NAYS-Messrs. Alcorn, Bayard, Blair, Casserly, Cooper, Davis of West Virginia. Frelinghuysen, Goldthwaite, Hamilton of Maryland, Hamilton of Texas, Harlan, Hill, Johnston, Kelly, Logan, Ransom, Rice, Robertson. Sawyer, Schurz, Spencer, Stevenson. Stockton, Tipton, Vickers, and West-26. ABSENT-Messrs. Brownlow, Cameron, Carpenter, Cole. Conkling, Corbett, Cragin, Davis of Kentucky, Fenton, Ferry of Connecticut, Flanagan, Howe, Kellogg, Lewis, Norwood, Nye, Osborn, Patterson, Pool, Pratt, Saulsbury, Sprague, Stewart, Thurman, and Trumbull-25.

So the amendment was non-concurred in. Mr. WEST. I am directed by the Committee on Appropriations to offer the following amendment:

Insert on page 19, after line four hundred and fifty-five, at the bottom of the page:

For establishing and maintaining national military cemeteries, $50,000.

I will not trouble the Senate at this time with making any explanation of this amend ment, unless it is asked for.

Mr. COLE. It is merely transferring that sum from the military bill for the next fiscal year to this bill to provide for a deficiency for this year. It is a mere transfer from one bill to another.

Mr. WEST. Perhaps it may be necessary briefly to explain it. The Committee on Appropriations discovered this morning that in the bill appropriating money for the support of the Army for the year ending June 30, 1878, there was a provision "for establishing and maintaining national military cemeteries, $300,000, $50,000 of which sum shall be available for use immediately after the passage of this act." It was considered more desirable to make that sum of $50,000 available through the instrumentality of the deficiency bill than to put it into the general bill.

The amendment was agreed to.

Mr. COLE. I offer an amendment to be inserted after line one hundred and eightyeight; on page 9:

For compensation to the president and members of the council of the District of Columbia, for the session commencing on the 8th of November, 1871, $2,280.

That is in pursuance of law.
The amendment was agreed to.

Mr. STEVENSON obtained the floor.

Mr. ANTHONY. I hope the Senator will allow me to offer an amendment. If it should

cause debate I would not intrude on the Senator.

Mr. STEVENSON. Very well.

Mr. ANTHONY. I am instructed by the

Committee on Naval Affairs to offer the following amendment, which is based on the recommendation of the quartermaster of the Marine corps, coming through and recom. mended by the Secretary of the Navy. After line four hundred and fifty-five, page 19, insert:

To meet a deficiency in the quartermaster's department, Marine corps, for the current year, $18,394.

Mr. EDMUNDS. What does that mean? Mr. ANTHONY. I have here the recom. mendation of the Secretary of the Navy founded upon the report and estimate of the quartermaster of the Marine corps.

Mr. EDMUNDS. Let all these papers be read.

Mr. ANTHONY. I know the Senator from Kentucky is not very well, and I promised him not to press this if it would interfere with him and cause debate.

Mr. COLE. I think part of that sum is in the bill now.

Mr. ANTHONY. I understood from the chairman of the Committee on Naval Affairs that the Committee on Appropriations were satisfied. I withdraw the amendment for the present.

Mr. BUCKINGHAM. I offer the following amendment, to come in after line seven hundred and thirty-four, on page 31:

For this amount, being the balance on account due the Quapaw tribe of Indians for a certain tract of land in the State of Kansas, containing seven thousand six hundred and and thirty-two hundreths acres, ceded by said tribe to the United States in

accordance with the terms of the fourth article of the treaty with Senecas, mixed Senecas, and Shawnees, Quapaws, confederated Peorias, Kaskaskias, Weas, and Piankeshaws, Ottawas of Blanchard's Fork and Roche de Boeuf, and certain Wyandotts, concluded February 23, 1867, (Satutes, volume fifteen, page 513,) $4,500 40.

For this amount, to be taken from any funds in the Treasury of the United States belonging to the confederated bands of Peorias, Kaskaskias, Weas, and Piankeshaws, to make good to the Quapaw tribe of Indians the estimated value of eighteen thousand five hundred and twenty-two and fifty hundredths acres of land lying south of Kansas, ceded by them to the United States under the terms of the fourth article of the treaty with the Senccas, Mixed Senecas, and Shawnees, Quapaws, Confederated Peorias, Kaskaskias, Weas, and Piankeshaws, Ottawas of Blanchard's Fork, and Roche de Bouff, and certain Wyandotts, concluded February 23, 1867, (Statutes, volume fifteen, page 513.) which lands were, by the twenty-second article of said treaty, granted and sold to the confederated bands of Peorias, Kaskaskias, Weas, and Piankeshaws, at the same rate as paid by the Government, $21,300 87.

The VICE PRESIDENT. This appears to be reported from the Committee on Indian Affairs.

Mr. BUCKINGHAM. I will state also that it is recommended by the Secretary of the Interior. I will simply say that the first appropropriation results from this transaction: in 1867 the Quapaw Indians made a treaty with the United States by which they sold or ceded to the Government certain lands in Kansas; the Government agreed to pay these Indians $1 25 an acre for them whenever they should be surveyed; they were surveyed, and report has been made of that survey showing the quantity of land, being seven thousand six hundred acres, and the Government paid in advance to these Indians the sum of $5,000. There remains an indebtedness to that tribe of $4,500 40.

In relation to the other part of the amendment I would say that the same tribe in the same treaty conveyed other lands lying south of Kansas, and the confederated bands of Peorias, Kaskaskias, and others, at the same time

sold lands in Kansas and agreed with the avails of these lands to pay for the lands which were bought of the Quapaws south of that line. The money received for the lands sold to the confederated bands was invested in United States bonds for the benefit of these confederated citizens, and under the same treaty they were tribes; but a portion of those tribes became entitled to a distributive part of the funds which belonged to the tribe. In consequence of that bonds, have been sold and the avails distribthe funds belonging to the tribe, United States uted, and now there is no opportunity to pay the Quapaw Indians except we shall take from the funds now in the hands of the Government that belonging to the confederated tribes and apply them in that manner. There are more than $85,000 in the hands of the Government now that belong to the confederated bands, and this is simply a transfer from one to the other to carry out the agreement entered into between these tribes and the Government. The amendment was agreed to. Mr. STEVENSON. to the Chair to be read. The Chief Clerk read the amendment, which was to insert after line four hundred and sixtyfour, on page 20, the following clause:

I send an amendment

To the Commonwealth of Kentucky the sum of $525,258 72, for that amount due said Commonwealth on the 30th of June, 1871, for advances, supplies, troops organized, moneys advanced, &c., by the Commonwealth of Kentucky, and employed in the service of the United States during the late insurrection against the United States, and which were properly audited by the accounting officers of the United States on the 30th day of June, 1871, and for which sum the Third Auditor of the Treasury, on the day and year aforesaid, certified and transmitted a requisition in favor of said Commonwealth for the payment of said sum aforesaid, with the certificate of said balance of accounts, which said requisition was so approved and countersigned by the Second Comptroller, and so registered and recorded by the Third Auditor of the Treasury, as aforesaid, to the Secretary of the Treasury.

Mr. STEVENSON. I desire, Mr. President, before proceeding to consider the amendment offered by me to this bill to thank the Sen

ate, and especially to tender my acknowledgments to the chairman of the Committee on Appropriations, who has the deficiency bill in charge, for his kindness in postponing action upon it during my absence from the Senate for the past week. I have been, as it is known, quite ill and wholly unfit for public duty. I feel this courtesy the more gratefully because I am aware how great the public necessities in many sections of the country are for appropriations covered by this bill, and what solicitude the honorable Senator from California [Mr. COLE] felt on this account that it should be promptly disposed of.

I crave now the indulgence of the Senate while I briefly explain the nature of the claim covered by my proposed amendment, and to suggest some of the considerations which impel me to offer it as a specific amendment to this bill rather than to seek its liquidation under the general appropriation contained in it, and providing for the payment of any balance due or to be found due to any State for costs, charges, and expenses incurred in the defense of the United States during the late rebellion, known as the war debt of the States.

Congress passed an act entitled "An act to indemnify the States for expenses incurred by them in defense of the United States," approved 27th July, 1861. It provides—

"That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the Governor of any State, or to his duly authorized agents, the costs, charges, and expenses properly incurred by such State for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury."

Under this act most of the States have exhibited claims against the United States for charges and expenses incurred by them for enrolling, subsisting, clothing, arming, equipping, paying, and transporting their troops employed in aiding to suppress the late existing civil war. Many of these claims have been audited and paid in full to several of the States; others have still large balances due them for expenses incurred and moneys paid out in arming, equipping, and transporting troops which were employed in the service of the United States during the late war.

The claim covered by my proposed amendment is a part of one of the installments of the war debt due by the United States to Kentucky, amounting to $525,258 72. The installment of which this claim is a part amounted to $582,692 43, and was filed, I believe, as early as perhaps 1866 or 1867 as a valid and subsisting claim under the act of 27th July, 1861.

The terms of that act required that the claims under it were "to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treas ury." The pending claim of Kentucky against the United States, consisted entirely, as I am informed and believe, of moneys expended by that Commonwealth for the pay of troops raised, equipped, and maintained by Kentucky for home service, but employed by the United States in aiding to suppress the rebellion.

This installment, with the requisite vouchers, was filed, examined, and passed upon by the proper accounting officers of the Treasury during May and June of the past year. Months of laborious preparation were spent in obtaining evidence establishing incontrovertibly the character of service, and clearly showing that such service was directly within the terms, intent, and meaning of the act of 27th July, 1861, already referred to, and under which all the State war claims had been adjusted.

This claim was thoroughly examined and scrutinized by the accounting officers of the Treasury Department, and $57,433 71 were suspended and deducted for want of muster and pay rolls which could not be found.

warrant for $525,258 72 to be issued to the State of Kentucky as due on settlement, as per certificate of Second Comptroller No. 6827; upon which the Treasury Department drew its check on the Treasurer of the United States,

There was found to be due to the State of Kentucky on 24th June, 1871, by the accounting officers of the Treasury on the tenth installment, $525,258 72, as shown by the certificate of the Third Auditor of the Treasury of that date, and for which amount a requisi-payable to the Governor of Kentucky, for the tion was issued upon that day to John M. Brodhead, Second Comptroller of the Treas ury. Comptroller Brodhead, with that vigilance and integrity which has always marked the discharge of his duty, was unwilling to act until he should again refer the character of service, with its proofs, to the Secretary of War for his recognition and approval under the act of 27th July, 1861. Accordingly the following communication was addressed on 29th June, 1871, by him to the Secretary of War:

TREASURY DEPARTMENT, SECOND COMPTROLLER'S OFFICE, June 29, 1871.

In the matter, of the claim of the State of Kentucky, for reimbursement of the sum of $525,258 72 paid to State militia, for services rendered during the years (part of 1863,) 1864, 1865, and a part of 1866.

SIR: It is claimed by the State that the troops above referred to, and generally known as State capital guards, home guards, and State infantry, were actually employed in the military service of the United States by order of the authority of the President or Secretary of War, as prescribed by the rules of the Secretary of the Treasury. (See copy herewith.)

By reference to the decision of the Secretary of War, dated July 9, 1867, (see copy herewith,) it will be seen that the home guards called temporarily into the military service of the United States in the autumn of 1861 for a specific service, and in October, 1861, disbanded, were by the Secretary of War regarded as actually employed in the service of the United States.

The abstracts Nos. 1 to 7, inclusive, show the amount of payments, periods of service, and character and designation of troops.

Inclosures marked A, B, C, D, contain the evidence of military officers of the above-described organizations as to character of services performed and by whose order rendered.

The affidavit of Governor Palmer, late major general United States volunteers, relates to services subsequent to the close of the war; of Brigadier General Burbridge and other United States officers, as to services and by whose order.

The question now presented to the Secretary of War for opinion is this: were the troops above mentioned and as described by their respective organizations, and for the period of service stated, actually employed in the service of the United States under proper or legal authority?" Very respectfully, your obedient servant, J. M. BRODHEAD, Hon. W. W. BELKNAP, Secretary of War. Inclosures.

Comptroller.

Letters A, B, C, D. Abstract with rolls. Nos. 1, 2, 3, 4, 5, 6, 7. Rules of the Secretary of the Treasury. Upon the day following the War Department made the following indorsement:

ADJUTANT GENERAL'S OFFICE,

June 30, 1871.

Respectfully returned to the Secretary of War. In the absence of muster-rolls of the forces for which the reimbursement is claimed, the said forces cannot be connected with any authorization from the President or Secretary of War, for their call into the service of the United States in the years 1863, (part,) 1864, 1865, and 1806, (part.)

Accepting, however, the affidavit of Hon. Thomas E. Bramlette, late Governor, and the indorsement on it of General Sherman, the statement of General Lindsey, late assistant quartermaster general Kentucky, wherein the forces are designated and enumerated; the statement of Governor Palmer, of Illinois, late major general volunteers; and the other evidence referred to inclusive of inclosures marked A, B, C, D, it is respectfully recommended that the troops be recognized as having been employed in the service of the United States, that recognition being deemed necessary by the Treasury Department, in order that the claims may be allowed under the act of July 27, 1861, to indemnify the States for expenses incurred by them in defense of the United States.

amount of $525,258 72, bearing date June 30, 1871. In the absence of Hon. George S. Boutwell in Massachusetts at this period, and the absence of Assistant Secretary Richardson in Europe, this check was signed by J. F. Hartley, acting Secretary of the Treasury. After sign ing it, he, however, declined to deliver it to the agent of Kentucky until Mr. Boutwell's return.

Upon that day the appropriation to pay debts under the act of July 27, 1861, expired. Mr. Boutwell returned in a few days, and declined in a written paper to deliver the check or pay the claim. His refusal rests on two grounds:

July, 1871, all appropriations for claims arising under the act of 27th of July, 1861, should cease. As, therefore, this application for a mandamus was not made until the appropriation for refunding to States expenses incurred in raising volunteers during the late rebellion had been withdrawn, and there was no money in the Treasury to pay the claim, it would be unjust to issue it.

The court in its opinion do not, therefore, sustain the Secretary of the Treasury in his construction of the act of 27th July, 1861, that the State troops for which compensation was agreed to be paid by the United States in that act, were to be called out at the request or under the authority of the President.or the Secretary of War. Still less do the court sustain the Secretary in his alleged right to review the findings of the accounting officers of the Treasury as to the amount due. Nor do the court intimate that said claim is not just and accurate in every particular. So far from

"2. It is only for expenditures on account of troops, officers, or men that have been or may be mustered and received into or actually employed in the service of the United States that reimbursements will be made. Nor will any reimbursement be made by the United States of expenses incurred in organizing, equipping, and maintaining troops for State purposes, or home guard, whether called out by State or other local authority; unless such troops were called out, and such expenditures incurred at the request or under the authority of the President or the Secretary of War."

2. That this act of 27th of July, 1861, has received a legislative construction by an act approved 17th July, 1862, (Statutes, volume 12, page 600,) entitled "An act to allow and pay to the State of Missouri the amount of money expended by said State in the arming and pay. ing of troops employed in the suppression of the insurrection against the laws of the United States;" and also an act approved 17th April, 1866, (14 Statutes-at-Large, page 38,) entitled "An act to reimburse the State of Missouri for moneys expended for the United States in enrolling, equipping, and transporting militia State forces to aid in suppressing the rebel lion," which authorizes the appointment of commissioners to ascertain the amount of money expended by the State of Missouri on that behalf.

The State of Kentucky sought, through its constituted authority, in the exercise of original jurisdiction by the Supreme Court of the United States, a peremptory writ of mandamus to compel the Secretary of the Treasury to deliver to that Commonwealth the warrant for $225,258 72, to which it was entitled, as already alluded to. This application was fully argued and heard by the Supreme Court, and finally denied.

The court rested its judgment of refusal upon two grounds:

First. That inasmuch as the warrant signed by acting Secretary Hartley was not delivered to the agent of Kentucky, but after being signed on the 30th of June, 1871, by him, was, by an alleged agreement between said acting Secre tary and said agent, retained for the approval of Secretary Boutwell on his return in July, 1871, and upon such return said Boutwell declined to deliver said warrant, but canceled the same, the original warrant was therefore not susceptible of a delivery.

Secondly. The court declined to order the Secretary to deliver a new warrant to Kentucky, because Congress on the 12th of July, 1870, declared that on and after the 1st of

in the Treasury appropriated to pay this claim, it would be an important question whether the court would not have ordered the Secretary of the Treasury to deliver to Kentucky another warrant in place of the one canceled.

I have no disposition to criticise the course which the Secretary of the Treasury thought proper to pursue in upholding this warrant. I choose rather to persuade myself that he deemed himself actuated by a sense of fru. gality and high official duty in refusing to pay over to a State a debt found to be justly due by the accounting officers of the Treasury, to whom by law the exclusive auditing of that claim had been confided.

The Secretary of the Treasury, however, places his decision, made on 2d August, 1871, refusing to deliver the warrant drawn by the War Department in favor of Kentucky, upon grounds which cannot, in my judgment, be maintained. I therefore propose briefly to review this most extraordinary ruling.

I utterly deny the construction placed upon the act of 27th July, 1861, by Secretary Boutwell or any of his predecessors. That act conferred no power upon any Secretary of the Treasury to prescribe rules, restrictions, or limitations inconsistent with or antagonistic to the plain intent and effective operation of that act.

By its terms the Secretary of the Treasury was directed, out of any money in the Treasury not otherwise appropriated, to pay to the Governor of any State the costs, charges, and expenses properly incurred by such State for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury. This law was passed in the dark hour of the nation's need. It was approved but seven days after the disaster at Bull Run. It was passed at a moment when the Government, for its preservation, clamorously demanded of the loyal States every man they could furnish. The act was an agreement to indemnify for the past, and a proposition for services and assistance on the part of the States in the future, which became a contract when acted on by a State for indemnity for expenses incurred by them in defense of the United States.

There was no precedent condition that the State troops for which Congress contracted by this act to pay should be first "mustered into the service of the United States" or be called for by the President or Secretary of War. By no means. The public necessities of the hour justified no such delay. All State troops, whenever or however raised, if employed in suppressing the rebellion, were, by the express terms of this act, entitled to the indemnity of this act. No doubt could exist as to the object and intendment of this law.

By what warrant of authority and with what pretense of right could any Secretary of the Treasury narrow its terms or limit its operation? What Secretary or other official possessed the power to abridge, limit, change, or modify a statute passed by the Congress of the United States? Its terms were too simple and plain to need the aid of constructions. The duty imposed upon the Secretary of the Treasury was to pay, not to interpolate words or in any other mode to limit or abridge the direct object of so plain and simple an enactment; and yet Secretary Boutwell insists that the regulation of his predecessor was that it is only for expenditures on account of troops, officers, and men, that have been or may be mustered and received into or actually employed in the service of the United States, that reimbursements will be made, nor will any reimbursement be made by the United States of expenses incurred in organizing, equipping, and maintaining troops for State purposes, or home guards, whether called out by State or other local authority, unless such troops were called out and such expenditures incurred at the request or under the authority of the President or Secretary of War.

This regulation was not a construction of the statute; it was an addendum to the statute; clearly a new enactment.

But, Mr. President, it is not necessary that I should insist upon my construction in oppo. sition to that of the Secretary of the Treasury. The character of the troops, the kind of service rendered by them in each State, was a matter of proof to be determined by the War Department. If a State had raised home guards, and that State preferred to exhibit under this act of 1861 charges for outlays in arming, equipping, and transporting those troops, it was a question to be decided by the War Department whether they came within the statute of 1861, and not by the Secretary of the Treasury. Accordingly, in 1866, this question was made. When the claims of Kentucky for this character of troops were preferred, the Secretary of the Treasury referred the question to the War Department, and Secretary Stanton, then Secretary of War, decided that although not ordered by either the President or the Secretary of War, if they had been called suddenly into service by any United States commander within the vicinity where that service was demanded the State was entitled to compensation. That solemn adjudication of Secretary Stanton was reaffirmed; and again before this claim was audited, Mr. Brodhead, as I have already read, submitted it to the War Office and received their written direction that the troops for whose services this pay was demanded were within the spirit and letter of the act of 1861, and were entitled to be paid. I have already read that adjudication.

Now, I say the Secretary of War having settled the question, it was not competent for the Secretary of the Treasury to refuse payment upon that ground; still less was it competent for the Secretary of the Treasury to go behind the balance which had been found due by every accounting officer of the Treasury, including not only the subordinates, but the Comptroller, and for which a requisition had been issued by the War Department in solemn form, and a check drawn upon the Treasurer of the United States.

Congress, in making this appropriation and directing the Secretary of the Treasury to pay, conferred upon him no authority to supervise the findings of an independent department of this Government. When the accounting officers of the Treasury had found a certain balance due a State for troops furnished upon vouchers presented and filed, his simple duty was to pay the claim, not to go behind the accounts as finally settled and rendered in the Treasury Department, and still less to undertake to review the finding of the War Department, saying, "You have said these troops

come within the law of 1861, but I choose to say that they do not."

Sir, in view of this assumption of authority, this question assumes far greater moment than the mere pittance which Kentucky asks. She asks nothing but what is her due. She asks nothing but what the Treasury Department and the War Department have solemnly adjudicated to be her due. She asks nothing but what has been settled and for which a warrant was drawn ready to be delivered to her. But if the Senate are prepared to say that under this simple act directing the Secretary of the Treasury to pay this amount he is clothed with authority to undertake to review the findings of the War Department, that he is clothed with authority to set aside the findings of the accounting officers of the Treasury, then he is clothed with far greater power than the President or any other officer of this Government.

Why, sir, as far back as 1841 this question came before the Supreme Court of the United States in the case of the United States vs. Bank of the Metropolis, reported in 15 Wheaton, page 400. That was a case where the Post Office Department had given out a conditional acceptance to Mr. Reeside for services performed and to be performed by him. A contest grew up whether against that acceptance certain alleged indebtedness of his for fines imposed by the Post Office Department should not be set up, and that gave rise to the question how far it was competent for one Postmaster General to look into or undo the acts of another. The Supreme Court say:

"The third instruction asked the court to say, among other things, if the credits given by Mr. Barry were for extra allowances, which the said Postmaster General was not legally authorized to allow, then it was the duty of the present Postmaster General to disallow such items of credit. The successor of Mr. Barry had the same power, and no more, than his predecessor, and the power of the former did not extend to the recall of credits or allowances made by Mr. Barry, if he acted within the scope of official authority given by law to the head of the Department. This right in an incumbent of reviewing a predecessor's decisions extend to mistakes in matters of fact arising from errors in calculations, and to cases of rejected claims, in which material testimony is afterward discovered and produced. But if a credit has been given, or an allowance made, as these were, by the head of a Department, and it is alleged to be an illegal allowance, the judicial tribunals of the country must be resorted to to construe the law under which the allowance was made, and to settle the rights between the United States and the party to whom the credit was given."

In the case of ex parte R. P. Randall, he was a purser of the Navy, and settled. his accounts with the Navy Department under the Secretary of the Treasury. A change of Administration occurred; that of John Quincy Adams went out and that of General Jackson came in. Mr. Randall's accounts were reaudited by Mr. Kendall and a balance was found due against him. Upon that a distress warrant was issued. He was arrested and brought before Judge Marshall, and Philip B. Barbour, then district judge of the United States, in Richmond, upon a writ of habeas cor pus. The question was there presented upon the question of his imprisonment on that warrant; whether the first settlement of his accounts were not final, and whether it was competent for Amos Kendall afterward to reexamine them and to reaudit them, though he might have been satisfied they were mistaken. Judge Marshall and Judge Barbour both agreed in holding that the first settlement was final, and discharged Lieutenant Randall from that arrest.

But I am not left to any conjecture on this subject Congress, perceiving the importance of this question, has adjudicated upon it, and passed an act making the settlement of the accounting officers of the Treasury final. In order that I may be understood I refer to the act of July 27, 1861, which prescribes that the expenses incurred are "to be settled upon proper vouchers, to be filed and passed upon by the proper accounting officers of the Treas. ury." Such vouchers must be for expenses

incurred by the respective States for enrolling, subsisting, paying, and transporting troops. They may be State troops, they may be State guards; but if they are employed in the service of the United States, if they are commanded by United States officers with the consent of the State and render active service, then, under that act, no doubt can remain that the State is entitled to compensation. Whether such service was rendered cannot be known by the Treasury Department; it can only be known and determined by the War Department; and I have already shown that it had been three times decisively and authoritatively settled that the troops for which pay is asked and for which pay was allowed by the War Department did render actual service to the State of Kentucky, and were commanded by United States officers.

Now, my proposition is that the Secretary of the Treasury possesses no lawful authority to revise any finding of any Department where a claim has been audited, where it has been certified, where the proof has been examined and concluded. He possesses no lawful authority, either in his own Department or in a coordinate department, to go beyond those findings, to say that he will set up his judgment against the judgment of those whom the act itself prescribes shall be the only officers to find what amount is due, the accounting officers of the Treasury.

The act of September 2, 1789, section five, makes it the duty of the Auditor to receive all public accounts, and after examination to certify the balance and transmit the accounts, with the vouchers and certificates, to the Comptroller for his decision thereon;" and it is provided "that if any person whose accounts shall be so audited be dissatisfied therewith, he may, within six months, appeal to the Comptroller against such settlement." By section three of the same act it is made the duty of the Comptroller "to examine all accounts settled by the Auditor, and certify the balances arising thereon to the Register;" and by section six the duty of the Register is defined to be to receive from the Comptroller the accounts which shall have been finally adjusted, and to preserve such accounts with their vouchers and certificates." By a further provision the Register was to furnish the Secretary with copies of the Comptroller's certificates of balances, and the moneys so found due were to be drawn from the Treasury by warrants from the Secretary, countersigned by the Comptroller and recorded by the Register.

66

The act of 1871 preserves the system of the auditing and revising of accounts established by the act of 1789. Some of the duties were transferred and distributed among other offi

cers.

The fifth section makes it the duty of the Auditors named to receive from the Second Comptroller the accounts which shall have been finally adjusted, and to preserve such accounts, with their vouchers, certificates, &c. The act of February 24, 1819, transferred the settlement of accounts arising out of Indian Affairs from the Fifth to the Second Auditor, who is directed to receive from the Comptroller the accounts that shall have been finally adjusted, and preserve such accounts with their vouchers and certificates.

There are very many acts of Congress conferring special powers upon the accounting or other officers of the Government in special cases, and giving a power of revision to the President or some other officer, indicating in this way that but for such special power no such right would exist.

Thus by the act of 21st February, 1823, authority was given to "the proper accounting officers of the Treasury to adjust and settle the accounts and claims of Daniel D. Tompkins, late Governor of the State of New York, on principles of equity and justice, subject to the revision and final decision of the President of the United States." The act of March 1, 1823, (3 Statutes,) made provision for special adjust

ments, and provided that where the accounting officers differed, the case should be referred to the Secretary of War, whose decision should be conclusive. In 1823, Congress passed an act directing the accounting officers to settle and adjust the account of Joseph Wheaton, while acting in the quartermaster's department, upon the principles of justice and equity.' Mr. Wheaton was dissatisfied with the settlement made by the accounting officers, and applied to the President to revise and change their findings. The President referred this application to Mr. Wirt, then Attorney General, who gave an elaborate opinion, holding that the President had no right to interfere. His opinion is summed up in the following paragraph:

"My opinion is that the settlement of accounts of individuals by the accounting officers appointed by law is final and conclusive, so far as the executive department of the Government is concerned. If an individual feels himself injured by such settlement, his recourse must be to one of the other two branches of the Government, the legislative or judicial. If a balance be found against him by the disallowance of credits which he deems just, he may refuse payment and abide a suit, in which case he will have the benefit of a court and jury. If a balance be found in his favor, but smaller than he thinks himself entitled to, his appeal is to Congress, where the representatives of the people will pass upon his claim."

I might multiply these cases. I might cite not less than a dozen opinions of Attorneys General recorded in the volumes containing those opinions, showing that the universal ruling has been that where officers of the Treasury charged by law with the auditing of accounts make a finding, such finding is conclusive; and still stronger is the position that when a Department other than that which is called upon to pay the claim has audited it, it is beyond the power of the Secretary thus called upon and directed to pay it—a simple ministerial duty-to interfere. He is clothed with no authority either to look into, to set aside, or to interfere with the finding of the auditing officers of his own Department, and still less of a separate Department.

By the act of March 30, 1868, Congress, in my judgment, has fully declared and intended that the settlement of public accounts such as those referred to in my amendment should be vested solely, exclusively, and finally in the accounting officers, without interference, control, or revision by any other executive officer. Under that law, all that the head of the Executive Department can do on the balances of accounts certified by the Auditor and Comptroller, is either to issue a requisition for the balance, without abatement or charge, or to return it to the Comptroller with such facts as, in his judgment, affect the correctness of such balance, or certify the case to the Court of Claims, under the seventh section of the act of July 25, 1868.

Nothing of that sort was done in this case. Every officer discharged his duty for months and months. The large mass of vouchers and of evidence was carefully scrutinized and sifted. During the months of May and June I believe no other claim was looked into by these officers. After rejecting a certain amount for the want of proper proof, they found this balance of $525,258 72 as justly due them. It was certified, as I say, to John M. Brodhead, the Second Comptroller. Although the War Department had twice certified that troops of this character were entitled to pay, and had been paid, yet, deeming it to be a large amount, Mr. Brodhead for the third time asked Secretary Belknap in reference to it, "Here is the proof of the character of the service. Am I justified in paying it under the act of July 27, 1861 ?" I have read you the Secretary's answer, "They are entitled to be paid." requisition was drawn by the War Department, and that requisition was withheld because Secretary Boutwell was not here. When he come back, the appropriation had lapsed, and there was no money in the Treasury to pay it. That I think I am authorized in saying is the

A

reason why the Supreme Court of the United States did not issue its mandamus compelling him to do it.

I would not limit the power of the Secretary of the Treasury whenever the law gives him the authority to examine into the validity or justice of any claim. If Secretary Boutwell upon an examination of this claim had discovered anything wrong in it, it was his duty to refer it back to the Comptroller with a memorandum saying, You have made a mistake; you have done so and so. Were these troops for which this charge is made within the act of 1861? Have you ascertained this from the War Department?" If he had done that, what would have been the answer? "They have been audited; this account is strictly true; this amount is due to the Commonwealth of Kentucky. I have applied to the War Department, and here is the answer of the Adjutant General, approved by the Secretary of War, that these troops were within the act of 1861, and the requisition was directed by the War Department to issue when they had been satisfied of the character of them."

Mr. MORTON. I have not heard all the Senator's remarks. Will he allow me to inquire, for my own information, what is the provision of the act of 1861 to which he refers ?

Mr. STEVENSON. The act of 1861 to which I refer is as follows:

That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the Governor of any State, or to his duly authorized agents, the costs, charges, and expenses properly incurred by such State for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury."

The attempted construction here would defeat the object of that act. The darkness of the battle and the disaster at Bull Run was encircling the capital when this act was passed. Will any man tell me that Congress would stop in an act providing for the calling out of troops in a sudden emergency, and provide that the President and Secretary of War alone should call for troops? General Sherman called for these troops. He sent for Governor Bramlette to come to Nashville. He met him at Nashville, and General Sherman disclosed what his plans were. He said to him, "Now you must take all the State troops you can command in the event of my being pursued or surprised or attempted to be cut off, to aid me; I have no time to ask for this authority; I will exercise it as an officer of the United States Government;" and here is General Sherman's certificate that he called for these identical troops and that they were employed; and yet we are told, because the President and Secretary of War did not do it, they are not to he paid, and that, forsooth, in accordance with special regulation made by Secretary Chase. Mr. MORTON. What was the construction given to it by the Secretary of the Treasury to which the Senator refers?

Mr. STEVENSON. I will read that to you. Secretary Boutwell says:

Secretary Chase, when providing for the execution of this act"

Which I have already read

prescribed a series of rules, the second of which is in these words:

It is only for expenditures on account of troops, officers, or men that have been or may be mustered and received into or actually employed in the service of the United States, that reimbursements will be made.

***Organizations raised, or attempted to be raised, but not mustered and received into, nor actually employed in the service, will not be recognized. Nor will any reimbursement be made by the United States of expenses incurred in organizing, equipping, and maintaining troops for State purposes, or home guards, whether called out by State or other local authority, unless such troops were called out and such expenditures incurred at the request or under the authority of the President or the Secretary of War.'"

That decision was overruled by Secretary

Stanton on the 9th July, 1867, and I read his official decision: WAR DEPARTMENT, July 9, 1867.

It appears from official reports of Major General George H. Thomas that on the 15th of September, 1861, the home guards had been called out by General Nelson, and were then in the actual employment of the United States and on duty as troops of the United States, and were continued on duty and were employed by General Thomas. There appears to be in the War Department no written or official evidence of authority granted by the President or Secretary of War, General Cameron, to General Nelson for calling out these troops. But the legal presumption is (under the special circumstances then existing) that proper authority was given.

This Department is therefore of opinion that the home guards mentioned were actually employed in the service of the United States under proper and legal authority, and should be regarded as such by the accounting officers of the Government.

EDWIN M. STANTON,
Secretary of War.

That was in 1867. In 1871 this decision was repeated by Secretary Belknap in regard to the very troops for whom this claim was made. This is a requisition of the War Depart ment itself after having fully examined into the character of these troops. My point is that the Secretary of the Treasury, however honorable and frugal were his motives, had no right to go behind the finding of the War Department, and still less to go behind the accounts as stated by the auditing officers of the Treasury.

Mr. MORTON. The point of objection is that the troops were not called out by the President?

Mr. STEVENSON. Or the Secretary of War. That was the point.

Mr. EDMUNDS. There was another point, if the Senator from Kentucky will pardon me, and that was that these troops, being under the control of the State authorities, were by the State authorities kept in service long after the termination of the war.

Mr. STEVENSON. That is not true; not that my friend is not right in his statement-as I propose to show. The Secretary of the Treasury did not put his decision altogether on that ground. He says a portion of this claim is for the services of State troops after the surrender of General Lee and General Johnston. That is true. Part of these services was rendered after that time.

Mr. EDMUNDS. Some of them were mustered out in October, 1865, I think the papers

say.

Mr. STEVENSON. A few of them were mustered out as late as October, 1865; but when did the war end?

Mr. EDMUNDS. It ended in May, according to the Supreme Court. I do not think it is ended yet. Laughter.]

Mr. STEVENSON. In 1866, not in 1865; and all this service was rendered during the years 1864 and 1865. Now, I propose to show to my honorable friend that the Secretary of the Treasury was mistaken. How could the Secretary of the Treasury in half a day here, determine whether these accounts for this service were all right, which had taken the auditing officers of the Treasury three or four months to examine? How could the Secretary of the Treasury go behind the written statement of the Secretary of War, "You must pay for these troops," and directing a requisition for the amount for which my amendment calls to be issued and drawn upon the Treasury Department?

Mr. MORTON. Do I understand the Senator from Kentucky as stating that the troops that were called out were called out by the order of General Sherman or some other officer commanding United States troops?

Mr. STEVENSON. I state upon my honor and upon my authority as a Senator that there is not one single man charged and certified for who was not called out by General Burbridge or General Sherman or General Thomas or an Indiana general, whose name now escapes me, I think General Lew. Wallace. I not only propose to show that to the Senator from Indi

ana, but I propose to show him the written order of every Federal general which is now on file in the War Department, and copies of which I hold in my hand.

Mr. MORTON. Will the Senator allow me a moment to make a statement?

Mr. STEVENSON. Certainly.

Mr. MORTON. I think it is but just to the Senator from Kentucky and this claim to state the ground upon which the Indiana claims for services rendered by the militia of Indiana during the war were placed. As the Governor of the State during the war, I know all about the circumstance under which those troops were called out; and among the first things that I attempted to do when I came to the Senate, as we had failed to get a settlement for our claim for money expended, was to get a bill through Congress authorizing the settlement of that claim.. I was told at the War Department that the Government had refused to settle in the cases of Missouri and West Virginia, except upon a finding of commissions appointed by the President under an act of Congress to determine the character of the claim and the extent of it. Accordingly, I introduced a bill authorizing the appointment of three commissioners to adjudicate the Indiana claims, and I will read the second section of that bill to show what the requirements were in regard to Indiana:

"That the commissioners so appointed shall proceed, subject to regulations to be prescribed by the Secretary of War, at once to examine all the items of expenditure made by said State for the purpose herein named, allowing only all disbursements made and amounts assumed by the State for enrolling. equipping, subsisting, transporting, and paying such troops as were called into service by the Governor, at the request of the United States department commander commanding the district in which Indiana may at the time have been included, or by the express order, consent, or concurrence of such commander, or which may have been employed or used in suppressing rebellion in said State. And no allowance shall be made for any troops which did not perform actual military service in full concert and cooperation with the authorities of the United States and subject to their orders."

It was not made a condition in the case of Indiana that the troops should have been called out by the President or the Secretary of War, but it was sufficient that they were I called out with the knowledge or consent of the department commander or the officer in command in the State of Indiana, and in fact in many cases they were called out by the Governor of the State without any authority derived from any United States officer, because in his opinion it was important to call them out, but the call having been assented to and conceded by the departmental commander to be right, and the troops having been employed after such call and treated as having been properly called out, it was provided in the act of Congress that upon such finding the State should be reimbursed for those expenses.

There was no pretense made at that time that the State should not be reimbursed for expenses unless the troops were called out by the President of the United States. They were not even called out by the authority of a corps commander, or at the request of any officer higher than the officer in command of the department or district of which the State of Indiana was a part, and part of the time the whole, and in fact the most of the calls were made by the Governor and afterward consented to, expressly or impliedly, by the officer in command. So that so far as any objection is made that these troops were not called out by the President or by the order of the Secretary of War, but only by General Sherman, or by General Thomas, or by General Burbridge, who I know was in command in Kentucky for a considerable time, it seems to me that objection is not well taken, because that was not required in the case of Indiana, and I think was not required in the Missouri act, the West Virginia act, or the act in relation to any other State that I know of. I deemed it but just to make this statement.

Mr. STEVENSON. I agree with the Sen

ator from Indiana exactly. He speaks my sentiments much better than I could speak them myself on this subject. But let us suppose for a moment that this statement of the Secretary of the Treasury is true, that they were in the service of the State of Kentucky by State authority, under officers appointed by the State, but were not called for under the authority of the President or Secretary of War." He seems to think that that was final under this act. I do not understand the Secretary of the Treasury to say that the Senate ought not to pay this claim. On the contrary, he says we ought to pay it, as I understand. He has never told me so, but I find that statement in the report of the adjutant general of the State of Kentucky.

But I come back now to the question as to these identical troops. Here is what General William T. Sherman says:

WASHINGTON, D. C., June 30, 1871.

I certify that, prior to beginning the Atlanta campaign, I sent for Governor Bramlette, of Kentucky, to come to me in Nashville, and in May or April, 1864, revealed to him the plans and purposes of the campaign, and that I expected him, as the Executive of Kentucky, to guard and protect our lines of supply, all of which came through Kentucky, and to guard against raids or invasions from the east or west. He expressed his perfect willingness to do so, and on the whole our lines were protected, and our success was thereby encouraged and insured. My route, as is well known, was to Savannah, Georgia, and thence to Washington, District of Columbia; so that I did not again see Governor Bramlette till the war was over, and was never able to ascertain how, or in what manner he disposed of his State militia to the end proposed; but I do regard his efforts as meritorious to the cause of the United States to a high degree.

W. T. SHERMAN, General. Here is the affidavit of General Burbridge:

CITY OF WASHINGTON, D. C., April 29, 1869. This is to certify that I am a citizen of the State of Kentucky, and in 1864 and 1865 I was a brigadier general of volunteers, and in command of the district of Kentucky; and while in command of said district (from April, 1864, to the summer of 1865) I employed in the United States service the capital guards and other State guards to take the place of, and do the services required by, the United States troops under my command, at various times, and the organizations aforesaid did perform guard and picket duty while I was absent with my command on expeditions against rebel organizations in eastern Kentucky, Tennessee, and Saltville, Virginia.

They were necessarily employed by me; and if they had not been furnished I should have been compelled to have kept a much larger force of United States troops stationed in Kentucky to perform that service, which would have defeated many of the expeditions which were successfully made. The Governor of Kentucky furnished the capital and other State guards on my order, and the expense incurred on account of subsistence, transportation, and ordnance, was necessary and for the benefit of the United States, and could not, at that time, have been dispensed with. The expenditures, therefore, charged to the United States in the eighth and ninth installments of the war claim of Kentucky, were properly chargable to the United States as a necessity, and the State of Kentucky should be reimbursed for the expenditures thus made.

I have no interest whatever in this måtter, and make this statement to vindicate the military history of my command. S. G. BURBRIDGE,

Late Major General United States Army. Now I beg the attention of my friend from Vermont

Mr. EDMUNDS. My friend has it all the time.

Mr. STEVENSON. I am exceedingly obliged to him, I know he is one of the most attentive Senators in the Chamber, and one of the best posted men. My friend thinks that these troops were under State command, and that the service performed after the surrender of Lee and Johnston was unnecessary except for State purposes. Now I want to

read to him

Mr. EDMUNDS. If my friend will pardon me, before he reads I wish to call his attention and that of the Senate to the difference between the two instances that he has read. He has read the letter of General Sherman, which, I have no doubt, states truly and with candor; the precise condition of things. It appears to have been addressed to the Executive of the State of Kentucky, as Executive, calling upon him to perform the duty that be

longs to every State in this Union, to preserve the peace within its borders. Then he has read another certificate from a brigadier general, the name of whom I did not catch

Mr. STEVENSON. Burbridge.

Mr. EDMUNDS. He states a different case, that he actually called into the service of the United States, apparently, taking the full mean ing of his words, certain troops at certain times when he was absent upon certain raids. I do not mean to deny that on the case as stated by Burbridge as to those particular troops that he refers to, and on the particular times to which he refers, it would be right and just, within the spirit of the act of 1861, to make provisions to pay the State of Kentucky. As to the others, where the Executive was called upon, as Executive, to maintain peace in that State while the soldiers of the United States were absent, which every State is bound to maintain, the case may merit a different consideration. Therefore, all of my point is simply this, (if my friend will pardon so long an interruption,) that, with a disposition to do to the State of Kentucky as we have done to Missouri and to West Virginia, I am willing to have an inquiry made on the same principles, and give that State the same generous and liberal and fair justice that we have given to the others, and not undertake to determine on the snap of the whip, as the saying is, that Kentucky is entitled to over five hundred thousand dollars merely because on the 30th of June, with greater rapidity than even Sheridan rode to the battle of Cedar Creek, they hustled this thing through half a dozen departments on one day; not that there was any intention to wrong the Government, but a laudable desire on the part of the Kentucky people to make great haste to get hold of the appropriation. That is the distinction I make, and I am obliged to my friend for permitting me to state it.

Mr. STEVENSON. I always listen with pleasure to the Senator from Vermont. He is generally well posted in subject-matters under his charge, and on them he is always ready to speak. But I must say to the Senator that he does not understand this claim. This claim was not hurried through. It was filed in 1866 and not audited until the 30th of June, 1871. Now, like the Senator from Indiana, I was Governor of my State. I went in person to the Department and I received from the Secretary of the Treasury the same objection, that some of these troops had not been called for legitimately according to his construction of the act of 1861. I think it was in the year 1867 or 1868 that I came here in person. That objection was then removed, and in accordance with the ruling of Secretary Stanton the troops were paid. That was the second installment.

Now we come to the third. How was it hurried through? There has been no hurry in it. The State of Kentucky made her application under this act of 1861. She has waited years and years; and when the amounts have been patiently examined and scrutinized and audited, when this identical claim has been submitted to the War Department, when the War Department says these accounts are entitled to be paid, and the War Office issues a requisition for the amount, when the Second Comptroller then registers it, having asked the opinion of the War Department, we are to be told that we are seeking to get this thing hastily through!

But let me answer my friend on the point that these troops rendered service after May, 1865, by the orders of the United States commander:

"Thomas E. Bramlette states that during his terta as Governor of Kentucky, from September, 1863, to September, 1867, the militia called into the service of the State for purposes of defense against the then existing rebellion against the Government of the United States, were at all times subject to the orders of the United States military commanders in Kentucky, and were employed on duty at such places as directed by such commanders. He states that the militia, or State troops, so called into ser