1st Session. No. 21. CASSIUS M. CLAY. JUNE 28, 1856.-Committed to a Committee of the Whole House, and ordered to be printed. The COURT OF CLAIMS submitted the following REPORT. CASSIUS M. CLAY vs. THE UNITED STATES. To the honorable the Senate and House of Representatives of the United States in Congress assembled: The Court of Claims respectfully presents the following documents as the report in the case of Cassius M. Clay vs. the United States: 1. The petition of the claimant. 2. Petition of the claimant to Congress, and accompanying documents, referred by the House of Representatives to the Court of Claims, and now returned to the House in a separate envelope. 3. Opinion of the court refusing an order to take testimony, delivered by Judge Blackford. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the seal of said court at Washington, this 25th day of June, A. D. 1856. [L. S.] SAM'L H. HUNTINGTON, To the honorable the Court of Claims: The petition of Cassius M. Clay, of the Commonwealth of Kentucky, respectfully showeth: That during the late war between the United States and Mexico, your petitioner was a captain in the service of the United States. That he was attached to the Kentucky regiment of cavalry under Col. Marshall, and, preparatory to departing for Mexico, was stationed at or near Louisville, Kentucky. That on the 3d day of July, 1846, the day before said regiment embarked for Memphis, a guard under the command of Lieut. Sartin was ordered to Louisville to apprehend and bring in deserters, a considerable number of whom were said to be in a house of ill-fame, belonging to or kept by one Eliza Bowles. Lieut. Sartin proceeded to the execution of the which he commanded. On arriving at the house indicated, he was not only denied admission, but fired upon from the house. Two of his men were wounded, and a horse killed. He returned to camp, reported the circumstances, and, in addition to what has been above stated, added that some were supposed to be killed in the encounter. About one or two o'clock in the morning, your petitioner was awakened in his tent by Col. Field, then in command, who ordered him to take a reinforcement, to enter the house and bring in the deserters. Your petitioner, being a subordinate officer, felt himself imperatively bound to obey the orders of his superior in authority. Anticipating from what had previously occurred that resistance would be made, the house was quietly surrounded, and orders given that all the doors should be simultaneously broken open. This was what he deemed a prudent order, calculated as well to effect the object which was to be accomplished, as by the promptness of the movement to prevent the effusion of blood. His orders were obeyed; but it appeared that the deserters of whom he was in quest had escaped through a back way. No man was found on the premises but one, by the name of Steed. The soldiers, who were exasperated at the conduct of the inmates of the house on the previous evening, were, with great personal difficulty on his part, prevented from taking summary vengeance upon Steed and Mrs. Bowles. He succeeded in protecting them from personal injury, and not only did his conduct receive the commendation and approval of the commanding officer under whose orders he had acted, but Mr. Steed expressed his personal thanks and gratitude for this protection which he had been able to afford him. Your petitioner further shows, that after his return from Mexico, a suit was instituted against him for this alleged trespass by Mrs. Bowles, alias Lang, and a verdict rendered against him, upon which judgment was pronounced; which, in October, 1848, amounted, principal, interest, and costs, to the sum of $533 20, which he has paid. It is presumed that it is unnecessary to remind this honorable court, that while the judicial department of this government has ever recognised the subordination of the military to the civil authority, and therefore held that an officer cannot justify, in an action of trespass, by producing the order of his superior in command, directing the act which has been performed, yet the government has ever acknowledged its obligation to indemnify and save harmless the individual who, in obedience to such order, has incurred personal responsibility. This principle, as equally applicable to subordinates both in the civil and military departments of the government, has so frequently been asserted, and, as your petitioner is advised, in no one instance repudiated, that he forbears, at this stage of the case, to cite any of the numerous cases in which relief has been afforded under similar circumstances, reserving the right, should the principle be questioned before this tribunal, (which he cannot anticipate,) to present to your honorable court numerous cases in which it has been settled as the uniform practice of the government, to give to the officer full indem order. He was dressed in his uniform, and accompanied by the guard nity for any losses he may have incurred by a faithful obedience to the orders which it was his duty to obey-not only by reimbursing him the full amount of any judgment that may have been recovered against him, with interest, but his own costs and counsel expenses. To this extent, therefore, your petitioner asks the judgment of your honorable court, viz: "that he may be reimbursed the amount of the judgment so recovered against him, with the costs and counsel fees which he has expended in the defence of the suit brought against him up to the day of reimbursement, and for the expenses, costs, and fees incurred, and payable by him in the prosecution of this claim." He asks further, in regard to the foregoing claim, to lay before your honors, from the official documents of Congress, a petition presented by him, with the accompanying papers, marked 30th Congress, 2d session, report No. 130; also report No. 150, 2d session 33d Congress, with a bill in favor of the claim. Should the validity of such a claim be controverted before your honorable court, or the sufficiency of the evidence be questioned, your petitioner respectfully asks that he may be in due time apprized of what is deficient, that he may supply the defect. Your petitioner presents in this case another item of claim. In November or December, 1846, he was ordered by Col. Marshall to disperse, by a forced march, a band of robbers who were threatening the train from Camargo to Monterey. Upon reaching the point where it was supposed that his services would be required, he was ordered to Monterey; from Monterey to Saltillo, by Gen. Marshall; from Saltillo to Palomas, by Gen. Butler; from Palomas to Encarnacion, by Major Gaines. At this last place he was taken prisoner. Under these circumstances, all the baggage and property which he had with him in Mexico was lost, including many valuable papers. The actual cost of the articles of property thus lost amounted to upwards of $1,370. This case was also presented to the House of Representatives, and on the 14th of March, 1848, the Committee of Claims made a report, 30th Congress, 1st session, No. 365, with a bill, H. R. No. 331. This report, while acknowledging to the fullest extent the obligation of the United States to make compensation for losses thus sustained by individuals employed in the service of the country, yet, by some estimates or process of reasoning not explained, proposed the very inadequate remuneration, for certain items of the claim, to the extent of $760, leaving the other items wholly unnoticed, and no reason assigned for the disallowance of them. Your petitioner asks, at the hands of your honorable court, the full allowance of his entire claim, with interest from the time of the incurring of the losses which he sustained-say January 1st, 1847. He appends hereto the report of the Committee of Claims above referred to, to which is appended his memorial and the certificate of Major Gaines, then a member of the House; also report No. 150, above referred to, adverse to this claim. Your petitioner alleges that jurisdiction has been given to this court by the act of Congress establishing the same, and he prays for such relief as the justice of his claims, of which he is the sole owner, calls for. R. S. COXE, JNO. M. McCALLA, Counsellors and Attorneys. CASSIUS M. CLAY vs. THE UNITED STATES. Opinion of the court, delivered by Blackford, J.: The petition in this case contains two distinct demands. The first demand is as follows: During the late war between the United States and Mexico, your petitioner was a captain in the service of the United States. He was attached to the Kentucky regiment of cavalry under Colonel Marshall, and, preparatory to departing for Mexico, was stationed at or near Louisville, Kentucky. On the 3d of July, 1846, the day before said regiment embarked for Memphis, a guard, under the command of Lieutenant Sartin, was ordered to Louisville to apprehend and bring in deserters, a considerable number of whom were said to be in a house of ill-fame, belonging to or kept by one Eliza Bowles. Lieutenant Sartin proceeded to the execution of the order. He was dressed in his uniform, and accompanied by the guard which he commanded. On arriving at the house indicated, he was not only denied admission, but fired upon from the house. Two of his men were wounded and a horse killed. He returned to camp, reported the circumstances, and, in addition to what has been above stated, added that some were supposed to be killed in the encounter. About one or two o'clock in the morning, your petitioner was awakened in his tent by Colonel Field, then in command, who ordered him to take a reinforcement, to enter the house and bring in the deserters. Your petitioner, being a subordinate officer, felt himself imperatively bound to obey the orders of his superior in authority. Anticipating, from what had previously occurred, that resistance would be made, the house was quietly surrounded, and orders given that all the doors should be simultaneously broken open. This was what he deemed a prudent order, calculated as well to effect the object which was to be accomplished, as by the promptness of the movement to prevent the effusion of blood. His orders were obeyed, but it appeared that the deserters, of whom he was in quest, had escaped through a back way. No man was found on the premises but one by the name of Steed. The soldiers, who were exasperated at the conduct of the inmates of the house on the previous evening, were, with great personal difficulty on his part, prevented from taking summary vengeance upon Steed and Mrs. Bowles. He succeeded in protecting them from personal injury, and not only did his conduct receive the commendation and approval of the commanding officer under whose orders he had acted, but Mr. Steed expressed his personal thanks and gratitude for this protection which he had been able to afford him. Your petitioner further shows, that after his return from Mexico, a suit was instituted against him, for this alleged trespass, by Mrs. Bowles, alias Lang, and a verdict rendered against him, upon which judgment was pronounced, which, in October, 1848, amounted, principal, interest, and costs, to the sum of five hundred and thirty-three dollars and twenty cents; which he has paid. The prayer of this first part of the petition is, that the claimant may be reimbursed the amount recovered against him as aforesaid. There is no legal ground for that claim. The government does not undertake to indemnify the officers of the army as to damages which may be recovered against them in cases like the present. Supposing the order, which is not very distinctly stated, to be that the claimant should break open the house of Mrs. Bowles for the purpose mentioned, it was no justification for the trespass, because the order was unlawful. An officer is justifiable in acting under the order of his superior officer, if that order is legal, (2 St. at Large, 361;) but not if the order be illegal. Mitchell vs. Harmony, 13 Howard, 137. There is nothing in the petition to show that Colonel Field had any authority to order the house to be broken open. If it was necessary so to enter the house to search for deserters, the proper authority to do so should have been obtained from a civil magistrate. It appears from a document, made part of the petition, that in the suit in which the judgment was recovered, the claimant's plea of justification, under said order, was held to be insufficient, on the ground that the order was unlawful; and that decision is no doubt correct. We are therefore of opinion that the government is not legally bound to indemnify the claimant against the judgment. There are cases in which Congress has relieved military officers, acting under unlawful orders, from judgments rendered against them. Mitchell's case, 10 St. at Large, 727, cited by the claimant's counsel, is such a one. But the power to relieve in such cases belongs, we think, exclusively to Congress. The other part of the petition is as follows: In November or December, 1846, the claimant was ordered by Colonel Marshall to disperse, by a forced march, a band of robbers. who were threatening the train from Camargo to Monterey. Upon reaching the point where it was supposed that his services would be required, he was ordered to Monterey; from Monterey to Saltillo, by General Marshall; from Saltillo to Palomas, by General Butler; from Palomas to Encarnacion, by Major Gaines. At this last place he was taken prisoner. Under these circumstances all the baggage and property which he had with him in Mexico were lost, including many valuable papers. The actual cost of the articles thus lost amounted to upwards of thirteen hundred and seventy dollars. The items are set out in a memorial to Congress, which is made part of this petition. This last-mentioned claim, which is for the value of goods taken by the enemy in time of war, cannot be sustained. Vattel, in speaking of damages to real estate caused by the enemy, says: "All the subjects are exposed to such damages; and wo to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the State strictly to indemnify all those whose property is injured in this |