The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-03-15

unation 10 whch they were directing themselves AZ !he
time oil iher arrest II seems also quite conclusive that
the traders lost nothing by the arrest but gained proec
ton thereby The suit brought in the southern dis.
tnci OF the State Of New York and think from great
neglect and defect OF estmonyit must have been pro-
duced by neg was brought against the Of.
cer who made the decision for arrest for the amount of
running up to The amount stated in the amendment II
appears in evidence tha, Col Doniphan dschargng
duty which properly devoved upon him, under power
which was strictly within the limits OF his military com
mission. L. Col Mitchell acted in strict obedience to the
order Of his superior, Col Donphan Therefore, whether
the Judgment be right wrong il is clear that Colonel
MITCHELL dscharging the duty which he was ordered 10
perform by his superior officer in the services Of the Uni
ted States cannot be arnenable and should not be left
to suffer in his private character for an official act thus
done am informed by The Solicitor OF the Treasury
That the papers, which very voumnous, under ex-
animation to whether the cannot be brought up
upon writ Of error Il is not yet decided TINS ap-
preparation is asked for by petitioners conditionally to
the in the event that cannot be brought up
upon writ OF error-in event that the decision OF the
court below should be sustaned-bnt in the hope that
the decision Of the court below, if brought up will be
reversed and that therefore there will be money TO
be paid have letter from the Secretary Of the Treas
ury, with an estimate of this sum- which came with the
letter from the Solicitor relation the matter involved
will send to the Secretary in order that may relieve
the Senate from explanation OF perhaps greater length
OF time than will be required to read these two letters.
The letters were sent to the Secretary. who com
menced the reading OF them and upon the senator from
-issippi [Mr FooTEl iaerposng that ne reading
sigalfyng assent, the reading was accordingly unhn
shed Alter which,
Mr.. EWING said With respect 70 this matter. there
was upon the part OF Col Mitchell II there
were any neglect anywhere, II was that proper defence
was not made in this case. | advised the Secretary Of
the Interior that such suit was brought against him
Information obtained sufficient to satisfy methen
acting Secretaythat the United States ought 10 make
this defence accordingly instructed the Solicitor to
attend to the duty and have no doubt that be dd So
Directions given to the district attorney and officers
OF the United States in New York attend to the de-
fence. Since that heard nothing about il, until was
Col Mitchell gave the necessary information the writ
OF error and requested that the case should be defended
That is all.
Mr. CASS Thisisa very heavy amount, and should
like to hear the letter read before I vote.
! Mr.. DAWSON beg to make statement with
gard to this particular claim which is doubt one well
which founded upon principle. The statement is this,
and papers have been laid before me- Of the Com
mttee on Indian Affairs: By order OF Colonel Doniphan,
State Of New York then in Mexico were taken control
OF BY Colonel Mitchell and directed to 80 on IN company
with the command Of Colonel Doniphan Not one part-
Gle OF property (goods the team were taken posses
OF by the officers, used by them. The principle
that lay down is this: II they had any wagons,
ntons Of war or anything calculated TO bbeneit the
enemy which they had Colonel Doniphan had right TO
of the whole Of them under the rules and
regulations OF war But he did not do single act IN
violation OF the right OF an American citizen. They went
on to Chihuahua together, and there Mr. Harmony had
the complete control and government o all bis property,
and sold all his goods amounting to about ninety thou
1
about ten thousand dollars. That turned over by
Mr. John Harmony the Spanish consul in chihuahua
for the benefit OF Mr. Harmony Not one dollars worth
OF property used or interered with, except merely
taking the control of it they marched through the
country prevent its falling into the hands OF the
enemy. Hegot il all These are the statements While
in Mexico Lieutenant Colonel Mitchell executed The
der OF Colonel Donphan, and found himself in the State
of New York in 1919. There he sued in aD action
of trespass 10 one OF the cous OF the State of New York
The taken from the court there under the statute
OF the United States and transferred 10 the circuit court
o the United States That defended but not by
Colonel Mitchell Colonel Mitchell notified the govern
that the must be defended upon their part and
it was referred TO the district attorney. Mr. Shepard.
appears put 10 the pleas; and the pleas were that Col
poaiphan had night 70 take possessI1n on, q ne xooas
OF our own citizens trading with an enemy and he look
them, he justhabe. But, as he did not take The
goods and them and they converted TO the ad
vantage and use OF the owner, Colonel Mitchell was moi
responsible Colonel Mitchell gave no other aid 10 The
defence OF his than to notify the government OF GER
tain testimony which would prove all these facts. The
testimony procured q, all. and left
it upon my mind that there was combination by which
the government was to be at least involved IN very
heavy burden; for Notwithstanding the invoice OF The
ninety thousand dollars of sale by the owner, The ndg
recovered there in the Of nine months was
ninety five thousand FIVE hundred and eighty odd dollars
tanned by this trespass committed by order OF Colonel
Doniphsn Now the point that take is this: II were
done in the discharge Of his day-Colone Doniphan'
duty "a military commander-ln taking possession o.
Il these goods the government would not be liable no.
i would Colonel Doniphan or Colonel Mitchell be liable
The points, then, 90 directly before the court upon the
principles OF national law law in time OF war. The
courts decision il that II was individual espass o
Colonel Mitchell and OF must have been in vio
a,ior OF his duty officer; and if in violation Of bis
duty officer the question is presented whether the
government shall be responsible for the illegal acts oil h
agent
| Now maintain, Mr. President. that the decision o.
the court 10 the State OF New York conclusive, until
il il alleged that the government is not responsible but
do the facts show that the sespass committed was not III
the character OF officer. but in violation OF duty
| officer Not at all That is the position which oc
State Of New York, the government ia not responsible
for they decided that they had right TO take possession
of the goods under the circumstances and II they did
in violation OF their duty officers, and The espas;
was committed by them individually n . r.
i Then up another great point, which induced me
to believe, now believe, tha, there some com
binaon confederacy by which this Judgment was OBJ
tanned from the government against Colonel Mitchell
because the amount recovered is equal TO the original
value OF the goods and yet they all sold under the
circumstances and have not seen single article OF
testimony TO show that they sold at deprecated
pfces from any act upon the part o Colonel Mitchell
or Doniphau. How this obtained is to me a
mystery The report OF this as the chairman well
knows committed To the House because we thong h'
1 that there was something wrong IN III but we knew
this that there testimony 10 involve Colonel
Mitchell in this transaction We believed that he act.
ed honestly and fairly. and we believed that neither The
government OF The United States nor Colonel Mitchell
ough, 10 be responsible for any ,nsequences growing
lout H. But the have decided differently upon
the principle that il individual responsibility, and not
the responsibility o the departments II that be So ask
now why we will pay this large amount OF nney-eight
thou and fifty 1--WE dollars and thirty eight cents over
A. 10 "a hat