The Congressional Globe: Containing the Debates and Proceedings of the Second Session Forty-Second Congress; With an Appendix, Embracing the Laws Passed at that Session Page: 3,622
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3622
THE CONGRESSIONAL GLOBE.
May 18,
Mr. SHELLABARGER. My only purpose
now in making any remark about this bill is
to secure attention more particularly to the
proposition just stated by the chairman of the
Committee of Claims, that there is nothing
in this bill, according to the apprehension of
the committee, that allows for the destruction
of property in the exigencies of war or of
battle. 1 fear that the facts pushed to their
logical result might not sustain the conclusion
of the committee that this, in fact, was a case
where property was taken for the purposes of
defense. My fear is that the precedent fur-
nished will be dangerous in that regard. There
was r.ot, according to the statement just
made, any physical destruction of the property
at all until it occurred in battle. On the other
hand, there was no taking or appropriation of
the property according to the statement made,
except in contemplation, none having occurred
in fact. Now, there is the danger. If we
open the door, and in a carefully considered
case coming from a committee so commanding
and so entitled to the confidence of the House
and the country, we say to the country that a
material or physical destruction of property in
battle is a predicate for payment by this Gov-
ernment, provided there was a contemplated
but not an actual taking before the exigency
arose—if we do that, then I fear we shall
have done a real mischief.
Now, sir, it is to guard against that that I
hesitate; I can say no more ; I hesitate, I
fear, I pause on this threshold that we now
are upon. No gentleman can fail torecognizc
the fact that if we do begin, after careful con-
sideration—not by any inadvertence, but as
a considered, adopted, and approved prece-
dent—to pay for pioperty that was in fact not
taken and appropriated at all for the purpose
of war, but destroyed in battle, we will have
opened a door through wliic/ hundreds of
millions of dollars will be taken.
Mr. GAUM ELD. of Ohio. Would it make
any difference in the mind of my colleague
[Sir. Sutsi.LABAGER] if the fact were estab-
lished, an I understand it is, that the building
was being used at the time for the care of
wounded soldiers, was being used as a hos-
PYlr. SHELLABAUGEU. Not at all. Ifl
aiji right in my legal idea of the matter (and
my colleague [Mr. Garfiei.u] [ am sure will
agree with me) the use of the property for
hospital purposes is not a taking of property
in l he legal sense. That term has its fixed
lej<al meaning. Jt is the act of taking pos-
session ior the purpose eilher of destruction,
of change, or ol some othoract that deprives it
of peunanent value. The occupation of it as
a hosj.iial is not a case of that kind. Hence,
there has been no taking in this case accord-
ing to the legal meaning ot the term.
Mr. GAiiFIELD, of Ohio. If while the
pffiperty was held possession of fur hospital
purposes 1 his builuing was destroyed, thus
rendering impossible tne permanent taking of
it, to which my collogue relers, does not that
change t lit; equity of the case very materially?
Mr. S U ELL AB AUGER. I answer my col-
league "No;" and pushing his idea to the
full extent, he will cci tainly see that I am cor-
rect. 'l'he occupying a building for any pur-
pose, and when the building is so occupied its
destruction by I he enemy's guns, is clearly not
a taking of pr.ipeity in (lie legal sense oif the
term. I d.i not see, therefore, how there is
any physical or material taking in the case as
stated by the chairman of the Committee of
Ciuinia.
Jt is suggested to me by the gentleman from
Massachusetts near me [Mr. Hoar] whether
my colleague [Mr. Garfiixd] would have con-
sidered it a taking of property had the man
not stood upon the roof and waved a flag?
Uhat is an act that commends itself strongly
to :s 1'. our feelings ot admiration, and we would
like to pay that man. But, bless you, do you
not see v,Leie it would lead? We all of us
did what we could to carry the flag ; we gave
our boys and our property to have the flag
carried over the South as well as over the
North. There were many in the South as
well as in the North who stood by the coun-
try. But we cannot make our admiration for
the flag the foundation for the allowance of
these enormous claims.
Now, I will go with the Committee of Claims
wherever they say, unless they lead me where
they have never yet led me. I know how
exhaustive was the debate upon this subject,
and it threw much light upon the question of
what was the rule of international law and of
war in this matter. It was exhaustive, com-
plete, and masterly, and I hope the result
which the Committee of Claims have reached
will not trench upon that conclusion. I wish
there was some way of disposing of this mat-
ter other than in the hurry of this morning,
for I think we should pause right here.
Mr. SYPHER. I understand the chairman
of the Committee of Claims [Mr. Blair, of
Michigan] to say that this property was taken,
that a board of survey was appointed, but they
failed to complete their report in time to sub-
mit it to the Government. Was not that a
taking of the property in the sense referred to
by the gentleman from Ohio ?
Mr. BLAIR, of Michigan. I desire to say
a single word in reply to the gentleman from
Ohio, [Mr. SnELi.ABARGER,] because I sympa-
thize so entirely with his whole idea upon this
subject. He seems, however, I think, to over-
look one circumstance connected with this
case. As I have stated, all the proceedings
had been taken regularly for the condemnation
of this property by the Government; the only
difficulty was that technically those proceed-
ings had not been completed. Now, the gen-
tleman must certainly see that whether the
Government actually took the property into its
possession and tore it down in one day, or in
live'days, or in ten days, or in a hundred days,
could make no difference as to the legality of
that transaction. It seems to me that every-
thing essential to the taking of this property
by the Government had been done. A board
had been ordered upon it and had agreed upon
its report. The report had been in part re-
duced to writing. It had not been actually
S'gned and scut to the general; bat the taking
had been notified to the party by the officer
who had the authority to do it.
Now, 1 submit that the particular time when
the property was taken and occupied is a mat-
ter of no importance. When this board had
completed its report and sent it to the general,
and it had been approved, it might have stood
for a month, or two months, or any number
of months; but the property would have been
just as completely taken by the Government
as if it had been actually occupied. I submit
that the actual taking down of the property
manually is not essential.
Mr. HOAR. If it will not interrupt the
gentleman, I would like to put an inquiry.
Suppose all had been done by the board that
was in fact done, and the proceeding had
stopped there, and the building had never
been destroyed at all, would the committee
have reported in favor of the claim under
such circumstances?
Mr. BLAIR, of Michigan. Mr. Speaker,
I may answer that inquiry very well by say-
ing that " sufficient unto the day is'the evil
thereof." Inasmuch as those are not the
circumstances in this case, it is hardly neces-
sary to deal with that answer now, though I
do not feel that the question presents a prop-
osition in which there is any difficulty. The
gentleman understands that I have been ad-
mitting from the first that the proceedings
were not entirely completed. But suppose
they had been completed, and had been re-
ported, and the right of the owner to the
money had accrued at the time, could it ever
have been divested except by his consent?
If the Government had perfected its right to
take down the building, most assuredly the
owner could not have resisted; and if he could
not, then I imagine he could bold the Govern-
ment if the Government could hold him.
Mr. DAWES. I would like to inquire of
the gentleman whether the committee has any
other case to report similar to this?
Mr. BLAIR, of Michigan. I will say to the
gentleman that there is one other case, which
involves a somewhat different question, which
may by and by be reported by another mem-
ber of the committee.
Mr. DAWES. There was a case of this
kind which came before Congress some live or
six years ago. The claimant was Mr. Armes,
who had had a school some six or eight miles
from here. During the war his grounds were
occupied by the Government, and a fort was
erected near his house. In the judgment of
the engineers it became necessary, in order to
make a range for the guns, to take down his
house. He had maintained our flag upon that
house when the flag of the enemy was floating
all around him. He had been at last driven
out. The fort erected by the Government was
so located in reference to his house that it was
necessary to take the house down ; and the
officers of the engineer department removed
the house.
I remember distinctly the claim that was
made here by Mr. Armes. It was pending
in two Congresses. In one Congress it was
passed by this House, but failed ui the Sen-
ate. In the nest Congress it was passed by
both Houses, but by the strangest mistake in
the world, instead of that biil being enrolled
and sent to the President for his*signature, an-
other bill, that had never been passed in either
branch, was enrolled and sent to the Piesi-
dent and signed by him. I remember well
that poor Armes became insane and wandered
about the streets or at these doors, making his
pitiful appeals. So far as 1 remember, neither
be nor his representatives (for I believe he has
since died) have ever obtained one cent, upon
that claim.
I have made my inquiry because I happen
to know of a case in Tennessee, which seems
to be precisely like the one of Dr. Best; a
case in which a house was removed to make
room for a fort. I refer to the Orme, case.
There must be a great many of these cases
growing out of the war.
Mr. SMITH, of New York. In the case
from Tennessee referred to by the gentleman,
the property being within the enemy's terri-
tory was constructively euemy's property; but
the case before us stands on a different grouud,
because the property was in a State not in
rebellion.
Mr. DAWES. I do not propose to assert
there is no distinction; but I only say here
and now, seconding the suggestion of the gen-
tleman from Ohio, [Mr. Shellabarger,] th„t
we ought to be cautious in what we do, be-
cause this will not fail to be drawn into a pre-
cedent of very great consequence to the
Treasury of the United States. While I am
up I will say further that while I suppose gen-
tlemen of the committee have considered it
in all its bearings, nevertheless it cannot be
doubted there are a great many cases so near
the line that the distinction cannot be drawn.
Mr. BUTLER, of Massachusetts. Aln.
Speaker, like my colleague I desire the House
should understand what is being done, so we
may give even measure of justice, acting under
the law and the facts. In this case I assume
that Dr. Best was a good Union man. I as-
sume he came from a loyal State, Kentucky.
His house had been occupied by the enemy.
In the course of a battle our people had been
driven out of it and the enemy got imo it
again, as it gave them vantage ground. Under
those circumstances, in the prosecution of the
war lor proper military purposes, the com-
manding officer of the Union forces ordered it
to be destroyed, so it might not be a shelter for
the enemy. Those are the facts of the case.
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United States. Congress. The Congressional Globe: Containing the Debates and Proceedings of the Second Session Forty-Second Congress; With an Appendix, Embracing the Laws Passed at that Session, book, 1872; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30899/m1/42/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.