ner and many statements made by Dr. Kershner were not written down. At the court-martial the witnesses on behalf of the Government admitted with entire frankness and freedom that they could not recall either the words or the substance of what was said in the court of inquiry not taken in the record. This appears through the entire testimony of Lieut. H. P. Huse when examined in chief and also on the cross-examination. His entire failure of memory is illustrated by the testimony on pages 33 to 40, and on the cross examination, pages 53 to 58. It seems incredible that this witness should have answered as he did on page 58, indicating that Dr. Kershner was hardly talking intelligently about the subject of inquiry. It is clear that one of these actors in this scene had one line of ideas in his mind and the other had another.

On page 59 this witness was finally brought to acknowledge that the inquiry was limited by reason of the instructions given to Dr. Kersh ner to simple verbatim copies. The testimony of Capt. Henry Glass, beginning at page 141, shows the same defect of memory as that shown by Lieutenant Huse as to what did occur before the court of inquiry.

On page 147 this witness says that "Dr. Kershner had certain ques tions put to him which he answered, and then occasionally amplified the answer." On page 148 the subject of amplification of the answer was again testified to and is spoken of as generally almost like a conversation. All of it was not taken down.

This witness, on page 161, in answer to the question No. 168, at first denied any recollection of the word "verbatim" being used in connection with the inquiry. When confronted with the record of the court of inquiry in question 122 of the same page, he had to admit that it was used, and that his former answer, given only a few minutes before, was not true.

It is not possible nor desirable to quote all the testimony bearing upon the point made that the record of the court of inquiry was a most imperfect and unfortunately unfair transcript of the proceeding in that court. There is no intention to reflect upon the absolute integrity of the members of the court, but from want of experience in such matters they evidently in their conversation with the accused, and in their instructions to him, had conducted his mind to the belief that he was answering in one strict line, and they on their part clearly took down what they believed to be essential on this strict line. They rejected any explanations that were made by Dr. Kershner without appreciating the significance or importance of them. When called for examination before the general court-martial, their recollection was extremely hazy, imperfect, and altogether at fault as to what did occur at the court of inquiry. No one experienced in such matters for one moment can justly reflect upon them for the incomplete and unsatisfactory testimony they gave at the time of the court-martial. They were called to the court of inquiry out of their ordinary duties to perform a duty which they were not familiar with. It was hastily executed, and naturally the substance. of everything not written would fade from their minds. Such is the more common experience of men engaged in the active affairs of life. It is unfortunate for Dr. Kershner that the actual record did not contain a true transcript of what the officers and members of the court of inquiry said and what the accused said. It should be borne in mind that the precept to the court of inquiry contained these significant words:

The court will diligently and thoroughly inquire into the circumstances connected with the publication of this matter, and upon the conclusion of that investigation will report.

We respectfully suggest that the court martial fell into a number of grave errors in their rulings when the counsel for the accused was endeavoring to develop fairly this feature of the case. They were met by the objections of the judge advocate, which objections were almost uniformly sustained, so that this important branch of the case was not explored by the counsel for the accused, nor could it be under the rulings of the court martial. Such rulings in a civil court would be a subject of review under objections and exceptions, and in our judg ment would have been fatal errors to any record of the trial which resulted in a conviction.

The following instances illustrate the errors of the court-martial evidence, pages 61-63 and pages 74-75 and 151.

The former record of the accused in the service of his country and his long and varied duties as an officer of the Navy should weigh in favor of the accused; statements as to his understanding of the purport of the question addressed to him on the court of inquiry. In all civil and criminal courts a lifelong character weighs heavily against a charge of criminal conduct, especially where the gravamen of the charge is one of evil intent in the mind of the accused. Courts and executive officers have always given great weight to this consideration in such cases. That Dr. Kershner has performed exceptionally good service for the Government through a long series of years is shown by the record in this case. While it is true that such record was made out by his own testimony, giving the narrative of his life, it stands undisputed and is unquestionably true in every detail. Other evidence would have been produced except that it was indicated to his counsel that no attempt would be made to dispute the fact of his honorable career, and they deemed it unwise to consume the time of the court or encumber the record by simply cumulative evidence.

No fair-minded man can desire to see an officer with such a record behind him stricken down and his whole future life blackened by the infliction of the severe punishment and the severe judgment pronounced by the court-martial.

STATEMENT OF DR. KERSHNER'S CAREER.

Edward Kershner, on the 2d day of September, 1861, entered the service of the United States as an assistant surgeon in the Navy from Maryland. His first active service was on the U. S. sloop of war Cumberland, in Hampton Roads, and he was on duty there at the time of the sinking of the ship, going down into the water with her, and was rescued from the water in an unconscious condition by one of the marines. The officer at the time in command of the ship was Lieut. George U. Morris. The commanding officer in his report to the Department, among other things, stated:

Among the last to leave the ship were Surgeon Martin and Assistant Surgeon Kershner, who did all they could for the wounded promptly and faithfully.

For this action the officers and crew received the thanks of Congress. After the engagements were over in Hampton Roads, his next duty was taking Captain Worden, who was wounded on the Monitor, to Washington. He gave to the Government the first detailed information of the actions in Hampton Roads. For a few months after that he was in service at the Washington Navy-Yard. His next service was on the New Ironsides, which ship was in service at Hampton Roads and in the siege of Charleston. He was on that ship at the first attack on Charleston, April 7, 1863, and the subsequent operations. Was

ordered to the U. S. monitor Passaic in February, 1864, on same duty. Later was ordered to the U. S. S. Choctaw, an ironclad ram in the Mississippi Squadron, and remained there until the end of the war, in 1865. Then, after a few months at the rendezvous at Philadelphia, he was ordered to the Tacony, of the North Atlantic Squadron, which vessel cruised along the coast of North Carolina and down to Florida. After that he was ordered to the Osceola on a cruise to the West Indies, and remained on board that vessel about one year. It was the only vessel of the squadron that did not lose men by yellow fever, the admiral and many officers and meu dying. This was accomplished by skill and care in the exercise of sanitary laws. He was then ordered to the receiving ship Potomac at Philadelphia, where he treated an epidemic of cholera on board ship.

At that time he had attained the rank of passed assistant surgeon, and the rank of surgeon was conferred on him in 1872, and that of medical inspector in 1890. His next service was on the receiving-ship Vermont, at Brooklyn Navy-yard, and soon thereafter was ordered to the Richmond, on the European station, where he remained for about three years. His next service was at the New York naval hospital, when he had charge of the smallpox hospital. He was next ordered to service on the Vermont, and from there to the U. S. S. Swatara, on the Transit of Venus expedition to the Indian Ocean and Australasia. He acted as assistant photographer, and also made a natural history collection, besides doing the medical and surgical work of the expedi tion. The natural history collection he made at that time was sent to the Smithsonian Institution, and for it he received the thanks of the institution. Upon the return of that expedition to New York he was continued as surgeon of the ship during the three years' cruise to South America and West Indies. After his return from that cruise, for a time he attended officers of the Navy in New York and Brooklyn.

He was next, in 1877, assigned to the U. S. training ship Minnesota, and remained in that service for about three years. After some special duty in the city of New York, his next duty was on the U. S. S. Omaha, flagship of the Asiatic station, where he had to deal with another epidemic of cholera which prevailed severely over China and Japan. He was fleet surgeon of the Asiatic station for about one year, and on returning to the United States was surgeon of the New York marine rendezvous and New York Navy-yard for a period of about three years. After that he was assigned to service on the cruiser New York, and entered upon the discharge of duty upon the ship August 1, 1893. He has been professor of hygiene and emeritus professor in the New York Post-graduate Medical School and Hospital during the past fifteen years, and now holds that position.

The cruiser New York was ordered to Rio Janeiro as one of the vessels sent by this Government to that port at the time of the Brazilian rebellion. The commander was Capt. John W. Philip. There was an epidemic of yellow fever at Rio, as it was the hot season. The disease prevailed upon all the foreign men of war in the port-about thirty in number. The New York was kept entirely free from the fever by great care and by scientific sanitary precautions under the charge of Dr. Kershner.

After the difficulties in Brazil were settled the squadron was ordered to New York, and after fitting out again was ordered upon a cruise in the West Indies, Rear-Admiral Meade in command of the squadron. Before the squadron left New York Dr. Kershner was appointed fleet surgeon. The flagship New York left New York about January 10, H. Rep. 1437—2

1895, for a cruise among the Windward Islands, where yellow fever was reported to prevail, and then entered the harbor of St. Lucia. Fleet Surgeon Kershner had heard that yellow fever prevailed there, and afterwards ascertained it to be a fact. While at that port he objected, on sanitary grounds, to the use of the water, for fear of introducing the yellow fever on the ships. Rear Admiral Meade was considerably disturbed by his decision on that question, and their relations became somewhat strained by reason of the difference of opinion between the admiral and captain and the fleet surgeon touching the quality of the water. This trouble finally culminated in the report of Meade against Dr. Kershner.

Since entering civil life, in 1896, he has passed the civil-service examination in New York City for General Inspector of hospitals, Charity Department, and was placed No. 2 on the eligible list; also civil-service examination for Medical Chief of staff, and received the appointment as such at Infants' Hospital, Randalls Island, New York, where he had full charge, as superintendent, of 1,200 patients, and where his services were fully satisfactory to the city officials. He was afterwards transferred to the Almshouse Hospital, Blackwells Island, as Medical Chief of staff, 600 patients.

Dr. Kershner is and has long been a member of the Union League Club, New York, New York Academy of Medicine, Loyal Legion, Grand Army of the Republic, Masonic fraternity, and Society of the Nineteenth Army Corps.

1st Session.

No. 1438.

AMENDING SECTION 2294, REVISED STATUTES.

May 11, 1900.-Referred to the House Calendar and ordered to be printed.

Mr. MONDELL, from the Committee on the Public Lands, submitted the

following

REPORT.

[To accompany H. R. 5483.]

The Committee on the Public Lands, to whom was referred House bill 5483, submit the following report:

Under the provisions of the section by this bill sought to be amended, applicants and entrymen under the homestead, preemption, timber-culture, and desert-land laws are required to make all affidavits, proofs, and oaths required under such laws before a proper officer in the county in which the lands are situated. The provision confining the entryman in making proofs and affidavits to the county in which the land is situated is neither in the interest of the Government nor of the applicant or entryman. It is to the interest of both parties to the transaction, the Government on the one hand and the individual on the other, that affidavits, proofs, and oaths be taken before the nearest authorized officer when not before the register and receiver at the land office. Officers authorized by the section to act in such cases are oftentimes found residing outside of the county in which the land is situated, but nearer or more accessible to the land than an officer residing within the county. The bill therefore provides that these affidavits, proofs, and oaths may be taken before certain designated officers anywhere in the land district in which the lands are situated.

The Secretary of the Interior recommends, however, a proviso to the effect that in case the affidavits, etc., are taken out of the county in which the land is located they must be taken before the nearest or most accessible qualified officer.

Entrymen under the timber and stone act were not granted the same privileges as entrymen under the other land laws in the section which it is proposed to amend for the very good reason that the timber and stone act was not passed until after the section became a law. There is no reason why applicants and entrymen under the timber and stone act should not stand on the same footing as applicants and entrymen under the land acts; they are therefore included in the section as amended. The reports of the Commissioner of the General Land Office and the Secretary of the Interior, on the bill are appended hereto and made a