"Resolved, That in all actions or suits which are or may be instituted or brought to any of the judicial courts within this Commonwealth, wherein any real British subject or absentee is plaintiff or defendant, and which actions or suits by the laws thereof are sustainable therein, the justices of the same courts are hereby severally directed to est from the times respectively as aforesaid, had been subscribed to the loan of the United States." (6 Stat. at L., p. 447.)

34. An act approved May 19, 1832, for the relief of Richard G. Morris, provided for the payment to him of two certificates issued to him by Timothy Pickering, Quartermaster-General, with interest thereon from the 1st of September, 1781. (6 Stat. at L., p. 486.)

35. An act approved July 4, 1832, for the relief of Aaron Snow, a revolutionary soldier, provided for the payment to him of two certificates issued by John Pierce, late commissioner of Army accounts, and dated in 1784, with interest thereon. (6 Stat. at L., p. 503.)

36. An act approved July 4, 1832, provided for the payment to W. P. Gibbs of a finalsettlement certificate dated January 30, 1784, with interest at 6 per cent. from the 1st of January, 1783, up to the passage of the act. This act went behind the final certificate and provided for the payment of interest anterior to its date. (6 Stat. at L., p. 504.)

37. Án act approved July 14, 1832, directed the payment to the heirs of Ebenezer L. Warren of certain sums of money illegally demanded and received by the United States from the said Warren as one of the sureties of Daniel Evans, formerly collector of direct taxes, with interest thereon at the rate of 6 per cent. per annum from September 9, 1820. (6 Stat. at L., p. 373.)

38. An act for the relief of Hartwell Vick, approved July 14, 1832, directed the accounting-officers of the Treasury to refund to the said Vick the money paid by him to the United States for a certain tract of land which was found not to be the property of the United States, with interest thereon at the rate of 6 per centum per annum, from the 23d day of May, 1818. (6 Stat. at L., p. 523.)

39. An act approved June 18, 1834, for the relief of Martha Bailey and others, directed the Secretary of the Treasury to pay to the parties therein named the sum of $4,837.61, being the amount of interest upon the sum of $200,000, part of a balance due from the United States to Elbert Anderson on the 26th day of October, 1814; also the further sum of $9,595.36, being the amount of interest accruing from the deferred payment of warrants issued for balances due from the United States to the said Anderson from the date of such warrants until the payment thereof; also the further sum of $2,018.50 admitted to be due from the United States to the said Anderson by a decision of the Second Comptroller, with interest on the sum last mentioned from the period of such decision until paid. (6 Stat. at L., p. 562.)

40. An act approved June 30, 1834, directed the Secretary of the Treasury to pay balance of damages recovered against William C. H. Waddell, United States marshal for the southern district of New York, for the illegal seizure of a certain importation of brandy, on behalf of the United States, with legal interest on the amount of said judgment from the time the same was paid by the said Waddell. (6 Stat. at L, p. 594.)

41. An act approved February 17, 1836, directed the payment of the sum therein named to Marinus W. Gilbert, being the interest on money advanced by him to pay off troops in the service of the United States, and not repaid when demanded. (6 Stat. at L., p. 622.)

42. An act approved February 17, 1836, for the relief of the executor of Charles Wilkins, directed the Secretary of the Treasury to settle the claim of the said executor, for interest on a liquidated demand in favor of Jonathan Taylor, James Morrison, and Charles Wilkins, who were lessees of the United States of the salt-works in the State of Illinois. (6 Stat. at L., p. 626.)

43. An act approved July 2, 1836, for the relief of the legal representatives of David Caldwell, directed the proper accounting-officers of the Treasury to settle the claim of the said David Caldwell for fees and allowances, certified by the circuit court of the United States for the eastern district of Pennsylvania, for official services to the United States, and to pay on that account the sum of $496.38, with interest thereon at the rate of six per centum from the 25th day of November, 1830, till paid. (6 Stat. at L., p. 664.)

44. Án act approved July 2, 1836, provided that there be paid Don Carlos Delossus, interest at the rate of six per centum per annum on $333, being the amount allowed him under the act of July 14, 1832, for his relief, on account of moneys taken from him at the capture of Baton Rouge, La., on the 23d day of September, 1810, being the interest to be allowed from the said 23d day of September, 1810, to the 14th day of July, 1832. (6 Stat. at L., p. 672.)

In this case the interest was directed to be paid four years after the principal had been satisfied and discharged.

suspend rendering judgment for any interest that may have accrued upon the demand contained in such actions or suits between the 19th day of April, 1775, and the 20th day of January, 1783, until the third Wednesday of the next sitting of the general court: Provided, always, That if in any such actions or suits the plaintiff shall move for, 45. An act approved July 7, 1833, provided that the proper officers of the Treasury be directed to settle the accounts of Richard Harrison, formerly consular agent of the United States at Cadiz, in Spain, and to allow him, among other items, the interest on the money advanced, under agreement with the minister of the United States in Spain, for the relief of destitute and distressed seamen, and for their passages to the United States from the time the advances respectively were made, to the time at which the said advances were re-imbursed. (6 Stat. at L., p. 734.)

46. An act approved August 11, 1842, directed the Secretary of the Treasury to pay to John Johnson the sum of $756.82, being the amount received from the said Johnson upon a judgment against him in favor of the United States, together with the interest thereon from the time of such payment. (6 Stat. at L., p. 856.)

47. An act approved August 3, 1846, authorized the Secretary of the Treasury to pay to Abraham Horbach the sum of $5,000, with lawful interest from the 1st of January, 1836, being the amount of a draft drawn by James Reeside on the Post-Office Department, dated April 18, 1835, payable on the 1st of January, 1836, and accepted by the treasurer of the Post-Office Department, which said draft was indorsed by said Abraham Horbach at the instance of the said Reeside, and the amount drawn from the Bank of Philadelphia, and, at maturity, said draft was protested for non-payment, and said Horbach became liable to pay, and, in consequence of his indorsement, did pay the full amount of said draft. (9 Stat. at L., p. 677.)

6

48. An act approved February 5, 1859, authorized the Secretary of War to pay to Thomas Laurent, as surviving partner, the sum of $15,000, with interest at the rate of per cent. yearly, from the 11th of November, 1847, it being the amount paid by the firm on that day to Maj. Gen. Winfield Scott, in the city of Mexico, for the purchase of a house in said city, out of the possession of which they were since ousted by the Mexican authorities. (11 Stat. at L., p. 558.)

49. An act approved March 2, 1847, directed the Secretary of the Treasury to pay the balance due to the Bank of Metropolis for moneys due upon the settlement of the account of the bank with the United States, with interest thereon from the 6th day of March, 1838. (9 Stat. at L., p. 689.)

50. An act approved July 20, 1852, directed the payment to the legal representatives of James C. Watson, late of the State of Georgia, the sum of $14,600, with interest at the rate of 6 per cent. per annum, from the 8th day of May, 1838, till paid, being the amount paid by him under the sanction of the Indian agent, to certain Creek warriors, for slaves captured by said warriors while they were in the service of the United States against the Seminole Indians, in Florida. (10 Stat. at L., p. 734.)

51. An act approved July 29, 1854, directed the Secretary of the Treasury to pay to John C. Frémont $183,825, with interest thereon from the 1st day of June, 1851, at the rate of 10 per cent. per annum, in full for his account for beef delivered to Commissioner Barbour, for the use of the Indians in California, in 1851 and 1852. (10 Stat. at L., p. 804.)

52. An act approved July 8, 1870, directed the Secretary of the Treasury to make proper payments to carry into effect the decree of the district court of the United States for the district of Louisiana, bearing date the fourth of June, 1867, in the case of the British brig Volant, and her cargo; and also another decree of the same court, bearing date the eleventh of June, in the same year, in the case of the British bark Science, and cargo, vessels illegally seized by a cruiser of the United States; such payments to be made as follows, viz: To the several persons named in such decrees, or their legal representatives, the several sums awarded to them respectively, with interest to each person from the date of the decree under which he receives payment. (16 Stat. at L., p. 650.)

53. An act approved July 8, 1870, directed the Secretary to make the proper payments to carry into effect the decree of the district court of the United States for the district of Louisiana, bearing date July 13, 1867, in the case of the British brig Dashing Wave, and her cargo, illegally seized by a cruiser of the United States, which decree was made in pursuance of the decision of the Supreme Court, such payments to be made with interest from the date of the decree. (16 Stat. at L., p. 651.)

An examination of these cases will show that, subsequent to the seizure of these several vessels, they were each sold by the United States marshal for the district of Louisiana as prize, and the proceeds of such sales deposited by him in the First National Bank of New Orleans. The bank, while the proceeds of these sales were deposited there, became insolvent. The seizures were held illegal, and the vessels not subject to capture as prize. But the proceeds of the sales of these vessels and their cargoes could not be restored to the owners in accordance with the decrees of the district court, because the funds had been lost by the insolvency of the bank. In these cases, there

or by default bave right to judgment, then, and in such case, the justices aforesaid shall cause judgment to be entered for the principal sum, which, by the laws of this Commonwealth such plaintiff shall be entitled to recover, and all such interest as accrued thereon before the said 19th day of April, and subsequent to said 20th day of fore, Congress provided indemnity for losses resulting from the acts of its agents, and made the indemnity complete by providing for the payment of interest.

Your committee have directed attention to these numerous precedents for the purpose of exposing the utter want of foundation of the often-repeated assumption that "the Government never pays interest." It will readily be admitted that there is no statute-law to sustain this position. The idea has grown up from the custom and usage of the accounting officers and departments refusing to allow interest generally in their accounts with disbursing officers, and in the settlement of unliquidated domestic claims arising out of dealings with the Government. It will hardly be pretended, however, that this custom or usage is so "reasonable," well known, and "certain," as to give it the force and effect of law, and to override and trample under foot the law of nations and also the well-settled practice of the Government itself in its intercourse with other nations.

11th. Interest was allowed and paid to the State of Massachusetts, because the United States delayed the payment of the principal for twenty-two years after the amount due had been ascertained and determined. The amount appropriated to pay this interest was $678,362.41, more than the original principal. (16 Star. at L., 198.)

Mr. Sumner, in his report upon the memorial introduced for that purpose, discussing this question of interest, said:

"It is urged that the payment of this interest would establish a bad precedent. If the claim is just, the precedent of paying it is one which our Government should wish to establish. Honesty and justice are not precede ats of which either Government or individuals should be afraid." (Senate Report, 441st Cong., 1st sess., p. 10.)

12th. Interest has always been allowed to the several States for advances made to the United States for military purposes.

The claims of the several States for advances during the revolutionary war were adjusted and settled under the provision of the acts of Congress of August 5, 1790, and of May 31, 1794. By these acts interest was allowed to the States, whether they had advanced money on hand in their treasuries or obtained by loans.

In respect to the advances of States during the war of 1812-'15, a more restricted rule was adopted, viz: That States should be allowed interest only so far as they had themselves paid it by borrowing, or had lost it by the sale of interest-bearing funds. Interest, according to this rule, has been paid to all the States which made advances during the war of 1812-'15, with the exception of Massachusetts. Here are the cases : Virginia, Stats. at L., vol. 4, p. 161; Delaware, Stats. at L., vol. 4, p. 175; New York, Stats. at L., vol. 4, p. 192; Pennsylvania, Stats. at L., vol. 4, p. 241; South Carolina, Stats. at L., vol. 4, p. 499.

In Indian and other wars the same rule had been observed as in the following cases : Alabama, Stats. at L., vol. 9, p. 344; Georgia, Stats. at L., vol. 9, p. 626; Washington Territory. Stats. at L., vol. 11, p. 429; New Hampshire, Stats. at L., vol. 10, p. 1.

13th. The Senate Committee on Indian Affairs, in the report to which reference has heretofore been made, speaking of this award and of the obligation of the United States to pay interest upon the balance remaining due and unpaid thereon, used the following language:

"Your committee are of opinion that this sum should be paid them with accrued interest from the date of said award, deducting therefrom $250,000, paid to them in money, as directed by the act of March 2, 1861; and, therefore, find no sufficient reason for further delay in carrying into effect that provision of the aforenamed act, and the act of March 3, 1871, by the delivery of the bonds therein described, with accrued interest from the date of the act of March 8, 1861.”

Your committee have discussed this question with an anxious des re to come to such a conclusion in regard to it as would do no injustice to that Indian nation whose rights are involved here, nor establish such a precedent as would be inconsistent with the practice or duty of the United States in such cases. Therefore your committee have considered it not only by the light of those principles of the public law-always in harmony with the highest demands of the most perfect justice-but also in the light of those numerous precedents which this Government, in its action in like cases, has furnished for our guidance. Your committee cannot believe that the payment of interest on the moneys awarded by the Senate to the Choctaw Nation would either violate any principle of law or establish any precedent which the United States would not wish to follow in any similar case; and your committee cannot believe that the United States are prepared to repudiate these principles, or to admit that, because their obligation is held by a weak and powerless Indian nation, it is any the less sacred or binding than if held by a nation able to enforce its payment and secure complete indemnity under it. Could the United States escape the payment of interest to Great

January; and execution shall issue accordingly. And if Congress shall hereafter determine that the interest, which might have accrued on any bona-fide debt aforesaid during the war, ought by the treaty aforesaid to be considered as part of such debt, then the said courts, respectively, shall proceed to enter a further judgment for the Britain, if it should refuse or neglect, after the same became due, to pay the amount awarded in favor of British subjects by the recent joint commission which sat here? Could we delay payment of the amount awarded by that commission for fifteen years, and then escape by merely paying the principal? The Choctaw Nation asks the same measure of justice which we must accord to Great Britain; and your committee cannot deny that demand unless they shall ignore and set aside those principles of the public law which it is of the utmost importance to the United States to always maintain inviolate.

Your committee are not unmindful that the amount due the Choctaw Nation under the award of the Senate is large. They are not unmindful, either, that the discredit of refusing payment is increased in proportion to the amount withheld and the time during which such refusal has been continued. That the amount to be paid is large is no fault of the Choctaw Nation. The whole amount was due when, on the 2d day of March, 1861, Congress authorized the payment, on account of the award, of the sum of $250,000; and if, at that time, the bonds of the United States had been issued in satisfaction of the award, the Choctaw Nation would have received interest on them from that time, and thus derived such advantage as would have resulted, from time to time, from the payment of semi-annual interest and the sale of the gold which they would have received in the payment of interest. The bill under consideration provides that the amount due upon the award of the Senate shall be satisfied and paid (both principal and interest) in the bonds of the United States of like character and description as those authorized to be issued under the act of Congress, entitled "An act authorizing a loan," approved February 8, 1861. They were bonds of this issue that the Secretary of the Treasury was required to deliver in part payment of the amount authorized to be paid on account of the said award, under the provisions of the act of March 2, 1861. If this award had then been wholly satisfied and discharged, it would have been in bonds of this description. The act of February 8, 1861, authorized the issue of bonds to the amount of $25,000,000, of which there have been issued $18,485,000. There is, therefore, to the credit of this act bonds to the amount of $6,515,000, which may be issued for any purpose which Congress shall direct. Your committee, bearing in mind that the moneys so long withheld from the Choctaw Nation are in the nature of trust-funds, and that the United States had the use of these moneys for so many years before the making of the award in favor of the Choctaw Nation by the United States Senate, and that the Choctaw Nation is in a certain sense a ward of the United States, cannot recommend any other payment to them, except such as will do them perfect justice and provide for them complete indemnity. This result will be most nearly accomplished by the issue and delivery to the Choctaw Nation of those bonds which would have been issued to them had the whole award been paid at the time provision was made for its part payment, as provided in the act of March 26, 1861; and interest on the said award should be added from the time the same was made by the United States Senate; and that for these, both principal and interest, bonds of the United States, of the character and description of other bonds issued under the act of February 8, 1861, should be issued for the use and benefit of the Choctaw Nation.

Your committee believe that this course, and nothing less, will satisfy the demands of justice, and relieve the United States from the imputation of bad faith and an inexcusable disregard of treaty obligations.

The Senate report No. 209, 1st session 43d Congress, March 26, 1874, embodies all the reports on "the claim of the officers of the [revolutionary] army to the half-pay promised them by the act of October 21, 1780."

In the House report of March 5, 1858, it is said that the claim to this pay became a vested right, and the report then makes this statement upon the subject of interest: "Your committee are of opinion that the contract of half-pay has not been fulfilled on the part of the Government, nor have the claimants been guilty of laches or neglect, for they have again and again presented and urged upon Congress the payment of their just demands. The claimants had no way in which to enforce their rights, and could only sue for them in the language of solicitation. Their rights may, in fact, be said to have been suspended by the judiciary act of 1789, and were never restored until the act of February 24, 1855, organizing the Court of Claims. Since the establishment of that court the cause of Dr. Baird vs. The United States has been decided, in which he claimed half-pay for life, under the act of October, 1780, his commutation of five years' full pay having been paid by special act of Congress. The court, per Gilchrist, chief-justice, decided that the petitioner was entitled to the half-pay for life, and that the acceptance of a less sum than the half-pay by way of commutation was no discharge of the original contract, the payment of a sum of money not being of itself a discharge of a debt for a larger amount, and adds: 'A plea of payment of a small sum in satis

amount of all such last-mentioned interest, without any new process, and issue execution for such further sum accordingly; and all attachments made or bail given upon any action instituted as aforesaid, shall be holden to respond the final judgment that may be given for the amount of such last-mentioned interest.

"Sent down for concurrence.

'SAMUEL ADAMS, President.

"In the house of representatives, November 10, 1784. Read and concurred.

"Approved.

"A true copy. Attest:

'SAMUEL A. OTIS, Speaker.

However this resolution may deviate from the treaty, and perhaps from the proper jurisdiction of the legislature, yet it bears strong marks of fairness and regard to equal justice. It states their doubts on the construction of the article. It does not assume the power of deciding those doubts. It refers that question to Congress ; and although it suspends judgment for interest, yet it does it impartially, and not only in cases where British creditors are plaintiffs, but also where they are defendants. It also provides, that if Congress should decide in favor of interest, then judgment and execution shall be given accordingly.

Your secretary is nevertheless of opinion that this resolution was an infraction of the said fourth article:

Because, State legislatures have no cognizance of questions respecting the construction of treaties, can with no propriety suspend their operation on account of any fears or apprehensions which they may entertain of and concerning such questions.

Because, as it appertained to the courts of judicature to decide such questions, the legislature ought not to have restrained those courts from rendering such judgments as to them appeared consistent with the treaty and the law. For by restraining the courts from giving judgment for interest in cases where they would bave given such judgment, unless so restrained, the legislature did certainly interpose a lawful impediment to the plaintiff's recovering what the courts were ready to adjudge to be his right under that article of the treaty, and their so doing was, therefore, a violation of it.

CHAPTER II.

OF PROPERTY TAKEN, USED, DAMAGED, OR DESTROYED IN THE STATES PROCLAIMED IN REBELLION.

As to the eleven States proclaimed in rebellion during the period of flagrant war, it may be said in general terms that the United States, by the strict rules of international law, incurred no liability whatever for property taken, used, damaged, or destroyed therein by Government authority, so far as dictated by the necessary operations of the war, nor by the operations of the enemy. This is well settled by every writer on the laws of war.

Halleck says:

War * * makes legal enemies of all the individual members of the hostile states; faction of a larger is bad even after verdict,' (2 Parsons on Contracts, 130, and notes.) The case was conceded not to be within any of the acts of limitation. The court allowed the demand with interest, and their decision was approved by both Houses of Congress, and the money paid at the Treasury. The high character of the Court of Claims, and action of Congress in carrying their decision into effect, is a judicial and legislative construction and declaration of the rights of other claimants founded upon the same contract and governed by the same rules of evidence. Considering, then, the commutation certificates as not amounting to an accord and satisfaction, the claim of Dr. Baird and those embraced in the bill are governed by the same principles."