The daily union. [volume] (Washington [D.C.]) 1845-1857, 1848-09-09
SPEECH OF BIR. BADGER,
OF NORTH CAROLINA.
ON THE CALIFORNIA CLAIMS BILL.
In SrNATE-FRIDAY, Apau IS, 1918.

| ON THE CALIFORNfA CLAIMS BILL.
| In SENATE-FRIDAY APRM 2s, 1918.
The Senate had under consideration the bill reported
from the Committee on Military Affairs for ascertaning
and paying the California claims
The bill, reported by the committee provided that
the President be and he is authorized TO appoint
board consisting OF John Charles Fremont and Two Off
GERS of said battalion while in service" Sc
On the 18th OF April this clause amended, on the
motion OF Mr. BADGER, so as TO read that "John Charles
Fremont and two officers OF said battalion while in SER
vice. to be selected by the President OF the United States
shall constitute board,' sc.
The bill was subsequently recommitied to the Com
mee on Military Affairs, and reported with the follow
ing amendment in lieu of the section above referred
'Ske out all after the word delay 10 two line
six, to the eud OF the blu and insert the ioowing And no
nnascertaned claim shall lie paid until first Examined by
mont, and by the lae nisary and the late payma
Of the battalion, Captain Hensley and Major Reading and
such unascertaned claims, allowed and certi-
fed shall be made the claimants in California by some
that purpose and all claims not presented and allowed
within year AID half from the lime of passing this b
shall be forever barred and the OF the
aiming shall be according to that OF their espec
tive ranks in the late battalion, and shall be paid of
appropriation contained in this bill, and shall make
of their proceedings to the War Department And the
and noncommssioned officers of the battalion shall be paid
mounted rihemen, full of all claims for lost horses
for any cause Whatever and in full of all claims for for
age as well as for eohng and use and risk OF horses
twenty-five cents per months other sergeants and copo-
musicians, twenty dollars and twenty-five per
per month" ..
amendment by striking out all down to " Wan Depart
ment," inclusive, and inserting in lieu thereof:
And for the purpose Of ascertaning the justice and
amount OF the residue OF said claims board is hereby
abshed consist of three fit and competent persons
be nominated by the President, and by him appointed, by
and with the advice and consent OF the Senate which
board shall sit in different places in California, and give
certificates for the amount due which certificates shall be
forthwith paid in California by some proper officer duly
appointed or designated for that purpose"
Mr. Mason explained that the object OF his amendment
was to the constitutional objection which existed
in his mind to the appointment OF board of commission
ers by name and to provide for board to be appointed
by the President He offered this amendment for the
purpose of testing the of the Senate and demanded
the yeas and nays upon the question OF agreeing to H.
The question pending, the 2Sth of April, upon
agreeing to this amendment when
Mr.. BADGER addressed The Senate as follows:
! Mr.. PRESIDENT: Before proceed with the remarks
which design to offer It IS proper that should make
preliminary statement, because just to Others and
because ought to apologize for having often
pas sed on the attention OF the Senate. The particular
provision OF this bill, which has excited long and
earnest discussion, was provision suggested and in
sisted upon in the committee BY myself It originated
suggested it, it was thought of by ese and sug
gested it. of course under the impression that hal
right to adopt the provision, which still entertain,
withstandng the observations of my friend from Mary
land and because chose in devolving the power to
dispose of this amount Of public money, in the peculiar
circumstances of these claims, to know the persons on
whose decision and award the money to be disposed
Iof. Without entering INTO any inquiry, which must
say unnecessarily brought forward by my friend from
of the President of the United States, if the selection
left him, for one, did not choose commit it,
general and indefinite subject OF choice to the discretion
OF the President or anybody else. But in making pro-
for the ascertanng and payment of claims against
the United States, arising in the peculiar circumstances
which characterize these California transactions, to be
investigated and decided upon in foreign country,
for one willing that this duty should be devoved
upon any but the persons selected by ourselves
After this statement beg the attention of the Senate
to observations in reply to the remarks which fell
from my friend fro Maryland In the first place, how
ever, wish to notice observation made by the
tor from Virginia Mr. Mason lie said. # under
stood him aright that knew that in courts OF law moth
ing was considered as authority except the decision or
adjudication of appellate tribunal.
Mr. Mason Il the senator will allow me, will state
Carolina well knew that, IN a court OF law no decision
was taken as authority but that which had been made
directly upon the point under consideration. mean by
that that subordinate court, the decision of a
pellate court is the law OF the court .,
| Mr. BADGER. So understood the senator. Before
proceed examine the nature and character of the pre-
cedents relied upon here allow me, reference that
point to say that, 30 tar from understanding to be as
the senator from Virginia supposes understand that
the authority, which guides court of law embraces
not only the case of an express adjudication made upon
the point, and made in higher tribunal but that in the
sense in which the term authority" courts OF
law consider themselves bound by their adudica-
ton when they do not constitute the appellate tbu
nal They also feel themselves bound by the and
practice of their court They feel themselves bound
by the judicial course OF proceeding of their predecessors
in office. But what do we mean by being bound Why,
ol course, not in the which inferior tribunal
is bound to execute mandate from appellate court.
directing particular judgment be entered in partc
uar The inferior tribunal is there bound to obey,
can be compelled obey, may be punished for obey
ing But by authority mean those considerations which
direct the judicial determination of the Judge, whether
they convince his understanding lawyer not
which stand to the Judge in place of reasons and TO
him reasons determining his official judgment There
can be, OF course, physical penal coercion the
Judge liable he would be for his contempt of the
mandate of superior tribunal but he is judciay
creed to take that ground because has been decided
be- TO refer to what has been said by two three die
ungnshed Judges this subject at to illustrate
and support what have SAID as to what constitutes al-
thonty:
SIT only (says Lord Chief Justice Eenborough)
from decided the point has been raised
Argument but also from the long continued practice of the
COURTS without objection made, that collect rules of
law" ..f|
And after referring to the OF the court for about
fifty years upon the question before him, he says:
"lCis fit the rule should be carried further it must
be done by the legislature"
In the of Rex Us. Despard, where the question
TO the legality of commitment by the Secretary
Of State for unreasonable practices, and where the coun
sci had taken the view upon the subject OF authority
that expressed by the senator from Virginia. Mr.. MA
SOM Lord Chief Justice Kenyon uses this emphatic Ian
guage:
$50 argument of the defendants counsel cannot
Overwhelmingly, point is 10 be considered rs law
unless IL has been made and judicialy decided mat
true, farewell the common law OF the land III
were asked IN what it was determined tha i'na
ton aud his heirs gives him fec simple should be
4 ,s Ia Hale when the