2 Ct. Cl. 1 | Ct. Cl. | 1866
Lead Opinion
opinion:
The case of Reeside is brought to recover the sum of $20,376 62, being the amount of certain commissions allowed to him as inspector and purchasing agent of the government under an appointment of Major General Fremont; and the cases of Higdon,Morgan, and Geffroy are brought to recover certain balances alleged to be dueunder-the contracts made with them by Reeside as the purchasing agent of the government. These cases have been under advisement for an unprecedented length of time, partly on account of the great magnitude of the questions and interests involved, and partly because it was understood that there were a number of other cases which would present the same questions. The court desired that such parties should be heard and that the matters to be determined should be presented, if possible, in every form before a final decision should be rendered. Jt is to be regretted that, notwithstanding the prolonged consideration given to
On the 25th July, 1861, Major General Fremont arrived at St. Louis and assumed command of the “Western Department.” He was an officer but recently commissioned in the regular army, yet well known to the government and to the people of the United States by an experience replete with incidents of extraordinary energy and of extraordinary daring. Beside the personal adventures of his wondrously romantic life, there was then fresh in the minds of all men the history of his organizing, without commissioir or authority, a miniature army and government, remote from sympathy and support, and seizing for the United, States against greatly superior power and numbers, the Mexican province of California. He had also resigned a high diplomatic position to assume such responsibilities as the government might choose to assign to him; and the government, upon his arrival, had assigned to him the military command of a department which included the three great rivers of the United States, and extended from the northern to the southern boundaries of the country.
The department'needed an extraordinary commander. The rebellion had been gathering strength for three months, and the first great reverse had just been suffered by the national arms. Within the chief city of the department an outbreak was constantly apprehended. Its wealthy and influential inhabitants, for the most part, sympathized with the enemy. The flower of its young men had already joined the forces that were making war upon their country. The native-born and adopted citizens had taken opposite sides, and stood arrayed class against class. Different hostile camps had been established by the two parties, and the threatened anarchy and civil strife had been averted by a blow struck with decisive energy by the loyal side, but which the other denounced as a bloody and needless massacre. The arms and munitions of the United States had been saved by hurrying them from the arsenal by night, and ingloriously carrying them within the protection of the loyal States. Throughout the department everything was unorganized or incomplete. The western country had suffered from bad harvests and disastrous enterprises, and was poor and illy fitted to prepare for war. No officer of high rank or approved experience had been sent by the government to direct affairs, save one, and his fidelity had been suspected. The rapidly increasing forces of the enemy were gathering within Missouri and threatening speedily to fall upon St. Louis, which was the' military key of the department. The rivers
Of all the officers from whom the government might have selected a commander, there certainly was not one more likely to disregard the means, provided he could thereby attain to great public ends, than General Frémont. His whole life was a pledge of his readiness to assume great responsibilities. And at this time the government required of him much more than the services of a military commander. It required of him not only that he should command, but that he should create. His citizen troops were unarmed, unclothed, undisciplined, constantly marched and countermarched, and from them he was required to organize an army. The department was bisected by the greatest of navigable rivers, and for it he was required to construct a navy. The governor of Missouri had given the authority of his office to the rebellion, and for the State the general was required to reorganize a civil government. For all of these duties General Fremont received none of the ordinary machinery by which such duties are usually performed. He was obliged to provide his material as well as to organize his army and build liis navy. And the government gave to him the most absolute and uncontrolled power which it could give, for it fettered him with no instructions. Under such circumstances, knowing the events that wore to be controlled, and the man sent to control them, silence was more expressive than language. No case could be framed that would present more strongly the legal right of a military officer to exercise the power which it is claimed General Frémont lawfully exercised. The remark said to have been made by President Lincoln, that he had given to General Frémont more ' power than he possessed himself, though a paradox, was illustrative of the truth.
General Frémont exercised these powers. The evidence in these cases shows that he exorcised them with all the zeal and energy that might have been anticipated or apprehended. Among them was the power of making- contracts without regard to the conditions and methods prescribed by the statutes of the United States, and these contracts, made for the public defence, it is now the unpleasant task of this court to pronounce void.
The five cases now before us differ somewhat in detail, but we are met at the threshold of each by this preliminary and important question : Is an express contract made by a commanding general in the
The varied and able arguments which have been addressed to the court on-this question may be reduced to two embarrassing propositions. First, it may be said that without the recognition of this “ war power ” (as it was termed upon the argument) ¡the nation may be left defenceless in time of great peril — in times of absolute necessity, when civil gives place to martial law, and when the life of the republic depends on the ability of the government to use all the resources which the country possesses. Second, it may be also said that the existence of such a power as a matter of legal right would enable a military officer to override all laws and restrictions, and under the plea of military necessity encumber the republic with a debt from which it can never legally escape. Or (to apply these principles to the cases before us) it maybe urged on the one hand, that without the exercise of this most necessary power General Fremont would have had an army without arms; and replied upon the other hand, that if such a power does legally exist, and which the law cannot restrain, then General Fremont might have contracted for entire navies, and in the arbitrary exercise of his discretion might have placed a burden of debt upon the nation from which it could never lawfully be free.
The ordinary resource in difficult cases — authorities—here gives to us no aid. The great elementary writers, Grotius and Vattel, with their followers, have written for absolute sovereignties, and not for a constitutional and limited government. Their words, moreover, are addressed rather to the conscience of the ruler than, to the understanding of the judge. Their conclusions set forth principles for the guidance of those possessed of discretionary power, rather than rules which must be followed by those who have no discretionary power, and whose duty it is simply to search out and declare the law.
Beside these authorities, those great fountains of legal learning, the reports of adjudged cases are equally unavailing. Neither the courts of the common law, nor the numerous constitutional decisions that embody the reasoning of our greatest jurists, have determined the principle now involved. I have looked with care through the authorities cited by the counsel who have addressed the court, and I find nothing
The doubts which beset this question grow out of a non-appreciation of the great and terrible nature and effects of war. A remote war prosecuted against a distant enemy, as our naval war with Algiers, or carried on in a corner of the country, as the Indian war in Florida, prosecuted through the agency of a reg-ular army or navy, and estimated by the dollars and cents which it costs, does not bring the question home to the nation, nor affect the civil functions of the government, nor produce that upheaval of all settled and established domestic affairB which comes within what we may term the state of war.
It appears to me useless to speak of law — meaning thereby the laws of peace — when this state of war actually exists. Statutes and decisions have then no authority, and war changes the views as the acts of the body politic. To take the life of another is a great and heinous crime at the civil law, punishable by a disgraceful death. In war, it changes to a noble and commendable act. He who labors for the welfare of mankind in peace, increasing their comforts and prolonging their lives, is praised as a public benefactor. In war, the one who stands not upon the destruction of human life, whether of friends or foes, is deemed worthy of gratitude, and the highest honor belongs generally to him who destroys the greatest number. At the common law, one who was guilty of self-destruction was deemed guilty of the foulest of crimes; a stake was driven through his body; it was buried where four roads met, and his children' forfeited their inheritance. In war, self-destruction may be the highest or fairest of virtues. Under no system of municipal law can a man break into my enclosure, or trespass upon my grounds, or cut down my trees, or carry away my crops; he cannot enter my dwelling, nor compel me to go with him against my will, nor evict me from my estate; yet all of these things may be done in war.
A vague idea has been attached to the Constitution as though it could rise superior to other laws and control the events of war. Such questions have been'argued gravely before courts; as, whether there could be a war, except in the form and manner which the Constitution prescribes. It was said that inasmuch as the President could not declare war, he could not accept it, and hence that under the Constitution there could be no war until Congress should declare or accept it. A sufficient answer to these sophisms is^to say that the existence of war is not a question of theory or of law, but of fact. The Consti
To understand this it is but necessary to apply the Constitution to the state of war. The Constitution guarantees to every citizen “the free exercise of religionbut the state of war prevails, and the free exercise of religion is gone. The Constitution, in the most solemn manner, declares that “ the right of the people to keep and bear arms shall not be infringed;” but the state of war comes, and the right to keep and bear arms is gone. Under the Constitution the people may peaceably assemble and petition the government for a redress of grievances; but, under the rule of war, a commanding officer may disperse their assemblies and forbid their petitions. A citizen of the United States “ shall enjoy the right to a speedy and public trial by an impartial jury;” but in the state of war the form and manner of his trial depend on the orders of him who commands. A citizen cannot be compelled to travel against his will; but war comes and carries him from one extreme of the country to another. A citizen may be entitled to the exercise of the elective franchise; but in war another may prohibit him from crossing the road to deposit his ballot. Slavery and involuntary servitude are forever prohibited by the Constitution; yet in war a military officer may impress the citizen, and place him in the trenches of his fort, and compel him to labor like a slave. Before the Constitution all men are equal; but in this state of war one man may command another; he may force him to yield him respect, to obey his orders, to travel where he wishes, to halt where he directs. This state of war, therefore, is repugnant to every principle of constitutional law, and its necessities or powers are not to be lightly invoked nor needlessly continued in a state of peace.
This surrender of its power and functions the law recognizes and regulates by an expressive maxim — Inter arma silent leges. The maxim expresses with wonderful precision the exact limits to which the state of war must be confined. It will be observed that the law does not become silent in the neighborhood of martial events, but in their midst; and even amid such events the law is not abrogated or
When tlie state of war lias passed, the law resumes its sway. It does so instantly and of its own vigor. Yet it recognizes tbe changed circumstances which, may have been recast in this crucible of war. Without the interposition of statutes or treaties it perceives that what was lawful has become unlawful, and what was unlawful has become lawful. It can perceive that boundaries have been changed, and that territory which was a part of the republic has ceased to be such, or that what was foreign soil has become the property of the nation. It can recognize the fact that citizens have become aliens, or aliens citizens. Its tribunals reverse the ordinary practice and receive instruction from the political branches of the government. Thus, with regard to foreign governments, they recognize only those which the political power of the nation recognizes. (4 Cranch, 272.) Thus, with regard to our internal polity, the Supreme Court, through its late Chief Justiee, has gone so far as to be bound by the decision of
But the argument demands more than this, and requires that this court should complete and carry out what the military power • has left undone. It would seem a sufficient answer to the request to say that a court of law can never carry out or enforce that which the law prohibits. Acts which can be defended only by showing that at the time the civil law of necessity was silent, and did not then absolutely prohibit them, cannot receive the aid of the civil law when it again speaks, and speaks to forbid. War, so far as jurisprudence is concerned, is a return of society to its rude, primeval state, where life and liberty and property have no safeguards, and all wrongful acts may be justified by the will of the commanding general. Within such a chaotic state there are no settled principles or rules which can deserve the name of law, or which can extend beyond that state and give validity to prohibited acts, or be obligatory upon civil courts. What has actually been done by war the civil courts accept as a fact accomplished, beyond human control, and decided by what is justly termed the supreme arbiter of nations; but those illegal acts which the war leaves unper-fected must of necessity fall, unless rendered legal by the legislature.
As I have already said, the authorities upon this question were not intended so much for the guidance of civil courts as addressed to the conscience of sovereigns. The same might be said of the able arguments addressed to us by the learned counsel who have presented these and similar cases. But the moral obligations requiring that legal effect should be given to these contracts, I think must fall upon the legislative rather than upon the judicial branch of the government. The safety of the state may become the supreme law, but it is a supreme law that lasts no longer than the circumstances which created it. When they have passed away, it also has passed away; and if, while it existed, a military officer should have entered into agreements which the honor of the nation requires should receive a continuing legal effect, the presumption is that the legislative department of the nation will give to them that legal sanction which will enable its courts of law, if necessary, to enforce them. At all events, the power -and responsibility of ■ approving or disapproving rest with the legislature and not with the judiciary.
When we come to examine these cases upon their legal merits we find that three objections are presented by the defendants against a recovery. These we will examine separately.
I. It is objected that these contracts were not preceded by advertisement. The act of 2d March, 18G1, (12 Stat. Lp. 220,) directs that “ all * * contracts for supplies or services * * * when the public exigencies do not require the immediate delivery of the article or performance of the service shall be made by advertising. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold, or such services engaged between individuals.” Without now holding that this statute is merely directory, and that where a contract is in good faith made by a general intrusted with an important command, he will be deemed intrusted with the power of determining the question of exigency, it is enough to say that here was an exigency greater than was ever contemplated by the fr.amers of the law, and that the object of the contracts was to procure an immediate delivery of the articles purchased. We therefore dismiss this objection as unworthy of further consideration.
II. The second objection which these cases disclose arises from the following facts :
The agent seems to have been well chosen, for the evidence indicates that he possessed wealth, reputation, great energy, and unusual experience, and that he saved to the government more than the amount of his commissions in railroad freight alone. It also indicates that the commission of two and a half per cent, to be allowed to him was just and reasonable for the services to be rendered and the responsibility to be assumed.
Under these two orders, and instructions subsequently given, Mr. Eeeside purchased, between the 11th August and 7th December, 1861, 5,027 horses, besides other property.
The amount of commissions claimed by him on account of inspections is nineteen thousand seven hundred and ninety-one dollars and twelve cents, ($19,791 12,) and for cash disbursements the sum of five hundred and eighty-five dollars and fifty cents, ($585 50,) making the whole amount claimed t wenty thousand three hundred and seventy-six dollars and sixty-two cents, ($20,376 62.)
His travelling expenses, the cost of advertising, and other items incidental to his duties as purchasing agent, were borne by himself.
By virtue of this authority, Mr. Reeside entered into executory contracts on behalf of the government with various persons, and among others with the claimants Higdon, Morgan, and Gefiroy. By the terms of these agreements they were to furnish horses to the government and the government was to pay for them certain specified prices. Pursuant to the agreements, these horses were duly furnished, and were turned over to the United States quartermaster, who, recognizing the orders of General Fremont and the contracts of Reeside, gave to the contractors the usual vouchers for the agreed price. This price was higher than that paid for ordinary cavalry or artillery horses, and the horses furnished were of a superior quality; but the price paid did not exceed the price authorized by General Fremont, viz : an average of $130 per horse.
Such being the facts, as we understand them, this legal question arises: Who are the agents of the government with power to bind the United States by express contracts ?
This question is one of the most important and difficult that has ever been before the court, relating not only to the number of suits now awaiting our decision, but to numberless other suits, which, so long as this court may exist, will arise from every department of the government, and which, if our conclusion here is sustained, must to all intents and purposes be determined now.
Among private persons and bodies corporate, the relations of agency may be easily established. An express authority need not be shown; and where no agency in fact existed a subsequent ratification will relate back and legalize that which had no legal inception. So also where an agent has no authority to delegate his powers to another, the recognition of the. sub-agent will establish a second agency, and constitute him the agent of the principal. It is the settled rule of this court, aud the principle upon which it was established, to administer the same law between the government and a claimant which is administered between ordinary suitors. But the difficulty in these cases is to determine lohcit is the government. The President and his cabinet are frequently spoken of as the government, yet they are merely high officers possessing delegated and restricted powers. But it is not necessary to hold the law-making power alone to be the government, for in many instances, as, for example, in our relations with foreign powers,
But by this expression “expressly authorized by law,” it is not intended that the agency must be expressly named in a statute. When Congress is recognized as the principal, the analogies of the law of agency can be preserved in these and all similar cases. The agency may be expressly named or necessarily implied. So, too, acts not binding on the government may be made valid by legislative ratification; and those who were not agents may become such by the recognition of Congress. It is merely intended that an authority to bind the government by contract can only be imputed to one whose power proceeds directly or indirectly from the legislature, and whose authority is created and defined by express law, or by necessary implication.
With regard to the cases now to be decided, we do not find that there is any statute prohibiting a general in time of war from appointing purchasing agents like Mr. Roeside. But we do not find that there is any statute which expressly or by implication confers any such power, or authorizes any such appointment. Further than this, the acts of Congress have provided with particularity and care for the purchase of military supplies, and have organized a complete corps of officers originally called by the expressive name of “ the purchasing department,” (Act 24th April, 1816, 3 Stat. L., p. 297,) who are the military purchasing agent3 of the United States. It was formerly the duty of the chief of these officers, (the Commissary General'of purchases,) “under the direction and supervision of the Secretary of War, to conduct the procuring and providing of all articles of supply requisite for the military service of the United States;” and it was made the duty of his assistants, (the deputy commissaries,) “when directed thereto, either by the Secretary of War, the Commissary General of purchases, or, in cases of necessity, by the commanding general, Quar • termas ter General, or deputy quartermasters, to purchase all such of the
But it is desirable that this decision should not be carried further than the court intend, nor applied to facts differing from those to which we apply it. We do not decide that if General Fremont had made these contracts himself, and in his own name, he might not have done himself what he might have compelled a subordinate to do; neither
But the cases do not stop at this point. These parties have voluntarily placed tlieir property at the disposal of the government, and they have done so on the faith of a contract sanctioned by an officer of the highest military rank, and intrusted with the highest military responsibility. They have, moreover, given evidence by which the court can estimate the value of the property sold; and they have shown that this property was .used in the service, taking the place of other property which would otherwise have been purchased, and being provided for by ample appropriations previously made by Congress. It would, therefore, be an ungracious answer were the law to deny them all relief, and an unjust and harsh conclusion to say that they are entitled to no redress when the government has accepted their property and received a benefit thereby. The maxim which G-rotius applies to the compacts of generals in war seems not inapplicable here: “ Whatever brings profit is binding;” as, also, is his comment thereon: “ We must condemn them of injustice who refuse to perform the agreement, and yet still retain that which they could never have had without the agreement.”
But this acceptance of the property by the government is not to be understood as resting upon the ground of its acceptance by the govern-ernmcnt quartermaster. An officer of the government has no power to bind the government by the acceptance of property where its purchase would be illegal. On the contrary, such property could not be deemed to be received to the use of the United States. In the cases before us I look beyond the naked act of the quartermaster, and place the acceptance of the government upon the following grounds: First, upon the fact that the object of the sale was lawful and proper; that Congress had authorized such purchases by general appropriations, and that they would have been valid if made by the proper agents. Second, upon the fact that though property was purchased by an unauthorized person, not the agent of the government, yet still that it
A distinction, nevertheless, is to be made between services and things which are in themselves legal, and those which are illegal. The services of Mr. Reeside, even though they were wholly beneficial, were partly lawful and partly unlawful. Iiis claim for commissions rests upon the fact that he was required to assume a responsibility as the purchasing agent of the government. This responsibility the law vests in the officers of the government; they could not divest themselves of it, nor contract with Mr. Reeside to assume it. Much less could they compel the government to assume the expense and burden of his undertaking to bear that which they were required by law to bear. At the same time, his services as inspector and forwarding agent were legal; a benefit was derived from them; they were accepted by the government, and for them the government is liable.
I have arrived at the general conclusion which governs these cases, after careful reflection, endeavoring to look beyond them, and to rest the decision on a broad and enduring principle, which will be applicable to all other cases, and will shield the government from the enlarging exercise of a dangerous power, and do substantial justice to every person who may voluntarily part with property upon the faith of a supposed agreement, and for the benefit of the United States. It is not perceived that beyond the hardship of an exceptional case, any injury can be done under the rule which this case suggests. That rule is this : The power to bind the government by contract can only be exercised by those officers whom Congress have constituted its agents, either by the express words of a statute or by necessary legal implication; yet, where a person has parted with his property for a lawful purpose, which has been received and used by the proper agents of the government in the necessary service of the government, there the owner may recover for its actual value.
In October, 1861, payments were suspended by order of the War Department on all contracts made under or by the authority of General Frémont. The reason of this suspension was that frauds were supposed to have been practiced on the government in some instances, and in others, that-the contracts were irregular and illegal. On the 25th October, 1861, a commission, consisting of Messrs. Davis, Holt, and Campbell, was appointed by the Secretary of War. The order for their appointment states that they were appointed “to examino and report upon all unsettled claims.” And the former Secretary of War has testified in another case that “ It was an exparte commission of inquiry, and they were to report to the War Department, subject to its revision. The commission had no final powers.” The War Department also from time to time gave to the commission specific instructions respecting its proceedings, which were complied with. The commission was therefore ex parte in its nature, and was not intended as an arbitration, nor supposed to he possessed of judicial or quasi judicial functions. Public notice was given that all the suspended claims might ho submitted to the commission before a specified day, arid, if allowed, would be paid. The department did not oblige the claimants to submit their claims, but as this was tlie only remedy afforded, and no claims save those submitted were paid, it was in effect a practical compulsion. In some instances the papers and vouchers of the claimants were sent to tlie commissioners by tlie quartermaster to whom they had been presented for payment; in others, the parties themselves submitted them. When the commissioners liad reached a conclusion, they required the party to sign a release, not under seal, in the following form:
“ The undersigned acknowledge to have received the vouchers referred to and described below, which, when paid, will be in full of all demands against the United States on account of the respective claims set opposite to their names :
Receipt. $00, 030 Samuel J. Morgan.* 302 Name of claimant. Nature of Samuel J. Morgan.. Horses. - - I! $67,8G0 Amount al-Sdiedulc.
At the time o£ signing the release, some of the parties protested, averring that they did so under compulsion, and in order to procure their
We think it evident that the proceedings of the commission did not constitute an arbitrament. We think it also evident that the stipulation exacted by the commissioners, inasmuch as it neither expressed a consideration nor was under seal, cannot be deemed a valid release of an existing indebtedness. We think it also evident that if the express contracts were valid, this receipt or agreement could not be an accord in satisfaction of a disputed or doubtful claim. But when the illegality of the express contracts is established, then it becomes a question whether the offer of a certain amount by the one party, upon a claim whose validity he correctly denies, on the express condition that the payment shall be taken in full satisfaction of the protended indebtedness, followed by the signing of a stipulation to that effect by the other party, and his acceptance of the amount offered, does not conclude him from ever disturbing the case thus adjusted, and from recovering the balance which he expressly relinquished?
If this were a suit between ordinary persons, we might say undoubtedly that the plaintiff was thus concluded. And if the analogy between these suits and an ordinary action were complete, we also might say that the claimants were concluded. But the analogy is defective in this essential — that if the claim had been against an ordinary person the plaintiff might have enforced it by a legal remedy, and hence that his settlement or compromise of what was doubtful or disputable was voluntary; while, here, the claimants had at that time no legal redress, and their refraining to accept what the commission offered would have been a sacrifice of all that was due to them. In the ordinary case the defendant says, you may accept what I offer you, or you may pursue your legal remedy; in this case the government said, you may accept what is offered, or you may go without anything. The controlling element of voluntary compromise was tliere--fore wanting; or, as was said by-Mr. Justice Story, in the case of The United States v. Dickson, 15 Peters, p. 161: “The construction given to the laws by any department of the executive government is necessarily ex parte, without the benefit .of an opposing argument, in a suit where the very matter is in controversy; and when the construction is once given, there is no opportunity to question, or revise it by those who are most interested in it, as officers deriving their salary and . emoluments therefrom, for they cannot bring the case to the test of a
I say that “at that time” the claimants had no legal redress, for at that time the Court of Claims as at present constituted did not exist. The court, down to its re-creation, in 1863, sat only to determine questions of law and fact, which, when determined, were to be submitted to the discretion of Congress. To procure the passage of a claim which had received the sanction of the court was found to be as difficult as to pass one which had never been submitted to it for adjudication. 'It was also found that Congress disregarded or rejected more of the judgments of the court than they enforced. In practical effect, therefore, as in legal theory, the court possessed no adequate remedy, and gave no judicial redress.
As at present constituted, the Court of Claims has all the power requisite for giving to the creditor upon contract against the United States effective and complete redress. It has power to summon witnesses, to enforce their attendance, to adjudicate “ set-offs and counterclaims,” to render final judgment against the government or against tiie claimant. These “final judgments,” if in favor of the claimant, “shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims.” (Act March 3, 1863, 12 Stat. L., p. 765.) The law and the ncmedy, therefore, are essentially different from the law and remedy existing at the time the claimants accepted the award of the military commission. The element of voluntary concession and compromise might now well exist in a similar transaction, and we should not in any sense be able to say that the party would have sacrificed everything if he had not accepted what the government saw fit to give him. Under the existing law we miglif well hold, upon the facts in these cases, that the claimants had a perfect legal option, and that they elected to compromise and settle their respective demands.
In the case of Reeside v. The United States, the amount claimed is $16,168 97, for commissions upon 5,027 horses, costing in the aggregate $646,760; and the further sum of $3,622 15, commissions upon military equipments and other property purchased by the claimant under the directions of the quartermaster, and costing the sum of $144,488 10; and for the further sum of $585 50, being money paid to the use of the United States, in furnishing necessary subsistence to the horses after purchase, &c., &c.; all of which amount in the
In the cases of Higdon, Morgan, and Geffroy, the findings of the court will be separately filed.
An accomplished scholar, Mr. James C. Welling, assistant clerk of the Court of Claims, has pointed out tho fact that this maxim is a corruption of tho text of Cicero, Silent euim leges inter arma, and hardly entitled to be called a maxim of constitutional law. “ The saying,” as Mr. Welling remarks, “ takes its origin from Cicero, having been used by that great lawyer in the argument made in defence of Milo, when on trial for the killing of Clodius. Cicero, who was tho warm personal and political friend of Milo, appeared as his advocate before the judges selected to try him, and the great orator determined to rest his case on the theory that his client had killed Clodius in self-defence, under circumstances which rendered the killing of the latter justifiable, or excusable homicide. Having in the exordium of his argument briefly unfolded this view of the case, and excluded the idea that all acts of homicide were necessarily criminal, ho proceeded to say:
“ ‘There is then, judges, a law of this kind — not written, but inborn — which we have apprehended, drank in and extracted from nature herself; in conformity to which we have not been taught, but made; in which we have not been educated, but ingrained ; and this law is, that jf our life fall under peril from any ambush, violence, or weapon, whether of robbers or of personal enemies, recourse should be had to every honorable means to safety. For the laws are silent in the midst of arms.’ ”
Mr. Welling also cites Lord Coke as using the maxim in its original and proper form and
“And therefore when the courts of justice be open, and the judges and ministers of the same may by law protect men from wrong and violence, and distribute justice to all, it is said to be lime of peace. So, when by invasion, insurrection, or rebellion, or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be as were shut up, et silent leges inter arma, then it is said to be time of war.” — Co. Litt. 249, b.
But the maxim is recognized in in its more modern sense by Sir James Mackintosh, in one of his greatest speeches, and the passage is quoted with approval by Sir Frederic Thesiger in the debate in Parliament upon the Ceylon disturbances. — Hansard, Vol. 117, p. 167 :
“ While the laws arc silenced by the noise of arms, the rulers of the armed force must punish as equitably as they can those crimes which threaten their own safety and that of society, but no longer. Every moment beyond is usurpation. As soon as the law can act, every other mode of punishing supposed crime is itself an enormous crime.” — Speech in the case of “Missionary smith,” Mackintosh’s Works, p. 734.
Concurrence Opinion
concurring.
I agree in the findings and judgments in the cases of Higdon, Morgan, Geffroy, and Reeside. I dissent from nearly all the positions assumed in the opinion just read, and proceed to state the views I entertain in the cases. Nor is there an agreement of a majority of the court as to any of the doctrines hnnounced. The views contained in these opinions are not to be ..regarded as the decision of the court, but of the particular judges wlio delivered them, or expressly assented to them.
In July, 1861, Major General John C. Frómont was assigned by the President to the command of the department of the west, with headquarters at St. Louis. This happened at a period when the military operations undertaken against the rebellion had been unsuccessful in the west and disastrous in the east. A call had been made by the President for a large number _ of volunteers. Fremont was charged with the duty of organizing, equipping, and furnishing a large army out of the western and northwestern quotas. Whatever powers the President and Secretary of War could confer upon him he possessed, even to the selection of his own officers, whom the President assured him beforehand he would commission. Upon this subject General Fremont testifies as follows:
“No special object was given me in charge to do, nor was I furnished with any particular plan of a campaign. The general discussions at Washington resulted in the understanding that the great object in view was the descent of the Mississippi; and for its accomplishment
“Full discretionary powers of the amplest hind, were conferred on me. Not a line of written instructions was given me.
“ This leading object of the campaign being settled, the details of its accomplishment and the management of my department were left to my own judgment.
“ No specific powers were given to me. But no restriction whatever was placed upon me in taking command of the department.
“ I understood and expected to exercise any and whatever power was necessary to carry out the work I was sent to accomplish, whether strictly within the limits of the power conferred by my commission or not.
“I derived my povier in that respect from the President, and from conversations with the Secretary of War, and Mr. Blair, the Postmaster General, neither of whom used any expression which implied a restriction of power. On the contrary, the drift of the conversation was to the effect that 1 should exercise any power required. * *
All the powers incident and necessary to carry out the object to be obtained were given.”
' General Cameron, Secretary of War at the time, testifies :
“General Fremont had unlimited power in regard to his .expedition. It was the desire of the War Department that he should succeed. It was the practice of the War Department to give full power to the generals in charge of expeditions. I mean by General Frdmont’s expedition, his operations about St. Louis, and his descent of the Mississippi river. As commander of his department, General Fremont had full power to make contracts, and to do anything to secure success. In my view of his p>owers, he had authority to make contracts for gunboats and mortar boats, and, I presume, to approve them when made by others under his direction ; but I know nothing of any particular case, or of the mode prescribed specifically by law. General Fremont was authorized to get and do all that was necessary to insure the success of his expedition. This power would, of course, include power to purchase and secure steam tug boats and their equipments, and to build tug-boats and steamboats.”
On cross examination, he says:
“As Secretary of War, I should have approved anything that General Fremont would have done in preparing for his expedition. 1 think General Fremont could have gone and bought anything he .wanted. If any informal papers had been sent me, 1 should have
Thomas A. Scott, Assistant • Secretary of War at the time, also testifies:
“ I was connected with the War Department at the time General \ Jolm O. Frémont was appointed commander of the western military ^ department of the United States by .the President. General Frémont \ was invested with all the powers which to him might seem needful to i carry forward successfully a]] military movements in his department.” :
The situation of the country and of the department demanded ' quick, prompt, decided measures and movements. Congress had made large appropriations for the purchase of transportation, clothing, and other supplies for the army. To- supply his command with artillery, cavalry, and wagon horses, among other means, he employed John E. Reeside, an admitted expert in buying horses, to go to Cincinnati and there purchase horses in the open market.' The orders issued to Ree-side were as follows:
“HEADQUARTERS WESTERN DEPARTMENT,
“St. Louis, August 11, 1861.
“ Sir : Having confidence in your' knowledge and experience, I - hereby authorize and commend you as inspector of horses for this department, holding you responsible that every animal passed by you shall be equal in value to the price paid.
“ You will be allowed per cent, commission.
“J. C. FREMONT,
“ Major General Commanding.
“ J. E. Reeside, Esq.,
“ Inspector of Horses.”
“Headquarters Western Department,
“ St. Louis, August 10,1861.
“ Sir: You will proceed without delay to Cincinnati, and purchase, cause to be purchased, or insp'ect when purchased by other contractors, two thousand horses, for the service of the army in this department.
“ You will not pay on an average over one hundred and thirty dollars each, at such places as you may name as places of inspection.
“ The horses are required to be suited to the most active field ser
“J. C. FRÉMONT,
“ Major General Commanding.
“John E. Reeside, Esq.,
“Inspector of Horses”
Under these instructions Reeside repaired at once to Cincinnati, purchased a large number of horses, and forwarded them to the quartermaster of the United States army at St. Louis. The quartermaster received them, and gave to the parties from whom Reeside bought them the same kind of vouchers as if he had himself made the purchases. Reeside’s agency in the matter was recognized by the quartermaster, as the following communications, instructions, and orders will show:
“HEADQUARTERS WESTERN DEPARTMENT,
“ St. Louis, August 19, 1861.
“J. E. Reeside, Cincinnati:
“ Funds have been called for to pay for the horses you are now receiving and inspecting. But as yet the funds have not been received. So soon as they are, immediate arrangements will be made to pay the accounts. ,
“ Ship the horses you inspect to Captain P. T. Turnley, assistant quartermaster United States army, St.-Louis.
“ P. T. TURNLEY,
“ Captain, Assistant Quartermaster U. S. Army.
“ Will be found at headquarters.”.
“St. Louis, October 1, 1861.
“ Sir: The contract I made with Mr. G-. A. Sacchi, of New York, (by directions from the general commanding this department,) to deliver at this place by 30th September, 1861, one thousand Canadian horses, has not been complied with by Mr. Sacchi, and npt a single horse has yet been delivered.
“You are therefore authorized to continue to inspect from those furnishing horses in Ohio, Indiana, and neighboring States, (not Canada,) first rate No. 1 cavalry horses, to fill the thousand referred to in Mr. Sacchi’s contract. No higher rates will be paid than the average cost of those you have already inspected.
“Respectfully,
“ P. T. TURNLEY, A. Q. M.
“ J. E. Reeside, Inspector of Horses, Cincinnati.”
“1861.
“ From August 11 to November 1, 1861, to services as inspector of horses, in inspecting horses furnished by the following named contractors, and shipped by me to St. Louis, Missouri:
Creain & Higdon, 1, 000 at $127 50. $127,500
Samuel J. Morgan, 500 at 130 00. 65,000
H. O. Gilbert, 207 at 130 00. 26,910
O. H. Geffroy, 170 at 124 00. 21, 250
J. R. Burton, 149 at 125 00. 17, 625
Creain & Higdon, 151 at 130 00. 19,630
2, 177 . 277,915
“ Commissions on $277,915 at 2-J per cent., $6,947 87.”
“ I certify that the above account is correct, and that the services were rendered as stated, and that they .were in accordance with Major General J. C. Frémoñt’s orders to me and to J. E. Reeside, and that the horses were forwarded to me at St. Louis and there received, and were the best lot of horses I have received and inspected in the United States army.
“P. T. TURNLEY, A. Q. M. '
“ Entered:
[“Duplicate.”]
“J. R. COOK, Clerk.
“St. Loins, October 22, 1861.
“ Sir : You are authorized to complete furnishing of horses for Colonel Taylor and Colonel Kennott’s regiments. The horses can he supplied at prices not to exceed one hundred and twenty dollars.
“ Respectfully,
“R. W. ALLEN,
“ Major and Quartermaster.
“ J. E. Reeside, Esq.”
Major Allen, now General Allen, it .will he recollected, became the chief quartermaster of the department of the west after Frómont’s suspension from the command.
On the 14th of October, 1861, Frémont was superseded in the command of the department of the west. Charges of fraud and corruption were freely made against him and others associated with .him through the public press and otherwise. To determine how far the charges of
Several of these claimants came voluntarily forward and presented their cases to the commissioners, and some were examined by them of their own motion from papers and vouchors found in the quartermaster’s office at St. Louis. From all the vouchers presented to them they deducted large sums, alleging that the horses and other material sold and furnished to the officers and agents of Frémont were at higher prices than the same articles could have been procured for.
The commissioners refused to return the papers and vouchers of the claimants submitted to them until they would sign an agreement to receive the amount awarded by the commissioners in full of their claim. Some of the claimants openly protested ; others silently acquiesced. The agreements were signed, the papers delivered to them, and the amount awarded afterwards paid by the United States.
The commissioners in their report say:
“ So soon as we had been sufficiently familiar with the facts presented, and with the principles applicable to them, to enable us to feel entire confidence in the conclusions arrived at, we began to deliver vouchors, certified in accordance with the instructions of the Secretary of War. The first delivery occurred on the 9th day of January, 1862, and has been since regularly continued, as our decisions have been pronounced. In giving out the claims presented, with the allowances upon them, it was necessary that some receipt should be executed by the claimants. In deciding what should be the character of that receipt, it seemed to us that as a protracted and patient examination had been given to these claims, and the parties had been heard either in person or by attorney, and the cases had been continued from day to day, so long as those interested desired to produce testimony, and the government, by our action was committed to pay the amount allowed, it was no more than proper that the claimants should be required to accept the allowance
Five of these seven suits are for the amounts stricken off by the commissioners, and payment for which has been refused them. The case of Benjamin Higdon, No. 1,913, for seventy-eight horses, and of John E. Reeside, for his compensation or commissions for buying horses at Cincinnati, were never before the commission.
This is believed to be a fair, succinct statement of the leading and principal facts in these cases, and upon them the United States solicitors allege the claimants cannot recover :
1. Because General Fremont had no authority to make contracts or purchases, and no right to confer that power upon any other.
2. Because the claimants are estopped or barred by the proceedings before the commissioners and their acceptance of the sums awarded, and their receipts thereupon given in full of the entire claims.
On the first point it is contended that a 'commanding general of an army, whatever may be the exigency, cannot under the law make valid and binding contracts for supplies, nor authorize others than theregular quartermasters, commissaries, &c., to do so, however incompetent and inefficient the latter may be. To justify us in holding that to be the law, which must produce insubordination in the service, and may at any time thwart or defeat the best devised plans of a commander, it ought to be plainly and unmistakably written. Congress has beyond all question the right to pass such a law, but the intention to introduce such a crude and mischievous principle should not be inferred from doubtful phrases, or other than express and explicit terms. Let us now proceed to examine, in chronological order, the legislation of Congress upon this subject. Whether these enactments will bear the construction contended for will be best ascertained by careful attention to, and close analysis of, the words and terms employed.
In 1792, May 8, (1 Stat. at Large, 279, ch. 37,) an act was passed making alterations in the Treasury and War Departments, by which it is provided (sec. 5) “that all purchases and contracts for supplying the army with provisions, clothing, supplies in the quartermaster’s department, military stores, Indian.goods, and all other supplies or articles for the use of the Department of War, be made by or under the direction of the Treasury Department.” This act clearly shows, by intendment, that prior to its passage the Secretary of War had authority, under the general terms of the statute of 1789, to make these contracts.
This is also apparent from an act of 1798, (1 Stat. at Large, 610,
In 1809 a statute was passed (2 Stat. at Large, 535-6, ch. 28,) which provides (sec. 5) that all purchases and contracts for supplies or services which are, or may according to law he, made by or under the direction of either the Secretary of the Treasury, the Secretary of War, or the Secretary of the Navy, shall be made either by open purchase or by previously advertising for proposals respecting the same.
In 1813 a statute was passed entitled “ An act the better to provide for the supplies of the army,” &c., (2 Stat. at'Large, 816, ch. 48,) one object of which was to provide for the subsistence of the army, by purchase or contract, or by the use of supplies on hand, “in all cases where, either from any want of contractors or from any deficiency on their part, or from any other contingency, such measure may be proper and necessary in order to insure the subsistence of the army or any part of it.”
This is evidence of a clear intent that the subsistence of the army shall not be defeated by the want of contractors, or by an inability on their part to perform their contracts, or from any other contingency or disturbance.
Tn 1818 a temporary statute was passed, (3 Stat. at'Large, ch. 61, sec. 7,) by which it is provided “ that supplies for the army, unless in particular and urgent cases the Secretary of War should othenoise direct, shall be purchased by contract to be made by the commissary general on public notice; which contract shall be made under such regulations as the Secretary of War shall direct.” The section referred to was, on the 23d of January, 1823, (3 Stat. at Large, ch. 5, p. 721,) and on the 2d of March, 1829, (4 Stat. at Large, ch. 42, p. 360,) severally continued for the period of five years; and on the 3d of March, 1835, until the same should be repealed by Congress.
In 1820 a statute entitled “ An act in addition to the several acts for the establishment and regulation of the Treasury, War, and Navy Departments” was passed, (3 Stat. at Large, 567-’S, ch. 52, sec. 6, May 1,) which provides, ‘‘ that no contract shall hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an appropriation adequate to its fulfilment; and excepting also contracts for the subsistence and clothing of the army or navy, and
In 1858 a statute was passed, (11 Stat. at Large, pp. 266, 269, cb. 25, see. 4, May 4, 1858,) which makes it tbe duty of the Secretary of War and of the Navy to report to Congress, severally, such contracts as they might make under section 6 of the law of 1820.
In 1860 a statute was passed, making certain appropriations, (12 Stat. at Large, pp. 91,103, ch. 205, sec. 3,) which provides “that all purchases and contracts for supplies, when the public exigencies do not require the immediate delivery of the article, or performance of the service, shall he made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or service may he procured by open purchase or contract, at the places and in the manner in which such articles are usually bought or sold, or such services engaged between individuals. No contract or purchase shall hereafter be made trnless the same be authorized by law, or be under an appropriation adequate to its fulfilment, except in the War aiid Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the eur-rent year.”
The third section of this act was repealed March 2, 1861; hut its provisions were re-enacted in the same terms. (12 Stat. at Large, 220, ch. 84, see. 10.)
By the'fourth section of the act of 28th March, 1812, (2 Stat., 696,) Congress provided for the appointment of a commissary general of purchases and as many deputies as, in the opinion of the President, the public service might require. The fifth section of the same act defines the duties of this officer to be, under the direction and supervision of the Secretary of War, to conduct the procuring and providing of all arms, military stores, clothing, and generally of all articles of supply requisite for the military service of the United States.
And it shall be the duty of the deputy commissaries, when directed thereto either by the Secretary of War, the commissary general of purchases, or, in cases of necessity, by the commanding general, Quartermaster General, or deputy quartermasters, to purchase all such of the aforesaid articles as may be requisite for the military service of the United States.” By the act 23d August, 1842, sec. 3, 5 Stat., 308, the office of commissaiy general of purchases was abolished, and the
These are all the statutory provisions relating to contracts for military supplies that have any bearing upon the questions involved, that I have been able to find, that were in force when these contracts were made. The want of an appropriation by Congress cannot be alleged, as, on the 17 th day of July, A. D. 1861, Congress appropriated §10,514,500 for the purchase of horses. 12 Stat., 262. Nor was it necessary that there should have been even a law authorizing such purchases, or an appropriation for their payment; for it will bo seen that under the provisions of the act of Congress of 2d March, 1S61, (12 Stat., 220, ch. 84, sec. 10,) that contracts and purchases ‘‘ in the War and Navy Departments for clothing, subsistence, forage, fuel, quarters, or transportation,” are excepted out of the prohibitory clause forbidding contracts or purchases thereafter'from being made, “unless the same be authorized by law, or be under an appropriation adequate to its fulfilment.” This is almost a literal transcript of the act of 1st May, 1820, above quoted, except that it provides that these excepted contracts and purchases shall be made by the Secretaries of those departments. The act of 1S61 leaves them to be made as other contracts and purchases, and by the same agents and officers.
The main grounds, as I understand them, of the objections to the recognition of the contracts, in the present cases, are :
1st. That Fremont, as commanding general of the district, had no authority to make any contracts or purchases binding the United States, nor had he the power to designate or appoint any person who could exercise such authority, but was obliged to rely on the quartermasters of his army entirely to perform that service.
2d. That the contracts and purchases were void because no proposals were published and bids invited for furnishing the supplies, and no exigency existed which brought the departure from that provision within the exception in the act of Congress.
I. This ground, of course, assumes that there is something clear, explicit, and positive in the law or enactments of" Congress, which either divests a commander, situated as was General Fremont, of such power and authority, or confers them exclusively upon others. Is there anything in the acts of Congress which prohibits in any way the commanding general of an army from binding the United States for the needed supplies for his troops ? I have been able to find nothing of the kind, and none has been brought to our notice. Is there anything in the general usage of armies and nations which favors the
A general commanding an army in the field occupies pretty much the same position to that army that the Secretary of War does to the general service, especially where that army is to be raised, organized, armed, and equipped at a remote point. The quartermasters in his command are his subordinates and his aids. What they do they must do subject to his will and as he directs. Whether it relates to the procuring, issuing, or distributing supplies, his commands are the law to them. They are under him and responsible to him, and he to the government. Such has been the understanding and practice of the government; such the construction of the law by the distinguished Quartermaster General of the United States, General Meigs. Writing in reference to the very purchases in. dispute here to Hon.F. P. Blair,
country. The country will he very careful to approve his measures, and will judge his mistakes, if any, very tenderly, if successsful. Success crowns the work, and let him spare no responsibility, no effort to secure it.”
or as contended for by those who hold that General Frémont could not make any contracts or purchases, we should have the strange anomaly and contradiction that an officer intrusted with the fate of an army and the honor of Ms flag and country is liable, at any time, to have his plans thwarted, his expedition de- , layed, success turned into ruin and. disaster, by the incompetency or /' wilful neglect of a quartermaster. If the law has vested the whole power * and authority in the quartermaster, he may not interpose his orders as commander to compel such officer to get certain supplies, or by a certain time, or in certain quantity. For that admitted, yields the whole point. If the commanding general may direct a quartermaster to contract for, or to purchase in open market, supplies of specified kinds and. grades, and to certain amounts, and by a certain time, what power is left in the quartermaster? None whatever. He becomes that which he was intended to he — merely the clerk, agent, or instrument in the transaction of the business, while the commanding general is the depositary of power, and the moving, controlling, and directing l spirit of the organization. Such I conceive to be tbe ordinary powers i of a commander of a department or an army. B ut General Frémont was j intrusted with extraordinary powers. As will he seen by the testimony >! of General Cameron, then Secretary of War, Frémont was invested with unlimited authority in regard to his department. The testimony of Colonel Scott, Assistant Secretary of War, is to the same effect. Whatever powers the President and Secretary of War possessed they conferred upon General Fremont within his district or department. !_ Much has been said about the war powers of tbe President. But such 1
As to his department he occupied the same position the Secretary did to the general service; that is, ho was to exercise all the lawful, all the war powers of the President, in organizing, arranging, and supplying his expeditionary army. It it is said that though he cotfld not do these things himself he could order his quartermasters to do them. He could designate the kind and quality of articles he needed and the time within which they should be supplied — and if the officers receiving such orders failed or refused to execute them, they would ■ be liable to punishment. This admission, I think, yields the whole argument; because if he could do all this it placed the whole subject under his control, direction, and supervision, and the major always includes the minor. The misapprehension that exists upon this subject arises, I think, mainly from the want of a clear and full comprehension of the object and purposes of the birreaus in the War Department, of the quartermaster, commissary, ordnance, &e. They are not so much intended to make contracts and control the purchases as they are constituted for the proper distribution and accountability of the property after it has been procured. The Secretary of War or the commanding general procures supplies, and passes them into the hands of the quartermaster’s or commissary’s department, that they may be properly and securely kept, that they shall be legally distributed, that proper vouchers shall be taken for them, and that clue accountability shall be maintained.
II. It is alleged, moreover, that the contracts were void, because the purchases were made in the open market, and without previously advertising for proposals. And it is further alleged and assumed that there was no such exigency as justified a departure from the contract system. The act does not prohibit purchases from being made in another way, nor make void contracts or purchases made without such advertisements. It is a rule prescribed for the officer intrusted with getting such supplies, but is not a condition or element of the contract. It does not preclude parties selling to an authorized agent or officer of the government, in open market, from recovering the agreed price, in the absence of all fraud and collusion.
The acts of Congress require that a clause shall be inserted in all
What is that public exigency which requires immediate delivery of articles, or performance of service, which justifies dispensing with the advertisement ? Who is to decide whether it exists ? When the Secretary of War or a commanding general goes into the market to buy supplies, must every seller of a horse, a bale of hay, or barrel of beef decide at his peril whether the exigency exists or does not ? If he decides right he gets his-pay, provided the court before which he sues years afterwards, knowing as little about the exigency as he did, should agree with him in opinion. If he happen to be unfortunate in these respects, the United States get his property, and he’ gets their maledictions in return. The incongruity and injustice of such a doctrine are too glaring and apparent to require refutation. To form a correct conclusion upon the question of whether the exigency exists or does not, would require an amount and accuracy of information possessed only by a few of the high officers of the government. That exigency, too, in time of war, when it would be most likely to occur, might be founded upon information and facts which it would be hazardous or disastrous to reveal. The safety of the army, or the highest considerations of public policy and welfare, might require this information to be kept secret. Yet if every shopkeeper, trader, merchant, and horse dealer from whom you seek any supplies must form his judgment and act at his peril, you are bound in honor and justice to disclose to him the real, actual state of affairs. I cannot impute to Congress the intention to enact anything so void of either sense or justice, without at least some words or terms to justify such an interpretation. An exigency exists when, from any cause, it is necessary for the good of the public service that the articles should be procured or service performed without any delay. To determine it properly and intelligently requires a view of all the facts and circumstances out of which it arises. It is a pure military question so far as it relates to the army. Who shall decide it ? Who shall decide whether an army shall advance or re
In resorting to this mode General Fremont opinions of Quartermaster General Meigs, expressed in the same letter from which I have before quoted, ho says :
“ In regard to advertising ulations expressly provide that in case of public exigencies supplies are to be bought in open market as between individuals. Exercise this power. Moreover, advertisement or public notice does not require postponing opening of bids for a month, or a week, or two days. If forage, wagons, horses are wanted, the law, the necessity, are fully met by putting a notice in the papers, and purchasing as fast as the offers come in. The next day, or the same day, take the then lowest bidder or the then most advantageous offer. The day after you will have a still better offer; lake that for a portion of your supplies, and so on till you have all you need. By this system I have brought down the price of horses from $138 to $130, of wagons from $111 to $108, since I came hero, and have got abundant supplies.”
1 think I shall be able to show that there was such an exigency as justified a resort to the open market, decided right. But whether right or wrong can be of no importance in this case. The purchases were made upon the faith of the government, and the only question is whether the parties who sold to the government should be paid the agreed price. The United States received all the property; there is no fraud alleged against the sellers, the claimants in the cases; nor of any undue advantage having been taken of any of the officers or agents making the purchases. Besides, the evidence, in my judgment, greatly preponderates that the price of the horses was not too high according to their kind and quality.
When Fremont was sent to take command of department west in July, 1861, it was a critical and trying period in the history of the country. It was a time of great and overwhelming anxiety and solicitude to all loyal men. The rebellion was assuming vast and dangerous proportions. The national arms had met with recent checks
Tbe United States, reposed a great trust in General Frémont. They held him out to tbe nation and tbe world as possessing all tbe powers of tbe President and Secretary of War in regard to tbe organization and supplies of bis army. In consequence of that, citizens parted with their property, not on tbe credit of General Frémont’s name, but on tbe faith of this great nation. Can this government now repudiate these contracts? If these contracts were fairly and honestly entered into — and there is not a scintilla of proof that they were otherwise — the honor and faith of tbe nation would be greatly damaged by such repudiation. The searching investigations of tbe St. Louis commission and of tbe congressional Committee on the Conduct of the War, and tbe close and sifting examinations of tbe solicitors in these cases, have failed to show any corruption, or bring home any fraud to tbe parties in these cases. That in such efforts it has not been discovered, is at least presumptive proof that it does not exist.
In this court we bold claimants to tbe same strictness in tbe performance of their contracts with tbe United States as-if the-transaction.
II. It is finally urged upon us that though these contracts may have been originally valid and binding, the claims made upon them are barred by the proceedings under the Holt-Davis commission, and the acceptance by several of these claimants of the amounts awarded them by that board, and giving receipts in full for their entire claims. These facts have been pressed upon us earnestly in various aspects. 1st. As an arbitrament and award; 2d, as accord and satisfaction; 3d, as a compromise of doubtful and disputed rights.
1. It has no feature whatever of a submission to arbitration. The commission was an ex parte one; constituted not to decide upon the validity and amount of the claims, but as to the facts and circumstances surrounding the transactions out of which they arose. It was intended to elicit facts instead of reaching conclusions or producing final results. Arbitrament always implies mutual submission of the dispute. In our case it is totally wanting. But if there had been even a concurrence in the submission by the claimants it would still he unavailing; for, to render an award binding- on either party, it must be equally obligatory on both. The Secretary of "War had no power to submit the rights of the United States to the arbitrament of private and unofficial persons. He could only adjust the claims against his department through the agencies constituted by the law, or through the judicial courts of the nation. There was no law authorizing him to make and constitute such a tribunal. Hence their decisions and reports, whatever .light they may have cast upon the transactions or information
But let us test this question a little closer. Suppose this commission, instead of deducting a large sum from the contract prices had added the same amount to them, and these suits instead of being brought upon the contracts were'upon such awards, and the position of the parties be thereby reversed, the United States defending under the contracts instead of now under the award, how would the matter standi Could the award in such case be sustained? Clearly not. And this answers the whole argument; because, if available as a defence now, it would in the other case ho equally so as a ground of suit.
2. To support an allegation or plea of accord and satisfaction there must be some new consideration moving from the party who sets it up. The payment of a part of a debt, in consideration of the creditor relinquishing the residue, where the debt is due at the time, will not support the plea or averment. (Warren v. Skinner, 20 Conn. Rep., 559, 1 Bac. Ab., 43.) To sustain a release not under seal a consideration of some kind, apart from the original indebtedness, is necessary; and without such consideration it is nudum, pactwm, and void. In support of this principle there is ah overflowing flood of authorities, without sufficient counter-current to make an eddy in the stream, or a ripple on its surface. The ease of Wentz v. De Haven, (1 Sergt. and K., 312,) cited by the solicitor, which intimated a contrary doctrine, has been repeatedly overruled by the same court which inadvertently made it. (Whitehill v. Wilson, 3 Penn. Rep., 405; Campbell’s estate, 7 Barr, 101; Kennedy v. Barr, 445; Kidder v. Kidder, 9 Casey, 268.)
This case was followed and the principle sustained by Pratt, C. J., in Cumber v. Wane. (1 Strange, 426.) And again, more explicitly, by Lord Ellenborough, in Fitch v. Sutton. (5 East,., 232.) “But it cannot be pretended that a receipt of part only, though expressed to he in full of all demands, must have the same operation as a release. It is impossible to contend that acceptance of ¿£17 10s. is an extin-guishment of a debt of ¿650. There must be some consideration for the relinquishment of the residue; something collateral to show a possibility of benefit to the party relinquishing his further claim; otherwise the agreement is nudum pactum. But the mere promise to pay the rest when of ability put the plaintiff in no better condition than he was before. It was expressly determined in Cumber v. Wane that acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a greater. That decision is directly supported by the authority of Pinnel’s case, which never appears to have been questioned.”
From this ruling there has scarcely been a departure up to the present day in England, where it is firmly established. And this same principle has been followed, as already stated, in nearly every State in the Union, its sound sense and justice commending it to the judgment and conscience of courts everywhere and at all times. A few of the American eases are here referred to, which will be found to sustain the doctrine to the full extent to which I apply it in this case: Sigourney v. Sibley, 21 Pick., 101; Miller v. Hemgler, 5 W. and S., 486; Lawrence v. The Schuylkill Navigation Company, 4 W.
A careful review of the English and American authorities will demonstrate, beyond all controversy, that there is no case of recognized and established authority that contravenes the principle we apply in this case. "Whenever the rule and the principle have apparently been departed from, it will be found that the debt or demand was uncertain and unliquidated. Wherever, as in our eases, the amount of the claim or debt is definite and certain,-the principle is invariably applied. In such cases as are unsettled, where the parties come together and agree to settle and liquidate the demand at a certain amount, and it is paid and received in full satisfaction, in good faith, it will be sustained as accord and satisfaction, or a compromise. In the cases we are considering there is nothing for such a doctrine to operate upon. They were not open, unadjusted, unsettled claims that the claimants held. They were regular official vouchers, given by the quartermasters, stating in words and figures the amount due the parties, or were distinct written contracts specifying precisely the amount to be paid for materials furnished or services performed. So these claims are treated by this commission. The amount of the vouchers of the claimants, or of their contracts, is plainly set down. From that amount a certain sum is arbitrarily deducted, and the proposition made, “Take this less sum in satisfaction for the whole, or get nothing.” It is taken and a receipt in full given, or an agreement signed not to sue for residue. Now where is the consideration for this promise? The demand was specific. The United States has so treated it in every instance. The debts were due and overdue in all the cases. What the claimants received was admitted to be due to them, irrespective of this arrangement. Where, then, is the least spark or tittle of consideration to support and sustain these pretended releases, or accords and satisfaction ? Without regard to the manner in which they were wrung from the fears or necessities of the claimants, they are as bald and naked promises as could be presented to the consideration of a court. It is not pretended there was any new consideration. There was no change of time, place, or mode of payment. It was simply an agreement to
3. The facts set up, it is alleged, if they do not constitute an award, a release, or accord, they amount to a compromise of a doubtful and disputed right. Where a party voluntarily and without any oppression or undue influence being exercised upon him by the other, relinquishes a part of a disputed claim and accepts the less sum in discharge of the whole, it is binding on him as a compromise. It is quite clear that where a dispute arises between two parties as to the validity or amount of a claim, and they in good faith mutually agree to pay and receive a certain sum, or such sum as a third party shall award, and it is voluntarily paid and accepted in discharge of the whole claim, that it is a final and binding compromise which neither will be permitted to gainsay or reopen. But such are not the facts of the cases we are considering. To make an agreement of compromise effectual it must be fair, open, and free from undue influence, oppression, and extortion. The parties must stand upon equal grounds Not so in our cases. This alleged compromise commences and has its inception in the appointment by the War Department, without the knowledge and consent of the claimants, of this one-sided commission. Their cases are taken up either voluntarily or by compulsion. Where the party does not submit his vouchers, his claim is seized upon by the records of the quartermaster’s department. The amounts are arbitrarily fixed, their papers are withheld, and they are reminded that unless they take what is offered they can neither have their papers nor the money that is admitted to be due to them. This is the compromise. They agreed to it because they were compelled to do so.
It is admitted that the claimants had no voice in the selection of these commissioners, who are now called arbitrators. They did not, either before or after the report was made, agree that they should act as referees or arbitrators on their rights. They entered into no stipulation to abide by the report or award. They did more — they protested against the injustice of the decisions, and the sequestration of their vouchers and papers. It is admitted the commissioners had no right, in any view, to withhold the papers, least of all for the purpose of compelling an unwilling submission to their finding. Yet they did withhold them, and for the very purpose avowed, and apparent of forcing an acquiescence in their decison. They succeeded in obtaining that submission and acquiescence. Is this arbitrament and award? Is this-accord and satisfaction? Is it compromise? The rack and
It was at one time maintained that duress of the person was necessary to avoid an agreement, and that duress or detention of goods would not have that effect. That doctrine is now exploded. The case of White v. Heylman (10 Casey, 142) closely resembles the one in hand. There Heylman refused to deliver to White certain deeds and papers belonging to the latter, until he would pay him $300 in money, and give his note for two hundred more. The action was on that note. Mr. Justice Read says: “ Neither the payment of the cash nor the giving of the note was voluntary, but both were extorted from the defendant, and came within that class of cases in which money illegally claimed and paid has been recovered back, where goods, deeds, or papers have been wrongfully withheld until the money has been paid.”
In Ripley v. Gelston (9 John’s Rep., 201) it was held that duties illegally exacted by a collector of customs before he would deliver the goods could be recovered back from him, although he had paid the money over into the public treasury. So in Clinton v. Strong, (19 John, 370,) of costs illegally exacted by an officer.
In Wheeler v. Smith (9 How., 55) the Supreme Court of the United States set aside an alleged compromise, on the ground that the party setting it up had taken an unfair advantage of the other’s necessities. Mr. Justice McLean says, on pages 82, 83: “But in making the compromise the parties did not stand on equal ground. The necessities and character of the complainant were well known to the executors.”
In Elliott v. Swartwout, (10 Peters, 137) the same court holds that duties or taxes illegally exacted by an officer, before he would deliver the parties’ goods, were not voluntary payments, and could be recovered back. (Hearsay v. Pruyn, 7 John, 179.)
In Ashmole v. Wainwright (2 Queen’s Bench Rep., 837) a common carrier refused to deliver the plaintiff his goods until he paid a sum in excess of the legal freight. He paid the sum demanded, protesting against it as exorbitant. The court held he could recover it back in assumpsit.
So in Wakefield, v. Newbon, (6 Queen’s Bench, 281,) an attorney of a mortgagee had possession of certain title deeds to which the mortgagor was entitled. The attorney refused to deliver up these papers to the mortgagor until he would pay certain costs and expenses, for which he was not legally bound, and the attorney had no right to demand. . He paid the money, got possession of his papers,
“ The evil of allowing extortion, by means of a wrongful detention of goods, would be great; and the wrongdoer has no right to complain when he is compelled to restore money which he was warned he had no right to exact. The case is wholly different from that class of cases where the parties have come to a voluntary settlement of their concerns, and have chosen to pay what is found due.” (Cartwright v. Rawley, 2 Esp., 723.) The same principle is decided and maintained with great clearness and force by Chief Justice Tindal, in Parker v. The Great Western Railroad Co., (7 Mann and Gr., 253.) Also, by the superior court of New York city, in the case of Harmony v. Bingham, (1 Duer, 229,) and by the Court of Appeals in 2 Kern, 99.
In Shaw v. Wood (7 Barn. & Cress., 73) the property illegally withheld were certain policies of insurance, upon which the party holding them claimed a lien. The owner, to get his papers, paid the amount, and sued to recover it back. The court repudiated the idea of it being a settlement or compromise. It was simply an illegal extortion. S. P. Astley v. Reynolds, (2 Strange, 915) Atlee v. Backhouse, (3 M. & W., 643.) The same docrine was held and distinctly announced in the case of Oates v. Hudson, (5 E. L. and E. Rep., 469.)
In the case of Astley v. Reynolds (2 Str., 915,) the court says: “We think, also, this a payment by compulsion; the plaintiff might have such an immediate want of his goods that an action of trover would not do his business. Where the rule volenti non jit injuria is applied, it must be where the party has his freedom of exercising his will. To the same effect is Chase v. Dwinel, (7 Green, 134,) and numerous other cases.
The arguments relied on here, that the claimants need not have acquiesced in the demands made by the commissioners — that they could have sustained suits in this court without having possession of their papers, is the old defence that has been urged in all the cases cited and overruled in each of them successively. In all such cases the party can maintain trover and conversion for his goods, and detinue for his title deeds or papers; but that fact does not vary the principle. The other party shall not be permitted to take advantage of, and reap a benefit from his own wrong. It is a great fallacy to suppose that to render a promise or agreement, extorted by the detention of goods or papers, unavailable and void, the other party must have been without any other remedy. The doctrine I am contending for, and the cases cited in support of it, do not rest upon any such grounds, but upon the illegality of the means by which the promise was obtained, or the
. Leaving out of view entirely the withholding of the vouchers and papers, neither the legal nor moral aspect of the case is changed. It is not the law, nor is it in accordance with my views of sound morals, that whore a party has a claim against another of, say, three hundred dollars, who admits that he is justly indebted in the sum of two hundred dollars, but refuses to pay it or any part of it unless the other will agree to relinquish his right to demand the balance. The debt is due; that part is undisputed. The creditor is entitled to it, without any reservation or condition. And where the other exacts and he, to obtain it, gives a receipt in full for the entire claim, it is neither a release nor a compromise, but simply a promise, made not only without any consideration, but tainted with such illegal and inequitable conduct as renders it inoperative and void. Such, in my opinion, is the character of the receipts set up in these cases. It would be against all law, against all precedents, to sustain this as a compromise, and derogatory to the character of a great and just government, to allow such a state of facts to defeat the just claims of its citizens.
Dissenting Opinion
dissenting:
The laws for the organization of the army establish a quartermaster’s department, and designate its officers, and assign to them the duty, among others, of providing means of transport, camp and garrison equipage, cavalry and artillery horses, and forage for the army. (28
These provisions of law are made for the public security, and are to be so administered as to effect it, and I think they are to be construed together as making a positive enactment that the duties of the quartermaster’s department shall bo intrusted only to officers of the army, appointed by the President with the advice of the Senate, and sworn and under bonds for the faithful performance of their duties, and free from any interest adverse to that of the United States, either in the articles furnished or the price paid for them, and therefore I think that General Fremont’s appointment of Mr. Reeside, who was a civilian and not sworn nor under bonds, and who was paid by a commission on the price, so that liis gain was in direct proportion to the price, was illegal, and made no contract with the United States, and that no right of action can arise against them on that contract for anything done in pursuance of it. It was contended for the petitioner that the appointment of Mr. Reeside was authorized by an usage. But if this could be, no such usage was proved, and all that was proved was that officers of the quartermaster’s department employed civilians to inspect horses, and I,hat these civilians were paid by the United States, by the term of their service. But in this such civilians were a]3pointed to their employment by the officers of the quartermaster’s department, and were under their authority and supervision; they were only assistants of such officers, and instruments they used in performing their official duties on their official responsibility. But in the case here, Mr. Ree-side was appointed by General Fremont, and was by him substituted for the officer of the quartermaster’s department in the inspection and purchase of horses for the department of the west.
It was claimed by the counsel for the petitioner that General Fré-mont, in his military department of the west, represented the President as commander-in-chief, audwasin that way authorized to make the appointment of Mr. Reeside. But in this government no officer represents anybody; each derives his authority directly from the law, and is merely its functionary and subject to it, and if the law precludes the appointment of civilians to the duties of the quartermaster’s department, the President, as commander-in-chief, could neither authorize or
So it was claimed by the counsel for the petitioner that General Fré-mont, as representing in his military department the President, might.-' exercise therein the President’s war power. I do not know what that' power is; but I know that whatever it may be it is subject to and limited by the Constitution and the laws. For I know, and judicially, that every power of every officer in this government is derived from the Constitution and laws, and holds from them its vitality, and can no more exist beyond or without them than a human body can live without the breath that vivifies it.
So it was claimed by the counsel for the petitioner that the exigency of the circumstances in which General Frémont was placed conferred on him the power he used in making Mr. Reeside’s appointment. But circumstances never confer any lawful authority, they only determine the extent to which an authority conferred by law should be exercised; and, besides, I think the evidence does not show the exigency of circumstances required for the argument, oven if that were logical; for admitting that the military department of the west was in an insur-rectionary condition, and that the need of horses for the army was absolute and urgent, and that Mr. Reeside was well qualified for the duties assigned to him, yet there is nothing in the evidence to show that there was any deficiency of officers in the quartermaster’s department to perform its duties, or any incompency in such officers for their functions. And where a duty may be done by the officers, and in the way appointed by law, there is no authority in a major general or the Secretary of War, the President or his war power, to do it otherwise.
The conversations of the President and the Secretary of War, and the conversations and letters of the Quartermaster General and the Postmaster General, were relied upon by counsel as conferring the authority claimed. But none of these purport to do so, or refer in any way to the substitution of civilians for the officers of the quartermaster’s department* in the performance of duties appointed to them by law, and the letter of the Quartermaster General clearly contemplates action through his department in those things that belong to it by law and regulations.
If yas claimed by the counsel for the petitioner that the horses and articles purchased and inspected were received by the officers of the quartermaster’s department in General Fremont’s command, and receipts and vouchers given for them in the usual way, and that they
I think the question here is not merely one of agency as between individuals; for when the statutes organize a department for the conduct of public affairs, and prescribe qualifications for its officers and oath and bonds for the public security, and appoints to them specific duties, the rule of construction, “ expressio unius est exclusio al-terius,” prohibits those duties to others. This is necessary to effect the policy of the statutes, which is to commit the public affairs to which they relate to those duly qualified, whose duties, powers, responsibility, and emolument are made positive and distinct by law. This policy courts are to maintain, and a contract made in contravention of it is not to be maintained.
"When statutes for the public security prescribe by whom and in what way contracts for the public shall be made, I think they must be made as the statutes prescribe, to be obligatory on the United States; and that parties are to be held to know the statutes and to obey them, and cannot be permitted to evade them by a mere form of pleading and the substitution of a quantum meruit for an illegal special contract. And therefore I think the petitioner cannot recover on the special contract set forth in his petition.
But the counsel for the petitioner claimed that the services of Mr. Reeside and the cash payments made by him incidental to his services, and the horses, &c., inspected and purchased by him, came to the use of the United States, and they had the benefit of them, and are therefore liable on a promise implied by law to pay their value.
Between individuals, where one man receives and uses the property of another, he is'liable at law for its value, but this liability is in no degree founded on or measured by the benefit of the property to him, for his liability is the same whether his use of the property is beneficial or injurious to him. But he is liable because he knew the property was delivered to him for a price and on the condition of its payment, and then his voluntary and personal use of the property is held to imply his.assent to the condition, and thus by implication of law to make a contract to pay for the property.
But in the case of the United States there is no personal use or knowledge by them, and therefore the fact does not exist on which the law implies between individuals that assent which is essential to. a contract. And between individuals where an agent purchases property for his principal without authority, it is not the principal’s contract, and he is not liable on it. And if the agent also uses the property and uses it up in the principal’s service without his assent or knowledge, the principal is not bound by such unauthorized use any more than he was bound by the unauthorized purchase. And the mere fact that he had been benefited by the use of the property does not make him liable, and the seller’s remedy is against the agent who, by transcending his authority, has made himself responsible. And the rule is the same for the United States; and where an officer of the United States purchases property for them without authority and then uses it without authority in their service, they are not legally liable for it and the officer is. And if this were not so, any and every officer of the United States by using property in their service might make them purchasers of it, and their liability would be limitless, and laws regulating their contracts would be futile. And in case of the United States and its officers, as between individual agents and principals, the only use which will sanction and adopt a purchase made without authority is a use made with the assent of the principal, given with a knowledge of the circumstances. Now here the property was purchased and used by General Fremont, and if he had no authority to purchase it he had no authority to use it, for neither he nor any other officer is authorized by the United States to use for them property purchased without authority and in contravention of the statutes’.
The rules for the implication of contracts between individuals can be
The whole case hero is, first, that General Fremont substituted Mr. Reeside for the officers of the quartermaster’s department in the purchase and inspection of horses for the military department of the west. If this was beyond his authority, because contrary to law, so, for the same reason, it was beyond the power of the President or the Secretary of War, or any other executive officer, to authorize it. And if it was beyond their power to authorize a contract contrary to law, it was equally and necessarily beyond their power to sanction or legalize such a contract. And there is no evidence in the case that they ever attempted to do so, and the only evidence referable to that point is that the successor of General Fremont, General Halleck, on succeeding to his command, at once determined Mr. Reeside’s action and office.
Then the only other fact in the ease is that the horses, &c., obtained upon this contract, on which the United States were not liable, were delivered under it to the officers of the army and used in it. But, as I have said, these officers had no authority to ratify for the United States the illegal contract of General Frémont, and therefore their action is not referable to any such interest; neither did they contemplate in their action any new contract for the United States, nor did the petitioner. And on the case I think the question is, whether an officer’s use of property, purchased contrary to law, makes the United States purchasers of it because of its benefit to them. I think it does not, because, at the common law, a mere benefit conferred is not a cause of action, and does not per sc imply a promise to pay for it, and to hold
If the United States derived a benefit from the services and money of the petitioner, and the property he purchased, it may be a propriety that they should render an equivalent for that benefit; but where, as is the case here, tlie contract was made and the property acquired and used without the authority of the United States, I think it is not a legal obligation, and it is that only with which this court deals. The consideration of proprieties and the equity which makes them belong to other branches of the government; and the case shows that a commission was appointed by the Secretary of War to hear and report to him upon claims like this, and that the commission acted and reported, and that Congress paid the amounts so found to be due. On these proceedings it was contended for the petitioner that the United States were estopped from denying the lcgalobligation of this claim, which wasnotpresented to the commission; but I think these proceedings show nothing more than the recognition by the United States of a propriety on their part the extent of which it was for Congress to determine.
The objection here is not to the form of the special contract, or of any failure in the proof of it, but that it was unauthorized and made in contravention of statutes, and I think a party to such a contract cannot waive or take advantage of liis own legal wrong and recover the value of the subject of such a contract on the ground that a benefit accrued to the United States from the use of it in their service by their officers. The rule that a party to a contract forbidden by law or the policy of the law cannot maintain any action upon it in any form is elementary, and I think the reasons of the rule apply here, and the rule belonging to the United States and their officers is, that the United States are not liable for the unauthorized or illegal acts of their officers, and I think that that rule is not to be relaxed or evaded here. On the whole case I think the petitioner cannot recover either on the special contract or the implied contract set forth in his petition, and that the defendants are entitled to judgment, and for the reasons I have stated in this case I think the defendants are entitled to judgment in the suits brought by Benjamin Higdon, Samuel J. Morgan, and Oliver H. G-effroy, submitted with this, and in which the claims are for the
Wilmot, J., was prevented by illness from taking part in the final disposition of tlie cases.
