Chapter 50

The President of the United States signed an order or permit for the transportation of the goods, in fulfillment of the contract, and for the passage of the parties selling such goods through the Federal military lines, the permit declaring, however, that such transportation and passage should be "with strict compliance with the regulations of the Secretary of the Treasury, and for the fulfillment of said contract with the agent of the Government."

Maddox and his associates were not at the time the contract was entered into the owners of any of the property they agreed to sell and deliver; but it is alleged that Maddox, as one of the parties to the contract and as assignee of his co-contractors, purchased 4,042 boxes of tobacco, worth at that time more than $735,000, for the purpose of fulfilling this contract.

The tobacco was purchased by him within the rebel lines in the State of Virginia. A part of it, he charges, was forcibly taken by the military forces of the Government and converted to its use or destroyed while being transported to its destination, and the remainder of it, having been detained in storage at Richmond, Va., was afterwards appropriated to the use of the United States or was destroyed in the fires at Richmond upon the capture of the city by the United States forces in 1865.

An action predicated upon the contract with Risley was brought by Maddox in the Court of Claims to recover the value of this property, but it was held by the court that the contract was void.

On appeal to the Supreme Court of the United States the decision of the Court of Claims was affirmed, upon the ground, as had been previously decided by said court, that under the law, the Treasury regulations, and the Executive orders concerning the purchase of products of insurrectionary States a purchasing agent of the Government had no authority to negotiate with anyone in relation to the purchase of such products unless at the time of the negotiation the party either owned or controlled them; that neither the law nor the regulations for its execution protected a speculation wherein the products to be sold were to be procured by the contractor within the rebel lines after the contract was made; that private citizens were prohibited from trading at all in the insurrectionary districts, and that the object of the law and the regulations to carry it into effect was to encourage the insurgents themselves to bring their products to agents of the Government.

With this adverse decision all chance of recovery upon legal grounds of before the courts was dissipated. But recourse to Congress still remained. As appears from a memorandum furnished in support of this bill, the alleged equities of the case were presented to the Forty-second, the Forty-third, the Forty-fourth, the Forty-fifth, the Forty-sixth, the Forty-eighth, and the Forty-ninth Congresses. Two adverse and more than two favorable committee reports have been made upon the claim. No bill for the relief of the claimant has, however, passed Congress until the present session, when a favorable condition seems to have presented itself.

The bill herewith returned empowers and directs the accounting officers of the Treasury to settle and pay to the representatives of Maddox the amount found due him on account of the loss and damage he sustained by the seizure by our military forces of the tobacco purchased by him under the agreement referred to, excluding, however, the tobacco destroyed by fire in the city of Richmond, and provides that said claim shall be determined upon the evidence taken and now on file in the office of the clerk of the United States Court of Claims and the War Department and any other competent evidence.

I fail to appreciate the equities which entitle this claimant to further hearing.

Every intelligent man should be charged with the knowledge that as a general rule commercial intercourse with the enemy is entirely inconsistent with a state of war, and that the law of 1864 had for its object the encouragement of the insurgents themselves to bring their products to us, and not the authorization of persons to roam through the insurrectionary districts and purchase their products on speculation.

Even if the claimant did not understand these conditions, he certainly knew that his contract was based upon a statute; that the agent with whom he was contracting was a creature of statute, and that such statute and certain regulations of the Secretary of the Treasury made thereunder regulated the right and limited the action of all the parties to said contract. These things sufficiently appear from the very terms of the contract and the permit signed by the President. The privileges and liberties contained in this permit are expressly granted "with strict compliance with regulations of the Secretary of the Treasury."

If before or after entering into this contract the claimant had examined these regulations, he would have found that they provided that "commercial intercourse with localities beyond the lines of actual military occupation by the United States forces is absolutely prohibited."

He would have also found that such regulations expressly provided that the power of the agent of the Government to make contracts should be founded upon the statement that the contractor then owned or controlled the products for which he contracted. And yet the permit of the President, which so completely put the claimant upon inquiry as to what he might or might not do, seems now to be relied upon as the source of equities in his favor, and is pressed into his service under the guise of a sanction of his unlawful proceedings.

Besides the general knowledge the claimant should have possessed of the commercial disabilities consequent upon a state of war, and the information afforded him by his contract and permit, a proclamation of the President publicly issued September 24, 1864,[17] furnished abundant notice of the kind of trading which would be permitted.

The property for which compensation is asked constitutes a part only of that agreed to be furnished. None of it ever reached the possession of the agent of the Government, but, as I understand the case, was at the time of its seizure or destruction still in the territory of the enemy and in rebellious possession. If in the circumstances detailed it was treated by our military forces in like manner as other property in the same situation, there would seem to be no hardship in holding that the contractor assumed this risk as one arising from his unauthorized and, if successful, his profitable venture.

Not being satisfied that there are any especial equities which entitle this claim to more consideration than many others where equities might be claimed in behalf of those who long ago violated our nonintercourse laws, I am unwilling to sanction a precedent which if followed might substantially work a repeal of these laws, regarded necessary and expedient by those charged with legislation during the War of the Rebellion, and who had in full view all the necessities of that period.

GROVER CLEVELAND.

[Footnote 17: See Executive order of September 24, 1864, Vol. VI, pp. 240-241.]

EXECUTIVE MANSION, _October 12, 1888_.

_To the Senate_:

I return without approval Senate bill No. 3276, entitled "An act granting restoration of pension to Sarah A. Woodbridge."

The first husband of this beneficiary, Anson L. Brewer, was an additional paymaster in the Army, and died February 2, 1866, from injuries received in an explosion of a steamer.

His widow, the beneficiary, was pensioned at the rate of $25 a month from the date of heir husband's death until October 21, 1870, when she remarried, becoming the wife of Timothy Woodbridge.

Two children, who were minors at the time she was pensioned, became 16 years of age in April, 1870, and July, 1874, respectively.

Upon the remarriage of the beneficiary her pension stopped under the law.

It is now proposed to restore her to the pension roll, notwithstanding the fact that her second husband is still alive.

Many cases have occurred in which pensions have been awarded by special acts to the widows of soldiers who, having remarried, were a second time made widows and rendered destitute by the death of their second husbands. I have not objected to such charitable legislation.

But I think this is the first time that it has been proposed to grant a pension after such remarriage when the second husband still survives.

It seems to me that such a precedent ought not to be established. If in pension legislation we attempt to determine the cases of this description in which the second husband can not or does not properly maintain the soldier's widow whom he has married, we shall open the door to much confusion and uncertainty, as well as unjust discrimination.

I am glad to learn from a statement contained in the committee's report that this beneficiary, though in a condition making the aid of a pension very desirable, has a small income derived from property inherited from her mother.

GROVER CLEVELAND.

EXECUTIVE MANSION, _October 12, 1888_.

_To the Senate_:

I herewith return without approval Senate bill No. 1044, entitled "An act authorizing the Secretary of the Treasury to state and settle the account of James M. Willbur with the United States and to pay said Willbur such sum of money as may be found due him thereon."

The claim mentioned in this bill grows out of alleged extra work done by the claimant in the construction of the post-office and court-house building in the city of New York.

The United States, in September, 1874, entered into a contract with Messrs. Bartlett, Robbins & Co. by which they agreed to furnish and put in place certain wrought and cast iron work and glass for the illuminated tiling required for the said building according to certain specifications and schedules which formed a part of said contract. The work was to be of a specified thickness and the contractors were to be paid for the same at certain rates per superficial foot. The approximate estimate for the entire work was specified at $35,577.56. Samples of the tiling to be put in were submitted to the Supervising Architect and accepted by him.

In August, 1874, the claimant entered into an agreement in writing with Bartlett, Robbins & Co. to do this work as subcontractor for them at certain prices for each superficial foot of said tiling put in place.

In neither contract was the weight of the tiling mentioned.

The work was, under the contract with Messrs. Bartlett, Robbins & Co., completed, and after such completion and the measurement of the work the said firm of Bartlett, Robbins & Co. were paid by the Government the sum of $35,217.57, in full satisfaction of their contract with the United States.

It appears that after the completion of the work the claimant gave notice to the Government that he had a claim against Bartlett, Robbins & Co., growing out of said work, for the sum of $8,744.44, and requested that payment be withheld from said firm until his claim against them was adjusted.

The fact that said claim had been made having been communicated by the Supervising Architect to Bartlett, Robbins & Co., on the 22d day of August, 1876, they responded to the Supervising Architect as follows:

SIR: We inclose copy of our account against Willbur and the Illuminated Tiling Company and a copy of Willbur's assignment to the Tile Company, which includes a copy of his agreement with us; and when the Department settles the measurement of the work the items in the contract will show just what the amount is, and, as we have repeatedly assured him, he will have all the measurements the Government gives us.

If anyone has cause of complaint in this case it is us. Four times the work came to a stand, or nearly so, and our Mr. B. was compelled to go to New York and stay until it was moving again, charging his expenses, by Willbur 's request, and finally it had to be finished by others, etc. We know this does not interest you particularly, as you do not know him in the matter, but there has been so much willful misrepresentation we thought silence might be misconstrued.

It is charitable to think Willbur must be crazy.

Very respectfully, yours,

BARTLETT, ROBBINS & CO.

In an opinion of the Solicitor of the Treasury concerning this claim, dated November 30, 1883, I find a statement that on the 20th day of October, 1876, a paper was filed by the attorneys of the claimant in which his claim for extra work and material in performing his contract was alleged to be $21,857.94. It is further stated that this claim was hastily drawn by one of Willbur 's attorneys and without consultation with him.

On or about the 20th day of March, 1877, Mr. Willbur himself filed a statement of such extra work and material, in which he claimed for the same the sum of $42,685.20.

Another statement made by Willbur, in February, 1878, presents a claim on account of the same matters amounting to $47,159.62.

This claim, so variously stated, is based upon the allegation that tiling and frames of greater thickness than were required by the contract were put in the building. Although it is insisted by the claimant that these thicker tiles and frames were directed to be put in, or at least accepted by the person having charge of the construction of the building for the Government, I hardly think it will be seriously contended that the claimant has any legal claim against the United States.

But, with a view of discovering whether, upon equitable grounds, the claimant should be paid anything by the Government for glass and iron of greater thickness than its contract with Bartlett, Robbins & Co. required, and which had been put in its building by their subcontractor, the Secretary of the Treasury in 1884 appointed a committee of three persons to examine and report upon this claim of Willbur's, "with a view of determining what portion, if any, it is proper for the Government to pay."

On the 24th day of January, 1885, this committee made a report by which they determined that there should be paid to the claimant on account of the matters alleged the sum of $1,214.90.

This report was based upon the measurements, examinations, and estimates of two experts, one selected by the claimant and the other by the committee. The report was transmitted to the House of Representatives by the Secretary of the Treasury and an appropriation asked to pay the amount awarded.

But Mr. Willbur was not satisfied, and on the 6th day of January, 1885, addressed a communication to the Secretary of the Treasury in which this passage occurs:

I shall insist on a remeasurement of the entire work, as this is vital to my claim. The excess which I furnished can only be ascertained by weight instead of by measuring the thickness of the plates and frames.

At the second session of the Forty-ninth Congress, and early in 1886, this claim was before the Senate Committee on Claims, and at the instance of the committee this work was again examined by experts, who came to the conclusion that the claimant was entitled to the sum of $45,615.67 for the extra work which he had performed and materials furnished.

It is only alleged that the glass tiling and frames actually put in the building were slightly thicker than those required by the contract, and this alleged increased thickness seems to be fairly represented in a general way by the claim that some of the glass and frames which were required to be 1 inch thick were actually put in 1 inch and a quarter thick.

Upon this statement it must be admitted that the sum above stated as the value of this extra thickness is somewhat startling. In the language of the report upon this bill by the Supervising Architect, "a claim of $47,159.02 for such slight excess on work the price of which was $35,217.57 is hardly entitled to consideration."

The claim, as well as the award of the experts last named, reach their astonishing proportions by the application of weights to the question in the following manner: A certain area is measured. A square foot of the tiling actually put in is weighed, and a square foot of the tiling required by the contract is also weighed. Both these weights are multiplied by the area. The lesser aggregate weight is deducted from the greater, and the difference is divided by the weight of a square foot of the lightest tiling, thus reducing it to square feet of such lightest tile. These square feet are multiplied by the price agreed to be paid by the contract for each superficial foot, and an item of extra work is determined. Thus additional weight in constructed and finished tiling is converted, as far as price and measurement are concerned, into finished tile, which more than doubles the quantity actually laid down.

This can not be right. And yet the bill herewith returned directs the Secretary of the Treasury to settle this claim for extra work upon the basis of the report of the experts who have adopted this mode of adjustment; or, if not satisfied with their report, he shall within thirty days from the passage of the act cause a reweighing of said material to be made by two sworn experts, one to be appointed by him and one by the claimant, and a third to be appointed by these two in case they can not agree. The bill further provides that he shall then pay to said Willbur the difference of excess in weight and superficial measurement as found by said experts between the illuminated tiling and frames furnished and that contracted for at the contract prices for such work and material.

There are features of this claim which suggest suspicion as to its merit. In any view of the matter, I regard the claimant as seeking equitable relief. He is not entitled to dictate the rule by which his claim is to be adjusted, and he should be quite satisfied if the officers of the Government charged with the settlement of such matters are permitted by the Congress to afford equitable relief according to such rules and methods as are best calculated to reach fair results.

GROVER CLEVELAND.

EXECUTIVE MANSION, _October 15, 1888_.

_To the Senate_:

I return without approval Senate bill No. 3306, entitled "An act granting a pension to Mary K. Richards."

The beneficiary named in this bill applied for a pension on the 14th day of November, 1878, and the same was rejected in April, 1879. Her claim has lately been reexamined, and since the passage of the bill herewith returned she has been allowed a pension by the Pension Bureau, it having been there determined that the former rejection was a manifest error.

With this action of the Pension Bureau I entirely concur.

I therefore venture, notwithstanding the persistent misrepresentations of my action in similar cases, to disapprove this bill, upon the ground that this deserving beneficiary will receive under the action of the Pension Bureau a much larger sum than she would if such action was superseded by the enactment of the proposed special statute in her behalf.

GROVER CLEVELAND.

EXECUTIVE MANSION, _October 15, 1888_.

_To the Senate_

I herewith return without approval Senate bill No. 3208, entitled "An act granting a pension to William S. Bradshaw."

The beneficiary mentioned in this bill was mustered into the military service as first lieutenant on the 28th day of October, 1861.

About eight months afterwards, and in June, 1862, he resigned from the service, his resignation being based upon a surgeon's certificate which he procured, and which is as follows:

William S. Bradshaw having applied for a certificate to accompany his resignation, I do hereby certify that I have carefully examined this officer and find that his disease is of a chronic pleuritic character, contracted (previous to his entering the service) four years since from an injury received in shoeing a fractious horse, in consequence of which he was laid up for a number of weeks with a severe attack of pleuritis; that he has never been able to endure severe labor since; that since entering the service active drilling or marching has invariably developed severe pleuritic pains about his chest and underneath his sternum, rendering him totally unfit for duty.

It is entirely evident that the statements contained in this certificate are of such a nature that they must have almost entirely been communicated to the surgeon by the officer himself. It will be observed that there is an absolute lack of any intimation that his disabilities were attributable in their origin to army service, and he surely can not ask us to believe that a man with the intelligence fitting him to be a commissioned officer in the Army, and having this certificate in his possession, did not know what it contained.

It furnished the reason for his honorable discharge in the dark days of his country's need and operated as an exemption from further military service.

And yet in September, 1883, more than twenty-one years after his dis; charge, he applied to the Pension Bureau for a pension, alleging lameness of breast and back, contracted in the service.

After an examination of all the facts I can not believe that this is a case in which a pension should be granted.

GROVER CLEVELAND.

EXECUTIVE MANSION, _October 16, 1888_.

_To the House of Representatives_:

I return without approval House bill No. 7657, entitled "An act granting a pension to Mary Woodworth, widow of Ebenezer F. Woodworth."

The husband of this beneficiary enlisted October 1, 1861. On the rolls of his company for May and June, 1862, he is reported as a deserter, and the report is the same on the muster-out roll of his regiment, dated October 24, 1864.

An effort was made on the application by the beneficiary for pension to the Pension Bureau to attribute the charge of desertion to the unfriendliness and injustice of the soldier's captain, and an unsuccessful effort was made to have the charge removed from the record by the Adjutant-General.

The soldier, therefore, is still recorded as a deserter from camp near Farmington, Miss., since March 12, 1862.

The application of the widow to the Pension Bureau in 1867 states that her husband was missing at Hamburg, Tenn., May 7, 1862, and not having since been heard from is supposed to be dead.

The captain of the company testifies that the soldier was employed with the ambulance corps, and that for misconduct he (the captain) ordered him to his company and censured him; that very soon after that the soldier was absent at roll call and was marked as absent without leave; that in a day or two after that a member of a detail returned to camp from Hamburg Landing and reported that he had seen the soldier there and had been told by him that "he was off and would never go back." Thereupon he was dropped from the roll as a deserter.

Various theories are presented to account for the soldier's absence in other ways than by desertion, some of his comrades going so far as to express the opinion that he was murdered at the instigation of his captain. None of these theories, however, seem to be more than conjectures with various degrees of plausibility.

If the question of desertion could be solved favorably to the beneficiary, another difficulty immediately arises from the fact that there is absolutely no proof of death except the soldier's long absence without knowledge of his whereabouts; and if his death could be presumed the cause of it and whether connected at all with military service are matters regarding which we have no information whatever.

I am unable to see how a case in such a situation can be considered a proper subject for favorable pension legislation.

GROVER CLEVELAND.

EXECUTIVE MANSION, _October 16, 1888_.

_To the House of Representatives_:

I return without approval House bill No. 10661, entitled "An act granting a pension to Mrs. Sophia Vogelsang."