1862. THE CONGRESSIONAL GLOBE. the expenses of this war, and then not touch the property of the traitors who have occasioned all this, which, in my judgment, is within our reach. raised to nine would broaden the base of action. Mr. CLARK. I have no objection to any par- Mr. WILSON, of Massachusetts. I move to amend the motion, so that the committee shall consist of nine members. Mr. CLARK. I accept that modification, if it is desired. I think that a mistake is made in this motion to refer; but the motion to refer to-day does not come from an opponent of confiscation, but from a friend, and several friends around me think it best to have it referred. I differ from them. Their judgment may be, and very likely is, better than mine; but if they thought as I do, we would vote down this motion to refer. If those in the Senate who I believe are for confiscation had rallied and voted together, I believe we could have had a vote before this hour on the main proposition, instead of wasting this whole day upon this motion. We have accomplished nothing to-day. I know not whether we shall get a vote upon the question of reference. But, sir, I do not know Mr. COWAN. I merely wish to utter a single how it is that five or seven members of the body freely during the debate all this afternoon; and I will be able to settle the Constitution for the forty word of explanation. I have been alluded to very or forty-five others who are not upon that comshould not have thought fit to say anything about mittee. I do not know what light even my friend it were it not that when the report of it goes out they have gone from Maine will get from the consultations of this to the country it will go out, as committee, unless he should be one of them, as I hope he may be. He may, if he is one of them, universally, misrepresenting me. Why I am so much alluded to at all times and upon all occasatisfy himself, and by turning his attention to these matters, which, it seems, he has not beensions, I cannot for the life of me conceive. The able hitherto to examine, he may satisfy the Sen ate. Sir, I will conclude what little I have to sayand I should not have said anything except as called for by the remarks of the Senator from Matne-by expressing my gratification in learning that he is for a confiscation bill just as far as the limits of the Constitution will allow him to go; and beyond that I would certainly not ask him to go. The PRESIDENT pro tempore. The motion before the Senate is that this bill, with all the accompanying propositions of amendment, be committed to a special committee of nine members. or phrase has become so pat upon the tongue that it Mr. DAVIS. If the gentleman will allow me, Mr. FESSENDEN. I wish to say one word of explanation. Something that was dropped by my friend from Illinois leads me to the suspicion that he infers from what I said that I designated certain gentlemen as wishing to go beyond the constitutional limits, in opposition to those who I meant to convey were not disposed to do so. no such idea. All I intended to say, and I suspect all I did say, for I believe it must arise rather from the suspicion of my friend than otherwise, was that here were a number of bills; I perceived on one side, with regard to some of them, several gentlemen had constitutional scruples with reference to the bills which they did not approve, and to which they proposed amendments; but they were willing to go as far as, in their judgment, the limits of the Constitution would allow. Far be it from me to suppose that any member of the Senate, more particularly my honorable friend from Illinois, for whom I have the highest regard and respect always, would go one single inch beyond what he supposed the Constitution allowed him to go. I have that sort of respect for every member of the Senate, that I do not suppose such a thing possible in any case. Still, we may differ upon that subject, and we do differ, and I believe that something is due to the scruples of men who are not quite so broad in their views of that instrument as others, and that it is important and useful in all cases, if we can do it, to find a common ground which we can all stand upon without vio-hare before we caught it. Go, then, and take this lating the scruples of anybody. That is simply the idea I meant to convey. As to the suggestion that I should not be likely to get any light from the deliberations of five men unless I was one of them, I suppose that was a sort of hit which my friend intended to be a little sharp on me. All I have to say about that is, that really I do think that even if I am not one of them, the deliberations of five of our respected fellows in this Hall, looking at the subject conscientiously and with a desire to come to the truth, could enlighten me, more especially as I have had no opportunity to enlighten myself. If my friend would allow me to reply in the same sort of spirit, but good-naturedly, I should not hope that any deliberation of anybody would enlighten him. Well, sir, I have said over and over again that I have property, and after it is taken, if you want to con- Gentlemen seem to find so much fault with this Mr. WILSON, of Massachusetts. The indications are that the motion made by the Senator from New Hampshire to commit this bill to a special committee will receive the support of thepotic enough, that the force is not applied with Senate. I suggest to the Senator who proposed to make it a committee of seven, that he make the committee to consist of nine members. We have a large breadth of country, and men who have expressed various opinions and who entertain various opinions here, and if the committee were sufficient rapidity, with sufficient vigor to make Therefore I make these remarks simply in or- allowed the assertion to go sub silentio that I was I do not know why that should be so. I do not We have been told, too, that the people will feel sad and sorry when they find that there is no measure of confiscation such as is contemplated Mr. President, here to go forth to gratify them. I do not know how it is as to the people who are spoken of, but I know as to the people of my own there with whom I have conversed have sense enough to know that confiscation has never been State, and I can say to the Senate that the people a fit and proper remedy for the purpose of reconciling a rebellion, and bringing back people who are temporarily hostile to reunite with each other, and live as heretofore, fellow-citizens under the same Government. Mr. HALE. Then why go for it? Mr. COWAN. I go for it as a measure of war. I leave it in the hands of the commander of the Army, and of the Army itself. That is not legislative confiscation, but a very different thing. This confiscation is to be done by the Legislature; and you decide here that these people are guilty, and you decide what punishment they shall suf that I object. When the President, with the war fer, and you deny them all the right of trial. To power in his hand-the force of the nation-seizes upon the property of the rebel, he takes him in the fact; no trial is needed, and I am willing that it shall be so. The PRESIDENT pro tempore. Is the Senate ready for the question on the motion to refer? Mr. CLARK. I hope we shall come to a vote now. Mr. FOSTER called for the yeas and nays; and they were ordered; and being taken, resulted—yeas 24, nays 14; as follows: YEAS-Messrs. Anthony, Browning, Clark, Collamer, Cowan, Davis, Doolittle, Fessenden, Foot, Foster, Harris, Henderson, Howe, Kennedy, McDougall, Morrill, Powell, Saulsbury, Simmons, Stark, Sumner, Willey, Wilson of Massachusetts, and Wilson of Missouri-24. NAYS-Messrs. Chandler, Dixon, Grimes, Пale, Harlan, King, Lane of Indiana, Lane of Kansas, Pomeroy, Sherman, Ten Eyck, Trumbull, Wade, and Wright-14. The PRESIDENT pro tempore. The motion is agreed to; and the bill, with the accompanying propositions of amendment, is referred to a select committee of nine; but the proposition does not embrace the mode of appointing that committee. Several SENATORS. Let it be appointed by the Chair, The PRESIDENT pro tempore. If such be the pleasure of the Senate, the Chair will perform that duty. ["Agreed."] THE TAX BILL. Mr. FESSENDEN. I am instructed by the Committee on Finance to report back the bill (H. R. No. 312) to provide internal revenue to support the Government and pay interest on the public debt, with divers and sundry amendments; and I ask that the bill and amendments be printed. The PRESIDENT pro tempore. The bill and amendments will be printed, as a matter of course, under the rule. Mr. McDOUGALL. As one of the members of the Committee on Finance, I desire to say that the committee were not unanimous in their approval of the measure as it is now reported in substance the same as it came from the House of Representatives. I have in my hands a substitute for the bill as reported, which I propose to offer. I may say that I voted that the chairman might report the bill as he has done; but with the understanding at the same time that I should offer my substitute in the Senate. I now present a measure which I ask the Senate to have printed, which embodies, in substance, the views of the Board of Trade of Boston-represented here by very able men, who understand the subject of finance probably as well as Senators-the Chamber of Commerce of New York, and the Board of Trade of Philadelphia, and representing the best opinion that I have been able to gather. I will say now that I think the measure I present will yield the Government as much revenue as the bill of the House of Representatives, as reported from the committee by its majority. As the question is a grave one-I think one of the gravest that has come before the country-I desire that the substitute I now submit may be printed. The PRESIDENT pro tempore. The Senator from California offers a paper embodying the views of the minority of the Committee on Finance, whose report has just been presented upon that bill, and moves that that be received and printed. The motion was agreed to. Mr. SUMNER. I move that three thousand extra copies of the bill, with the accompanying amendments as reported by the committee, be printed for the use of the Senate. The PRESIDENT pro tempore. That motion goes to the Committee on Printing under the rule. Mr. SUMNER. I think there may be unanimous consent to act upon it now. The PRESIDENT pro tempore. If no objection be made, the motion will be entertained. No objection being made, the Senate unanimously agree to the motion. Mr. SIMMONS. I wish to say that, although I believe there was a general concurrence of the committee that this bill should be reported, I for one was not exactly in favor of all its provisions, and I think I can say for several others that they were not; but I shall not speak for anybody but myself. When the proper time comes, I intend to move some important amendments, and I shall try to get them printed to-morrow if I can. I merely wish to say this, so that the printing of this bill entire as reported shall not go to the country as the exact expression of a majority of the Committee on Finance, although they all assent to its being printed, and they were anxious to get it before the Senate. It has been a long while in their hands. EXECUTIVE SESSION. On motion of Mr. HALE, the Senate proceeded to the consideration of executive business; and after some time spent in executive session, the doors were reopened, and the Senate adjourned. HOUSE OF REPRESENTATIVES. The House met at twelve o'clock, m. Prayer by the Chaplain, Rev. THOMAS H. STOCKTON. The Journal of yesterday was read and approved. ORDER OF BUSINESS. The SPEAKER stated that the business first in order was the special order assigned for this day, being the bill to grant pensions. Mr. DAWES. I rise to a question of privilege. I propose to take up the election cases to day, and call the attention of the House to them, and dispose of them if possible, if it is agreeable to the House. It is suggested, however, that the morning hour be devoted to the call of committees. Is that the business in order if I do not call up the election cases? The SPEAKER. The bill to grant pensions, reported from the Committee on Invalid Pensions, was assigned as a special order for to-day, and at two o'clock the vote is to be taken upon the Pacific railroad bill. PUNISHMENT OF FRAUDS. Mr. COLFAX, by unanimous consent, and in pursuance of previous notice, introduced a bill to punish frauds on the Treasury; which was read a first and second time, and referred to the Committee on the Judiciary. Mr. DUELL. I ask the unanimous consent of the House to report a joint resolution from the Committee on Revolutionary Claims, and I desire its consideration now. The SPEAKER. There are already two matters before the House. The regular order of business is the special order. Mr. DUELL. I observe that the gentleman from Maine, [Mr. GooDWIN,] who has charge of the pension bill, is not now in the House. The SPEAKER. That does not prevent the House from acting on the bill. Mr. DUELL. I suppose that by unanimous consent my report can be received. Mr. DAWES. I believe I shall have to intervene. I call up the report of the Committee of Elections on the memorial of F. F. Lowe, praying for admission to a seat in this House as a Representative from the State of California. Mr. LOVEJOY. Is there not a special order this morning? The SPEAKER. Not that overrides a question of privilege. REBEL BARBARITIES. Mr.CLARK. I ask the gentleman from Massachusetts to allow me to make a report from the Committee on Printing. Mr. DAWES. I have no objection. Mr. CLARK, from the Committee on Printing, submitted the following resolution; which was read, considered, and agreed to: Resolved, That there be printed for the use of the members of this House, fifty thousand copies of the report of the joint committee on the conduct of the war, submitted to the Senate on the 30th of April last, in response to the resolution of the Senate directing the committee to collect evidence with regard to the barbarous treatment by the rebels at Manassas of the remains of officers and soldiers of the United States killed in battle there. LAKE DEFENSES. Mr. WICKLIFFE. Is there a report in this case? I do not like to vote upon such a resolution unless I know the grounds. Mr. BINGHAM. Let the report be read. It is very brief. The Clerk read the report, as follows: The Committee on the Judiciary, to whom was referred by the House a resolution of inquiry into the alleged official misconduct of West H. Humphreys, a judge of the United States district court for the several districts in the State of Tennessee, respectfully report: That by the letter of Hon. Edward Bates, Attorney General of the United States, of date 25th February, 1862, it appears that West II. Humphreys was commissioned United States district judge for the three districts of the State of Tennessee on the 26th day of March, 1853; that he still holds and has not resigned said commission. Your committee further report that by the testimony of Hon. Horace Maynard, Mr. Trigg, and Mr. Lellyett, all citizens of the State of Tennessee, who, by order of the House, were duly examined upon oath before said committee, it is made to appear to the committee that said West H. Humphreys, in a public meeting held in the city of Nashville, in said State, on the 29th December, 1860, în a discussion then and there held, declared in favor of secession, and refused, when interrogated, to declare South Carolina subject to the laws of the United States. It also appears by said testimony that said Humphreys, about that time, published articles in the newspapers, at Nashville, in which "he took strong ground in favor of secession." (See testimony of Mr. Lellyett.) It further appears, upon said testimony, that said West H. Humphreys has neglected his duties as United States district judge within said State ever since the adoption of the ordinance of secession by the Legislature, in May, 1861; that he refused to hold his court because he considered the authority of the United States obsolete in Tennessee, and that since that time he has officiated as judge for the rebel confederacy in that State, and has held citizens of the United States to answer before him, as such rebel judge, for disloyalty to said rebel confederacy; has advised a citizen so charged and brought before him to forswear his allegiance to the United States by taking the oath of allegiance to the self-styled "southern confederacy," and upon refusal so to do, said judge has required of such citizen a bond in a large sum, conditioned that he would leave said Stare, the place of his residence, within forty days, pursuant to an act known as an "alien act," passed by the rebel congress of said confederacy. It further appears by said testimony, that said West H. Humphreys has within said State, as such judge for said southern confederacy, entertained proceedings under the treasonable acts of the congress thereof for the confiscation of the property of loyal citizens of the United States to the use of said confederacy, and in aid of the rebellion now prosecuted by the same against the United States. Mr. WICKLIFFE. I am satisfied now. I have heard enough. Mr. MAYNARD. Mr. Speaker, if any member desires any further statement to be made, and the House will give me permission, I will state such facts as are within my knowledge. The SPEAKER. If there is no objection, the gentleman will make his statement. There was no objection. Mr. MAYNARD. Without going into details, I will state that this is the case of a Federal judge who has retained his commission under the Government of the United States, but who was an Mr. ARNOLD, by unanimous consent, from the special committee on lake defenses, reported a bill to establish additional defenses on the north-early, original, active secessionist, and has reern lakes; which was read a first and second time, recommitted to the special committee, and orderd to be printed. IMPEACHMENT OF JUDGE HUMPHREYS. Mr. DAWES resumed the floor. ceived and acted upon a commission as judge under the self-styled confederate government. Acting under that commission, so far as I know, he has had little occasion to adjudicate private rights, but has been engaged mainly in the adjudication of political questions, in confiscating the property of non-residents and of Union citizens, and trying persons charged with disloyalty to the arrived in the city of Nashville, he hastened away with great speed. It is a case, so far as these facts are concerned, beyond all controversy, and it calls for the intervention of the Government to remove him and place a loyal man in his seat. Mr. BINGHAM. I ask the gentleman from Massachusetts to allow me to ask the House to take up and pass a resolution reported by the Ju-confederate government. When the Federal troops diciary Committee about a month since, and ordered to be printed together with the testimony, in the matter of the impeachment of West H. Humphreys, judge of the district court of the United States in Tennessee. I make the request at the instance of one of the Representatives from Tennessee, who thinks it very important for the administration of justice in that State that the matter should be disposed of. Mr. DAWES. Will the gentleman indicate about how long it will take? Mr. BINGHAM. It will not take any time at all. The evidence has been printed and has been before the House for a month, and it leaves no room for doubt at all upon the subject. Mr. DAWES. I yield, then. The resolution reported by the Judiciary Committee was read, as follows: Resolved, That West H. Humphreys, judge of the district court of the United States for the several districts of Tennessee, be impeached of high crimes and misdemeanors. Mr. BINGHAM. I ask the previous question on the adoption of the resolution. The previous question was seconded, and the main question ordered. I will say to my friend from Kentucky, [Mr. WICKLIFFE,] that it was under his administration that his own judge, Mr. Monroe, went through the solemn form of renouncing his allegiance to the Government of the United States, and declaring his intention to become a citizen of the confederate States. The resolution reported by the Committee on Judiciary was agreed to. Mr. BINGHAM. The report having been adopted, I offer the following resolution: Resolved, That a committee of two be appointed to go to the Senate, and at the bar thereof, in the name of the House of Representatives and of all the people of the United States, to impeach West H. Humphreys, judge of the district court of the United States for the several districts of Tennessee, of high crimes and misdemeanors, and to acquaint the Senate that the House of Representatives will in due time exhibit particular articles of impeachment against him and make good the same, and that the committee do deinand that the Senate take order for the appearance of said West H. Humphreys to answer said impeachment. 1862. THE CONGRESSIONAL GLOBE. I will only state that the resolution follows the usual precedents in such cases. Mr. WICKLIFFE. I would inquire whether this House should not frame articles of impeachment and send copies of them to the Senate? Mr. BINGHAM. I will say to the gentleman that, according to the precedents in all cases heretofore of this character, the House appoints a commission to frame articles of impeachment after this transaction shall have been completed, after notice has been given to the Senate, and the Senate shall have brought the person accused to its bar, or served personal notice upon him, so as to have jurisdiction in the case. The proceeding to which the gentleman refers will come afterwards. I call the previous question on the adoption of the resolution. The previous question was seconded, and the main question ordered; and under the operation thereof, the resolution was agreed to. SPANISH BARK PROVIDENCIA. Mr. DAWES obtained the floor. Mr. COX. Will the gentleman give way to me for a moment? Mr. DAWES. For what purpose? Mr. COX. I want to ask leave of the House to report back from the Committee on Foreign Affairs a Senate bill in relation to a vessel that was captured wrongfully by the blockading squadron. It is the last of a class of these cases, and is a bill for the relief of the owners, officers, and crew of the Spanish bark Providencia. Mr. DAWES. Does the gentleman desire to put it upon its passage? Mr. COX. I do. Mr. DAWES. If it does not give rise to debate I will not object. Mr. COX. I do not think it will give rise to any debate. It is recommended by the President in his special message. The award amounts to $2,501 91. The bill has passed the Senate. The SPEAKER. The Chair will suggest to the gentleman from Ohio that no debate is in order until the House first gives consent to the reporting of the bill. Mr. COX. Well, sir, I ask the unanimous consent of the House to report the bill. There being no objection, the bill was reported from the Committee on Foreign Affairs. The bill was ordered to a third reading, and was accordingly read the third time, and passed. Mr. COX moved to reconsider the vote by which the bill was passed; and also moved to lay the motion to reconsider on the table. The latter motion was agreed to. CALIFORNIA ELECTION. Mr. DAWES. I now call up the case of F. F. Lowe, claiming a seat in the House as a Representative from the State of California. The resolution was read, as follows: Resolved, That F. F. Lowe is not entitled to a seat in this House as a Representative from the State of California in the Thirty-Seventh Congress. Mr. DAWES. The report of the committee, as well as the claim of the memorialist, is founded upon a construction of the statute and of the Constitution of the United States, and I shall be obliged to beg the attention of the House, as close as it may be disposed to give it, not only to what I may offer myself, but to what may be offered upon the other side, in order to understand clearly and really what are the merits of the case. The report is House Document No. 79, and there accompany it also the views of the minority of the committee. I will state the basis of this claim, and the grounds upon which the Committee of Elections have come to the conclusion that the memorialist is not entitled to a seat in the House. The claim is based upon the ground that the new apportionment applies to the present Congress, and took effect on the 3d of March, 1861. California, under the old apportionment, is entitled to two Representatives. Under the new apportionment she is entitled to three. It is the claim of the memorialist and of the State of California that the new apportionment applies to this, the Thirty-Seventh Congress; that therefore California is entitled to three Representatives, and she did accordingly proceed to elect three Representatives. Two of them were admitted to seats upon this floor at the commencement of the present ses sion, the two who received the highest number Heretofore Congress has provided once in ten The memorialist claims that while that statute This is the claim of the memorialist and of the That made a complete law for the census then about to be taken in the year of 1850. It then undertook to apply that rule to future censuses and future apportionments. It did that by providing, in the twenty-fourth section: "That if no other law be passed providing for the taking of the eighth, or any subsequent census of the United States, on or before the 1st day of January of any year when, by the Constitution of the United States, any future enumeration of the inhabitants thereof is required to be taken, such census shall in all things be taken and completed according to the provisions of this act." That section of the law, in the absence of any subsequent law on the subject, applied the provisions of that act to any subsequent census about to be taken. It then undertook to apply the same law and the same rule to the apportionment under any future census, by this provision: "So soon as the next and any subsequent enumeration of the inhabitants of the several States directed by the Constitution of the United States to be taken shall be com pleted and returned into the office of the Department of the The operative words of this section which carry But the mistake fallen into by the memorialist is this: he says in his memorial-and the same language is adopted in the views of the minoritythat section first of the act providing for the census provides that the marshals shall cause the census to be taken and returned to the Secretary of the Interior on or before the 1st day of November, 1850, “and every tenth year thereafter," Now, by recurring to the first section of the act, you will find that that is a mistake. The first section does not make such a provision. It only provides for taking the census of 1850; and you can find nowhere in the act any express provision that the census of 1860 shall even be taken in that year at all, or shall commence on the 1st day of June and close on the 1st day of November, 1860. You find no such provision in the act at all. You must look elsewhere for it. You must look to the constitutional provision for the construction of this statute as a whole, and for the purpose and the object of the statute. The Constitution provides for the taking of a census. It is generally understood that the Constitution provides for the taking of a census once in every ten years-in the years 1790, 1800, 1810, and so on; but on turning to the Constitution you only find that it provides that a census shall be taken as often as once in I have not a copy of the Conevery ten years. stitution by me, but that is the provision. The Constitution provides that it shall be taken once in every ten years. There is no provision that it shall not be taken once in every five years; but it is provided that it must be taken within three years after the first meeting of Congress, and within every subsequent term of ten years. The Constitution provides that the first census shall be taken within three years after the meeting of the First Congress. The Constitution did not provide for taking the first census in 1790, but it provided that it should be taken within three years of the first session of Congress. The contemporaneous legislation amounts to a construction of this part of the Constitution well nigh equivalent to a constitutional provision itself. It is continuous; it is without conflict; it is the construction of the day, and contemporaneous with its adoption. Immediately on the first meeting of Congress provided ever since by special statute for taking it provided for taking a census in 1790. It has the census in 1800, 1810, 1820, 1830, 1840, and 1850, and there it stopped. Connected with and as a part of this provision of the Constitution, comes the provision for an apportionment based on it. The Constitution has received the construction that there can be but one census taken in every ten years, and on the recurrence of the year specified in the several acts based upon this provision of the Constitution, and necessarily connected with it under the Constitution itself is a provision for apportioning Representatives among the several States according to the enumeration. census provided for the first apportionment, and Congress immediately on the taking of the first then afterwards for the second, and for the third, and for the fourth, and for the fifth, and for the sixth, and for the seventh. It provided that the first apportionment should take effect from and after the 3d day of March, 1793; the second from and after the 3d day of March, 1803; the third from and after the 3d day of March, 1813, and so on in reference to the fourth, fifth, sixth, and seventh, in 1823, 1833, 1843, and 1853, without exception and without qualification. Along with this construction which they have put on the Constitution, as to the taking of the census, they have put a construction as to the apportionment, based on the enumeration. Now, if it follows that there is a constitutional provision for the taking of a census only once in every ten years, then it also follows that there is the same constitutional provision for the apportionment based on that census only once in every ten years. The men who made this Constitution, in the First Congress, fixed the time when the apportionment should take effect, namely, on the 3d day of March, 1793, and every ten years thereafter. That example has been followed by Congress. If, therefore, there is a constitutional provision that there should be a period of ten years between the several apportionments, as it has been determined by legislation there should be between the several enumerations provided for in the Constitution, then it follows that this apportionment should take effect on the 3d day of March, 1863, instead of 1861, else you make the period between the seventh and the eighth apportionments eight years, while between all the rest it is ten years. There is another consideration. The act must be taken as a whole, and there being no provision in the act when this eighth census should begin and when it should end, you must find that provision in the constitutional application, and also in the act itself, which, taken as a whole, its design and purpose are perfectly apparent. It is that all the machinery of that act as applicable to the census of 1850 shall be applicable to the census following. In other words, the act is to be moved along as a whole to the next census, and applied to that. It was provided in that act that the census of 1850 should commence in June, 1850, and end in November, 1850; and when it is applied to the census of 1860, it should be June, 1860, and November, 1860. Taking that rule and applying it to the apportionment in the same act and that express provision of the act which says that the apportionment for 1850 shall take effect from and after the 3d day of March, 1853, we must see that the apportionment for 1860 must take effect from and after the 3d day of March, 1863, otherwise you have no provision when the census shall commence and when it shall end, and when the apportionment shall take effect. But, sir, the history of that act discloses no such design on the part of the makers of it as is necessary in order to maintain the construction of it adopted by the memorialist. It is an important change. It is an overturning of all of the precedents. It is adopting a new period from which to count the periods of apportionment. It has, as I have already said, been uniform: the 3d of March, 1793; the 3d of March, 1803; the 3d of March, 1813; the 3d of March, 1823; the 3d of March, 1833; the 3d of March, 1843; and on the 3d of March, 1853, all ending and all commencing on that day. Then suppose that it was the design of the makers of that statute applying the statute they were making, so far as the census of 1850 was concerned, according to the precedents established theretofore, namely, that that apportionment was to commence on the 3d day of March, 1853; and suppose that as to the next one they were designing to have it applied to the 3d of March, 1861: we should expect to find some trace of it during the discussion, some reason in the report, some indication of that peculiar feature; for the bill encountered much objection, and its friends urged it upon every ground. The construction put upon the statute by the memorialist requires that between the 1st of November, 1860, and the 3d of March, 1861, it was necessary for all these returns to be brought in to the Secretary of the Interior, else he could not make that apportionment; it was necessary for the Census Bureau to so far have completed its work as to enable them to ascertain the entire aggregate of the population of the country, because upon that the apportionment depended. It was necessary also for the Secretary of the Interior to have made within that time the apportionment according to the rule prescribed, and it was necessary also for him within that period to notify the House of Representatives, and to make out a certificate notifying all the Executives of the several States of the number of members to which each State was severally entitled. All that was to be done between November, 1860, and March, 1861. And then it was necessary for the Legislatures of the several States to meet and district the States within that time; and further than that, it was necessary to hold elections in the several States according to that apportionment between the 1st of November and the 3d of March, 1861, else whenever the 4th of March came, whatever might be the exigencies of the public service, whatever might be the peril of the country, there would be no Congress in existence, and there would be no power in the States to elect one. Mr. SHEFFIELD. I desire to ask the gentleman a question. Mr. DAWES. Certainly. Mr. SHEFFIELD. I desire to know if the apportionment made under which the member from California claims a seat is the legal and proper apportionment, has there been a legal election of members of Congress in New York, Ohio, Pennsylvania, and other States? teen new ones to supply their places. The same is true of Pennsylvania; the same is true of New York; and the same is true of every State which is here represented in excess of its right under the new apportionment, provided that the claim of the memorialist is correct. In other words, it is utterly impossible to give force or effect to this claim without admitting that this whole House must become dissolved in order to be reorganized under the new apportionment bill, to which California alone has conformed. But this Congress has itself determined that question, in a bill passed in the month of March last, to give to the several States therein named a greater number of Representatives than the apportionment under the statute of 1850 had given them, and it was therein expressly enacted that the act should take effect from and after the 3d day of March, 1863. The title of the act is "An act fixing the number of the House of Representatives from and after the 3d of March, 1863," and it enacts: That from and after the 3d day of March, 1863, the number of members of the House of Representatives of the Congress of the United States shall be two hundred and fortyone: and the eight additional members shall be assigned one each, to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont, and Rhode Island."' Mr. DAWES. I propose to call the attention So that this Congress has, by that bill, without of the House to that point in a few moments. I division in either branch, determined that this was about to say that this construction imposes apportionment shall apply to the next Congress, upon all parties connected with this matter-upon and commence there. Then it will be in accordthe Legislatures and upon the people of the several ance with all precedent and all constitutional conStates-all this work between the 1st of Novem-struction, and then California will be entitled to ber, 1860, and the 3d of March, 1861. It is a well-three members. known fact that a majority of this House was elected before the 1st of November came around. That was the case in Ohio, Pennsylvania, Missouri, Vermont, and a great many other States. Of course, they must have been elected under the old apportionment, because the apportionment under the new census and the census itself had not been then made. Besides, the Legislatures of many of the States did not meet at all between November and March, and the time for holding those elections, according to immemorial usage of many of the States, is fixed by statute before the 1st of November. In some States, the time is fixed by the constitution of the State itself before that day. Now, to suppose that a change so radical, imposing such new obligations upon the States, and such burdens also, should have been intended in the passage of a bill making the apportionment, without any allusion to it by either its friends or its enemies, is hardly probable, to say the least. But, sir, another objection to the construction claimed by the memorialist is that which has been alluded to by the gentleman from Rhode Island, [Mr. SHEFFIELD.] If California is entitled to be represented in Congress under the new apportionment, every other State is entitled to the same. There cannot be one set of Representatives here under one apportionment and another set under another apportionment; one State represented under one law and another State under another law. Now, I say, if California is entitled to be represented here under this new apportionment, then all other States are entitled to the same rule of representation. Illinois will be entitled to five new members; Iowa to four; Minnesota to three; and so on. There is no way in the world to prevent Illinois from coming here next week with five new members, claiming their admission here, if we admit the memorialist upon the claim he sets up. But that is not all. The number of members in the House is fixed by law, and the number to which each State is entitled is also fixed by law; and if you admit five new members from Illinois, you must make room for them by crowding out five members from other States. Ohio, then, has two too many; Pennsylvania has two too many; New York has two too many, and my unfortunate State has one too many. Ohio has twenty-one members here, according to the old rule. Which two of the twenty-one are going to retire. No particular two of the twenty-one are less elected than the other nineteen of their colleagues. The same is true of Pennsylvania, and the same is true of New York. Ohio, according to this claim, has elected twenty-one members, when she is entitled to only nineteen. She has not indicated which two of the twenty-one she will discard. Therefore the whole twenty-one must take up their hats and walk out of this House, and Ohio must select nineteen of them, or nine Now, in point of fact, as will be seen by a letter addressed to the committee by the Secretary of the Interior, that the enumeration upon which this provision was made, was not entirely completed and returned into the office of the Secretary of the Interior until the 16th day of March, 1861. It was therefore impossible to have completed the apportionment by the 3d of March, 1861, and it is not to be supposed that it would have escaped the notice of Congress, when they enacted that law, that accident or negligence might in some case cause a failure to bring the returns in before the 3d of March next following, so that they could make the apportionment by that time. Now, a word as to the objections made by this memorialist. The first is, that if he is not elected to this House, then the other two members from California are not elected; because he says, that as California elected three members, he is as much entitled to a seat as the other two. In that objection he forgets the fact that California elects by plurality. It appears from his own certificate that two men had a higher number of votes than he had. Now, how many are voted for makes no difference; because, under the plurality rule, the two having the highest number of votes are entitled to the seats, no matter how many are voted for. The next objection is, that the direct tax laid in July at the extra session of Congress, which the Constitution requires shall be apportioned according to numbers, has been apportioned among the States so as to give to California what she would be obliged to pay if entitled to three members of Congress. And he claims that California, being compelled to pay the tax according to the ratio of three Representatives, therefore she is entitled to three Representatives here. His claim is, in other words, that in passing the tax act, Congress determined that she should have three Representatives; but then they apportioned the tax among the other States in the same way, and that determines that Illinois shall have five new members, and Ohio two less; in other words, if that is the effect of it, it creates the confusion in the present House which I have just alluded to. But the tax is an annual tax, and after this year it will come right according to the apportionment. It may be that in levying the direct tax there ought to have been that distinction for this year; but the mistake made in levying that tax cannot be corrected by making another mistake. One mistake will not cure another mistake. He further claims that, even if the new apportionment does not apply to this Congress, yet, in equity and in right California is entitled to three Representatives in this Congress. I wish, however, before I speak upon that point, to call attention to the letter of the Secretary of the Interior to the committee, from which it appears that he took it for granted that the new apportionment ap THE OFFICIAL PROCEEDINGS OF CONGRESS, PUBLISHED BY JOHN C. RIVES, WASHINGTON, D. C. THIRTY-SEVENTH CONGRESS, 2D SESSION. plied not to this Congress, but to the next. that letter, dated April 3, 1862, says: In "It is perhaps unnecessary to state that the apportionment, according to the eighth census, relates to the members composing the Thirty-Eighth Congress." California had fair notice of this before she elected her three members. When the Secretary of the Interior notified her Governor that under the new apportionment she would be entitled to three members, he took care, as will be seen by his certificate, to notify them that it was for the Thirty-Eighth Congress. Here is his certificate: DEPARTMENT OF THE INTERIOR, Washington. I, Caleb B. Smith, Secretary of the Interior, do hereby certify that, in the discharge of the duty devolved on me by the provisions of an act of Congress approved May 23, 1850, entitled "An act providing for the taking of the seventh and subsequent censuses of the United States, and to fix the number of the members of the House of Representatives and provide for their future apportionment among the several States," I have apportioned the Representatives for the Thirty-Eighth Congress among the several States as provided for by said act, in the manner directed by the twenty-fifth section thereof. And I do hereby further certify that the State of California is entitled to three (3) members in the House of Representatives for the Thirty-Eighth Congress, and until another apportionment shall be made according to law. In testimony whereof, I have hereunto subscribed my name and caused the seal of the Department of [SEAL.] the Interior to be affixed, this 9th day of July, in the year of our Lord 1861. His Excellency LELAND STANFORD, CALEB B. SMITH. Governor of the State of California. Of course the opinion of the Secretary of the Interior did not change the rights of California, or divest her of any rights; but she had beforehand the construction of the statute from the Secretury of the Interior, and fair notice of the construction put upon the law by the officer of the Government to whom the duty of apportionment was confided, so that they were not deceived in this matter; but they went to work and elected three members, running the chance in the face of this notice. I wish now to call attention to another fact, and then I have done. As I have already said, California claims that even if this apportionment does not apply to this Congress, still she is entitled in equity to three members, and that claim is based upon this ground: they say that if a true and accurate enumeration of the inhabitants of California had been made in 1850, they would have been entitled then to three Representatives. It never could be ascertained from the census of 1850 how many inhabitants there actually were in California. The whole matter was before Congress in 1852, when a report was made upon the subject; and from that report, and from evidence before the Committee of Elections at this session, it appears that a portion of the census returns for the State of California were burned up in the great fire at San Francisco in that year, and never reached Washington at all. It also appeared that whole settlements in California were omitted from the enumeration altogether, from a mistake as to the State line, supposing they fell within the Territory of Oregon. It also appeared that there were hamlets and settlements scattered through the mountains, in the ravines and fastnesses, so that the marshal states that it was almost impossible to get an accurate enumeration of the population. Upon the evidence submitted to the committee of Congress in 1852, it was estimated that the enumeration, as it appeared from the returns in the Census Bureau, fell short from thirty to fifty per cent. of the actual population. Some election returns since, which are set forth in the report of the Committee of Elections, corroborate that statement. Congress, in 1852, undertook to correct this error, and, reciting these facts, by a special act, gave to California an additional Representative, making her number two. Now, California says-and this is what I wish to ask the attention of the House to-that, as a matter of equity and fairness, if full justice had been done to California then, she would have been apportioned three Representatives instead of two. Congress felt it right then to correct the mistake; but it is claimed now that they did not fully cor THURSDAY, MAY 8, 1862. NEW SERIES.....No. 124. for the third candidates was but slightly inferior people of California came to the almost unani- rect it, and it is further claimed that it can be cor- the disorganization of the House. We cannot to a seat. Then, sir, when Congress had proceeded to levy direct taxes on the State of California under the census of 1860, and under that provision of the Constitution, is it reasonable that we should have longer entertained a doubt as to our right of representation under the same census? I will not stop now to discuss the point as to the right of Congress to determine that the census shall take effect for purposes of taxation in 1861, and for purposes of representation in 1863. I think there is not a lawyer on this floor who will not agree with me that it was the intention of the framers of that document that taxation and representation should be apportioned among the different States under the same census, and accordIt cannot be ing to their respective numbers. claimed that we have a right to tax the people of a State under a census two years before we allow representation under it. If we have this right at all, we may refuse representation for ten or twenty years just as well as for two. Perhaps, we do not take into consideration all the inconveniences that would arise in consequence of claiming a third member, and changing the rule which it is alleged here this morning by the gentleman from Massachusetts [Mr. DAWES] has heretofore existed. That gentleman finds that it has been the rule of Congress to apportion representation the third year after the taking of the census. That is true up to 1850. It has been the custom of Con- Mr. PHELPS, of California. Mr. Speaker, I do not propose to argue this case at any length, for I believe that the matter may be reached in such a way that no bad precedent will be set; and that after a very brief statement every member of the House will be willing to accord us a third Representative. I will simply state some of the circumstances under which this election took place. The election for Representatives in the State of California was held in September last. In the early part of the summer the State conventions of the different parties met, and made their nominations. Very shortly afterwards, about the 1st of July, we were notified by the Department of the Interior that California was entitled to three Representatives under the census of 1860. It is true, as the gentleman from Massachusetts has said, the Secretary of the Interior undertook to say when we should be entitled to this increased number. But on examination of the law we found that the Secretary had no authority for assigning the increased number to the Thirty-Eighth,|| Thirty-Seventh, or any other Congress. The law made it his duty simply to divide the whole population of the United States by a given number,sequently the enumeration was never completed for representative purposes till two years after it and to notify the Executives of the different States was ordered to be taken. It was not completed of the number of Representatives to which they until Congress had finally acted on it; and, of no claim could possibly accrue to any State course, were entitled to by this subdivision of the whole in consequence of that census until that census representative population by the number of Representatives fixed by law. After a full examinawas completed. tion by the best lawyers of the State of California of the whole subject-matter, the conclusion was arrived at that California was entitled to her increased representation then. A third candidate was placed in the field by the two parties opposed to us, and finally Mr. Lowe was put in nomina-pleted and laid before the Secretary of the Interior tion as a third candidate, by the Administration party. The election was held by general ballot, each of the three parties running three candidates in the State at large, the State never having been districted. If there had been any doubt as to the right of California to this increased representation, that doubt was entirely dispelled when Congress proceeded to assess the direct taxes on her under the census of 1860. That we no longer had any doubt about the right the vote will show, as that cast But in 1850 Congress decided to change that rule, and provided that the enumeration should commence early in the summer of 1850, and every ten years thereafter, and that it should be com by the 1st of November following. It was made the |