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Before the time stated in the letter of resignation, and even before the time stated in the " acceptance" for the resignation to take effect, Mr. Schaumburg withdrew or recalled his resignation. On the 15th July, 1836, while on his way to Washington from New Orleans, he wrote from Wheeling, Virginia, to the Secretary of War, and informed him of his desire to withdraw his resignation, and that he would “in a few days report in person to the adjutant general and commanding general.” He wrote also the same day a similar letter to the commanding general, Macomb. On the 22d July, 1836, he officially reported himself to the Adjutant General “for duty, in obedience to the general order No. 43," and as in Washington, as appears from a certified copy of the “report book” of the Adjutant General's office, laid before the committee. On the 25th July, 1836, he wrote to, and filed with, General Macomb,"commanding general," a "protest" against the acceptance of his conditional resignation of his commission as second lieutenant, (accepted on different terms from those he tendered,) against its excluding him, by construction, from his first lieutenancy, and especially against its being held to be a resignation of his commission as first lieutenant. A copy of this protest is appended to this report. It appears also that Mr. Schaumburg made several ineffectual applications to be restored to his commission and rank of first lieutenant, from that time to the year 1844, when he was restored, as hereinafter stated.
It is conceived that the facts above stated are pertinent as bearing upon the question of the intention of Mr. Schaumburg, when (in ignorance of his promotion) he wrote his resignation, and as showing, that as soon as he was apprized of the facts, his acts exhibled a very different purpose from that imputed to him, of withdrawing entirely from the service. If it is admitted that such intention, manifested while he was in ignorance of his promotion, is to bind him irrevocably after he was notified of the true condition of his interests and rights, and if the “Department of War,” or “commanding general,” had any power to depart from the tenor of his resignation, and enter into an inquiry as to this intention, to give it an effect not deducible from its terins; then it is submitted that the withdrawal or recall of his conditional or propective resignation, or rather his tender of such resignation, was entirely consistent with the practice, usages, and customs of the service, and entirely proper. Official evidence of different cases of such withdrawals of resignation, made in the beginning of June, 1836, similar in terms to that written by Second Lieutenant Schaumburg, has been adduced to the committee, and likewise cases before and since that time. The committee have not been able to divine any just reason why Mr. Schaumburg's case was made an exception; and, in fact, they consider the peculiar circumstances before recited should have caused his recall of his resignation to have been approved,' in preference to any case brought to their notice.
The committee have noticed among the papers submitted to them, some written by officers, referring to Mr. Schaumburg's being under arrest at the time of writing his resignation, and alleging that he had been guilty of military faults, to sustain the alleged legality of his exclusion from the army. Some of the most material and important facts in his favor are omitted, and partial statements made to his prejudice. The conduct of military men should be characterized by liberality and a high tone of feeling towards their comrades. If the fact was that Lieutenant Schaum. burg had been guilty of military faults, it should not affect his claim to have his legal rights recognized and sustained. It is no justification for a violation of law by his superior officers, in what they designate an " acceptance of his resignation. So far from its being an excuse for such acceplance, if the accusations had been well founded, or even prob. ably true, such fact should have caused his resignation to have been refused by his superior officers ; and it was their duty to have forth with subjected Mr. Schaumburg to trial, by court-martial, for the imputed offences. Whether or not by the “ blunders" (to use the language of President Tyler) of others than Mr. Schaumburg, if he should be now restored, he is exonerated from trial for such imputed offences by reason of the limitation against prosecution, is, in the opinion of the committee, an illegitimate inquiry. Mr. Schaumburg should not be regarded as guilty, and punished by exclusion from the army illegally, because his superior officers illegally neglected to bring him to trial ten years ago. But the committee are inclined to the opinion that the restoration to him of his rights will not prevent him from being brought to trial for any offences committed within two years prior to the 31st July, 1836, as there has existed in the circumstances of his case that “manifest impediment” to making him “amenable to justice,” referred to in the 88th article of the Articles of War, which would exclude his trial for such offences from the operation of the limitation prescribed by that article.
This opinion, of course, depends on the correctness of the ground as. sumed, that his actual exclusion from the army since then has been illegal, and is therefore not inconsistent with that advanced by the Military Committee of the Senate in its report made in March, 1845, founded, as therein stated, on the position that he has not since that day been legally an officer.
One objection to Mr. Schaumburg's restoration, made when his case was before the Senate in 1845, is, that in 18 be applied for a paymaster's place in the army, and, in urging his claims, stated that he had been unjustly excluded from the service as a first lieutenant; and this, it has been contended, was an abandonment of his claim to his rank as first lieutenant. The committee do not think so. A second or a first lieutenant, or any other officer, may apply for the place of paymaster, or any flace in the army, or in civil life; and, unless he obtains the appointment, accepts it, and the holding of it is incompatible with the office he before held, it cannot operate as a resignation or abandonment, in any view of the matter, of his first office.
In January, 1844, President Tyler, after an examation of Mr. Schaum. burg's case, ordered that he should be reinstated in the army on the happening of the first vacancy appropriate to his case. On the 29th of July, 1844, he received a letter of reappointment as first lieutenant in the first dragoons, and to take effect from 1st March, 1836, should the Senate at their next session advise and consent thereto," &c. Subsequently, on the 24th January, 1845, President Tyler, on the further examination of his case, decided “the case was not one for reappointment, but for restoration, or, more plainly to speak, of recognition;" and that he did not re. gard it necessary to submit the matter to the Senate; and he likewise decided that the case was governed by “general order” No. 43, dated June 28, 1836. Mr. Schaumburg continued in service under these orders of President Tyler till March 24, 1845, when, by the order of the present Chief Magistrate, reciting that his name had been “irregularly placed at the head of the first lieutenants of first dragoons, in the last official Army Register, it be erased from the same, but without reproach to Mr. Schaumburg."
This order of the President was made in pursuance of, and in compliance with, a resolution of the Senate, adopted, by a vote of 35 ayes to 2 noes, on the 19th of March, 1845, and which declared that the order of President Tyler restoring Mr. Schaumburg to the army (recited as made 13th January, 1845,) was illegal and void, and that his name ought not to be continued on the rolls of the army.
This resolution was induced by, and was the result of, proceedings introduced on the 26th of February, 1845, in the course of which two reports were made by the Committee on Military Affairs of the Senate, (to which the subject had been referred,) adverse to Mr. S.'s claims. [Vide Senate Docs., vol. 11, No. 176, 2d sess. 28th Cong., 1845.] The high character of that committee, and their knowledge of military affairs and of military law, would cause the present committee to hesitate before they ventured to express a different opinion, were it not manifest to them that when the case was before the former committee the examination made was ex parle ; Lieutenant Schaumburg was not heard, and had no op: portunity of being heard, before that committee; and that many of the most important facts were not submitted to their consideration, and which facts are now exhibited in this report, and which, it is submitted, give a different aspect to the case. In the opinion of the military committee, that the restoration of Lieutenant Schaumburg, if made on the general order No. 43, was not a legal construction of that order, we coin. cide fully
This committee, however, regard his right to restoration, without in. voking order No. 43, and on the grounds and principles now urged, as one that should be sustained and recognised by the President and Senate; and that a further denial of such recognition would be inexcusable injustice to the memorialist.
The committee, therefore, report the following resolution for the consid. eration of the Senate, and recommend its adoption.
FEBRUARY 19, 1847.
Resolution respecting the restoration of James W. Schaumburg to the
army. Resolred by the Senate, That the resolution of the Senate of the 19th March, 1845, respecting James W. Schaumburg, be rescinded and repealed; and that the order of the President of the 22d of March, 1845, founded thereon, should be revoked; and that said James W. Schaumburg should be restored to his rank and position in the army, which he would have had if he had not been illegally excluded from the army roll in the year 1836; and that a copy of this resolution, and the report accompanying the same, be laid before the President, in order that, if he agree there. with, he restore said James W. Schaumburg accordingly to the army.
On motion by Mr. Westcott, Ordered, That it be printed in confidence for the use of the Senate.
WEDNESDAY, MARCH 3, 1847.
On motion by Mr. Crittenden, The Senate proceeded to consider the resolution reported by the committee on the 23d February, to restore James W. Schaumburg to his rank and position in the army; and, after debate,
On motion by Mr. Allen, Ordered, That it lie on the table.
WEDNESDAY, JANUARY 12, 1848.
On motion by Mr. Downs, Ordered, That the memorial of James W. Schaumburg, heretofore presented to the Senate, be again referred to the Committee on Military Affairs.
THURSDAY, MARCH 23, 1848.
Mr. Badger, from the Committee on Military Affairs, to whom was referred, the 12th January, the memorial of James W. Schaumburg, made the following report: The Committee on Military Affairs, to whom was referred the memorial
of James W. Schaumburg, respecting his claim to be recognised as an officer of the army, report:
That the memorialist claims to be an officer in the first regiment of dragoons, alleges that his claim has been unjustly disregarded, and prays, in substance, that he may be recognised as being, and having been since the year 1836, an officer in that regiment; and that his rights in the premises, so unjustly withheld from him, may, by some proper proceeding on the part of the Senate, be restored and secured to him.
The facts of the case, so far as, in the judgment of the committee, it is necessary to refer to them in order to a disposition of the memorialist's application, are these : In the year 1836 the memorialist was a second lieutenant in the first regiment of dragoons, and in that year his name was, by an order or under the authority of the War Department, for reasons not necessary to be stated, omitted from the roll of the army; that in January, 1845, the then President of the United States decided that the memorialist had never been out of the army, and ordered him to be recognised as an officer, taking rank at the head of the first lieutenants of the first regiment of dragoons; that afterwards, on the 26th of February, 1845, the Senate adopted the following resolution:
“Resolved, That the Secretary of War be directed to inform the Senate how it happens that the name of James W. Schaumburg appears in the Army Register as a lieutenant in the first regiment of dragoons after it has been so long omitted, and by what authority it has been replaced, and whether it was not omitted in consequence of his resignation; or, if not, that he inform the Senate why it was heretofore omitted, and why it has been replaced.”
That afterwards, a report having been made by the Secretary of War in answer to the resolution, the said report and papers accompanying it were on the 5th of March, 1845, referred to the Committee on Military Affairs; that on the 10th of that month other papers relating to the case of the memorialist were referred to that committee; that the committee, on the 12th of that month, made a written report, concluding with, and recommending the adoption of, a resolution in these words:
“ Resolved, That the order of the late President, of the 13th January, 1845, directing James W. Schaumburg to be restored to the army, and to be recognised as an officer therein, is illegal and void ; and that the name of the said James W. Schaumburg oaght not to be continued on the roll. of the army.”
That thereupon the Senate came to the following resolution :
“ Resolved, That the Secretary of War be directed to furnish the Senate a copy of all the correspondence and proceedings on file in the War De. partment in any manner connected with the resignation and restoration of Lieutenant James W. Schauinborg, of the United States dragoons, and also to inform the Senate whether Lieutenant Schaumburg has been allowed to receive any pay as an officer in the army since the year anno Domini 1836."
That afterwards, a report in answer to this resolution having been laid before the Senate, the same was referred to the Committee on Military Af. fairs, and their report, with the documents theretofore referred, was recom. milted to that committee; that on the 19th of March the committee reported that the additional matter referred to them contained much to confirm their former report, and recommended the adoption of the resolution by that committee first reported; that the Senate thereupon proceeded to the consideration of the reports from the said committee; and, after debate, resolved as follows:
“ Resolved, That the order of the late President, of 13th January, 1845, directing James W. Schaumburg to be restored to the army, and to be recognised as an officer therein, is illegal and void ; and that the name of the said James W. Schaumburg ought not to be continued on the roll of
“ Ordered, That the Secretary lay a copy of this resolution before the President of the United States."
And that the President, in accordance with this resolution of the Sen. ate, caused the name of the memorialist to be dropped from the roll of the army, and has not since recognized him as an officer thereof.
It seems plain, upon the foregoing statement, that the prayer of the memorialist cannot be granted without rescinding the resolution, and re. versing the decision of the Senate upon his case. He claims nothing in consequence of anything which has happened since that decision, but rests his right to relief upon the ground that the decision was at the time erroneous; and being ex parte, or without notice to him, is not binding.
The decision of the Senate was upon the very question now submitted by the memorialist-a decision upon a claim of right; he alleging that he was, in 1836, and had continually thereafter been, an officer of the army, whose name had been in that year improperly dropped from the roll, and properly restored by the President's order of January 13, 1845. If this allegation be true, then the decision of the Senate was wrong; and hence it follows that in order to give him what he claims--recognition as an officer—the decision of the Senate must be reversed, because plainly the Senate cannot upon such a question have on its journal two indepen. dent and condicting determinations.