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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 ought 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 Department in any manner connected with the resignation and restoration of Lieutenant James W. Schaumburg, 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. mitted to that committee; that on the 19th of March the committee reported that the additional matter referred to them contained much to con. firm 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 Senate, 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 reversing 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 conficting determinations.
The committee is of opinion that the Senate ought not to re examine their decision, which is in the nature of a judicial sentence upon a question of right, made by the only tribunal competent to entertain the question; and when approved by the President of the United States, becom. ing the complete adjudication of that authority which is supreme over the subject under the constitution and laws of the United States-an adjudication in this case not only pronounced, but carried into full execution.
It is obvious that if such a decision can be re examined, as a matter of course, upon the application of the person supposing himself aggrieved thereby, there will remain no assurance of rank—no guarantec against repeated fluctuations of decision as to the persons who compose the officers of a regiment, and the rank they hold relatively to each other-a state of insecurity of the very worst consequence to the spirit, the honor, and the efficiency of the army. The memorialist has therefore insisted on the propriety of re-examining the decision of the Senate, because of the proceedings being ex parte as to him. The committee is of opinion that the want of notice to him, if he had in fact no notice, constitutes no ground for such re-examination.
The Senate finding the name of a person on the register of the army as an officer of the first regiment of dragoons, which for nine years had not appeared there, very properly, in the exercise of a just authority in a spirit of considerate regard for the honor of the army, and in vindication of its constitutional rights, instituted an investigation into the reasons of this insertion on the register of the name of one as holding an office to which no appointment could be made without its assent. The question was regularly before the Senate; their jurisdiction of it was undoubted. How far it was either necessary or proper to notify any one of its proceedings, was a question addressed to the sound discretion of the Senate; and the omission to give such notice in no way affects the full legal validity of the decision. When the President of the United States directs an officer to be discharged from the army, or, as it is sometimes called,
dropped” from the roll, he may or not notify the officer of his purpose, and call on him or not for defence or explanation ; but the effect of his decision is in no way affected by the giving or withholding such notice. And so when the Senate institutes an inquiry why a name appears on the army list, and finds it placed there by what it deems an illegal order of the President, it may, in its discretion, before coming to a decision, either give or not give notice of its proceedings to the person whose name so appears; but the validity, the full and conclusive force of its decision, is in either case the same. It is to be presumed that where notice is proper, notice will be given by the President or the Senate; and where none is given, it must be taken that none ras properly required.
In the case before the committee it is gratifying to observe that great deliberation was used by the Senate, repeated calls for information made, the report of its Military Committee recommitted, and nothing finally decided until everything which the files of the War Office could furnish had been received and fully considered. Nor is there any reason to suppose, nor does the committee understand the merr.orialist to allege, that any matters of fact connected with the case, and of real importance in its decision, were unknown or overlooked. His claim rests upon the ground that as he was not a party to the proceeding, he ought not to be bound by the conclusions to which the Senate came upon the facts of the case.
But if the decision is to be re-examined at the instance of the memo. rialist because ex parte as to him, what will follow ? Suppose the Senate should now resolve that he has continually been in the first regiment of dragoons, and the President should approve the decision, it follows that he must at once take rank above all those officers who have been promoted to captaincies since his name has been dropped from the roll, and he may, in taking his place, actually displace or put back some officers to a lower grade than that which they now fill. This decision will be ex parte as to these officers in the same sense in which the former decision was er parte as to the memorialist. Would the Senate then decline, at their instance, another examination of a question in which their rights and honor were as deeply concerned as those of the memorialist?
The first regiment of dragoons is serving in Mexico, and has been distinguished upon the bloodiest battle-fields of that country; and it might happen that the officers interested might make successive and separate applications for re-examination, which must be entertained, it the ground of the present application shall be sustained. When, in this view, can a final adjudication be expected ? Must the Senate cause notifications to issue or publications to be made for all persons interested to come in and be heard? or shall the Senate consider its solemn decision once made as conclusive? The committee is of opinion that the latter is the true and safe position to be assumed. It is best for the army; it is in fact the only safe rule for the army. It is certainly possible that the decision of the Senate against the memorialist may have been erroneous, for all bodies of men are liable to error; but there would, for the same reason, be the like possibility of error in any decision the Senate may now or hereafter give. And as something must at last be held setiled by force of authority, because it is impossible to keep such a question indefinitely open, and because there is no reason to hope a general acquiescence of all who are interested in the question in any decision to which the Senate may come, it is safest, wisest, best, to consider what has been already decided as settled, becauze it has been decided as an adjudication which is of itself conclusive of the rights of all.
Upon the whole, the committee, without prosecuting this reasoning further, and without expressing any opinion upon the merits of the me. morialist's claim as it stood prior to the decision made by the Senate, has a clear conviction that that decision ought not to be re-examined, and therefore they recommend to the Senate the adoption of the resolution which accompanies this report.
Resolved, That the resolution of the Senate, adopted on the 12th of March, 1845, in these words : “ Resilved, That the order of the late Pres. ident 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 ought not to be continued on the roll of the army;" and the subsequent approval thereof, and giving effect thereto, by the President of the United States, constitute a full legal determination that James W. Schaumburg was not, at the time of the said resolution, an officer of the first regiment of dragoons : And, therefore,
Resolved, That the prayer of the said James W. Schaumburg, in his memorial to the Senate, ought not to be granted.
On motion by Mr. Badger, Ordered, That the report be printed in confidence for the use of the Senate,
TUESDAY, May 16, 1848.
The Vice President presented a letter from James W. Schaumburg, communicating his "answer and response to the report of the Committee on Military Affairs.
And the reception being objected to by Mr. Badger,
TUESDAY, MAY 30, 1848.
Mr. Badger submitted the following resolution, which was considered, by unanimous consent, and agreed to:
Resolved, That the Secretary of War be directed to communicate to the Senate, in execu:ive session, as early as practicable, the papers here. tofore in the possession of the Senate and returned to that department, together with a statement from the Adjutant General of the army, as to the merits or demerits of the claim of James W. Schaumburg to be restored to rank in the army, the effect that such restoration, if made, would have upon the rights of others, and its operation upon the military service, considered either as a special or isolated case, or as a general principle, and that he report the cases, if any, in which officers, after having been dropped from the roll of the army, have been restored, and the circum. stances under which the samne occurred.
Ordered, That the Secretary communicate a copy of the said resolution to the Secretary of War.
WEDNESDAY, JUNE 21, 1848.
Mr. Badger submitted the following resolution, which was considered, by unanimous consent, and agreed to :
Resolved, That the President of the United States be requested to communicate to the Senate, in executive session, as early as practicable, the papers heretofore in the possession of the Senate and returned to the War Department, together with a statement from the Adjutant General of the army, as to the merits or demerits of the claim of James W. Schaum. burg to be restored to rank in the army, the effect that such restoration, if made, would have upon the rights of others, and its operation upon the military service, considered either as a special or isolated case, or as a general principle, and that he report the cases, if any, in which officers, after having been dropped from the roll of the army, have been restored, and the circumstances under which the same occurred.
Ordered, That the Secretary lay the said resolution before the Presi. dent of the United States.
MONDAY, JUNE 26, 1848.
- The following message was received from the President of the United States by Mr. Walker, bis secretary : TO THE SENATE OF THE UNITED STATES :
I communicate, here with, a report of the Secretary of War, with the accompanying documents, in answer to a resolution of the Senate of the 21st instant, requesting the President " to communicate to the Senate, in executive session, as early as practicable, the papers heretofore in the possession of the Senate and returned to the War Department, together with a statement from the Adjutant General of the army as to the merits or demerits of the claim of James W. Schaumburg to be restored to rank in
JAMES K. POLK.
WASHINGTON, June 23, 1818.
The message was read.
On motion by Mr. Badger, Ordered, That the message relating to James W. Schaumburg, and the papers communicated therewith, lie on the table.
WEDNESDAY, JUNE 28, 1848.
On motion by Mr. Downs, The Senate proceeded to consider the report from the Committee on Military Affairs on the memorial of James W. Schaumburg; and
Ordered, That it be postponed to Saturday the 1st of July.
SATURDAY, JULY 1, 1848.
The Senate proceeded to consider the report of the Committee on Mili. tary Affairs on the memorial of James W. Schaumburg.
On motion by Mr. Downs, To amend the resolution with which the report concludes, by striking out all after the word “ Resolved," and inserting the following in lieu thereof:
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 therewith, he restore said James W. Schaumburg accordingly to the arny. After debate,
On motion by Mr Downs, The Senate adjourned.