ing to prevent the exposure of them.

now due to her, this appropriation was necessary and yet we are told that the people's representato pay them to her. This, then, is an admission tives have no right to investigate these transactions that the claims paid by this appropriation were not in order to ascertain the facts; and we find the late provided for by that act. Can it, then, be pre-Secretary's political friends upon this floor rallytended that it has any bearing whatever upon the construction of that act, especially as, in making Sir, if the principles upon which these claims the appropriation, no allusion whatever was made have been allowed are to be continued in practo it? So that this does not at all relieve them. tice, the descendants of these Virginia officers are Again, sir: Why was the amount limited to this most fortunate beings, for, notwithstanding they particular sum, if the intention in making this ap- or their ancestors were fully paid off years ago propriation was to construe the law of 1832, all that they then claimed as due them-all that which made an unlimited appropriation, as em- was due them, yet the sum is considered and treated bracing all claims for commutation and interest? as still remaining in the Treasury, drawing_interSir, to allow the executive officers of this Govern- est; in other words, they have in the public Treasment to interpret an act making a limited appro- ury a continually-accumulating fund, which they priation for the payment of certain specified || may demand and receive whenever they please, claims, as giving a new construction to a pre- but which the Government cannot relieve itself of viously-existing law, making an unlimited one, without their consent. It is decided by these and to which it neither refers nor alludes, extend-cases, that the officer at any time during his life, or ing it to the payment of all similar claims, is mon- his representatives, since his death, had a right to strous, and, if tolerated, will put it out of our settle with the Government, take the half pay for power to so restrict our appropriations as to pre-life, and yet the amount of the commutation is vent the Treasury from being plundered ad libitum. There is nothing, sir, in this appropriation made in 1848 which refers to or affects the act of 1832, or in any way changes the interpretation which had always before then received. This, then, destroys the whole case of the minority of the committee,-destroys the only ground upon which the opinion of the late Attorney General, allowing Sir, how do you like this administration of pubthese claims, rests, and the only justification forlic business? How do you think the people will the payment of them by the late Secretary of the like it? I am inclined to think they will not apInterior; for if this appropriation did not change prove of Mr. EWING's financiering. the construction of the law of 1832, so as to extend it to claims for commutation, as I think it is clear that it did not, then these claims have been paid without law. It is, perhaps, hardly necessary for me to say that they were not paid out of this appropriation of 1848, as it was expressly made for the State of Virginia, and had been paid to her before they were paid by the Secretary.

considered to have still remained in the Treasury drawing interest, and that now he may come in, demand a new settlement, make a new choice, and take the commutation and interest upon it from 1783 until the present time, merely deducting what was, twenty or thirty years ago, paid him as half pay, without allowing interest upon that.

But, sir, interest should never have been allowed upon commutation-there is nothing to justify it. Its allowance is predicated upon the resolutions of Congress of 1783, which gave commutation to her continental officers, and which said that the officers should be entitled to receive the commutation "of five years' full pay, in money, or securities bearing interest at six per cent. per annum, as ConBut, sir, even admitting all that is claimed by gress shall find most convenient." Now, sir, I the Secretary of the Interior, by the Attorney think I have shown that the provision of this resoGeneral, and by the minority of the committee, lution has never been extended to the officers of that naval officers were entitled to commutation the Virginia State line or navy; but, for the mounder the laws of Virginia, and that the payment ment, admitting that it has been, what is the plain of commutation is authorized by the third section meaning of it? Simply, that whenever the officer of the act of 1832, either by a fair interpretation presented his claim for payment at the Treasury, of it as passed, or by a construction since the Government might pay him the cash, if it given to it by the subsequent action of Con- chose. If it was not convenient to pay the cash, gress, and I will yet show, beyond the possibility then it was to pay him in stocks; and the stocks of a doubt, that thousands of dollars have been issued to pay the claim were to bear interest from paid in violation of law and the Constitution. the time of payment, but not the claim before the That section provides for "the settlement of claims payment was made. Certainly, if the officer had which had not been paid or prosecuted to judg- a right to elect whether he would take half pay or ments against said State." Three of these claims the commutation, the Government could not pay paid by the late Secretary had been paid by that State, until he had determined which he would take, and and two of them had been both prosecuted to judg- of course could not be in default for non-payment ments against that State, and paid by her before until he had done so, and it could not be liable for the passage of the act, and of course could not interest until it was in default, even by the princihave come within the purview of it under ples of allowing interest between individuals, but any possible construction which can be given to which do not in fact apply to governments. In it; therefore, their payment can not be justified. all these cases, which had been paid or prosecuted This point cannot be successfully met; and, sir, so to judgment against Virginia at the passage of plain is it, that the minority of the committee has the act of 1832, the parties made their election not, nor have any apologists of Mr. Ewing, at- when they received their pay or took their judgtempted to meet it. How many more of these ments; and they were fully paid according to that claims which he has paid were in the same situa-election. In the others, which became payable at tion, I know not. Here, then, are many thousands of dollars beyond all cavil squandered by him, not only without law, but in direct violation of law;

the Treasury, the election was not, and could not be made until they were presented for settlement, and then they have all been paid in cash. That

The case was submitted to the Commissioner of Pensions by Messrs. Lyons & Vincent. Colonel Edwards very correctly decided against it, and Mr. Lyons took an appeal to the Secretary of the Interior, and he referred it to the Attorney General for his opinion. His opinion was not given speedily enough to suit Mr. Lyons, who began to be very importunate for a decision. He wrote to Mr. Ewing, bitterly complaining of the delay, and beseechingly asking him to take the case back into his own hands, and to decide it, and not to delay

act authorized no other mode of payment. The rule of the Government is not to pay interest except express contract requires it, or the act authorizing the payment of the claim directs it. The law of 1832 says not a word about the payment of in- | terest, neither does the acts of 1835 and 1848, relied upon as giving a construction to that of 1832 The other officers of the Revolution were not allowed interest upon such claims until they had presented them for payment, and then only upon the stocks which they received in payment, and from the time they were issued to them in pay-for the opinion of the Attorney General. Mr.

ment.

Mr. Speaker, it is said that, as a matter of justice, we should pay whatever liability Virginia incurred in the prosecution of the war. This, I admit, and this we have done, and more, by the act of 1832. In the prosecution of the war she had incurred liability for half pay only to her officers; and as I have shown, and as her own legislation and the action of her own courts show, it is even doubtful whether that extended to the officers of her navy. By that act we provide for the payment of half pay to the officers of that State in all cases where she is liable, according to the decisions of her own court of appeals. If commutation of five years' full pay was ever granted, it was by her act of 1790, long after the war ceased; consequently, if she then increased her liability to her officers-her own citizens, it was not in aid of the it was entirely voluntary on her part, and she had no right after the war ceased to enlarge her liabilities, with the expectation that this Government would relieve her from them; and justice does not require that this Government should relieve her from such increased liability, which did not, and could not inure to its benefit.

war;

Lyons's letter making this request bears date December 10, 1849; and here is a specimen of the endearing language which it contains. He says:

"I have now waited for much more than a month, and yet the Attorney General has not been able to consider the case; and now that the Supreme Court is in session, he probably will not be able to do so for some time, if during the Winter. Under these circumstances, my dear sir, could you not take the case back into your own hands, and dispose of

it ?"

Whether he could have resisted this affectionate appeal or not, is doubtful. I think he would have confessed the soft impeachment. But Mr. Lyons was afraid to trust to it alone. He knew his man; knew what would give him the coup de grace; and after a little more in the same sweet style, he winds up with an irresistible argument. You will not be astonished, after hearing it, to learn that it succeeded triumphantly. Indeed, you would have been surprised if it had not. Here it is, sir. Listen whilst I read it, that you may not lose a single word or syllable. It is the last clause of the letter, and like the postscript to a lady's, sir, it is the most important part of it; but I will no longer keep you in suspense. I will read it. He says:

"I regret very much to see the state of things in Washington. What our southern friends can expect to accomplish which will benefit the party or the country by the opposition to Mr. Winthrop, I cannot perceive."

There, sir! Could anything else be added?could anything else be necessary to convince the Secretary that Mr. Lyons's case had been very much neglected, and that it should be decided upon without delay? Well, sir, he did decide it. How it got back into his hands, I know not; nor doth the records inform us; or whether, indeed, the papers were returned to him, I do not know. The December, only twenty days after Lyons's letter first thing the records show is, that on the 31st of was written, he decided the case, and allowed the claim. Here is his letter to the Commissioner of Pensions, announcing that fact. It is short, and if not sweet, sir, to the point:

The friends of the late Secretary of the Interior attempt to justify him in making these payments, by seeking to throw the responsibility upon the late Attorney General. We are told that all of these claims were paid upon, and in accordance with his opinions. Sir, this is partly, but not entirely true. The Attorney General has the reputation of being a man of talents and an excellent lawyer, but though he may be very able and learned, I think he is no match for the late Secretary in the way of shrewdness and low cunning. Sir, do you recollect that old fable which tells us that the cunning monkey, upon a certain occasion, took the paws of the cat to pull nuts out of the fire. Well, sir, I think the late Secretary used the Attorney General pretty much in the same way. He used him to shield himself from all dangerous responsibility. Upon every occasion when the former settled practice of the Government was to be overturned, a favorite to be rewarded, or the Treasury to be plundered, he resorted to him for an opinion, and by inuendos, misstatements of the case, and other means, always managed to get an opinion in accordance with his wishes. Oh, yes, an opinion of the Attorney General was a sovereign balm for every ill At this time, and for thirty days thereafter, there of the gentleman's conscience, took away from was no opinion furnished by the Attorney Genhim all necessity for exercising his own judgment, || eral in the case. Indeed none ever was furnished authorized any violation of law, and justified any to the Secretary. Nor do I believe that one ever wrongful and reckless squandering of the publie would have been furnished to anybody but for the moneys, however flagrant. But, sir, I will show fact that the payment of these enormous and illegal you the way in which the Barron case was deci- claims was soon bruited abroad, and excited surded, and the time when the opinion of the Attor-prise and indignation. The public press began to ney General was taken, and you shall see whether open upon the Secretary for having paid them. the case was decided upon that opinion or not. Old Father Ritchie, I think, about this time, got

he

||

Department OF THE INTERIOR, Dec. 31, 1849. SIR: In the cases of Commodore Barron and Captain Richard Barron, I am of opinion that the claims for commutation and half pay should be allowed.

An opinion of the Attorney General to the same effect will be transmitted to you in a few days. Very, &c., T. EWING, Secretary.

To the COMMISSIONER OF PENSIONS.

after him. It became necessary for him to cover up his tracks, and he determined to place the goodnatured Attorney General between him and danger; he therefore, on the 31st day of January, 1850, wrote to him this letter:

DEPARTMENT OF THE INTERIOR, Jan. 31, 1850. SIR: You will oblige me by stating in writing, in a note addressed to the Commissioner of Pensions, the grounds of your decision in Barron's case, that it may serve as a guide for his further action. I am, &c. T. EWING, Secretary. Hon. REVERDY JOHNSON, Attorney General.

of that State during the revolutionary war, who served toits close, were equally entitled with officers of their line to commutation pay, under the act of that State of 1790, and upon that ground stated in several opinions I have given in || relation to such pay to officers of the line, that these claims are also due by the United States, under the act of 5th July, 1832. Very respectfully, your obedient servant, REVERDY JOHNSON. Mr. EDWARDS, Commissioner, &c.,&c., Washington. This letter gives not a single logical reason. cites not an authority. It refers to the other opinions, but they are as brief and as vague as this, and some of them still more so. To write it must have

The Secretary requests him to put the grounds of his decision in writing, not for his guide, but for the guide of the Commissioner of Pensions. Well, sir, I do not wonder the Commissioner began to ask for something to guide his future action, for after twenty years of faithful service he found himself for the first time all adrift, without rudder, chart, or compass, and I should think with but little confidence in the pilot. But this about putting in writing the opinion for the future guidance of the Commissioner, is thrown in as a pretence that a verbal opinion had been previously given. I say a pretence, for the whole thing, upon its face, bears evidence that it was gotten up for the occasion. This about putting in writing is altogether too calculatedly and formally put in, to be natural; and then the Attorney General takes too much pains in his reply, giving his opinion in writing, to allude to this particular request of the Secretary to put his opinion"in writing," for it to be an ordinary unconcerted business transaction. It was contrary to the usage of the departments to receive and act upon as official a verbal opinion of the Attorney General, so that such an one would have been the simple, gratuitous, friendly opinion of Reverdy Johnson, and not an opinion of the Attorney General of the United States, and as such could have been no guide for or justification of the official act of the Secretary. Well, sir, here is the opinion in writing; surely you will expect to find a long, elaborate, and able one, upon a case which has been so long agitated, numerous authorities quoted and commented upon. It will be full of profound reasoning and legal lore; to the student a rich treat, and to the practical lawyer a fund of legal knowledge. Here it is, [holding it up;] it covers the half of a page of foolscap. Here is the opinion which has overturned the settled practice of the Executive Departments of the Government upon these claims for years; which has done what Congress has again and again refused to do; which has overruled some of the most elaborate and able opinions of all his distinguished predecessors since 1832, and which has overruled the decision of the supreme court of appeals of Virginia, in giving construction to Virginia laws. Here is the opinion upon which thousands, and, for aught we know, hundreds of thousands of dollars have already been plundered from the people, and by which the doors of the Treasury of the Republic are thrown open for millions more to be taken from it. Sir, I must read it; such a treasure should not be withheld from the House and the country:

ATTORNEY GENERAL'S OFFICE, Jan. 31, 1850, SIR: At the request of the Secretary of the Interior, communicated to me, in an official note of yesterday, that I would state to you “in writing," the grounds of my decision in the Barren case, "that it may serve for a guide for further action," I have the honor to state the decision was founded on the opinion, that upon the principles of the judicial decisions of the Virginia courts, officers of the navy

required ten minutes. And, sir, the very haste with which it was got up betrays its object. The Secretary's letter was received one day, and the opinion was furnished the next. Like Jonah's gourd, it grew in a single night, and like it, sir, it should have withered in the morning.

A former Attorney General, I think Mr. Nelson, in giving an opinion against a similar claim, said, if the question were an open one he should feel called upon, in any opinion which he might express, to give a very full and particular statement of the reasoning by which that opinion was controlled. The gentleman from Virginia says, that the subject is one of such great intricacy, and requires so much research, that it is impossible for the members of this House to give it sufficient attention to understand it; that he himself has spent two weeks in trying to investigate it, and is yet unable to understand it; that the gentleman from Ohio, who, he says, is an able lawyer, told him that it was the most difficult and knotty subject he had ever undertaken; that it had puzzled the best lawyers in Virginia, and yet this learned Attorney General required but a single night to decide it. Why, sir, how he towers above all these others in legal ability. What a mental Hercules he must be, and does not this opinion exhibit his unwonted superiority? No wonder gentlemen should think this House should be hushed into silence, and awed into humble acquiescence by his opinions, and that we should not impiously venture to question them.

But, sir, I said this decision overruled the decision of the supreme court of appeals of the State of Virginia. I hold in my hand, sir, the first volume of Leigh's Reports. On page 524 will be found the decision of that court in Markham's expressly decided that officers of the State navy of case, pronounced by Judge Green, in which it is Virginia were not entitled to commutation or interest; and the reason given is a very forcible one. I will read that reason. I cannot take time to read the whole opinion:

"It was only by force of the provisions of the act of Vir

ginia of 1790 that commutation and interest in lieu of half pay for life could be allowed. That act was confined in its terms to officers of the State line, not extending to those of the navy, and the former laws putting the officers of the navy upon the footing of those of the army in respect to all priv

ileges, emoluments, and advantages, referred only to such as were then allowed them, and not to such as might thereafter be allowed, and, consequently, officers of the navy could not claim commutation under the act of 1790."

The former laws" here referred to by the learned judge are those which I have before given you as the ones upon which the claim for half pay for life for the navy officers was predicated, and were all passed prior to 1790, and of which this same judge, in a former opinion given in this very case, expresses great doubt whether they entitled them even to half pay. This decision is a knotty Il obstacle in the way of the justification of the pay

upon the point decided in the second opinion in || that case, and which depended entirely upon that act.

Mr. Speaker, I have one thing more upon which I desire to remark. I desire to remark. I said that the opinion of the Attorney General, in some of these cases, had been obtained upon a misstatement of the case. have here the statement made, in asking his opinion in Ewell's case. As it is not very long, and shows how the thing was done, I will read it:

"DEPARTMENT OF THE INTERIOR, "WASHINGTON, July 14, 1849. "SIR: The case of Thomas Ewell's heirs is respectfully referred to you, for an opinion on the single question, whether the applicants are entitled to interest upon the commutation due their ancestor, and if so, for what time.

ment of this commutation and interest to Commodore Barron-a real lion in the path; and how, sir, do you think the minority of the committee attempt to escape it? Why, sir, they say it was merely an obiter dictum of the judge, a decision upon a point not before the court for its consideration; and, moreover, they have made a grand discovery in regard to it; they say that it is extremely doubtful || whether this opinion-supplemental opinion, as they choose to call it was ever pronounced in court by Judge Green during the pendency of the suit, and therefore it is not the opinion of the court, but of Judge Green as an individual, and not authoritative. Here is an opinion, purporting to have been properly pronounced in open court, regularly inserted as authoritative in the reports of cases decided in that court, respected and regarded and acted under for twenty years by the courts and lawyers of Virginia without the slightest suspicion of its authenticity. Not one of the Representa- "This claim rests upon the resolution of the 22d March, tives of that State, on this side of the House at any 1783, which provides, that such officers as are now in serrate, among whom we recognize some of her ablestvice, and continue therein to the end of the war, shall be entitled to receive the sum of five years' full pay, in lawyers, will now make himself so ridiculous here money, or securities bearing interest at six per cent. The and at home as to question either the authenticity securities are to bear interest, but for what time? From of the decision or the correctness of the principles the time they are issued, or from the time of the service? "Nothing is said of interest if the payment be in money; upon which it is based. Indeed, two of them have and by the act of Congress of July 5, 1832, third section, it expressly declared that naval officers were not en- can be made in money only. Can interest be allowed on I confess I entertitled to commutation and interest, and yet this this money by the accounting officers? wise minority have solemnly announced, without integra, my opinion would be against it. tain strong doubt on the subject; and if the thing were res any reason but what is furnished by their own imaginations, that it may be reasonably doubted whether it was ever pronounced in the court.

Sir, do not such things show that the whole tendency of that minority report is not to lay before the House an unvarnished statement of facts but to stifle to cover up and whitewash the conduct of the Secretary of the Interior? But let us see whether this opinion was a mere obiter dictum. Markham's case was first argued before the court upon the single point whether he was entitled to half pay for life. This point was decided. After the opinion upon it was pronounced, the report of the case informs us, "two other questions arose and were argued at the bar. 1st. Whether Capt. Markham's representative was entitled to half pay for life, or to commutation of five years' full pay. 2d. Whether he was entitled to interest." Then follows the opinion upon these points, expressly deciding, as before stated, that naval officers were not entitled to commutation or interest. It was not a supplemental opinion, for it supplied no deficiency in the first, as these points were not raised until after that was pronounced. This opinion was pronounced at the same term of the court as the the other. Lilly's case, which was a similar claim for half pay, was decided at the same term and between the delivering of the first and second opinion in Markham's case. Some of the judges in deciding Lilly's case, refer to the first opinion delivered in Markham's case, and in the second opinion in Markham's case the judge refers to the decision made in Lilly's case. Now is there anything unnatural or irregular in this? Certainly not. Everything comes in regular order, and yet this is all the minority have upon which to raise a doubt of the authenticity of that second opinion. But here is some more of the handiwork of this consistent minority. They quote largely from the opinions upon the first point raised in Markham's case, which depended entirely upon the legislation of Virginia previous to the act of 1790, as bearing

"Sovereigns never pay interest, unless it be due by special contract, or by direct assumption. It is presumed that they are at all times able and willing to pay their debts and comply with their contracts, whenever demand is made and proof adduced to establish the claim.

"But the Virginia courts have in all cases given judgment for interest as well as principal-in some cases for interest alone, where the principal had been fully paid; and this claimant could, I suppose, go before their courts and recover interest, and then come and present his claim, and, under the act, the United States must pay it.

"Yet is it not the safer course, under all the circumstances, to reject the claim for interest until the claimants shall so recover it; or until an act of Congress, in direct terms, provides for its payment? The case of Galt, in which you gave an opinion, (March 27,) was one in which a judgment had been recovered against Virginia, and which recovery the United States had expressly assumed to pay. In Ewell's case there is no judgment, and the decisions in Virginia not being in the direct ease, are not absolutely binding upon us, though entitled to great respect as authority. A judgment of the courts of Virginia, when obtained, must, as I have already said, be paid, interest and all. It is, therefore, no advantage to the United States to withhold the payment of interest. But is the case actually made in which the accounting officers can pay it?

"I throw out these hasty suggestions, to call your attention to the difficulties which I find in the matter, and wish your early attention to it.

1 am, sir, &c.,

T. EWING, Secretary. "Hon. REVERDY JOHNSON, Attorney Generál.”

He says sovereigns never pay interest unless it be due by special contract or by direct assumption. No one pretends that in these cases there has ever been a direct assumption, by Congress, of interest on these claims. on these claims. Then what was the contract? Why he gives it himself. It was to pay the claims in cash or in securities, meaning bonds or notes of the United States, whichever you choose to call them, and these, when issued, are to bear interest at six per cent. And then he asks the ridiculous question, "The securities are to bear interest, but for what time?" For what time could a bond or note bear interest? Why, certainly only from the time it was given. It could not bear interest before it was in existence. You might allow interest on the debt before the note was given, in liquidation of it; but that would not be interest upon the note. But these claims were not and could not, as he shows in the very next paragraph, be paid in these securities, but must be paid in cash only. The securities, then, were never issued-were never