pacific Railway Company applied to this Department more than a. year ago for a transfer to itself of the lands granted to the New Orleans, Baton Rouge and VicksburgR:l.ilroad Company by the twenty-second ec- tion of the act of Congress approved March 3, 1871, presenting, a t the same time, 

satisfactory proofs of said transfer as between the two compa nies. I ha ve de- layed action thereon for many months, against.the persistent pre ure of parties 

in interest, in the expectation that Congress might legislate upon the subject- matter thereof; but that body having adjourned without action thereon, and 

knowing of no reason for further delay, I have now the honor to s ubmit the same for your consideration. In reply to my predecessor's request of January 5, 1882, the Attorney-Ge ne ral, 

under date of June 12 ultimo, submitted to him an opinion (copy llere with} that 

the grant to the New Orleans, Baton Rouge ami Vicksburg &'lilroad Comp::tny 

wasagrant i11 prrestnli; that that company had an a ssignable interest in the 

lands granted to it; that the New Orleans Pacific Railway Compa ny is such a. successor to or llSSignee of the New Orleans, Baton Rouge and Vicksbm·g Com- pany as is contemplated by the act of March 3,1871; that even if the New Orleans 1\:lobile and 1.'exas road was con tructed subsequently to the date of saiu act,s~ much of its road as is now owned by the Ne w Ocieans Pacific Company 

is such a. road as is contemplated for acceptance by the President within the meaning of said act, and that patents may issue to the latter company for lands opposite to and conterminous with such constructed portion of road. I also submit herewith a copy of the report of the Senate Committee on Rail- roads (under date of June7,1882), declaring that, in its judgment, no considerations of public policy require a forfeiture of the grant to the New Orleansl Baton Rouge and Vicksburg Railroad Company; and also two letters (herewith} unde r date of December lil last, from Hon. L. E. Payson, of the House Judiciary Committee, in one of which he notifies this Department that upon that day, at a meeting of the committee, he bad formally withdrawn the pending resolution 

offered by him at the previous session of Congress for a forfeit ure of ·aid gt-ant. Irt the other, after stating his request in October last for a suspension of Depart- ment action until he could be heard before the House Judiciary Committee upon the matter, he elaborately discusses the questions involved, and announced 

that, after conference with them, the Senators and House d elegation from J..ouisiann. interpose no opposition to immediate a ction by this Department, and that his own objections are disposed of and withdrawn, states his coD.clusions that. 

the New Orleans Pn~ific Company is entitled to the grant both under the law 

and the equities of the case, and that the rights of settlers are fully protected . I have also the honor to submit he.rewith two reports on the New Orleans Pa- cific Railway by Mr. Thomas Hassard, whom you appointed commissioner to examine completed portions of said railway. 

The fir t report bears date 26th of Oct{)ber,l881, and has not been submitted to you at an earlier date on account of the controversies heretofore in question. 

The portions of said railway examined and at that time reported on extend 

from the west bank of the Mississippi River, opposite Thalia street, New Orleans, La., in a northwesterly direction, nen.r said river, sixty miles, to nen.r the town of Donaldsonville, in T.ll S., R.1!) T.; also from Bayou Lqmourie, in T . 2 N., R.1 E., to a point in T. 4 N., R. 2 \V., a distance of twe n ty miles ; also from 

thejunction of said railway with the Texas and Pacific Railway, in Shreveport, La., southwardly to T.10 N .,R.l2 W.,a. distance of fifty miles. 

The second report bears date 15th of November,l882, and relate to such por- tions of said railway as were not examined and reported on in October, 1881, 

amounting to one hundred and ninety-eight miles, lying between New Orleans 

n.nd Shreveport. The commissioner reports Mid portions of road, three hundred and twentyeight miles in all, as coo tructed in substantial compliance with law and the 

instl·uctions of this Department. In view of the facts and the Ll.w of the case, I regard the New Orleans Pacific 

Railway ComJ(.anyas the lawful assignee of the New Orleans, Baton Rouge and 

Vicksburg Ratlroad Company, and entitled to the lands granted by the twentysecond section of the ad of March 3, 1871, to said lattet·-named company, and to patents therefor in so far as it has earned or hereafter may earn the same under 

that act, with the exception below named, and recommend that you [l,CCept said 

three hundred and twenty-eight miles of said road, less anu exclu ive of sixtyeight miles of the line of said New Orlean!'!, Baton Rouge and Vicksburg road, 

extending from New Orleans to White Castle, between New Orleans and Shreveport (to which sixty-eight miles the New Orleans Pttcilic road has withdrawn 

its claim and right to receive lands under the twenty-second section of said act), 

and that patents for such lands as may have been earned by the construction 

be issued to the New Orleans Pacific Railway Company (exclusive, nevertheless, 

of lands along said sixty-eight miles) on their compliance with the law and regu- lations in auch case made and provided. 

These patents will, of course, be subject to rights ac-quired by any person or corporation prior to the act of March 3, 18TI. Requesting that the inclosure herewith be returned to this Department when no longer needed for the purpo es h e reof, . I am, very respectfully, II. 1\1. TELLER, Secretary. 

The PRESIDENT. 

(Indorsements:) Department of the Interior, l\Iarch 13, 1883. H. 1\:l. Teller, 

Secretary, submits to the President report of commissioner on three hundred 

and twenty-eight mile of the New Orleans Pacific Railroad, with recommendllr 

tions. EXECUTIVE l\L\NSIOX, ~!arch 16, 1883. 

The within recommendations are approved. 

CHESTER .A. ARTHUR. 

Later parties appeared-I need not name whom-before the Interior 

Department and requested a further delay. A distinguished Senator 

appeared by a letter, which he gave to the public long before he ~ve 

it to the Interior Department, in which he talked of the outrages bemg 

perpetrated by corporations upon the people in the stealing of their 

lands, and he used the same terms that were used here to-day by a 
12 CONGRESSIONAL RECORD-SENATE. MARon 9, 

Senator who has addressed the Senate when he speaks of this transaction as a fraud. Thereupon t he Interior Department held up the 

patents to this land and waited to ee what the Forty-eighth Congress, 

not yet assembled at that time, might do. 

When the Forty-eighth Congress assembled, I have yet to learn that 

the writer of the letter, a member of the Committee on Public Lands, 

ever took a step toward forfeiting the·gmnt. I have yet to learn that 

he ever appeared before this body and intimated that there was a great 

outrage being perpetrated upon the people, that a great quantity of 

land was to be certified to a company not owning it. I admit he may 

have appeared in the newspapers and on the stump, but he did not appear where his voice was potent and where his vote would tell; he was 

as silent as the grave. But in the House there was a bill introduced 

that went to the Committee on Public Lands to forfeit this grant. It 

was a bill for forfeiture, -simple and plain. The Committee on Public 

Lands of the House of Representatives of the Forty-eighth Congress 

was compo ed of twelve men; eleven were members of the House from 

States and one was a Delegate from one of the Territories. 

This committee considered the bill, and although it had been the custom t heretofore in that committee to allow the Delegate to vote, that 

privilege was denied him on this bill, and for the first time the report 

came to the House six in favor of forfeiting the grant and five against, 

and the question came before the House in June, 1884, and after a full 

discussion by the members of the Committee on Public Lands and by 

others the vote was taken upon that bill, and not, as the Senator says, 

by a small majority, but by a majority of 42 the House recorded its 

verdict that this land was not to be forfeited to the Government, but 

that it belonged to this railroad company. On a subsequent day it was 

attempted to reconsider this vote, and the House by a decided majority 

decided not to reconsider; and thus the action of the House became 

complete. 

Pending this bill, and before the vote that I have mentioned, a member of the House from Louisiana presented a memorial to the House asking, ina much as this was a question that the Committee on Public Lands 

were divided upon, that it be submitted to the Judiciary Committee to 

answer sub tantially the same questions that were answe1·ed by the 

Attorney-General, and the House so declared and so submitted those 

questions to the Judiciary Committee. The Judiciary Committee of 

the House, compo ed of :fifteen lawyers, tookupthequestionsand beard 

arguments upon the subject, listened to speeches by the friends of the 

bill and the enemies of the bill, and by a report that I have befo1·e me, 

which is too lengthy to read, made by Ir. TucKER, its chairman, by a 

vote of 13 out of 15, declared that the Attorney-General's opinion was 

good la w, and declared that this company wa.'3 entitled to this land and 

that it ought not to be forfeited. The two members who di ented 

from that view did not di'3Sent upon the theory that the company was 

not entitled to the land, but upon the theory that it was still in the 

power of the General Government to forfeit the land if it saw fit, the 

majority of the committee taking the po ition that the condition having 

been performed it wa.'3 gone forever, and that the grantor's right of reentry had disappeared and been lost-a principle that I do not believe 

any n:L.'l.n who is fit to practice before ajnstice of the peaceinany countq will deny as a q ueslion of law. I could fortify it by opinions and 

decisions of courts innumerable if I did not think it was a work of upererogation to do that before the American Senate. 

This committee then made their report before the vote was taken in 

the House. The Honse acted intelligently and voted, and that was the 

end of t he question in the House. There was no further ease pending 

eitber then or later, and the Department of the Interior would have 

been justified from that hour and even before in issuing the patent. 

There was nothing that required it longer to delay the issuing of the 

paten . 

There Wlll, however, pending in the Senate a bill to forfeit this 

grant. This bill had gone to the Committee on Public Lands and 

was there pending. It had been there from May, 1884; it was there 

when ihe House voted, it was there when the Judiciary Committee reported. It ren:L.'l.ined in committee until the 24th day of December, 

1 4, an<l then this committee reported to the Senate a bill recognizing 

the l'ight of this company to precisely the same quantity of land that 

this company has received from the Interior Department in its patent; 

the same number of acres and the same identical land the Committee 

on Public Lands of the Senate declared that this company should have. 

It is true that they attached to it a condition that the company 

should ettle with the settlers in a certain way. If this company was 

entitled to this land by virtue of the grant made to the original company and because it had performed the condition attached to the grant, 

I need not say before this body that it is beyond the power of this body, 

acting with the other and with the Executive, to attach a.ny conditidns 

to the grant not attached when the grant was made. 

The Department of the Interior still waited, waited to see whether 

even that would be done; and when it was apparent that the Senate 

was about to adjourn, nothing pending before the other House, when 

it was apparent that there was to be no legislation, this grant was allowed and the cel'ti:fications were made which become a final title ex- actly the same as a patent. A.nd this was in accordance with the law 

and practice of the Depar~ent for the last s~en years. 

Mr. VAN WYCK. Now will the Senator allow me another question? 

The VICE-PRESIDENT. Does the Senator from Colorado yield? 

Mr. TELLER. Yes, sir. 

Mr. VAN WYCK. I ask the Senator .if the line of this road was 

ever definitely fixed either by the old Backbone road or by the New 

Orleans Pacific road? 

Mr. TE.LLER. I will answer the Senator; but if he were half as 

familiar with this case as he pretends to behewouldnothaveasked the 

question. The records of the Interior Department show that this line 

was fixed originally by the old company, that there was some variation 

in the line, which the Commissioner of the General Land Office said 

was not greater than that of other companies, and in 1881, in October, 

the Department of the Interior fixed the line according to the location 

of the road, and that can be found in Executive Document 31, sent 

to the Senate in December, 1 4. The Commissioner notified the company that the line of the road would be accepted as the location unless 

they cho e otherwise, and they accepted it and did not appeal to the 

Secretary of the Interior. Therefore it became final. So that then 

the line of the road was definitely fixed, and as it was :fixed they built it. 

Mr. VAN \VYCK. The Land Commissioner--

Mr. TELLER. I do not yield to the gentleman to make a speech. 

Mr. VAN WYCK. Oh, no. . Mr. TELLER. He has had all the opportunities that courtesy requires rue to give him. He may ask me any question. 

Mr. VAN WYCK. I wish to ask a question. 

The VICE-PRESIDENT. Does the Senator from Colorado yield? . 

Mr. TELLER. For a question, but not for a speech. 

Mr. VAN WYCK. I ask the question whether the line of this road 

was definitely fixed at any time? I did not understand the Senator to answer definitely. If he did, I should like to call his attention, so that 

he may explain, to the fact that in the opinion of the .A ttorney-General in 1882 he says: 

That company has not constructed any part of its road, either on the route between New Orleans and Baton Rouge or on the route between the latter 

place and hreveport; nor, indeed, ha there been a definite location of its road 

anywhere between the points mentioned. 

Mr. TELLER. Is that the road you are speaking of? 

Mr. VAN WYCK. Yes, sir. 

Mr. TELLER. Before that time the road had been partially built, 

and certainly there is nothing that so definitely locates a road as the 

building of it. Does the Senator suppose that it is necessary that the 

Interior Department should proceed upon such a childish theory as that 

when a railroad company has built its line it must then also locate it 

otherwise? The building of the line is the complete _location of any 

road, and it has been so recognized in all time in the Department. 

Mr. VANWYCK. Now, I will ask the enator another question so 

that he may understand the reason--

Mr. TELLER. I yield. 

Mr. VAN-WYCK. I ask him whether under the terms of the granting act pre-emptors and homesteadei'S had not the legal right to locate 

upon the land until the line of road was definitely fixed with a view 

of knowing whether these men had any right to locate as settlers or 

not? 

Mr. TELLER. An attempt was made to definitely locate this line 

in 1873 by the old company, and the Interior Department declined to 

accept that. 

Mr. VANWYCK. You do not mean 1873? 

Mr. TELLER. I can inform the honorable Senator on many points 

in this case. I do not need any information from him on any subject 

connected with this grant. I have studied the subject quite as carefully as he has, and I know a good deal more about its history than he 

does. 

In 1873 the old company attempted to locate the line. That location 

was not accepted by the Land Office, and they declined to go back and 

recognize any location beyond the actual building of the road, which the 

Commissioner of the Land Office says in his report to the Secretary 

while it was a vari:ttion from the original line is as near as has been the 

custom of building lines,.. and ordinarily it would have been accepted 

as the located line of the road as adopted in 1873; but in the interest, 

I suppose, of settlers on the line of the road, there being some doubt 

about the true location, the Commissioner gave the benefit of the doubt 

tothe settler, and hesayswhereyouhave built your road we will recognize the line. Can the Senator complain in behalf of the settlers of that 

section of the country that when the road was built and constructed 

and running they had not notice then that it was to be located ? It is 

a technicality that is unworthy of a place in the Senate. 

Mr. VAN WYCK. Now will the Senator answer a question? 

The VICE-PRESIDENT. Does the Senator from Colorado yield? 

Mr. TELLER. I do. 

Mr. VAN WYCK. Inasmuch as this road was not definitely located 

and the granting act preserves the right of pre-emption and homestead 

settlement until the line is definitely fixed, I ask the Senator whether 

those settlers and pre-emptors who located before 1881 have not a title 

as against this grant? -

Mr. TELLER. Tlle settlers who located previous to the location of 
1885. CONGRESSIONAL RECORD-SENATE. 13 

the road not only have a title, but the Land Department recognizes that 

title, and the Department did that without any aid from the Senator 

from Nebraska. 

Mr. VAN WYCK. Have they recognized the righU! of settlers that 

accrued before that? 

Mr. TELLER. Certainly. When the line is definitely located and 

that location is recognized in the office, then, and then only from that 

time on are the settlers charged with notice of the line of the road. 

Mr. VAN WYCK. Tb~n will the Senator explain in that connection why it is that at that time there were papers filed in the office, 

and the president of the company, 1\Ir. Wheelock, came here and said 

settlers could be protected by paying the company $2 an acre? If it 

be true that the line was never definitely located, and if it be true that 

pre-emptors and homesteaders had a right to locate on the land pre:. 

vious to the definite location of the line of the road, where and how is 

it that they were expected to pay $2 an acre for this land? 

1\Ir. TELLER. I fail to maketheSenatorfrom Nebraska comprehend 

what is meant by the location of a line. He apparently does not know 

what it means. I said to him that this company attempted to locate 

iU! line in 1873. The company's assignee insisted that that was the 

location. There was a question between the Department and the company, and the Department finally fixed the location as it was in 1881, 

in October, as shown by their constructed line of road, and not by their 

map filed before; and any settler who came in after that time came in 

with full knowledge. Every settler that came before that time is protected by the law and by the ruling of the Department. 

Mr. President, the aMiempt has been made, as I said, to make it appear that this is a peculiar case; that there is something in this case 

unheard of before; and there is great anxiety about the settlers. Mr. 

President, why has not the honorable Senator appeared in behalf of 

the settlers on other lines of road that have been given lands ten, 

twelve, and in some instances :fifteen years after the expiration of their 

granU! ? I hold in my hand now a list of roads tow hich lands have been 

certified, built aftertbetime had expired within which they were to be 

completed. · I find that while this company has received less than 700,-

000 aeres, a company in Wisconsin received 1,800,000 acres of land, 

completing their road many years longer aft.er the expiration of the 

time fixed in the grant than this company did. 

I have here a list of twelve or ftmrteen railroad companies that have 

had patents for lands issued to them for roads built long after the time 

within which they should have completed. their roads had expired, and 

in one case that I have in my mind it was thirteen years, and that was 

not under the administration of the late Secretary : 

List of milroads fo1' which lands have been _ZJatented after the time fixed by 

law for the completion of the road. . 

Atlantic and Pacific. 

California and Oregon. 

Hastings and Dakota. 

Marquette, Houghton and Ontonagon. 

Northern Pacific. 

Saint Paul and Pacific (branch line) now Western Railroad of Minnesota. 

Saint Paul and Pacific, Saint Vincent Extension. 

Selma, Rome and Dalton. 

Southern Minnesota Railway Extension. 

Southern Pacific, main line. 

Wisconsin Central. 

New Orleans Pacific. 

There has been before the Senate for more than a month a public 

document showing these faets and showing also that the particular 

railroad company which I have specially referred to had received a la-rge 

number of acres of land certified to them when they had completed 

their road long after the time fixed by Congress. 

The honorable Senator talks about the settlers. All along the line 

of the Northern Pacific the settlers have gone in upon the railroad lands, 

and the railroad companyhascompletedit-sline since; ithasperformed 

the condition attached to the grant. Does the Senator suppose it is in 

the powerofthelnterior Department, doeshe supposeitisin the power 

of the Executive or all the Departments of Government acting together 

to protect those settlers who have gone upon that land after the rights 

of the company accrued? Has he ever attempted to do it in this body? 

Has anybody, voicing his sentiments on this floor, ever attempted to 

do it? Not a single man. It is for the public that we here day after 

day talk about the settlers' righU!. 

Why, 1\Ir. President, if I may be allowed to refer to myself, I have 

done more for the settlers on the public lands in my rulings than the 

Senator has in his lifetime of public service, and I wa hampered; I 

conld do nothing but what the law gave me authority to do. He has 

been here and could have provided a method by which the railroad 

companies might have been compensated and the settlers might have 

been protected, and he bas not done it. But in this case the people 

who live on the line of this road were more fortunate· the members of 

Congress from Louisiana were more vigilant than he. They undertook 

to protect the settlers, and they entered into an arrangement with the 

railroad company and they made a contract with the railroad company 

that the settlers on the line of the road should receive their land at $2 

per acre, that they might pay a third down and a third at another period and so on, and that they should have twelve months after the 

patent issued to prove up their claims. 

When this question was before the House a member from that Sta.te, 

rising, said: "Nine-tenths of all the settlers who are interested in this 

are in my district, and I am satisned with the contract made with the 

railroad company, and I do not desire the forfeiture, nor do the settlers 

on the line of the road." If the honorable Senator was as anxious to 

protect the settlers as he claims, he would have been in favor of the i uing of this patent, that the question might be determined and settled. 

He says it is unreasonable that the Interior Depar~ment, after waiting for yea~'S, should issue these patents. He insists, that they have 

adopted a rule with reference to this road that was never adopted in 

reference to any other. The same thing has been done in his own bailiwick, in his own State, and he has been silent. What is the secret of 

the hostility to this company? Is it that Jay Gould is interested? 

There is nothing in the Interior Department to show that he is interested. Is it that Mr. Barnum, a prominent Democratic politician, is 

interested in it? Mr. Barnum's or Mr. Gould's rights are the same in 

the Interior Department whether they be DemocraU! or Republicans, 

or whether they be railroad speculators or anything el e. The law fixes 

their righU!, and it would be a very remarkable thing if the executive 

department of the Government should mete out its justice according 

to the characterofthe men to whom it is meted. What difference does 

it make whether Gould is interested in this or whether Huntington is 

interested? Is it worthy of the Senate, is it worthy of the Senator to 

stand here and appeal to the ba e passions of the people and excite their 

prejudices, because some men unpopular with the masses may have a 

right that has been adjudicated upon by the Department? 

Now, Mr. President, I want to ummarize this a little, and I want 

to show that there never has been a patent i ned after the time has 

expired that has undergone the same attention and care and the same 

opportunity been given Congress to forfeit the grant if it saw fit. I 

find that the lands were withdrawn in 1873; I call attention to tha.t. 

The validity of this assignment was determined by the Land Department of the Government in 1881 by Commissioner Williamson and by 

Secretary Kirkwood; by the President in appointing the commission; 

by the Attorney-General in his report, submitted at the request of Secretary Kirkwood; by the House Judiciary Committee of the Fortyseventh Congress; by the Judiciary Committee of the Forty-eighth Congress by a vote of 13 to 2, and the two not claiming that it ought to 

be forfeited; by the House of Representatives by its action on the 26th 

of June, 1884, by 42 majority; by its subsequent action when it declined to reconsider the vote which defeated the bill; by the Senate 

Committee ~m Railroads, and by the Senate itself in June, 1882, and 

by the refusal of the Senate committee to report favorably a bill to forfeit this grant. Since the 27th day of J nne, 1884, there has been no 

bill pending in the other House for the forfeiture of this grant; since 

the 24th day of December, 1884, there has been no bill pending in this 

body. 

I want to say here and now that the Executive Department of the 

Government may, as a matter of courtesy to a co-ordinate branch of the 

Government, suspend the operation of a law temporarily, but the doctrine that a Department shall suspend action becau e there is legislation pending is abhorrent to every idea of justice and right. Temporarily it may, under some circumstances, but for any length of time it 

ought not. Here is the Interior Department met with the precedent~ 

I have mentioned. Running through a period of years covering at least 

four administrations four heads of the Interior Depa,rtment have recognized the same principle recognized by the recent administration in 

the issue of this patent. I do not refer to what the honorable Senator 

said about the Cabinet; I do not ask anybody to defend me on this subject; I do not fall back under the shadow of the Cabinet or of the President; I say that by the law, by the rules of right, by the rules ofjustice, this railroad company was entitled to the grant, and was entitled 

to it two years before it received it. 

For more than two years it had been denied justice in the Interior 

Department for fear it might be said that the executive department 

of t.he Government was not courteou and respectful to the legislative. 

I want to say here that I have just as much anxiety as any one for the 

dignity of this body, for the preservation of the rights that belong to 

the legislative department of the Government; but I hold that we 

should have the same determination to preserve the rights of the executive department. The bead of a Department bas no seat upon this 

floor. He is compelled to submit to whatever may be said in this 

body without any opportunity to reply. On unfair criticisms upon his 

conduct he must maintajn ilence. Falsehoods uttered in this body· 

or the other in reference to his course it is unbecoming for him to question. If he should go into the public prints to deny the charges that are made it would be said be forgot his relations to the legislative 

branch of the Government. He must suffer in silence infamous, atrocious slanders, uttered in the shape of resolutions or uttered by Senators or Member without a reply. 

Common decency requires-and I can speak freely as the executive 

department is now in the hands of our opponenU!-that every resolu-
14 CONGRESSIONAL RECORD-SENATE. - MAROH 9, 

tion which passes here that touches upon the interests of the Executive 

Departments, upon their acts, should go to a committee. I do not believe that this Senate is aware of the insults that have been offered 

Ji·om time to time to the executive branch by the way of resolutions. 

I know that you have become accustomed here to allowing resolutions 

of inquiry to pass without examination. Let me call your attention 

to the action of this body in 1882; and as it appertained to the Department over which I had the honor to preside, I will freely criticise it 

now upon this floor as I was not at liberty to criticise it then as a member of a co-ordinate branch of the Government: 

An old man who had served his country in two wars, who was covered all over with honor and with glory, had received from this body 

and the other, ading jointly, a pension of $72 a month. The general 

law had said that a man of like infirmities with him should receive, no 

matter what his service had been, $50 more. One hundred and twentytwo dollars was allowed to a man who had served us in :Mexico with 

gallantry and covered himself with glory, ~ man who never dressed or 

undressed without an attendant, a man who never lay down at night 

or rose up in the morning without the assistance of his wife or a paid 

attendant; $122 a month was being paid to him. The question arose, 

was he entitled to it? It would not have arisen if I had been Secretary oftlic Interior. It would not have been questioned if I had had 

the opportunity then to have said what I had an opportunity to say subsequently. 

The Attorney-General's opinion was invoked, and he said this old 

man, this distinguished general, this unfortunate public servant, is entitled to 122 a month, and it shall be so paid to him. By that time 

there had been a change in the Interior Department, and it was my 

duty to enforce the opinion of the Attorney-General. I accepted it as 

the law of the case; I accepted it with alacrity; I accepted it with pleasure. I said "$122 a month is a bagatelle; it is a disgrace tothe nation 

that it is not more," and I ordered it paid. It was paid, but in the 

mean time the distinguished Senator who has addressed the Senate today had introduced a resolution requiring that the Secretary should not 

pay more than one of these pensions, and that resolution had gone to 

the Committee on Pensions. 

Oh) Mr. President, there was an opportunity for somebody to pose as 

the watch-dog of the Treasury; here was money being voted out and 

being paid out beyond the law-$122 a month. He introduced a resolution and sent it to the Committee on Pensions that no double pension should be paid; that is, that I should withhold one of these payments. I did not withhold the payment. With my eyes open, with 

proper respect for this body, I denied the right of the Senator to instruct me, and if the Senate had said by its vote that I should not pay 

it, I am free to say here, as I said in other places, I should have disregarded that and I should have paid it, because it was his according to 

law. It has been said that parliament can not take property from one 

man and give it to another. Omnipotent as it is, it can not do that. 

The Senate can not take from one man that which the law has given 

him, and his right is vested; neither can the two branches of Congress 

acting together, with the assistance of the Executive, do that. The pension had accrued and I paid it. 

I have no doubt there are Senators on this floor who will be surprised 

when I :finish my recital. At a subsequent day the Senate passed a 

resolution calling upon the Secretary of the Interior to report to this 

body why he bad seen fit to pay a pension when there was a resolution 

before this body requiring him not to pay; and the Senate is committed 

to the doctrine, if they can be committed by the passage of a resolution, 

that whenever an executive officer is proceeding to execute a statute 

and anybody sees fit to introduce a bill or resolution into this body to 

suspend it the executive must stand still until it shall be ascertained 

what is the pleasure of the legislative department of the Government. 

Was there ever such a thing heard of in the history of the American 

Senate? I deny it. I say that a search of all the annals of its history 

will not show such an &bsurd declamtion. I do not believe that this 

Senate understood the resolution. I do not believe it ought to be 

quoted as a precedent of this body; but I say it comes from this new system of allowing a single Senator to introduce a resolution without 

reference to a committee and then send it out to the world. 

Mr. VANWYCK. Mr. PresidentMr. TELLER. Allow me to finish, and then I do not care what 

the Senator may say. It is utterly and entirely indefensible. It can 

not be defended anywhere, and the Senate mu t stand convicted of inattention to its great duty when it allows to go upon the record a declaration that one branch of Congress can notify an executive officer to 

suspend the law. There i a law ou the tatute-book that requires the 

Secretary of the' Interior to pay out fifty-odd million dollars a year to the · pensioners, and there is a law that requires the Secretary of the Treasury to pay many millions of interest on the public bonds. Is it to be 

presumed for a moment that the power exists in this body or in the 

other House to direct that a suspension of one or the other of those 

laws shall be had in t.be executive department until such time as this 

legislative body, great as it is shall determine whether the Jaw authorizing the payment of the interest on the pub}ic debt or authorizing the 

payment of pensions is an honest and proper Jaw or not? 

I was about to say further that these resolutions are time and -again 

introduced here not for information. They have been introduced and 

the Interio Department and other Departments of the Government 

have been called to respond to resolutions that were not for public information. They were introduced into this body for the express purpose of making an attack in a cowardly way, of sneaking behind a reso~ 

lution. Mr. President, if I proceed in that way perhaps I shall be 

out of order. I will say, however, that when these resolutions are introduced they are seized upon by the enemies of every member of the 

administration and of the administration itself, and the newspapers 

are in the habit of making a good deal of them. Interested parties 

make more of them. 

I am going to refer to a matter; I think it is a question of privilege 

that I may. · On the 4th day of February, 1885, a resolution was introduced into this body calling for information with reference to certain 

transactions in the Territory of New Mexico specifically. An examination of that resolution will show that if it had been given its broad 

terms it would have required the Interior Department to have reported 

every scrap of information that it had upon t.he question of fraudulent 

land entries all over the United States; a thing that could not have 

been done in six months unless we paralyzed the entire Department. I 

looked over that resolution and determined that it could not have been 

the intention of the mover to go beyond New Mexico, and therefore I 

restricted it to New Mexico. Subsequently the Senate modified the 

resolution and declared that it went further than was intended, and. required only a specific report to be made. That report was made to this 

body. A distinguished Senator now present, but not now a member of 

this body, 1·ose in his place in the expiring hours of the session, when 

the report came to this body and when a motion was made to print, and 

stated to the Senate and to the world that the report had been reluctantly brought to the Senate. 

He stated more, Mr. President. He stated, or attempted to state, 

the contents of the papers that had come in. He stated that the papers 

would implicate a certain land officer and other high officials in the 

Government other than the land officer named therein. What was the 

inference which he desired to have drawn? What was the inference 

drawn outside of this body? When.the report went to the committee 

that same Senator objected to the printing of anything but the bare report of the special agent. I have not seen it since it was printed. I 

have no desire to see it, but I will leave my seat in the Senate if there 

is a word in it which implicates any officer of the Government save and 

except the register of the land office and an Indian agent. Was it the 

intention, was it the purpose to say that some Indian agent would be 

implicated? Not at all. The attack was either upon the Commissioner 

or upon the Secretary. It is easy to determine from a knowledge of 

the circumstances for whom .it was intended. 

· I ask to have read from the desk, as a matter personal to myself, a letter from the Commissioner, given to me since I have ceased to l?e a 

member of the executive branch of the Government, and given to me 

un olicited. 

The PRESIDING OFFICER (Mr. H.t. WLEY in the chair). The letter will be read. 

The Chief Clerk read aa follows: 

DEP"'-BTKENT OF THE UlTERIOR, GENERAL LAND OFFICE, 

Washington, D. 0., March 7, 1.885. 

SIR: Some days ago, and while you were Secretary of the Interior, it was stated on the tloor of the United States Senate that there had been some intentional and unnecessary delay in this office or the Department of the Interior in 

furnishing the copies of papers ealled for by that body in the matter of alleged fraudulent land claims in New Mexico. As thissta.tementunjnstly retlecta upon this office and your own action as Secretary, I submit a. brief statement of the 

facta relative thereto, and hope that you will take such steps as may be neces- sary in the premises. 

On the 4th ultimo a re~~olutlon pa.ssed the Senate calling on the Secretary of 

the Interior for copies of the reporta of Inspectors Hobbs and Greene on the 

subject of fraudulent land titles in New Me:nco, with all the accompanying pa· pers, "and also copies of all papers on file in the Interior Department relatmg to this subject." The resolution was received at the Department February 5, at 4 o'clock p.m., and was by you, as Secretary, referred to this office on the 6th with indorsement 

calling attention to the scope of the same, and directin~ that copiea of all papers called for be furnished. The paper was received at this otfice at 8.20 o'clock p. m. on the 7th. Meantime, after the passage of the reaolution, and before its 

formal reference, you conferred with me and the assistant commissioner and 

directed the detail of four copyists from the Pension Office to assist in the work. 

The documents and records were at once put in hand, and all the copylste of our force available for the work were assigned to it with those detailed as stated. A portion of t.he time twenty copyista were employed on the work, and during ita progress an average of about fi.ft.een. The work wa.s pushed as rapidly a.s pos- sible. 

On the 2oth ultimo a. resolution passed the Senate rel!clndtn~ so much of the 

previous re olution as called for "copies of 11.11 pa.pere on file in the Interior De- partment relating to thi subject." The 21st was a. holiday ; the 22d was Sunday; the 23d was a. holiday. The modified resolution was received at the Department on the 24th, and by you, as Secretary, referred to this office the same day. The copies necessary to meet the modified reaolution were then com- pleted; but as a very large mass of other copiea ha.d. also been made, in a.coord- a.nce with the original reaolution, it was deemed advisable to forward them; and on the 27th ultimo, as soon as they could be scheduled, they were sent to you for 

transmission to the Senate. I have deemed it my duty, in justice to this office, to thus state the facta in the case, and am convinced that their mere recital is sufficient to demonstrate that 

there was no delay in the matter whichoould have been avoided. 

Very respectfully, 

Hon. H. M. TELLER, 

United States Senate. 

N. 0. M:oFA.RLAND, 

(.bmmiu£oner. 
1885. CONGRESSIONAL RECORD-SENATE. 15 

Mr. TELLER. For the first time in the history of my administration of that Department I had detailed from another bureau laborers 

for the Land Bureau. In my anxiety that t.he papers should come promptly to the Senate I made the detail of which the Commissioner 

speaks. Had the Senator who intJ:oduced the resolution called specifically for nothing more than what he subsequently claimed he wanted 

it might have been handed to him in a day. There neverwas an hour 

while I was Secretary of the Interior when any Senator could not walk 

into my office, or into the office of the Commissioner of the General Land 

Office, or of any other bureau officer of that Department, and find upon 

inquiry personally or by letter everything that he might want to know 

with reference to the transactions of that Department. 

It is easier, I suppose, sometimes to introduce a resolution than to 

make an inquiry. The inquiry, unless made in an offensive way, does 

not answer the purpose for which it is designed. I do not say that of 

all inquiries. Therewasaresolutionoffered in this body one day with 

reference to pensions. I exonerate the Senator who offered it from any 

. attempt to cast a reflection upon the Interior Department. I know he 

did not intend it, nor did he design to embarrass it, and yet if the 

resolution had been passed by the Senate, and had been complied with 

by the Secretary of the Interior, it would have pradically closed the 

Pension Office for four or five months. 

I hold in my hand a document which was called for by a resolution 

of the Honse [exhibiting] concerning pension attorneys practicing before the Interior Department. How many people do you suppose ever 

read that document? How many have ever opened its covers? Every 

particle of information of value to the Honse or to the Senate relating 

to that subject could have been ascertained by an hour's work in one of the Departments, or if the inquirer did not desire to spend even 

that time he could have a ked by letter for a statement, and he would 

have received it with little labor and little expense to the Government. The labor alone for this work under the resolution of the Honse 

cost the Government more than 2, 000; the printing cost more than 

that. 

I have suggested the reference a-s to the character and necessity of 

resolutions to a committee. I do not intend to make that motion here. 

I do not intend to interfere with any investigation which may be made 

into the Interior Department. I am prepared to open the doors, to open 

the books, so far as I am concerned. I do not fear any investigation. I 

do not think it is becoming a Cabinet officer on retiring to come into this 

body or anywhere else and say "somebody has made a charge against 

my Department, and therefore you should appoint a committee." I 

will leave my work in the Interior Department to answer for itself, and 

I assure you that I shall be on this floor at all times ready to answer to 

any proper interrogatory which may be propounded to me, whether it 

be instigated by a laudable desire to arrive at the facts or whether it be 

for the purpose of casting reflections upon that great Department of the 

Government, either as to myself or any person who served under me. I wish to say now that after the experience of three years in one of 

the Executive Departments of the Government I shall be prompt myself to resent, whether thE\ men are of my political faith or not, imputations by resolution on the executive department of the Government. 

If they do not do what they ought to do, let them be properly investigated by the body which has power to do it. Let me a k what au- thority has this body to investigate the action of an executive officer of 

the Government? Is it committed to this body to investigate his judicial acts? When theSecretaryofthe Interior, for example, has passed 

upon a question which requires the exercise of judicial power, can this 

body inquire whether he has rightfully or wrongfully exercised that 

power? Can this body resolveitselfintoatribunal todeterminerights 

between claimants alld the Government, or between claimants and 

claimants? I deny it. It is a usurpation of the rights of the execu- tive department of the Government. It ought not to be done, and it never will be done if there can be deliberation and attention and knowledge on the part of the Senate. 

There were some other suggestions which occurred to me, but in con- sideration of the long time I have been speaking I shall defer the re- marks I intended to make upon another point connected with this resolution, or connected with the question ofresolutions, until some other 

day. 

Mr. VAN WYCK. Mr. President--

1\Ir. FRYE. Will not the Senator from Neb:raska yield ·and allow 

this matter to be postponed until to-morrow? 

Mr. VAN WYCK. Let me first make a statement in regard to the 

ma.tter of double pension, which should be made in this connection 

to-day, and then if the Senator desires I shall have no objection to a postponement. 

I regret very much that the Senator from Colorado should feel that 

either this resolution or resolutions which may have been adopted by 

the Senate heretofore asking for information as to facts or reasons or 

motives for action should be regarded as in the nature of any personal 

discourtesy to his administration of the Interior Department. I will 

take as' an illustration the matter to which the Senator referred, about 

which he evidently entertains some feeling, which I regret. He must 

have enjoyed tha.t feeling. That resolution was offered two years ago 

at least, and Iregrettha.tthe resolution should have made anydiscom-. 

fort then in his mind and that it should have continued to this clay. 

Now, it becomes necessary at this time to make that explanation. 

A resolution was offered in this body when it was apparent, no matter how high the rank, no matter how distinguished the service, that 

in violation of what was supposed to be a law of Congress a person was about to receive a double pension. That was in violation of the law as we supposed, and when that matter came to the attention of this body a resolution was offered and referred to the Committee on Pensions, and 

the Committee on Pensions authorized and directed that the resolution 

should be reported to the Senate and a request made for its action; and 

it was so reported and adopted. I will say to the Senator that that comes within the terms of his condition. It was a resolution offered 

here, referred to the committee, reported by the committee to this body, 

and acted upon by the body. ·It seems there was a race run then between the Interior Department and the Senate of the United States as to which should succeed, they to pay a double pension in violation of 

law, or that the Senate should succeed in having the executive department obey the law . No man can yield more to the great courage of that distinguished 

general than myself and the Committee on Pensions of the Senate. 

The Pension Office had rated the pension due to General Burnett, I 

think, at $30 per month. General Burnett had asked the Department 

to raise it to the highest standard, that is, $72 per month, and that was 

the pension paid for total disability, bui the Pension Office refused to 

rate General Burnett as totally disabled and to grant him a pension of 

72 a month. He was receiving $30·a month. 

General Burnett came to Congress and asked for an increase of pension, and that increase was granted; and when it was granted it said 

''he shall receive $50 per month in lieu of any other pension he is now receiving." That was plain. That was the law. The Congress of the 

United States declared that they had placed General Burnett on the 

special roll at $50 a month, and that that was in lien of the pension he was then receiving, and he should receive but one pension. 

Application had been made in the Pension Department to give General Burnett a pension for total disability, which had failed. What 

then? By some sort of machinery the matter was referred to the Attorney-General. What for? It was referred to the Attorney-General, 

and what did the Attorney-General do? He discarded all the fads 

proved by his own Pension Department, and he, the Attorney-General, 

who had no authority in law, no power, declared that General Burnett 

wa-s totally disabled, and should receive $72 per month, and that at a time when the same General Burnett was a clerk receiving pay in the 

Surgeon-General's Office, the building adjoining the_ office of the Attorney -General. 

Look at it for a moment I -General Burnett was a clerk in the Surgeon-General's Office, on the pay-roll; the Pension Department had declared that he was not totally disabled, but the subterfuge of an opinion of the Attorney-General was sought, and the Attorney-General, 

without any authority, in violation oflaw, declared that General Burnett was totally disabled, and ordered him to be put on the pension-roll 

at $72 a month. What then? Now you see the shrewdness of the Attorney-General. Would anybody have supposed, accordingtothefactB 

as I have stated them, that General Burnett could possibly lead any 

decent executive department of a decently administered government 

into giving him two pensions? Would you believe it? 

Mark the cunning of the Attorney-General. We put General Burnett on the special pension-list at $50 a month in lieu of the pension 

he was then receiving. The pension he had been receiving was $30 a month. The Attorney-General says: "I have ordered it to be raised to 

$72 a month; therefore the law which created a special pension does not 

apply; the larw which Congress passed to reach his case when he had 

only a pension of$30 a month I have trampled upon; and I, the Attorney-General, without any sort of authority except a little message from 

the Secretary of the Interior asking it, place him on the pension-roll as 

totally disabled at $72 a month; and because I have done that I ron circumvent the law; so can the Department of the Interior, and we will 

give this man a double pension on that miserable pretense." 

Yet the Senate is to be arraigned forsooth. What then? The Senate were trying to stop it, because it was in violation of law to give this 

man a double pension, and this race wa.':l run with the office of the Attorney-General and the office of the Interior Department to trample on the law and give the man a double pension with back pay accruing to 

the amount of several thousand dollars. The race still continued. Of course the object sought had been accomplished; a facile AttorneyGeneral had done all that was necessary; but Congress did not stop. 

Two or three times, first on an appropriation bill in both Houses, then 

in a special law, the Congress of the United States rebuked the AttorneyGeneral and the Interior Department in that transaction by two or three 

times repeating over the same provision, that ihis thing should never happen again. 

That is the history of General Bmnett's pension, and I shall now give way. It might be in order for me to make some further suggestions, but the Senator from Maine said he would prefer to have this matter postponed until to-morrow. To that I assent. 

Mr. TELLER. I wish to say just one word. The Senator has not 

answered the complaint I made. I only mentioned the fact that the 
16 CONGRESSIONAL RECORD-SENATE. MABen 10, 

resolution had reference to the pension of General Burnett by way of 

illustration to show the magnitude of the subject which would call upon 

the Senate to make such a. ruling. I do not care to go into the merits 

of the case except to say, as I did, that in my jud~ment the AttorneyGeneral's opinion was correct, and as the law stood General Burnett was entitled to two pensions, one under the general act and one by specific 

act. 

If the honorable Senator from Nebraska can take any glory to himself that he succeeded in taking from that old veteran his 50 a month 

and that he ent him down to his grave in want, he is welcome to it. 

I want no such credit my elf. I do not want the reputation of protecting the public Treasury at the expense of that class of people. Tim 

old man, who went down to his grave and who was regarded as of sufficient importance even when dead to lie in state in the great city of New 

York in the city hall, is buried in an unpaid-for grave, and to-day his 

estate has not money wherewith to pay the expenses of his funeral. 

The honorable Senator may take aJl the glory he chooses from that; I 

want none of it for myself, Mr. President. 

Mr. VAN WYCK. It is not a question of glory just now, but of facts. 

I only desired to have aJl the facts appear just as they were, and the 

facts are just as I have stated. 

Mr. FRYE. I move that the Senate adjourn. 

The motion was agreed to; and (a.t 2 o'clock and 25 minutes p. m.) 

the Senate a-djourned. 

TUESDA..Y, Ma-rch 10, 188?. 

Prayer by Rev. J. G. BUTLER, D. D., of the city of Washington. 

The Journal of yesterday's proceedings was read and approved. 

TEAMER J. DON CAMERON. 

The VICE-PRESIDENT. The Chair lays before the Senate a com- munication from the Secretary of War, which will be read. 

The Chief Clerk read as follows: 

'VAR DEPARTMENT, Washington Oity, March 9,1885. 

To the President of the Senate : 

Sm: Referring to the act(Private No.105,copyherewith) "for the relief of the 

sufferers by lo of the Government steamer J. Don Cameron," approved February 2-5, 1 , I have the honor to request, to facilitate the settlements therein 

provided for, that all papers pertaining to the ma.tt.er on the files of the Senate 

m,ay be forwarded to this Department. 

Very respectfully, your obedient servant, 

WILLIAM C. ENDICOTT, 

Secretary of War. 

Mr. DAWES. I move that the papers on the files of the Senate be 

forwarded to the War Department in compliance with the request. 

The motion was agreed to. 

PETITIOY. 

The VICE-PRESIDENT. The Chair lay before the Senate a petition of the Legislative A embly of Arizona Territory, transmitted by 

the governor of that Territory, praying for the appointment of a fourth 

United States judge and an increase of compen ation to judges in that 

Territory. What action will the Senate take upon the petition? 

Mr. EDMUNDS. I move that it be referred to the Committee on the Judiciary when appointed. 

The motion was agreed to. 

SRc ATOR FROM NEW H.AltlPSHIRE. 

The VICE-PRESIDENT. The Chair lays before the Senate the resolution submitted yesterday by the Senator from Massachusetts [Mr. 

HoAR], in relation to the right to a seat of t.he gentleman appointed by 

the governor of the State of New Hampshire. The resolution will be 

read. 

The Chief Clerk read the resolution, as follow : 

Resolved, That IIenry W.Blair; appointed a Senator from the State of New 

Hampshire, be now admitted to take the oath of office. 

The VICE-PRESIDENT. The resolution is before the Senate. 

Mr. VEST. Mr. President, yesterday I asked that the resolution 

should go over until to-day in order that it might be examined by the new Senators just sworn into this body, and in order that those of us who were members at the time the Bell case was under di cussion 

and was determined should have an opportunity to refresh our recollection in regard to the points then made and di cu ed. It is not my 

purpose to enter into a lengthy resume of that argument then so ex- haustively made. I simply wish to say now that I reaffirm what wa my conclusion then as a lawy'er in regard to this subject. 

I voted on the Bell case that IYir. Bell was not entitled to a seat in 

this body; that the governor of a State had no right to fill an entire term 

by original appointment; that the meaning of the Constitution, w)rich 

declares ''if vacancies happen by resignation or otherwise during the recess of the Legislature of any State" the executive authority of a State may make a temporary appointment, is that when a vacancy shall 

occur, not by operation of law, but by some event which applies to the 

individual asking for the office or applying for admission into this body, 

by the resignation of a person, by death operating upon him, and that 

the word ''otherwise '' in that connection means by similar casualtywhen a vacancy shall happen, when it shall occur, not by operation of 

statute or of any constitution, but when it occurs by resignation, death, or otherwise. 

The terms of the Constitution as originally made-and I shall be very 

brief in the discussion of the ubject, for I only propose to give my own 

reasons for casting my vote-the terms of the Constitution are: 

If vacancie happen by re ignation, or otherwise, during the recess of the 

Legi lature of any tate, the executive thereof may make temporary appoint- ment until the next meeting of the Legislature. which shall then ftll such va,. caney. 

There are three clauses in the Federal Constitution in which the word 

'' happen '' is used. First, in Article II, section 2, the Constitution 

says: 

The President shall have power to fill up aJJ vacancies that may happen dur- _ ing the rece s of the Senate, by granting commissions which shall expire at the 

end of their next se ion. 

Article I, section 2, provides: 

When vacancies happen in the representation from any State, the executive 

authority thereof shall issue writs of election to fill such vacancies. 

Article I, sectio:J;l3, which is the clause now under discussion, provides: 

And if vacancies happen by resignation or otherwise, during the recess of the 

Legislature of any State, the executive thereof may make temporary appoint- ment until the next meeting of the Legislature, which shall then fill such va,. cancie . 

In all three of these clauses the word '' happen'' is used, but I call 

the attention of the Senate to the fact that in the first two clauses in 

regard to vacancies in the House of Representatives and vacancies during a recess of the Senate as to executive officers, the word "happen" 

is without limitation, "where vacancies shall happen," and there is 

.the termination of the power of the President in regard to executive 

appointments; but in regard to Senators the Federal Convention put a limitation upon the word "happen." They did not stop with declaring where vacancies may happen during a. recess of a Legislature that 

then the governor may appoint, but where a vacancy shall happen by 

resignation or otherwise. 

If the Senators now present are correct who claim the power of a governor to exist to appoint in these cases, we. are forced to the conclusion that the words "by resjgnation or otherwise " are void and mean- ingless as u ed by the framers of the Constitution, or else that the 

terms are a limitation upon the word ''happen.'' They are not found 

in the other two clauses of the Constitution. What makes this argument more significant and conclusive to my mind is that the original 

draught of the Con titution, which I have before me, and the debates 

how that the clause as originally reported to the convention of 1787 

was absolute and unlimited, when a vacancy should occur, and l\Ir. 

Madison moved to put in these terms of limitation, that where the 

vacancy should occur by resignation or otherwise, or equivalent terms, 

then the governor of the State might appoint. 

I know it has been said that contemporaneous construction at the 

time militates against this view. In the debate which occurred in the 

Bell case an editorial was read from the National Intelligencer of 

March 8, 1825, and it was said that this had been adopted by Judge 

Story and by Mr. Gordon, who was compiling a book in regard to the 

proceedings of Congress at that time. The most authoritative statement in regard to the meaning of Congress and the debates of Congress 

at that time is found in Niles's Register, theauthorityofwhich I take 

it will not be questioned on this floor. In Nil~'s Register I find the 

following: 

The following membersSays the Register of March 12, 1825-

The following members, also re-elected for six years from this. day, took the 

oath of office, namely: Mr. Lloyd, of Maryland; Mr. Macon, of North Carolina; 

Mr. Gaillard, of South Carolina; Mr. J. S. Johnston, of Louisiana; and Mr. Barton, of Mi ouri. 

Some conversation took place on the case of Mr. Lanman, reappointed by the 

governor in the recess of the Legislature, the qne tion being, whether a failure 

by the Legislature to make a choice of a Senator constitutes the contingency in 

which a. governor may appoint a Senator, the language of the Constitution being, "if vacancies happen, by resignation or otherwise," &c. 

It is said, and conspicuously by the Senator from Massachusetts [Mr. 

HoAR], that the quotation in the National Intelligencer and in the 

book by Gordon showed that the Lanman case decided in 1825 did not 

touch this question, did not determine it, and that the Lanman case, a. case from Connecticut, went off on the power of the governor to make an appointment before the vacancy existed. Niles's Register asserl8 

emphatically that the very point now at issue before the Senate was 

decided in 1825. I know that other cases were decided antecedent to 

the Lanman case, bnt they were decided, I affirm, without discussion, 

without debate. 

In 1825 this precise case was brought before the Senate of the United 

States, and it wa decided then that the governor could not appoint as to a full term. In 1825 for the first time this question was elaborately and exhaustively debated by the abl~t lawyers then in the 

United States, and it was decided that the governor did not have the 

rigbt to make such an appointment; and I say to-day, as was said in 

the Bell discussion, that from 1825 to the decision of the Bell case in 

1879 not one solitary utterance was ever heard upon this floor or else-