Showing posts with label Thomas H Bayly. Show all posts
Showing posts with label Thomas H Bayly. Show all posts

Saturday, August 24, 2024

Congressman Albert G. Brown’s Speech on the Ewing Investigation, September 11, 1850

In the House of Representatives, Wednesday, September 11, 1850,—On the report of the Select Committee appointed April 22, 1850, to examine into certain official acts of Thomas Ewing, late Secretary of the Interior, and in reply to Mr. VINTON of Ohio, Mr. BROWN said:

MR. SPEAKER: It is with extreme reluctance that I venture, at this late period of a protracted session, to address the House. I feel called upon, however, by an imperative sense of duty, to make a brief response to the speech which the honorable gentleman from Ohio [Mr. Vinton] has just now concluded, and to that end I crave the indulgence of the House.

Before proceeding to the consideration of the subjects embraced in the report and resolutions, allow me to advert for a moment to the manner in which that report and the accompanying resolutions were received in this House.

Now almost five months since, a series of resolutions were passed by the House of Representatives directing an inquiry into the official conduct of the then Secretary of the Interior, Thomas Ewing. A select committee was appointed, and they were charged with the direction and prosecution of these inquiries. They entered upon the discharge of the duties assigned them. It was then spring, the summer has come and gone, and here in the beginning of autumn your committee have concluded their labors. They bring their report, and lay it upon your table, and through their chairman they ask for it that courteous and respectful consideration which has been uniformly awarded to all reports coming from committees of this House. They ask that the report may lie upon the table and be printed, and that a day may be fixed for its consideration. This has been denied. A judgment is evoked in advance of all consideration or reflection; without reading, without printing, before a single member has had an opportunity of examining the report, a judgment is asked. On its first introduction into the House, the gentleman from Ohio, himself a member of the committee, calls upon the House to pass its judgment. How well he has succeeded in this, the House and the country already know.

Why, sir, was the gentleman from Ohio so impatient to have this report acted upon, or rather slurred over? Was there any important public interest suffering, or likely to suffer by a little delay? No, sir; another and a very different interest was to be protected by smothering this report. The conduct of a distinguished friend, political and personal, of the gentleman, had been criticised and justly censured; important and startling facts had been brought to light. The existence of these facts was wholly inconsistent with the idea of a faithful and proper administration of the Department of the Interior, and it was necessary to give them the go by—to bury them, if possible, among the unpublished and useless papers which accumulate during a long session of Congress. The gentleman was familiar with all the facts. He had attended upon the committee for more than four months. He knew what the report and the papers contained; and I take it upon myself to say, that in opposing the motion to print, and in insisting upon bringing the House to an immediate vote on the resolutions, he took a course which his experience assured him could result in nothing less than an acquittal, without a trial, of Mr. Ewing.

Mr. VINTON said he had insisted upon an immediate consideration of the report because to postpone it would have been equivalent to doing nothing, as it would never again have been reached.

Mr. BROWN. That excuse shall not avail the gentleman. If he had been anxious to have a fair hearing, why not have asked to make the subject the SPECIAL order for some subsequent day? Then it would have certainly come up for consideration. No, sir, the gentleman's knowledge of the facts assured him that it would not do to risk a fair investigation, and his tactics were employed to hurry on a decision before the House could be informed of these facts. The gentleman knew very well that if members could be forced to a vote without a knowledge of the facts, they would acquit the Secretary. They would do this on the well-known ground that all men are presumed to be innocent until their guilt is established. His legal acumen was not severely taxed to discover that if the facts could be withheld until a vote could be exacted, the presumption of innocence would be strongly in favor of the accused.

Mr. VINTON said, he had consented to the printing of the report.

Mr. BROWN. I know that; I know the gentleman made a virtue of necessity, and consented to have the report printed after his course had been assailed by the chairman of the committee [Mr. Richardson]. But what was the gentleman's first movement? To oppose any postponement of the subject, even to allow the report to be printed. He succeeded in defeating the postponement, and we have been actually forced into the consideration of the whole subject, and are now considering it, when not a member, save those on the committee, has ever seen the report or knows anything of the real state of the facts. The gentleman now makes a merit of consenting to have the report printed. In the course of some days it will have been published. In the mean time the House will be called on to vote. We shall have the verdict first, and the evidence submitted to the jury afterwards. This, to say the least of it, will be rather an irregular proceeding.

The gentleman, with the adroitness of a politician of twenty or more winters, laid his whole scheme so as to give it the best possible assurance of success. It is far from my purpose to charge the gentleman with dishonorable conduct. But really, sir, there is something about this transaction which excites my curiosity, and seems to invite the most rigid scrutiny. The gentleman from Ohio will correct me, if I err in my relation of the facts. He went to the chairman of the committee and obtained the report of the majority before its delivery to the House, as he said (and no doubt truly), to prepare a minority report. It became important to have the report copied, and though the capitol was full of clerks, and though the streets were crowded with persons seeking employment, the gentleman could find no one to copy this report but young Mr. Ewing, the son of the ex-Secretary, whose conduct had given rise to and had been criticised in the report. The first we hear of the report, it is in the hands of Mr. Ewing; next Senator Mason, of Virginia, has it; and then a copy is handed round among the Virginia members on this floor. All this was before the report had been made to the House, and without the knowledge of the chairman or any member of the majority of that committee. Now, sir, I want to show the effect of this proceeding.

Mr. VINTON. I have already stated that I had nothing to do with furnishing the Virginia members with copies of that report.

Mr. BROWN. I recollect the gentleman's disclaimer, and do not mean to impugn his veracity. He placed the report in the hands of young Mr. Ewing; he, of course, showed it to his father, and he to the Virginia senators and representatives. The gentleman gave it a particular direction, and he was shrewd enough to know where it would land. But why, you are ready to ask, was it shown to the Virginia members? I'll tell you, Mr. Speaker; a particular object was to be accomplished. The report was to be smothered. The gentleman was all-powerful with his Whig friends. He could bring them up to the work with a pretty united front. There might be some bolters, however, and if there was not, the party was a little too weak to carry out the scheme. Besides, it would give the whole thing a partisan look, if the Whigs went in a body for smothering, and the Democrats against it. It became necessary to have some Democratic allies. The report contained a severe criticism on certain important Virginia interests. The gentleman, with a skill and diplomacy, worthy of Talleyrand, went to work to secure these allies in the persons of the Virginia members. The report was very quietly, if not secretly circulated among them. They saw the assault on the Virginia interests—the scheme took. The vote was taken; the great body of the Whig party voted with the gentleman, and all the Virginia Democrats went over to his standard. He carried his point, and here we are precipitated into a discussion, before anybody save the favored few, have seen the report or know anything of its contents.

(Here Messrs. Seddon, Millson, Bayly, and McMullen, all of Virginia, severally interposed, and said that they had not been influenced in the votes given by anything said in the report against the Virginia interests.)

Mr. BROWN resumed. I certainly never meant to say that honorable gentlemen would knowingly and wilfully give an improper vote merely for the sake of sustaining an unjust local claim. But we all know that the representative is not the most impartial judge of the rights of his own constituent. Indeed, sir, the interest of the constituent is almost inseparable from the prejudices and predilections of his representative. The gentleman from Ohio well understood this, and he rightly conjectured that if it came to the knowledge of the Virginia delegation that certain important Virginia claims had been condemned in this report, the allegiance of that delegation might be relied on.

I am far from assailing the motives of the members from Virginia; but I cannot help remarking that it is a little singular that they were found separated from their political friends on this question. It is doubtless all right and fair, but it never happened so before. If one, or two, or three had gone over, my astonishment would not have been excited. But when they went in a body, I could not help inquiring into the cause of so important and significant a movement. I acquit the delegation of all improper motives, but I still think these Virginia claims had something to do with their votes against postponing the consideration of this report until such time as would afford every member an opportunity to examine into the facts.

I have been surprised, Mr. Speaker, at the grounds taken by the gentleman from Ohio [Mr. Vinton], against a further consideration of the grave and important matters set forth in the report of the majority of this committee. To my mind, it looks very much like special pleading, for the purpose of avoiding a fair trial on the merits of the case. The gentleman was a member of the committee. He attended its sittings regularly. He saw the committee toiling from day to day, through the long months of summer, in collating the facts set forth in the report. He took a deep interest in the proceedings of the committee, and participated actively in all its labors. Yes, sir, he was here when the committee was raised. He was here when the inquiries were directed by the House. He went on the committee, performed his due proportion of the work, saw the report prepared after four months and more of toil, and then for the first time he discovers that the House has no jurisdiction of the case—that the House was attempting to resolve itself into an appellate court for the revision of judicial decisions made by the executive officers of the government. Did the gentleman make this wonderful discovery himself, or was it the offspring of some other genius? Possibly the younger Mr. Ewing, when copying the report, may have found it out. It may be, that some or all of the Virginia delegation discovered it, or, what is just as likely, ex-Secretary Ewing himself may have first started the new idea. To whomsoever the paternity of the grand conception may belong, I repudiate it as spurious. What, sir! may an executive officer go on from year to year allowing spurious and unjust, grossly unjust and illegal claims against the government, and paying them too, without law or semblance of law to sanction his conduct? and must we, the representatives of the people, fold our arms in quiet, and be silent because we have no power or right to inquire into the official conduct of an executive officer? If, sir, the conduct of the ex-Secretary had not been in the highest degree reprehensible, we should have heard nothing of this plea to the jurisdiction. Conscious innocence would not thus shrink from a fair investigation. It is precisely because these transactions will not bear the light of open day, that attempts are being made, and combinations formed, to bury them in this House under the hollow pretence that we have no jurisdiction. Why was not this discovery made five months back, when the investigation was ordered? Why was it not made during the four months and a half that the committee was sitting? Why was it never made until it was seen that an impartial investigation would result in a condemnation of these transactions?—in a condemnation which would arrest such proceedings in future, and thereby save millions to the treasury.

I now tell the House that if the conduct of the late Secretary is not distinctly rebuked, and his decisions repudiated, millions of dollars will be taken from the national treasury without law and without the knowledge or sanction of Congress. If we, the guardians of the treasury, are to stand by and witness these proceedings in silence, because the gentleman from Ohio says we have no jurisdiction, no power to arrest them, why, then, be it so; I take water and wash my hands of them.

How long is it since the gentleman from Ohio found that Congress could not inquire into the conduct of an executive officer? During these fifteen years or more that he has held a seat on this floor, has he ever, in a single instance, voted against an inquiry into the conduct of any Democratic executive officer? Never, sir, never. I challenge the gentleman to a trial by the record, and dare the assertion that he never, in all his life, voted against an inquiry into any alleged misfeasance or malversation in Democratic office-holders. But now, when a Whig secretary is arraigned—when the personal and political friend of the gentleman is charged with illegal and improper conduct, he steps boldly forward, and says, "Stop; touch not mine anointed." You may inquire into the conduct of Democrats, but Whigs are sacred against such impertinent and officious intermeddling.

The gentleman found power in this House to appoint the "Bundelcund committee," and to send them around the world on a voyage of discovery. He could delegate to that committee power to pry into the private and official conduct of every Democrat in and out of office. He could confer upon them the right to propound impertinent inquiries to the editor of the Union, and to Mr. Sengstack, as to how they conducted their private affairs, as private citizens; and he could even find the power to bring these gentlemen to the bar of the House and punish them for contempt, because they refused to disclose their private transactions to the "Bundelcund" inquisition. But he can find no power in Congress to inquire whether Mr. Ewing has or has not paid money from the treasury without the sanction of law.

Mr. VINTON said he had not voted for the arrest of the editor of the Union and Mr. Sengstack. He did not vote at all.

Mr. BROWN. The gentleman did not vote at all. His party voted, and his judgment approved their votes. I ask him if it did not?

Again, sir, the gentleman voted last year to inquire into the conduct of the then Secretary of the Treasury, Robert J. Walker. Where did he get his authority for that? Is the official immunity of a Democratic Secretary of the Treasury less than that of a Whig Secretary of the Interior?

Mr. VINTON. That inquiry was sent to a standing committee of this House; this to a select committee.

Mr. BROWN. That is rather too refined for my comprehension. I thought the plea was to the jurisdiction—to the power of the House to direct the inquiry. Now, it seems the House may direct the inquiry, if it only employs the proper committee to conduct it. And pray, sir, let me ask the gentleman what powers may this House confer on standing committees, which it may not in a like degree confer on a select committee? Neither has any power other than that which it derives from the House, and either may receive all the power which the House can confer-and one of them in as high a degree as the other. The gentleman will have to look about him for some better excuse than this to justify his vote to inquire into Secretary Walker's alleged misconduct, and his speech today against inquiring into Mr. Ewing's official short-comings.

But my hour is running out, and I must hurry on to a brief investigation of the facts set forth in the report itself.

And first of the case of G. W. and W. G. Ewing: Large sums of money were paid these persons, who were traders among the Indian tribes in the west. The money thus paid was clearly due from the government to the Indians. In this I agree perfectly and entirely with the gentleman [Mr. Vinton]; but I cannot concur with him that it was rightfully paid to the Messrs. Ewing. A critical investigation of the claims of these traders cannot fail to convince every one of certain important facts: the first and most important is, that the demands were enormously large, springing up as by magic from a paltry sum of a few hundred dollars, to many thousands, and that without there having been any additional dealings between the parties. In many instances, the items composing the accounts were never given, but a demand rendered for a large sum in round numbers. In the second place, the transactions were all of an individual character; the sales, if any were made, were all made to individual Indians; whereas, the demands for payment were against the tribes or nations; thus rendering a whole people responsible, without their consent, for the foolish and improvident acts of a few individuals. Nay, more than this, it was placing the funds of a tribe of ignorant savages at the mercy of these speculators and traders. Every one knows that intelligent and shrewd white men can go among the Indians, and with a few red blankets, or with strands of beads and other trinkets, make accounts on a credit with them to any amount. And we all know, that if the United States will undertake to pay such accounts out of the trust funds belonging to the savage tribes, there will be found unprincipled men enough to present demands for millions. The third point to be considered in this matter is, that Secretary Ewing ordered the payment of these demands without sufficient proof of their justice, even against the individual Indians, and in total disregard of the rights of the savage tribes. It is true that large sums are now suspended to await the action of the House on this report. If the committee is sustained, justice will be done the Indians, and if not, their funds will be recklessly squandered in paying the demands of the Ewings, and other traders and speculators.

One of my colleagues on the committee proposes to address the House more particularly on this branch of the investigation, and to him I leave the further task of pursuing the facts and law of this case. I will not dismiss it, however, without calling attention to the position of the gentleman from Ohio.

If I correctly understood the gentleman's position, it was, that inasmuch as the government owed the money, it could make no difference whether she paid it to the Indians or to the traders. If he means by this that it makes no difference so far as the money is concerned—no difference in a pecuniary point of view, I quite agree with him. But the gentleman very well understands that there are other and higher questions involved than the mere matter of discharging a pecuniary liability. Viewed only as a question of dollars and cents, it is a little important, it is true, that the money when paid should pass into the proper hands. An error like this might be committed, and, with civilized and enlightened nations, it could be repaired by simply paying the money again. But how is it, sir, with the Indian tribes? The government has obtained their confidence; they have consented that we shall hold their funds in trust. By and by they will send up a deputation to see their great father, the President, and receive their money. They will be told that the money has been paid to white men, and they will feel cheated; distrust will take the place of confidence. They will sigh for revenge. They will fly to arms; and the next intelligence from the west will be that the tomahawk and scalping knife have been taken up, and that our frontier settlers are flying from their homes and seeking safety. Tell me not, sir, that it makes no difference to whom the money is paid. Let the gentleman look into this matter, and he will find that the paltry question as to whether we shall pay this money once or twice sinks into insignificance in comparison with the other and greater questions of morality and safety. I hold that it is in the highest degree immoral to execute a sacred trust for an ignorant savage in a way to suffer him to be cheated by the white man. And I know, sir, it will be found highly dangerous to our frontiers to lose the confidence of these Indians, and to drive them to acts of revenge for the wrongs of the government in misapplying their money. I think, sir, that the Secretary did wrong in paying the claims of the Messrs. Ewing, and as the departments are only awaiting your action to determine whether they will pay other like demands, I hope they may be correctly advised by a vote of this House.

The second in the series of resolutions referred to the select committee, directs them to inquire "whether the Secretary of the Interior reopened and paid interest, to the amount of thirty-one thousand dollars, on the pension granted to Commodore James Barron, for services rendered in the Virginia navy during the revolutionary war, after the principal had been fully paid and discharged; and if said interest was paid, was it simple or compound; who was the agent or attorney for said claim; and the authority for such claim, if any."

This inquiry has been prosecuted, and a conclusion arrived at which seems to me to be fully justified by the facts.

It appears from the recorded evidence, that James Barron was a commander in the Virginia (state) navy, from 1775 to the close of the revolutionary war, and that he died in 1787.

In May, 1779, the state of Virginia, by an act of her legislature, promised half pay for life to all officers in the state and continental (ARMY) line, who should serve to the close of the war.

In 1780, she extended the benefits of this act to the officers of the navy, who should serve during the war.

It is clear, therefore, that Commodore Barron was entitled to half pay for life, or from the close of the war to his death in 1787.

In 1790, long after the close of the war, and three years after the death of Commodore Barron, Virginia, by another act, gave to officers of the army, and they alone, five years full pay and interest, in commutation of half pay for life.

The benefits of the act of 1790 being confined to officers of the army, and they alone, it is clear that Barron, who never was in the army, was never entitled to commutation.

And so indeed it seems to have been determined. For in 1823, his administrator, in pursuance of a judgment rendered by the superior court of Henrico county, demanded and received of the state of Virginia, $2008.52, that being the amount of Commodore Barron's half pay for life, under the act of 1780.

To a plain man of common understanding, it would seem that here was a full settlement of the Barron claim. He was entitled to half pay, and that alone, and his administrator, thirty-six years after his death, applied for and received it in pursuance of the judgment of a court of competent jurisdiction. It never was optional with naval officers to take either half pay for life, or in lieu thereof five years' full pay with interest. This was a benefit extended to officers of the army, and them alone. But suppose for a moment that officers of the navy had, by the act of 1790, been placed on the same footing with officers of the army, and that it had been left to their choice to take either half pay for life or full pay for five years and interest. Suppose, I say, that this had been the law. Did not the administrator of Commodore Barron, in 1823, make his election, and take the half pay for life? Such sir, is the recorded fact.

The truth is, that in 1823, there was no pretence set up by the representative of Commodore Barron that he was entitled to anything more than half pay for life. This was all that was claimed, and this was paid. The Commodore had been dead thirty-six years, and the state of Virginia paid off and discharged to his administrator the only demand which his administrator pretended to render against the government of that state.

The next point of inquiry is, how came the United States responsible for the debts of Virginia in this regard?

The acts of Virginia, passed in 1779 and 1780, were intended to promote the cause of independence, and they no doubt had the effect of continuing in the service many valuable officers whose private fortunes had been greatly reduced, and who, but for the assurances thus held out, would have been compelled to look for the means of subsistence in their declining years, elsewhere than in the army and navy of an impoverished colony. The act of 1790 was passed after the close of the war, and it was not, therefore, intended to promote the cause of the war. It is perfectly clear, that the liabilities incurred by Virginia under her acts of 1779 and 1780, were war debts, and properly chargeable to the account of a national revolution. It is equally as clear, that her liabilities under the act of 1790, were not incurrred in promoting or assisting the cause of independence; and however creditable to her generosity and magnanimity the act may have been, the liabilities could, in no proper sense, be charged to the war debt. It was not called for by exigencies of the public service. It was, in fact, an act of generosity—a gratuity.

I by no means say that the United States ought not to perform acts of generosity-of gratuitous service. She has performed many such, and they stand to her credit. I trust she may perform many others. But did she in this instance undertake to relieve Virginia from the payment of the gratuity or the bounty promised by her in her act of 1790? She did not.

In the year 1832—fifty-two years after the act of the Virginia legislature granting half pay for life, forty-five years after the death of Commodore Barron, and nine years after Virginia had paid to his administrator the half pay for life due him at his decease—the Congress of the United States passed an act, the third section of which is in these words:—

“SECTION 3. And be it further enacted, That the Secretary of the Treasury be, and he is hereby, directed and required to adjust and settle those claims for half pay of the officers of the aforesaid regiments and corps, which have not been paid or prosecuted to judgment against the state of Virginia, and for which said state would be bound on the principles of the half-pay cases already decided in the Supreme Court of Appeals of said state; which said sums of money herein directed to be settled and paid, shall be paid out of any money in the treasury not otherwise appropriated by law.”

Now, sir, is there one word in this act which can be construed or tortured into a remote intimation that the United States meant to do anything more than to assume the war debt—the half-pay—as described by Virginia in the acts of 1779 and 1780? There was a manifest propriety in the United States assuming this liability. It was incurred in the prosecution of a common cause, and it was right and proper it should be paid from a common treasury. But I utterly deny that this government ever did undertake to pay commutation, or anything more than the half-pay for life to officers of the Virginia navy; and if she did, I call upon the gentleman from Ohio and the gentleman from Virginia to point out the act.

I rest the case on these points:

1. Virginia undertook to pay her naval officers who served to the close of the war half-pay for life. She never did agree to give them commutation, or any other pay in lieu of this half-pay.

2. If Virginia had left it optional with naval officers, as she did with army officers, to choose between the commutation or five years' full pay and the half-pay for life, then Barron's administrator made his election in 1823, and took the half-pay.

3. The United States, for sufficient reasons, never did undertake to assume Virginia's liabilities for commutation, but only for the half-pay due her army and naval officers.

4. Virginia paid Barron's administrator his half-pay in 1823. The United States assumed the debt; and when she had returned to Virginia the $2008.52 paid by her to Barron's administrator, the transaction was closed and the business settled.

We are next to inquire when and how this matter came to be reopened, and how it was again closed.

July 21, 1849, twenty-six years after the payment to Barron's administrator, and sixty-two years after the death of the commodore, James Lyons, of Virginia, a distinguished lawyer, and leading political friend of the ex-Secretary of the Interior, preferred a claim against the United States for commutation, or five years' full pay, with interest, in lieu of the half-pay received by the administrator in 1823. This claim was promptly rejected by the Commissioner of Pensions.

An appeal was taken by Mr. Lyons, and the case was reviewed by Mr. Secretary Ewing. He had doubts. Yes, sir, he had doubts, and he referred the case to Mr. Attorney-General Johnson for his legal opinion. Mr. Johnson thought the money ought to be paid, and then Mr. Ewing thought so, too; but for what reason they, or either of them, came to such a conclusion, we are left in profound ignorance. Neither has ever deigned to give the slightest intimation of the wonderful process of reasoning by which they manage to mulet the United States for $32,000, and to throw this large amount into the hands of their friend, Mr. Lyons.

I have said the Commissioner of Pensions promptly refused to pay this money, and so he did. He continued so to refuse until he was peremptorily ordered by Mr. Secretary Ewing to pay it. The order was given December 31, 1849, and seems to have been as novel in its character as it was peremptory in its tone. The Commissioner thus speaks of it in an official paper now before us:

"I accordingly certify, under an order from the said Secretary, that commutation of five years' full pay is due, and interest thereon up to this date. The amount of commutation is $4258.31 1/3; interest is to be calculated at six per centum per annum on this sum from the 22d of April, 1783, to the 15th day of December, 1823; add the amount of the interest up to December 15, 1823, to the commutation, and deduct from the total of those sums the amount paid in December, 1823, viz: $2008.52; and upon the balance struck calculate the interest from that time up to the present date."

In pursuance of this order, the account was stated as follows:

Commutation

$4258.31

Interest to December 15, 1823

10,385.83

Interest from December, 1823, to January 2, 1850

19,382.50

 

34,026.64

Paid by Virginia

2,008.52

          Total

32,018.12

This large sum was accordingly paid to Mr. Lyons. If you will be at the trouble to examine the mode of calculation, you will be at no difficulty in seeing that the interest has been compounded.

The compounding of the interest is admitted. No one pretends to deny this. Mr. Ewing says himself that it was compounded, and he informed the committee that he had called upon Mr. Lyons to refund, and that the gentleman had refused.

The decisions of this executro-judicial tribunal cannot be reviewed, we are told by the gentlemen from Ohio and Virginia [Messrs. Vinton and Bayly]. I should like to know if it is the opinion of these learned gentlemen that a court, after rendering judgment, and enforcing it too, as in this case, to a payment of the money, may then sit as a court for the correction of its own errors, and order the plaintiff to pay back the money which he has received in due course of law? And if not, how long do they think it will be before Mr. Lyons will return to the treasury the compound interest which his friend Ewing awarded him in this case? There is but one remedy for outrages like this, and that is, to hold the guilty judge up to public condemnation.

In deciding this Barron case, Messrs. Ewing and Johnson, without justice, law, or reason, overturned the uniform current of decisions of all their predecessors, and of the Supreme Court of Virginia, for nearly twenty years; and for the truth of this assertion I refer to the Virginia Reports in like cases, and to the decisions and opinions of the Secretaries and Attorneys-General since 1832.

The end of this business is found here: The United States, in 1832, undertook to pay to Virginia $2008.42, that being the amount of Commodore Barron's half-pay for life, and in 1850 she is compelled by Mr. Secretary Ewing to pay $32,018.12, for commutation and interest, simple and compound, a sum which neither she nor Virginia ever agreed to pay in whole or in part. If this decision is not rebuked by a vote of this House, not less than two to three millions of the public money will go in the same way.

One other point in this connection, and I shall have done with this Barron claim. The inquiry naturally arises, where did Mr. Ewing get the money to pay this claim? It was taken, like the Galphin money, from appropriations intended for other purposes, and then Congress was asked to sanction it, by voting through a deficiency bill. No wonder this deficiency for the last year run up to four or five millions of dollars. Secretaries abstract $32,000 for one purpose, $56,000 for another, $230,000 for another, and Heaven only knows how much besides. Such lawless profligacy would bankrupt the treasury, if there was a stream of liquid gold flowing into it from morning till night.

The only remaining subject of inquiry is embraced in the third resolution, and has reference to a large sum of money paid to Dr. William M. Gwin, out of a trust fund belonging to the Chickasaw tribe of Indians.

The Chickasaws inhabited the northern part of Mississippi, and in the year 1834 ceded their lands to the United States; and without entering into any minute details of their several transactions, I may state simply that the United States retained a certain part of the proceeds of the cession in trust for the benefit of the Indians. This fund was to be expended in such manner and for such purposes as the Indians should direct. In 1837 the Commissioner of Indian Affairs, and as now appears, without any sufficient authority from the Indians, despatched Lieutenant Seawright, of the army, to Cincinnati, to purchase provisions and provide transports for a party of emigrating Chickasaws, they having signified their disposition to remove West. Seawright expended for these purposes about $144,000. The Indians received benefits to the amount of $32,000, or about that sum, and, as the whole expenditure was without their authority, they refused to be charged with the remaining $112,000. The officers of the treasury, however, charged the whole sum to the general Chickasaw account, and the Indians were notified accordingly.

This is the foundation, briefly stated, of the claim about which the committee were charged to inquire.

It seems that in the year 1844, Dr. Gwin, then a citizen of Mississippi and now a Senator from California, went among the Chickasaws in the West. He entered into a contract with these Indians, and was empowered by a portion of them (who professed to act for the whole) to conduct certain fiscal operations of theirs with the United States. The written agreement with the Indians was exhibited by Dr. Gwin to the accounting officers at Washington, and he entered upon and discharged some of the duties devolved upon him as the agent or attorney of the Chickasaws.

A misunderstanding sprung up concerning this agreement. It bore, among many others, the name of Ish-ta-ho-ta-pa, the King. This chief wrote to the Secretary of War that he had never signed such a paper, and that if it bore his name it was without his authority. Dr. Gwin, on having his attention called to the subject, admitted that the King did not sign the paper, but that another person, who represented that he had authority, had signed for him.

A letter signed W. A., and understood to be from William Armstrong, late General Indian Agent West, dated Choctaw Agency, 12th October, 1846, and now on file among the official papers, thus speaks of this transaction:

“I received at Nashville your letter informing me of Dr. G's movements. I was not a little surprised to hear that he came so near succeeding in the Chickasaw claim. The fact is, the whole affair was wrong. I had no idea when Dr. G. first came over to the Chickasaws, what his business was."

The matter was variously canvassed, and in the end the contract was rescinded. The paper or contract seems to have been given up or destroyed, and a new contract was entered into. It was under this new contract that the claim of which I am about to speak was paid. I have spoken of the first contract only because it was the basis of Dr. Gwin's transactions with the Indians, and hence became intimately associated with the history of the case. I now dismiss it, and shall hereafter speak only of the second contract. This last paper is among the documents now on my desk; but as it is without date, I am unable to say when it was executed. It will become important in the course of this investigation to fix its date, and I shall have recourse to other testimony for that purpose.

Before entering into a further examination of this case, I must pause to settle a small account with the MINORITY of the committee. In their report I find this remarkable and strong language:

"There is no evidence whatever among the records of the department to sustain the finding of the committee that this claim was rejected by the proper officer, and reopened and allowed by the Secretary of the Interior; indeed the finding is directly contrary to the recorded fact."

In this they make a direct issue with the majority, and I shall have recourse to the official papers to test the question as to who is right and who is wrong.

The first trace that I find of this case in its progress through the departments, is in the Second Auditor's office. On the 8th of September, 1846, J. M. McCalla, Second Auditor of the Treasury, certified that there was due W. M. Gwin, $56,021.49. This certificate was sent to the Second Comptroller, and the next trace of it is found in the letter which I now read:

TREASURY DEPARTMENT,                     

SECOND COMPTROLLER'S OFFICE, Sept. 9, 1846.


SIR: The Second Auditor of the Treasury, on the 8th instant, reported to me an account in favor of William M. Gwin for $56,021.49, chargeable upon the appropriation for carrying into effect treaties with the Chickasaws, under the act of April 20,1836.


As this claim is "connected with Indian affairs," and calls for an expenditure from an appropriation under the charge of the War Department, it should have been transmitted to the Commissioner of Indian Affairs for ADMINISTRATIVE EXAMINATION, under the 3d section of the act of July 9, 1832, and the fifth paragraph of "Revised Regulations No. 1, concerning the execution of the act of July 9, 1832, providing for the appointment of a Commissioner of Indian Affairs."


In order that the claim may receive the proper administrative examination as required by law, I herewith transmit all the papers received from the auditor connected therewith.


With entire respect, &c.,


ALBION K. PARRIS, Comptroller.

Hon. W. MEDILL, Commissioner of Indian Affairs.

Need I go further, to show that the Indian Bureau had been improperly passed by in the presentation of this claim? That faithful and intelligent officer, of twenty-odd years' experience, A. K. Parris, sent it back to the Commissioner of Indian Affairs for that administrative examination which the case required, and without which it could not properly be paid.

I shall not undertake to trace its history from that day, September 9, 1846, to March 12, 1850, when it was finally paid by order of Thomas Ewing, Secretary of the Interior. Suffice it to say, it was a history of stern resistance and constant protests, on the part of the Indians and their attorneys, against its payment. Indeed, sir, their arguments, protests, and remonstrances are scattered through this immense mass of papers on my desk, like the beacon-lights along a difficult and dangerous shore.

The minority of the committee, with a boldness which seems to defy contradiction, says: "There is no evidence that this claim was rejected by the proper officer. Indeed the finding is directly to the contrary." Now, sir, if this be true, how came it that this claim was not paid? How did it happen that it lay in the Indian office from the 9th of September, 1846, to the 12th March, 1850? How came it to lie there until the close of Mr. Polk's administration, and until the reign of the "Galphins" had fairly begun? We shall see. I beg to invite the attention of the House to certain papers, which being among those officially communicated, could not have escaped the critical eye of the gentleman [Mr. Vinton] under whose auspices the minority report was prepared.

The first paper in this large mass before me is a letter from William Medill, late Commissioner of Indian Affairs, to Thomas Ewing, Secretary of the Interior, detailing the history of this case. It bears date June 27, 1849. In one place the writer says:

"Of the $112,042 99-100 found due the Chickasaws, William H. Gwin, Esquire, claims the enormous sum of one-half for his services or instrumentality in recovering the amount, under an alleged contract with those Indians. Without dwelling upon the extraordinary extravagance of this demand, which is sufficiently apparent by the mere statement of it, I would remark, that notwithstanding the peculiar position of the Chickasaws, they, like other Indians, are the wards of the government, and no such contract or agreements are valid or binding unless sanctioned by the department."

And again, in speaking of the fund out of which it was proposed to pay this “enormous sum,” he says:

"I am of the opinion that it could not properly be used towards repaying the Chickasaws the amount found due to THEM by the accounting officers: and so the Secretary of War, as I understand, decided when the report of these officers of the result of their adjustment of the account, and the amount found due the Chickasaws, was presented to him in September, 1846, for a requisition for $58,124.14, to be taken from the removal and subsistence fund. HE CERTAINLY PEREMPTORILY REFUSED TO ISSUE THE requisition."

And again:

"This being the case, it is not seen how any portion of it could legally or properly be used towards paying the Chickasaws the amount found due THEM.* In my judgment, this can only properly be effected through an appropriation therefor by Congress."

Does all this look like there had been no rejection, no refusal to pay? Does it look as if "the recorded fact was exactly the contrary?"

Now, let us turn over to page five of this great book of manuscript before me, and here we find an order from W. L. Marcy, Secretary of War. It is dated October 1, 1846, about twenty-two days after this case had fallen into Medill's hands, and is addressed to William Medill, Commissioner of Indian Affairs. Mr. Medill, in handing over the papers in this case to Secretary Ewing, says, referring to this order:

"The rule of action which has governed the Executive in cases of contracts with Indians, as well as powers of attorney procured from them, you will find embodied in the accompanying order of the Secretary of War of October 1, 1849."

Here is the order:

"The practice which has heretofore prevailed, to a considerable extent, of paying money due to Indians on powers of attorney given by them, is wholly inconsistent with the duty of government to pay over to them, promptly and without abatement, whatever may be due to them under any treaty or law; or for any claim whatever to which they may be justly entitled. Agents are appointed, and by the government, to attend to their business for them, and they should be the medium of all their communications with the government, whether in relation to any claim they may have, or to their wants or wishes upon any other subject.

"W. L. MARCY, Secretary of War."

How could the minority of the committee, with this record before them, deny that there had been any adverse decision, and even intimate that the decisions had been in favor of the claimant? First, we have the admitted fact, that the claim was submitted to Mr. Medill in September, 1846; that for more than three years he did not pay it; and that he went out of office without paying it. Second, we have his letter before he left the office, assigning his reasons at length for not paying it; and thirdly, we have Secretary Marcy's order, so pointed and positive that this claim could never have been paid without violating that order. And yet, gentlemen say there has been no decision. Nay, sir, they even assert that the decision has been in their favor.

“They must have options sharp I ween,

To see what is not to be seen.”

I pass from the consideration of this point, and return to the second contract, which we have seen is without date, but which is found to have been in the Second Auditor's office as early as 8th September, 1846. It may have been there some days earlier.

By the terms of this contract, which I have before me, Doctor Gwin was to have for his services, as attorney for the Indians, various large sums of money, and among others, one-half of all that should be recovered from the United States on account of provisions purchased at Cincinnati in 1837. The sum thus recovered, or which, I should rather say, was found to be due on a fair settlement of the Chickasaw account, was $112,042.99. One-half of this sum was, of course, $56,021.49, and this was the sum claimed by Doctor Gwin. The report and resolutions have no relation to any other payment to Doctor Gwin, and I shall, therefore, confine my remarks to this fifty-six thousand dollars-dismissing the others with the single remark that they were paid. We have already seen that the Second Auditor, McCalla, passed this claim and sent it down to Second Comptroller Parris on the 8th of September, 1846. We have also seen that the comptroller sent it on the day following to the Commissioner of Indian Affairs, where it properly belonged, for administrative examination. We have seen that it remained there to the close of Mr. Polk's administration, and we have seen the reasons why it was not paid. Let us now pursue the thread of its remarkable history during the three years and more that intervened between its falling into Commissioner Medill's hands and its final payment by order of Thomas Ewing, Secretary of the Interior.

Within a day or two after the claim was passed by Second Auditor McCalla, Doctor Gwin transferred it, for value received, to Messrs. Corcoran & Riggs, bankers in this city.

Various protests of the Indians and their attorney, together with other papers, are found on file. But no effort seems to have been made on the part of the claimants to change the determination of Commissioner Medill and Secretary Marcy. Early in 1849, and after the new cabinet were fairly under way, the claimants seem to have renewed their labors. A long resting spell had imparted to them new energy, and they pursued the case with an earnestness and zeal worthy of a better cause. I pass over much that was said and done between the 4th of March, 1849, and the 30th of June of that year, and resume the history with the following letter:

WASHINGTON CITY, June 30, 1849.


SIR: I have just been informed that an effort is being made to transfer an appropriation now standing on the books of the treasury "for the removal and subsistence of Indians," to the appropriation "for carrying into effect treaties with the Chickasaws," with a view of asking the payment or contract made by certain Chickasaw Indians with Dr. Wm. M. Gwin. I most respectfully ask the suspension of your action in the matter until I can have time to file a protest on behalf of the Chickasaw nation, and state the reasons why the claim should not be paid without being transmitted to the Chickasaw Council for their approval.

With great respect, your obedient servant.

JOSEPH BRYAN.

HON. T. EWING, Secretary, &c.

It will be remembered that Mr. Bryan was the attorney of the Indians, regularly employed to resist the payment of this claim.

On the 2d of July, 1849, Mr. Bryan filed the protest alluded to in the letter just read, and from that protest I read the following extract:

"I deem it altogether needless at this time to go into a history of the transaction, as the protest of the agent, Colonel Upshaw, was filed by me in the Indian Office, which purported to explain the whole matter, and which had the effect of stopping the action of the War Department in the matter, and prevented the payment of the claim under the DECISION OF THE LATE SECRETARY OF WAR, GENERAL MARCY. Since that time no effort that I am aware of has been made to procure its payment until now."

Nothing daunted, the claimants pressed their suit with increased energy, and by way of showing the nature of the opposition and the character of the obstacles thrown in their way, I beg leave to read two or three short papers found among the files now before me. It is impossible that these papers should have been overlooked by the most careless searcher after truth in this case. On the 14th of July, 1848, Colonel Pitman Colbert, a distinguished man among the Chickasaws, wrote to Commissioner Medill the letter from which I read an extract:

"I present myself and respectfully request to be informed of the amount of money received by Dr. W. M. Gwin, by virtue of a power of attorney from the Chickasaw commissioners; also a copy of that power of attorney, as it is important for my object to know the names of the persons who made and constituted Dr. Gwin the financial agent of the Chickasaws; and whether or not said Gwin has not attempted to draw other sums of money by virtue of said power, since it became notorious that his power was revoked by the universal condemnation of the Chickasaw people; together with any other information relating to this matter that may be in possession of your department."

On the 28th of February, 1849, a delegation from the Chickasaw nation thus wrote to Secretary Marcy. After speaking at some length of their claim for $112,042.99, they say:

"But we found in connection, however, with this claim, that an agreement has been filed between William M. Gwin on the one part, and the chiefs, headmen, and warriors on the other part, by which it appears that one-half of said claim was to be paid to said William M. Gwin, for his services in obtaining an adjustment of the claim by the government, and on this agreement the Second Auditor has allowed William M. Gwin $56,021.49, being the one-half of $112,042.99 as stated. This account is now suspended in your office, as we are informed, and we are bound to thank you for delaying the matter thus far, although it is important to our people that they should be in annual receipt of the interest upon this sum which is justly due the Chickasaw nation."

Such is the character of all the papers in this great mass, numbering more than five hundred pages. The Indians, from the beginning to the ending, sternly and steadily resisted the payment of this demand. It is among the most remarkable circumstances connected with the case, that there is not one particle of Indian testimony to sustain it-not a single Indian of the whole tribe has ever been found to endorse its justice, or to say it ought to be paid. Their testimony is uniformly and unitedly against it. Their sense of its injustice may be gathered from the paper which I now read:

A PROTEST.


Be it enacted by the General Council of the Chiefs and Captains of the Chickasaw tribe of Indians, That the following protest be adopted, and copies of it be transmitted to the Secretary of the Treasury and to the Secretary of the Home Department at Washington city:


The chiefs, captains, headmen, and warriors of the Chickasaw tribe of Indians in full council assembled, have learned that Dr. William Gwin has filed in the Treasury Department of the United States, at Washington City, an account against the Chickasaw fund, for $56,021.49, which account we understand, is based upon an agreement which, it is pretended, was made between the said Gwin and the Chickasaw tribe of Indians. This agreement, if any such exist, was made by some of our commissioners or chiefs in a private manner, without the knowledge or consent of our nation in council, and has never been recognised, ratified, or confirmed by a general council of our tribe, and without this it cannot nor ought not to be binding upon our people. Our tribe cannot be bound by the acts of any individuals of the same, unless a special power for this purpose has been delegated to them by a general council.


The tribe of Chickasaws, in full council assembled, after deliberation, repudiate the action of the individuals who entered into that agreement, if any was made, and deny that they had any authority to bind our people.


We therefore solemnly protest against the payment of that account out of the Chickasaw funds, as, in justice to our people, we are bound to do.


Done in open council of our tribe, and attested by our signatures, at Boiling Springs, Chickasaw District, July 13, 1849.


Joel Kemp,

Captain STROSS, pro wag, his X mark,

Captain PARKER, his X mark,

Captain NED, his X mark,

HOTCHIE, his X mark,

LOUIS, his X mark,

JERRY, his X mark,

ELBUB NU TURKEY, his X mark,

WILLIAM JAMES, his X mark,

ENAH NO TI CHU, his X mark,

JACK UTTUBBY, his X mark,

JOH TU CHUCK ATTIEA, his X mark,

VIBBIT UN OYUH, his X mark,

ELOSS AMBY, his X mark,

BILLY, his X mark,

PITMAN COLBERT,

LEMUEL COLBERT,

JACKSON FRAZIER,

ISAAC ATBERTEAUR, his X mark,

President of the Council.

EDUMUND PECKERS, his X mark,

Chief, Chickasaw Dirstrict C. N.

Attest: CYRUS HARRIS, Clerk Chickasaw District.

Now, sir, I humbly submit, that all this mass of testimony, together with a great deal more which I have neither time nor patience to read, should, at least, have put the Secretary on his guard. It should have been sufficient to elicit the most searching investigation into all the facts. We shall presently see whether it had that effect.

I said, sometime since, that the contract was without date, and so it was; other testimony was resorted to to [sic] fix its date. A Mr. Charles Johnson, in a long affidavit now before me, gives somewhat in detail a history of Dr. Gwin's contracts with the Indians. It seems, that a general council had been called to obtain a ratification of Dr. Gwin's last agreement with a part of the Indian commissioners. There was great dissatisfaction among the people. Johnson concludes his affidavit thus:

"On the day the council met, the commissioners, in a body, resigned. I was not present, but understood there was much excitement. The power of attorney given to Dr. Gwin, in November, 1844, was said to be the main cause. Some two weeks after the commissioners resigned, they came to Fort Washita, and then signed the new power of attorney. In consequence of there having been much said respecting the papers, I requested them to permit me to take both powers to Major Armstrong, and gave them my word that the old one should be destroyed. I returned them both into the hands of Major Armstrong, who, in my presence, destroyed the old one. Colonel Upshaw, Chickasaw agent, saw all the papers, and disapproved of both powers of attorney. At the time this affair took place, I was a trader in the Chickasaw country.

CHARLES JOHNSON.


"CITY OF PHILADELPHIA," ss. Sworn and subscribed before me this 29th day of January, A. D. 1850.

“C. BRAZIER,          

Ald. and Ex-officio Justice of the Peace.”

No wonder this power of attorney is without date. Signed officially by the commissioners two weeks after they had been compelled to resign, it would not have looked well to date it. No wonder the Indians in general council repudiated it, and said it had been executed without authority and in a private manner. Can it be, Mr. Speaker, that Messrs. Ewing and Johnson, in deciding to pay this money, could have overlooked papers like these?

But, sir, the case does not stop here. This paper, thus executed, was lost; yes, lost. A COPY was presented by Mr. Corcoran, of the firm of Corcoran & Riggs, to whom Dr. Gwin had transferred the claim, and on this copy, thus presented, the money was paid.

Mr. Corcoran swore, to the best of his belief, that it was a correct copy. But there were subscribing witnesses, some six or eight of them, white men and Indians. And I do not learn that an attempt was ever made to obtain their testimony that the copy was correct.

The gentlemen from Ohio and Virginia [Messrs. Vinton and Bayly] have dilated at great length, and with much eloquence and learning, on this, as an adjudicated case. We have been exhorted not to lay our profane hands on the sanctity of a judicial decision. We must needs let this thing pass, because it is res adjudicata. Let me ask the learned, gentleman if there is a court in the civilized world where the plaintiff could introduce the bare copy of the most important paper, upon no other than his own affidavit as to its correctness, and that, too, when there were a dozen or more subscribing witnesses? This a judicial proceeding, indeed! This the sacred ermine we are exhorted not to profane! I have about the same respect for such "judicial proceedings" that I have for a "Choctaw council," and about as much reverence for this sort of ermine as I have for an Indian blanket.

Well, sir, the case had progressed to this point, when Mr. Ewing determined to pay it; but with that true cunning which is a part of himself, he determined to put the Attorney-General between him and danger; so he called on him for his legal opinion. And here is the opinion of the learned gentleman, in all its length and breadth, height and depth. See it, sir, in all its vast proportions—its latitude and longitude, and be silent while I read, all ye ends of the earth! Listen!

ATTORNEY-GENERAL'S OFFICE,          

WASHINGTON, January 3, 1850.


SIR: In the cases of the claim of the Chickasaw nation against the United States, and of Messrs. Corcoran and Riggs, as assignees of William M. Gwin, submitted by you to this office, I have formed an opinion, after careful consideration, which my other engagements prevent my doing more at this time than barely stating. Should it be your wish, I will avail myself of the very first leisure to assign my reasons.


1st. I am of opinion that the account of the nation is to be considered now as having been properly opened and restated, and that the balance found due by the accounting officers of $112,842, is properly chargeable to the appropriation for the subsistence and removal of Indians.


2d. That the last contract with William M. Gwin, assigned to Corcoran and Riggs, is valid, and that out of the fund payable to the Chickasaws under the first head, whatever balance is due under that contract, should be paid to Corcoran and Riggs.


With regard, your obedient servant,

REVERDY JOHNSON.

Hon. T. EWING.

Shades of our fathers defend us! Was there ever such an opinion in such a case? Here is a case involving an immediate payment of $112,842, and contingently a vastly larger sum. A case which has been decided against by some of the purest officers and ablest lawyers in the Union. Its history covers a period of some twelve or fourteen years, and is written on five hundred pages of foolscap, and the Attorney-General disposes of it in two short sentences: "I am of opinion that it ought to be paid." "I think Corcoran and Riggs ought to have half the money." There it is, well and nobly said. This learned opinion convinced the distinguished Secretary, and he penned this important paper Veni, vidi, vici. See, sir, it is short, and exactly to the point. To use the poetic phrase of Mr. Winthrop, "it is as brief as the posy on a lady's ring." Harken! all yea of little faith!

DEPARTMENT OF THE INTERIOR,        

January 4, 1850.


The account will be stated, and the payment made in accordance with the Attorney-General's opinion within.

T. EWING, Secretary.

This had well-nigh ended the whole matter; but the Chickasaws were importunate. They interposed Johnson's affidavit and other like documents. Ewing hesitated; the thing looked barefaced. He may for once in his life have felt that there was such a thing as conscience. Again he called the learned Attorney-General to his aid, and that distinguished functionary, with a promptitude and power which few men can master, responded in the following learned, powerful, and convincing argument:—

ATTORNEY-GENERAL'S OFFICE,          

7th March, 1850.

SIR: In compliance with your request of the 8th January last, I have reexamined the cases of the Chickasaw nation against the United States, and of Corcoran and Riggs, assignees of William M. Gwin, upon which I gave you an opinion on the third of that month, and have most carefully considered the additional evidence and the arguments of the counsel for the parties concerned, and see no reason to change the opinion referred to.


Indeed the effect of the recent evidence is to satisfy me more fully, that that opinion was right; and I therefore again advise you accordingly.


The press of business upon me still continuing, I must wait until the final adjournment of the Supreme Court before I can give in detail the reasons which have led me to the conclusion to which I have come. Should you then desire it, they will be submitted with pleasure.


I have the honor to be, with great regard, your obedient servant,

REVERDY JOHNSON.

Hon. THOMAS EWING, Secretary of the Interior.

This was conclusive; the Secretary was overcome; the attorneys stood aghast; the Indians were floored; the money was paid; Corcoran and Riggs felt comfortable; Dr. Gwin was satisfied, and the scene closed. I drop the curtain over the transaction with this single remark: Before many years shall have passed by, we will be called on to refund this money to the Chickasaws.

_______________

* Let me remark here, that in speaking of the amount due them, the commissioner means the whole sum, $112,000, and includes, of course, the $56,000 claimed by Dr. Gwin.

SOURCE: M. W. Cluskey, Editor, Speeches, Messages, and Other Writings of the Hon. Albert G. Brown, A Senator in Congress from the State of Mississippi, p. 215-33