32d CONGRESS,            [CONFIDENTIAL.]                             2 
1st Session.   Ex.
MEMORIAL
OF
CHARLES GRATIOT,
STATING
Tatat he had been unjustly dismissed from the Army of the United States,
and asicing an expre.ssion of the opinion of the Senate as to the legality
of the course pursued towards him.
JANUARY 15, 1852.
Ordered to be referred to the Committee on the Judiciary, and printed in confidence for the
use of the Senate.
to the Senate of the United States:
The memorial of the undersigned respectfully shows, that, being a graduate of the military academy, he entered the army at an early period, and
continued therein until 1838, when, by the order of President Van Buren,
he was dismissed the serv-ee.  He is advised by persons skilled in law, and
believes that this exercised power, ill his case, was illegal, and should not
have effect against him.  Under this impression, he submitted the matter
to President Fillmore, in the hope he might obtain redress of his conceived
wrongs.  In December, 1850, he gave his answer, that " the act itself was
constitutional and perfect; and nothing can restore him (your memorialist)
but the appointing power, re-exerted in his favor; and this power consists
not of the President alone, but of the President and Senate."  (See the
end of paper A, page 15.)
The inference is that the President is indisposed to take any initiatory
step without the advice of the Senate; and it is to that end, and for that
purpose, thalt your memorialist respectfully asks permission to approach
your honorable bodyS that an expression of opinion may be had as to the
legality of the course which was adopted towards hiim
]H[istory shows that the tendency of power is to oppress; and it is happy'
for the citizen when an appellate revisory power exists, that can look into
the comminittetld wrong, and advise a reparation.  The details of the case,
fully considered, will be found in paper A, page 3.
By some it is insisted that, at mor-e pleasure, the President may dismiss
an o.ficer i1om service; by others it is denied.  If such power exist, it is
manifestly uninust to the army, with danger to the country; certainly it is
not authorized by any la1w, andt if claimed friom  any other source, the
ansTeri is, there are no prerog00ative rights in this country.  Rightfully, the
President can  do no act which is not permitted to be done by the constitution or some law flowing  from  it; then are his acts legitimate; but
othervise they are void.  (See opinions of the supreme ccurt and of Mr.
I'laxmilton, priintero




2]J                                2
Attorney General, to wit: pages 6 and 7, of paper A; also that of Major
General W. Scott, Appendix (14.)
The belief is not to be entertained that we shall always remain a pure
and virtuous people.  In some future time various inclinations may overtake us, and hence the necessity of interposing suitable safeguards.  Admit
the existence of such power, and at some dangerous crisis, a popular and
successful general might be arrested in his course of operations, and with
no other view than to assist an invading army to subvert the liberty of the
country.
But concede that the President does possess this power, yet, if in exercising it, he gives reasons which do not exist, or are false upon their face,
then the general power cannot be resorted to, whereby to cover the error
or wrong committed.
In the dismissal of your memorialist, the order is " for having failed to
pay into the treasury the balance of the money placed in his hands in
1835, for public purposes, after suspending therefrom the amount which
he claims to be due him on settlement of accounts, according to the President's order, communicated to him by the Secretary of Wanr, on the 28th
November, 1838; and having neglected to render his accounts in obedience
to the law of January 31, 1823.  (See House Document No. 77, third
session, twenty-fifth Congress, page 14; also, Register United States Military Academy, page 53.  Appendix No. 15.)
The assumed grounds on the part of the President, are,
1st. IHe failed to pay into the treasury money placed in hands in 1835.
2d. He neglected to render his accounts as the law of 31st January,
1823, required.
The second charge is disproved, and of course falls.  (See testimony
marked B-Fowler's Letter and that of the Third Auditor.)
That testimony conclusively shows that your memorialist's accounts and
vouchers had been quarterly rendered, and hence the letter nor the spirit
of the act did not apply.  Under the provisions and terlms, then, of this
act, the President had. no power to dismiss, because such neglect as the
act refers to did not exist.  Consequently the act was inoperative for any
such purpose.  Vouchers were returned-accounts wvere rendered, and of
course, the penalty imposed by the law (dismissal) failed to attach.
Again. there was a balance which' ordered," was not paid over to the
treasury.
Now the only statute applicable to such a condition of things 1as this, is
the act of January 25, 1828, and that authorizes nothing more tihan that,
under such circumstances, the officer guilty of the imputed offence shall
have his pay sequestered-sto.pped, until the claimed debt be liquidated.
No other legal authority, as derived from the acet of Congrecss, existed;
and yet it was upon these the dismissal took place.  In regard to them,
the President misconceived his power, and having based his action on them,
no general prerogative power, if any such exist, can be claimed to warrant
the dismissal of your memorialist from the public service; and yet he was
dismissed, contrary to any act of Congress; and contrary to ian,  prerogative right which pertained to the President.
Be it that he omitted to pay over on demand public moneys resting in
his hands, he answers that, in his belief, the amount retained was justly
due to him, as creditor of the United States.  If he was wrong, a civil
suit or a court-martial should have been instituted against him; but it is




3                                 [2]
denied that the President could exercise any other power than the law
conferred on him, and having claimed to exercise it, his act of dismissal
is void.
Your memorialist further shows in the evidence referred to in the papers,
that his accounts with the treasury were not officially settled till after the
date of his dismissal; consequently, the President, in demanding the payment of a specific sum of money, did so in assumption, and not that the
legal forms of arriving at a sure balance' had been gone through, upon
which to base his action.
And your memorialist will ever pray.
(C. GRATIOT,
Colonel Corps of Engineers and Brevet Brigadier General U. S. Army.
WASHINGTON CITY, December 3, 1851.
A.
General Gratiot's letter to the President and his decision thereon.
WASHINGTON, JVovember 23, 1850.
SIR: I was allowed to read and to make extracts from the report of the
Attorney General on my case, and now respectfully beg leave to submit, in
the accompanying paper, a few remarks in answer to some of the points presented, which I deem necessary to a full and distinct understanding of all
the facts involved. They are printed in larger type, and have been submitted
to the Secretary of War and Attorney General for their inspection.
I have the honor to be, with great respect, sir, your most obedient servant,
C. GRATIOT,
Colonel of Engineers and Brevet Brig adier General.
To the PRESIDENT of the United States.
THE CASE OF GENERAL GRATIOT.
"' The particular and official history of this case will be found in Document No. 77, of the
1louse of Rep.esentatives, Id Session, 25th Congress;"
Also in the records of the court before wlhich General Gratiot was sued.
(Book D.),( It would ba difficult to abridge it. without hazard of some error or omission."
The statement (B) of General Gratiot presents a brief but accurate
history of the case; and, while it contains all the material facts stated
in the "' particular and official history " presented in Document No. 77, (C)
referred to above, it clearly proves that error exists in many essential particulars of that history.
", And I would therefore refer to the Document at large,"
and for the same reason to the record also, (look D.)
", With this general reference, for the correction of any omissions or mistakes I may make,
I proceed to a brief statement of the more leading and material facts of the case.
"( As early as 1825 differences existed between the accolrnting cfficers of the Treasury and
General Gratiot, as to the correctness of some of his charges for extra services, and these, to
some extent, were rejected. In a final settlement of his accounts, in March, 1831, by the
Third Auditor, a balance was found against General Gratiot of $8,958 91. This balance,




[2]                                         4
however, was the result, to some extent, of the disallowance of his claims for extra services.
The above stated bilance was reported to the Comptroller of the Treasury fbr the purpose of
stopping Gn.ral. Grattiot's pay.  In September, 1831, this stoppage was suspendeld by the
Secretary of War.  The bailane, $8,9O8 91, remaining unpaid, the order suspending his pay
was renewed and carried into execution."
cc Of further msuns placed in his hands for public purposes in 1835, there remained in 18.38
a balance of 3.3,009.  In TItlrch, an,1 again in July, 1838, he was directed to pay over the
money in his hands.  He declined to do it."
", In 1838 thll second comptroller also reported General Gratiot for having neglected, since
the first quarter of 1837, to render his accounts quarter-yearly, &c., agreeably to the act of
January 31, 1823."'c On the 23th November,  1838, General Gr tiot, in reply to a reluisition of the Secretary
of War, for his re:asons for not complying with the oimlers he had received to pay over the
money in his hands, st-tea, in substrlce, that he had delayed returning these funds to the
Trreasury in consecjuence of tlle uns ttled state of his accounts; that he had understood that
his pay hal been under stoppage; thatt, under these circumstances, he was unable to say
what amount had to be refunled; that lhe requested his accounts might be made out in detail by the a-couinting offilev, with his r;atsouns for suspension of' the several itmis, that the
whole case might ba laid before the President, and the balance appearing against him sllould
be- refunded to the Treasury; thAt the depositing the whole balance for Graund-Terre,
($35,000,) a lairg  portion of which would have to be refunded to him immnediately, on al.
lowed claims, would not, he presumed, be insisted upon; that he had used a portion of it,
considering it as his own."
The appropriation by Gratiot to his own use of a portion of the money
in his hands for pay due him, seems to have bee-n his gr eat moral ocffending
the admission of the fact was honestly made, and he regrets it wars not so
received.   In order, however, to know its wrong, the question  wa.; tested
by asking an instruction  which had a bearing on it,  The Sunraa: e Court
answered, (15tth  Peters, page  370):   "There is another insltruction   askled
under this exceptioln.               *  The  United States possess   the,eneral right to apply all sums due for such pay and emoluments to the cxtinguishment of any  balanees due to  thenm- by  the defendant on  any other
account, whlether due by him  as a private individual or as chie  clgineer.
It is but the exercise of the colmmon mrioht which Jbelongs to every ceditor,
to apply the unappropriated muoneys of his debtor in his Lhtes, ein the extinguishmient of the debts due to himll           The right was common  to  botli,
and so exercised by both.
c" And that the rais';ng of the whole of this lrge stilu immediately would, to say nothirng
of the injustice of requiring it, at the preslit ljunctulre, be ruiious;  tll:t Ii hoped that the
President would be satisfied that notoming  was further from his wish than to retain public
funds for any other purp)ose thlan: to securle what h  considers his."'" On t1he next dwlv' after the rcceipt of this letter, that is, oil the 27th Noveml erl, 18.S, the
Secretlary of War atlesci l a a letter to tmhe Prsithlut infoi)ring oiail  of thle ci culsttuces of
the c     ose, comminting severely on the conlduct of G  lneral Gratiot, and' colUmcldl i'g that
he should be broug1t, before a court-ma;tial."'
The Socrctarcy of War has certoinly made  use of very  sevlere a;cMnd harsh
terms in relation to General Grlteio,'s cous-, i- th i ls controve-rsy;  nd, unle3s the cuases whicl elicited them  be a natyzi d., the  imapres2on  r.o:n t ma;ii-,ain thit they  wer-e  lese naei           plie. (hldtriot ahfcud  fopr yd.-, "pu:lic
moneysi ian bi hands   foul i  p)o   I )ale   Telh cise  w         nere  not aall r   ted  to
the'lte asury i.nl 1.:h38    nt1  0'1 1ox r'c11int   e tli d oris   of Le,ocre1t ceiv o y o    ar
to dolpes11te thke obalan!ie  "into 0the                 th'  insiver IV....   h-,- II
tio deep tao s     h'lm' eo v  into  the  Ircsiur,. si'y,' thee  anwer wat f, tiht  this
woulL 11 be cdoile so soon0l as tiioe accoti.  were laeg;.lly  s1ly i4 Iet tled    F 0 o.  Tin,,
and.l doing, -  GaiotJ h:ltd tChe:tl'ity   o1' I,i o  L hisl e side.  T     (lle {   xid oi s,.:
reateieatedt,  and still the samn' m>anwo' was  iven;~ upo1; n wlinch thel  Sev:    es, dWycs
letter of the 19th Novembe r, 1  t,   s ms    rtte I l   1d l  so G oeal't, i,. c      n
5swe0, of the 20th N'ovembcel, Ii oSo.  (1.)   0n the receipt of tl]:i' si.swer,
the Secretary of War addressed la-e:e lototer of the 27tll November, 11 f8, (2)
I    bli~~~~~~~~~~~~~~)O




5                                [2]2
which contains the severe comments on General Gratiot's course, to the
President, who, thereupon, issued his order of the 28th November, 1838,
requiring the payment of thirty-one thousand seven hundred and twelve
dollars.  (3.)  This order was resisted, upon the ground that he had no
legal right to make the demand before the balance was ascertained by the
avccountitng officers of the Treasury, and not upon a settlement made by the
Secretary of War on informal information, (2) no matter whence obtained,
before any legal settlement of Gratiot's accounts were made by the accounting officers of the TreaLsury, and, therefore, before the true amount of
his indebtedness could have been known.  General Gratiot had legal rights,
ncld would not submit to their being interfered with.  The accounting cfficers of the Government and the judiciary, exclusively, have the authority
to settle public  accounts, and none other could be recognized  by General
Gratiot.  The. Secretary of War thought otherwise; and, as General Gratiot believed and still believes, wrongfully  made the settlement himself.
(Document No. 77, page 12.)  (2.)  In the interval between the date of the
Secretary's letter to the President of the 27th November, 18388, and the
one of the 3d December, 1838, (document, page 14,) reporting that General Gratiot had "not paid the amount, or any part bf it," &c.: the Secretary omitted to say in this report, which he should have done, something
of the propositions, "that I could lpay the bctlance due by me to the Government acnd resignz; that I could pay thle balance ancd be tried by a courtmTartial; that?f I did not pay the balance I vmlust be dismissed Jfrom  the
armny," which he made to General Gratiot, through General Macomb, whose
letter to Gratiot, of the -  January, 1839, on the subject, is with the memorial to the President of the 9th April, 1849.  Gratiot looked upon these
propositions as a proffer to barter justice.   on.ey, or the utmost penalty
tyran~ny can iflict, only, could satisfy the Secretary of TWar, andfor its
attainlent, aCCCorcling to his own settlevzent, he transcended his public
functions by usurping those elsewhere delegated by law, and this, too, in
disregard of Gratiot's right to insist that his accounts should be audited by
the legally constituted authorities of the Government, as well as of his right
to a final settlement by the courts, in case of disagreement after settlement
by those authorities, under the provisions of the act of January 25, 1828.
(5.).
On the receipt of this lettcr, the President, on the 28th November, 1888, issued an order
reciting that General Gratiot lad beten reported to himr loot rterrdering his accounts according to laiw, and for retainling certain public f'unds in his iand(s, and directing General'Gratiot'to pay into the Treasury the sulm of c1;6,654, wahich lie admits to be still in his
hands, and aga.inst which hoe presents no claim, forthwith, and the remaiusing stna of $1,0058
in the course of thirty days.' "
In the aggregate, $31,712.  No balancee of the kiind appears in the
Treasury transcript, but is found only in the settlement made by the Secretary of War, and is recorded in his letter to the Presicent of the 27tih
November, 1838.  (Document 77, page 12.)  (2.)  Nor does the Treasury
transcripts brought in evidlence, show any admission, such as the President
atdverts to, on my part.  I made no such admission, but continued to request an official legal settlement, until which I could not possibly know
what amount I was legally to refund.
" On Ithe 3d December, 1838, the Secretary of War reported to the President that Gratiot
tad, in the years 1835 and 1836, drawn out of the lMechanics' Bank of New York the whole
sumn of fifty thousand dollars, which had been there deposited for carrying on the works at




[2]                                 6
Grande-Terre, and that fifteen thousand dollars thereof had been accounted for; and, moreover, that he had not paid the amount or any part of it, which the President has directed
him' forthwith' to pay."
The Secretary seems to attach much importance to the bank transaction.
The money placed in that bank, subject to General Gratiot's order,
amounted to $100,956 62.  It was so placed by order of the President of
the United States, to be applied to objects such as the exigencies of the
country at that time might require, whether those for which appropriated
by Congress or others.  The history of this affair is explained in page 41
of the Congressional Document, No. 77. (6.),c Thereupon the President, on the 4th December, 1838, issued the following order: General Gratiot having failed to pay into the Treasury the balance of the moneys placed in his
hands in 1835, for public purposes, after suspending therefrom the amount which he claims
to be due him on settlement of accounts, according to my order communicated to him by
the Secretary of War, on the 28th November last."
The President runs into error as regards the reason here assigned:
He did not authorize in his order of the " 28th November last," (3) General Gratiot to suspend any part of the moneys in his hands.
And up to the date of the order in question, or since, there has been no
official "' settlement of accounts," showing a balance of th.irty-one thousand
seven hundred and twelve dollars.  The Treasury transcripts brought in
evidence pending the suit, are challenged for the proof.  And more, the
President had no jurisdiction over the alleged crimes, in the first branch
of the order.  They are offences punishable through the interposition of a
court-martial, assembled under the authority of law, or by the operation of
the requirements of the act of the 25th January, 1838, (5) " to prevent
defalcations on the part of disbursing agents of the Government, and for
other purposes."  The provisions of the act 31st January, 1823, (7) upon
which the President relied, does not reach either of these offences.  The
authority of General Gratiot has for so saying, is that of the Supreme Court,
whose opinion on the powers of the President to annul the commiission of
an officer is fully expressed in the case of Marbury-(3d Story on the Constitution, p. 405-6 and 7, and ~1547,) namely: " When a person appointed
to any office refuses to accept that office, the successor is nominated in the
place of the person who has declined to accept, and not in the place of
the person who had been previously in office, and had created the original
vacancy.  It is therefore decidedly the opinion of the Court, that when a,
commission has been signed by the President, the appointment is made;
and that the commission is complete when the seal of the United States has
been affixed to it by the Secretary of (War) State.  When an officer is removable at the will of the Executive, the circumstances which complete his
appointment, are of no concern; because the act is at any time revocable,
and the commission may be arrested if still in the office.  But when the
officer is not removable at the will of the Executive, the appointment is
not revocable, and cannot be annulled.  It has conferred legal rights,
which cannot be resumed. The discretion of the Executive is to be exercised until the appointment has been made. But having once made the
appointment, his power over the office is terminated in all cases, when by
law the officer is not removable by him. The right of the office is then in
the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.  (General Gratiot,) Mr. Marbury, then, since his




7                             [2]
commission was signed by the President, and sealed by the Secretary of
(War) State, was appointed; and the law creating the office gave the officer
a right to hold (according to the rules and articles of war) for five years
independent of the Executive; the appointment was not revocable but
vested in the officer's legal rights which are protected by the laws of his
country. To withhold his commission, therefore, is an act deemed by the
Court not warranted by law, but violative of a vested right;" and,
Secondly, The opinion of Mr. Attorney General W. Wirt, who says in
the case of Captain N. Hall: (Opinions of Attorney-Generals, p. 172.)
"It is a clear principle, that the President has no powers except those
which he derives from the Constitution and laws of the United States.  If
the powers in question, therefore, cannot be fairly deduced from  these
sources, it does not exist at all."
"By the Constitution, the President is made commander-in-chief of
the army and navy of the  United States.  But in a government like
ours, it would not be safe to draw from this provision inferential powers,
by a forced analogy to other governments differently constituted.  Let us
draw from it, therefore, no other inference than that under the Constitution.
The President is the national and proper depositary of the final appellate
power, in all judicial matters touching the police of the army; but let us
not claim  this power for him  unless it leas been communicated to him by
some specific grant from Congress, the fountain of all law under the Con-,
stitution.  By the 14th section of the act of the 16th March, 1802, fixing
the military peace establishment of the United States, it is provided that
"the officers, non-commissioned officers, musicians and privates of the said
corps shall be governed by the rules and articles of war which have been
established by the United States in Congress assembled, or by such rules
and articles as may be hereafter established: Provided, nevertheless,
that the sentence of general court-marshals extending to the loss of life,
the dismission of a commissioned officer, or which shall respect a general
officer, shall, with the whole proceedings of such cases, respectively be laid
before the President of the United States, who is hereby authorized to
direct the same to be carried into execution, or otherwise as he may judge
proper.
The  vffences charged against Gratiot in this (the first branch of the
order) are, namely: "'Disobedience of orders," and by implication, "embezzlement;" both grave military offences, punishable under the 9th and
39th articlcs of the "'Rules and Articles of War."  General Gratiot was
not allowed the privilege to defend himself before a court composed of his
peers, but on the condition that he should conform with the propcsal made
through General Macom4b.  The effect consequent on the President's action, as expressed in the order, has been to present Gratiot to the country
as guilty of the crimes alleged, thereby cldoing him great injury, both as regards chaaecter and the hajppiness of his family.
c" And havring neglected to render his accounts in obedience to the law of January 31,
1823, the said General Charles Gratiot is hereby dismissed from the service of the United
States."
The President was also induced to error in this, as he was in regard to the
preceding, is manifest, viz: Document No. 77 declares, at its opening, (8)
that it cont.rias all the papers (1 to 40) which relate to the defilcation of
General Gratiot; it follows, then, that they ought to furnish all the facts.




t23                                8
"The Secretary says (page 10,) " Agreeably to your instructions, to present
to you the facts in the case of General Gratiot, which has been reported to
you, both for not rendering his accounts according to law, and for retaining certain public funds in his hands, I have the honor to report."  According to the Secretary, " not rendering accounts " is one offence; and
the "retaining certain public funds" was another offence, altogether separate and distinct from the first. The President so regards them in his
orders of the 28th November and 4th December, 1838.  (Document, page
14.) The Secretary fails to say when this Report " for not rendering accounts" was made, but on turning over the leaves of the Document at
page 17, (9) a letter from  the Second Comptroller is found, in which he
states, on the 5th January, 1839 —one month after the date of the order of
dismissal-" that on the 22d October last, General Gnratiot having neglected to account for the expenditures of the thirty-five thousand dollars,
was reported to the Secretaries of War and of the Treasury as having
failed to render his account according to law."  " That as all disbursing
officers are, by law, required to render their accounts to the Auditors of
the Treasury, the correspondence with General Gratiot relative to the setdlement of his accounts, so far as appertains to the accounting officers, will
be found with the Third Auditor."  In page 9, (No. 10) of the same
document, Fowler says, that the accounts of Gratiot were rendered in the
office of the Chief Engineer to include the second quarter of 1838, or 30th
June of that year; and in page 35, the Third Auditor covfirlms that they
were so rendered. (11.)  Such are the facts touching this matter.  These
accounts teing rendered to include ILe 90th June, 1138, and as tLe report
of the Second Comptroller was of the 22d October following, it now remains to be seen, whether he (the Second Comptroller) had jurisdiction
over the subject, upon that day.  The second section of the act of January
31, 1823, says, accounts are to be rendered to the proper accounting
officers of the Treasury with the vouchers necessary to the correct and
prompt settlement thereof, " within three wontihs at least after the expira —
tion of each successive quarter."  (7.)  Gratiot's accounts for the second
quarter of 1838 being rendered, those for the third (July, August and
September,) were to be "rendered " on or before the expiration of the
fourth, ending on the 31st December; consequently, the jurisdiction of the
Second Comptroller, under the law, was not opened on the " 22d of October, 1838;" that is, two months and nine days before he could be qualified
to make the report in question.  As regards the usage of rendering accounts and the manner of nccounting, when no disbursenments were made,
reference is made to the last page of the printed statement, (5;) to Fowler's certificate, (page 9 of the document,) (5,) and to the books of the
Engineer Department, which also show that the samre usagce cnd practice
still maintainls.  According  to that practice and interpretation  of the
law, Gratiot did not fail to render his accounts " in obedience to the law
of January 31, 1823."  (7.)
c This order was immediately carried into execution, and General Gratiot has been, ever
since, treated and reglrdId by the Government, as out of service."
cc Shortly after his dismission, a suit was instituted against him by the United States, for'
the recovery of the public money alleged to be in his hands."
The question here arises, whether the reference to the judicial proceedings is not travelling out of the record?  General Gratiot complains that




9                               [21
his dismissal was made to precede anything like an official and legal
settlement of his accounts, by which the true balance could be ascertained.
He was arbitrarily commanded to pay "' into the treasury" a sum of money,
which thle after treasury settlement proved he did not owe.  In proof of
this assertion, he challenges the record, (Book D.)  The President punished by dismission, because he refused to pay $31,712, when in point of
fact, his indebtedness was a little over $23,000.
s" On the first trial, a verdict and judgment were rendered against him for $31,056 I8,
besides costs."
The amount for the recovery of which suit was instituted, was $29,292 13,
(records of first trial, page 56,) (14)-and not $31,712, as claimed by the
President on the settlement of the Secretary of War, (Document 77, page
12,) (2.)
c" Upon a writ of error to the supreme court, that judgment was reversed and the case
remanded back for a new trial, which was had, and resulted in another verdict and judgment in favor of the United States, for the sum of $29,126 93, which judgment on another
writ of error by General Gratiot was affirmed by the supreme court, at its January term
of 1846.
1" Throughout the controversy, both before and since his dismission, General Gratiot has
insisted, as offset, upon large claims due him fiom the Government, and has alleged that
as his reason and justification for withholding the public money in his hands."
As regards these claims, the supreme court says (15 Peters, page 371)That, "to sustain the refusal of the court in the present case, it is therefore indispensable to show that there is some law which positively prohibits,
or by just implication denies any allowance of the disputed items or any
part thereof.  We know no law which has such an effect, or which contains
any such prohibition or denial.        * *  *  But assuming the President
possessed the fullest power, under this enactment, from  time to time to
employ any officer of the corps in the business of civil engineering, still it
must be obvious that their pay and emoluments were, or would be regulated
with reference to their ordinary military and other duties, the power of the
Presideut to detach them upon other civil services, would not preclude him
from cohtracting to allow such detached officer a proper compensation for
any extra services.  Such a contract may not only be established by proof
of some regulation, but may be inferred from the known practice and( usage
of the WTar Department in similar cases, acting in obedience to the presumecl orders of' the President.  Now it is perfectly consistent with the
record in this case, that the defendant might have offered direct or presumptive evidence of such contract, either express or ilp1lied from0  the
practice and usage of the'War Department, applicable to the very services
stated in some, at least, of the disallowed items.  We do not say that he
could, in point of fact, have established any such contract, or any legal or
equitable right to such allowances.  That is a point on which we have no
right to pass judgment, since he was stopped from  offering any  proof'
whatsoever at the very threshold of the inquiry.  In short, unless some
law could be shown establishing clearly and unequivocally the illegality of'
each of these items; which as we have said, has not been shown; the
refusal of the court to admit the evidence cannot be supported; and we
lare, therefore, of opinion that this exception was well taken; and that
there was error in the refusal of the circuit court."
The record of the second trial and the Congressional documents bound
with it show, in great detail, the usage of the Government, particularly




[2                                     10
that of the War Departmont, in reference to extra allowances.  These show
that an implied contract, under this usage, seemed to be established between
the Government and Gratiot; but aside from  these, Gratiot would have
adduced an expressed one had it not been for the loss, by the accounting
officers of the Treasury, of his pay account for March, 1829, (13.) On it
the Secretary of War had written, over his signature, " allowed, exclusively
for the military services," or words to the same effect; therefore, the brevet
pay, &c., charged in the account, did not include compensation for those
of a civil nature.  Both the Second Auditor and the then  Secretary of
War testify, that the said lost or mislaid account had on its fatce the written
approval of the Secretary of War; otherwise, it would not have passed to
the credit of the pay-master, (Record, second trial, pages 77, 80, and 105,)
(15.)  The United States were the custodians of that paper and its duplicate,
lacking the written action of the Secretary of War on its face; unless destroyed by design, it is still on the files of one of the Auditors.  Its loss,
General Gratiot firmly believes was the main cause of the final issue of the
suit brought against him. Mr. Justice McLean dissented in the opinion given
by his brethren, affirming the judgment of the circuit court. (Fourth Howard.)
C" He now contends that the order dismissing him was illegal and void on the grounds
chiefly, that the ftcts recited in the order did not exist, and that the President was therein
mistaken; and further, that he was not such disbursing officer as the President was authorized bv the act of January 31, 1823, to dismiss."
"' To sustain these grounds and vindicate the course of General Gratiot, a printed and
written argument will be found among the papers filed in the case, and here referred to for
more particular examination."
The printed  paper here adverted to, is an index or brief statement of'
the main facts involved, contained in the Congressional document No. 77,
(5); and the records of the circuit court for the two trials.  The others
are written arguments and letters explanatory of certain facts which may,
incidentally, have to be looked into.  The mass of papers, as presented,
are voluminous,  but by separating those which ought to be first examined,
in view to a proper understanding of the case, it will be found that they
are limited; first, to my letter to the President of the 9th April, 1849;
the Congressional document No. 77.  Third, the records of the court and
two Congressional documents bound  in one voluImel; General Macomb's
lette;, and the printed statement to be used as a directory to ascertain
where to look for the main facts.
"' Upon the whole matter, the application of General Gratiot is to have the order of'
President Van Buren declared null or set aside, and to be restored to his office."
" The consideration of his case seems to present three principal questions, namely:
" 1st. Is it competent for the President to annul, or declare as null and void, a6-initi,
the act antd order of his predecessor in dismissing General Gratiot?
1" 21. If the order be not null and void, ab-iaitio, is it competent for the President now to
set it aside, and restore General Gratiot to his commission anld rank in the army?
"s 3d. Is it expedient and proper, under the circumstances of this case, to set aside his
dismission and restore General Gratiot, if it be in the power and discretion of the President
so to do?"
"c As reflecting some light on the subject, I refer to the only authorities to which my
attention has I,een turned in the hurried examination which I have been obliged to make.
These authorities are to be found in the opinions delivered by the Supreme Court, in the
case of the' Banfk of the Metropolis vs. the United States,'-15 Peters 400-1. In the
opinion of the late distinguished Attorney General Wirt, in the case of Sutterlee Clark;
and in a letter of the Secretary of War, Mr. J. C. Spencer, to President Tyler, dated
October 18, 1841, and an order of Mr. Tyler thereon."
"c In the case in Peters, the Supreme Court, says: (400-1) — The third instruction asked,
the court say, among other things, if credits given by Mr. Barry were for extra allowances,
which the said Postmaster-General was not legally authorized to allow, then it was the duty




11                                  [2]
of the present Postmaster-General to disallow such items of credit. The successor of Mr.
Barry had the same power, and no more, than the predecessor; and the power did not extend
to the recall of credits or allowances made by Mr. Barry, if he acted within the scope of'
official authority given by law to the head of the Department. This right, in an incumbent,
of reviewing a predecassor's decisions to mistakes in matters of fact arising from errors in
calculation, and to c ses of rejected claims, in which material testimony is afterwards discovered and produced. But if a credit has been given, or an allowance made, as these were,
by the head of the Department; and it is alleged to be an illegal allowance, the judicial
tribunals of the country must he resorted to, to construe the law under which the allowance
was made, and to settle the rights between the United States and the party to whom credit
was given; it is no longei a case between the correctness of one officer's judgment and that
of his successor. A third party is interested, and he cannot be deprived of' a payment on a
credit so given, but by the intervention of a court to pass upon his right.  No statute is
necessary to authorize the United States to sue in such cases. The right to sue is independent of statute, and it may bh done by the direction of the incumbent of the Department."
The case cited (Peters, 400-1) does not oppose, but favor the application
of Gratiot.  It may be asserted that here, as in England, there is no executive interregnum, and that the legal powers of the President always remain
to do what is right, and to avoid all that is wrong, no matter who the incumbent of the office may be.  If one President may not repair the wrongs
of a preceding one, so also may the cabinet minister or the comptroller refuse to look into the errors of predecessors, and thus manifest injustice may
result.  If an individual be condemned, and a pardon refused by the incumbent at the time, the same reason  would go to the conclusion that a
subsequent President would be precluded from  interfering; and no matter
how unjust the condemnation might be, mercy interposing would sue in vain.
The authority referred to, says: " If credit (decisions) given by Major
Barry was for extra allowances which he, the said Postmaster General, was
not legally authorized to allow, then it was the duty of the present Postmaster
General to disallow such items of credit."  (15th Peters, 401.)
The quotation shows that a present incumbent could refuse to credit,
which the predecessor " weas not authorized to allow," thereby showing that
an act illegally clone, is always open to correction.
So in the case of General Gratiot, it is insisted that under the reason of
this decision, an incumbent President may refuse to execute or set aside a
judgment or decision which a previous President " was not aucthorized to
(miake) allow," the principle being the same.
Nor has the case referred to, of Cox, Clarke, and Corcoran and Riggs,
any bearing adverse to General Gratiot's application.  All that Mr. Secretary Spencer decided in that case wasThat as the law gave to the accounting officers to adjudicate in this case,
the power of deciding being alone given to them, the President could not
interfere, to control an adjudication judicially confided to  others-not to
him.
Mr. Spencer surely (lid not intend the chimerical and broad  assertion,
that the President, in the exercise of responsible power, sworn to see the
laws faithfully executed, could exercise no interference to control the accounting officers; for, if he could do nothing more, lie at least could remove them, and thlus obtain indirectly a decision through others, who would
adopt a more rightful course.  It is a doctrine which, if assented to, would
place these accounting gentlemen rather ahead of the President.
What if Congress should direct a claim to be adjusted and paid " by the
proper accounting officers," and they  refuse, or interpose frivolous objections? If the President, satisfied of their error, may not correct it, what




[2]                               12
becomes of the chief magistrate's oath " that the laws shall be faithlfully
executed?"
Tlhis idea is of modern origin; for it is against our notions of government that one or two subalterns shall control the rights of others, and at
their mere will and pleasure paralyze the interference of the President.
Grant, however, all that is asserted by Mr. Spencer, and it fails to meet
the present case.  Surely the comptroller's action may be called in question, as to anymatter asserted to be a fact, anlld which, on examination, is
ascertained not to be founded in truth.
In his report made to President Van Buren, the comptroller says: General G;atiot, "       having neglected to account for the expenditure of the thirtyfive thousand dollars, was reported to the Seeretary of War and of the
Treas~ury, as having failed to render his accounts according to lazw." (Document No. 77, page 17.)  (9.)  It was not true, because, legally, until the
termination of the quarter, the 31st December, 1838, following the dismission, he could not make such report, or know that he was indebted; and if
he could then, General Gratiot, under such state of things, was only liable
to have his pay, &c. arrested, until the asserted balance was reimbursed,
(Document No. 77, page 16, bottom lines,) " cand General Gratiot continued
to receive the pay and emoluments of his office until April 1, 1836, when
the stoppage was renewed and continued up to December 6, 1838, the day
of his removal from office."  (Letter of the second comptroller, of January
5, 183J, Document No. 77, page 16 and 17.)  (9.)
President Van Buren, in his order of dismissal, of the 4th December,
1838, says General Gratiot had been reported to him:Pirst, " For having failed to pay into the Treasury the balance of the
moneys placed in his h nds in 1835."
SecO'd,  "' And having neglected to render his accounts in obedience to
the law of January 31, 1823."  (4.)
It has been shown that the first charge,'" for having failed to pay into
the Treasury," &c., could not, at the time, be true, because, until the end
of the quarter, 31st December, 1838, (7) such fact could not be legally
known, or if known, did not authorize a dismission, inasmuch as the report
being prematurely and falsely made, did not bring him unller the penalties
of thll act of 1823; and, even if it were true, the words of the statute of'
Janu:ary 205, 1828, (5) the only one which applied to such a case, authorized
10nothing more than a detention of his pay until the amount should be reimbursedl-not a dismissal fi rom7 the public service.
The other ground asserted is, " For having neglected to render his accounts in obedience to the law."  This is without foundation, and is so
proven by the testimony of Mr. Fowler, (Document 77, page 9,) (10) a
clerk in the Engineer Department, and also by the records on which the
comptroller undertook to act; and, being untrue, President Van Buren, of
course, had no jurisdiction over the matter, whereby to bring the terms of'
the act of 1823 to operate on the case; hence his act of dismissal was void.
It may be argued that, as the comptroller's report to the President asserted that the accounts were not returned agreeably to law, (and that this,
legally, was his duty,) that upon the report, the jurisdiction and right of the
President to dismiss did attach; and it is for this purpose only, it is presumed, that the case of Coxe, Clark, and Corcoran and Riggs is referred
to. But such does not comport either with law, equity or justice.




13                               r2-]
The interpretation of a court of chancery is invoked, under a bill setting
forth that the complaint is' merely plurely equitable.  Yet, in the progress
of it, and proof adduced, if it appear that it is not matter of equity,,it will
be dismissed for want of jurisdiction; and, should a decree be entered, an
after court, though made up of diferent judges, would re-examine, and
correct the error: and can it be that the President, the fountain of all constitutional authority, and obliged to see that the laws are fully and faithfully executed, shall possess a less power, and omit to redress wrongs which
some predecessor had caused to be perpetrated?  If this be so, then.every.four years makes a bar-a rest in our Government; and acts, no matter
hrow oppressive, can find no redress, after he who has practised the wrong
has retired from his political position.  A doctrine of this kind would materially impair the rights of the citizen and subvert justice,  (a.)
The comptroller, hostile to any one who was a disbursing officer, might
incorrectly report him as in failing to return his accounts and vouchers,
even as in General Gratiot's case, before the time when, legally, they ought
to be returned; and if on distant service, and ignorant of the dlismissal,
and the President should retire from  office, what would be the remedy,
where the redress, if the succeeding President should hold to this new and
strange doctrine, that the report of the comptroller and action of the previous Presilent upon it, forbid all interferenoe?  It would be making  the
taccounting officers arbiters of the honor and safety of all militarhy disbursing
officers or agents.
Apart fiomn all abstractions, this whole question lies in a narrow scope.
Had President Van Buren jurisdiction of this case?  If he had not, his act
of dismissal is void; for where a specified authority is given, every requirement must be shown truly to exist, before the jurisdiction can legally
attach.'The exercise of it (jurisdiction) he has placed on the terms of the act of
January 31, 1823, (7) and it now can be referred to nothing else to sanction its correctness.  The disnmissal was,
F irst,, "For having failed to pay into the Treasury the balance of the
moneys placed in his harlnds in 1838)5."  For tlis, his punishment, aolei/,
was under the act of 1898, (5) a sequestration of ptaly until the debt was
dischlarged: at frst, and up to the tilm  of dismissal, this course  was pursued, (Document 7'7, page C16, last lines,) (9;)' a zd toIs 1 was le rvi'lshed
under botilh lazws0  twicejoIr' tlie sam~e ojnffnce, in violation of the cor;;ti'uitmicn.
S'econd, "i For having neglected to render his accounts in obedience to
the law of Janunay 31, 1828." (7.)  That- is untrue.  They luare slhown tIo
have been "rendtred,"   both by oral an.d recorded pCrooL (10, 11 ) and this
being the case, President Van Buren had no jurisdictioni of the  latterhis act w-as voEd..Tihe case of Sattterlec Clark (Opinions of the ARtorncy-Gener+s, pages
590-1-.2-3) has been answiered by dMr. J. II. Etaton  a-nd is filed swith theo
other papers in this case.  It seems.- to have no bearing on the case.
Feinalcl, Apa;rt from  tlhe facts and, rgr um.ents in the case, salo sing the
wrongs a.nd injustice already heaped vupon him, he now thinks li acelf  a mz,ranted,  from the closing remarls of thle Attorney-General, to tlhrulw Limself,
not nerely upon; the long  services rendered by him to his Jover'nniilent, bAt
also, upoll those rendered  by his father-the  descendant of a el secuted
and exiled Huguenot-who, during. our revolutionary  struole, "'in  th~.                 ~O,y




L2]                             14
years 1778-'79, furnished the expedition commanded by General George
Rogers Clark, whilst in this country, with articles of indispensable necessity, consisting of provisions, clothing, ammunition, and other military
stores, to an amount exceeding his estate, without which that expedition
would, in all probability, have failed. The conquest of that portion of
"the Illinois " east of the Mississippi would have been prevented, or postponed to a very distant day; for which neither that individual nor any of
his family have, to this day, received from our country, scarcely any
return.  This occurred during the darkest period of our revolutionary
struggles; at a time when our treasury was exhausted, and our credit reduced to the lowest ebb.  lIe, like the gallant and immortalized Lafayette, in rendering the services and affording this aid, was actuated, in this
evidence of friendship for our country, by the purest and most disinterested
motives." (Extract from a. printed speech of Colonel J. O'Fallon, one of
General Clark's nephews.) The services here spoken of by Colonel 0.,
appear to have been duly appreciated by the commonwealth of Virginia;
since, as it is seen, in the proceedings of the House of Delegates, in page
81 of the Journal for 1783, that he (Gratiot) was placed, by resolution of
the 22d December of that year, in the category of preferred creditors
named and specially provided for in the act referred to in the resolution,
namely: " Contingent charges of government; salaries of officers of the
civil government, and members representipg the commonwealth in Congress; pensions to wounded officers and soldiers; warrants for payment of
money lent to the public on the requisition of the General Assembly, or of
Thomas Jefferson, Esq., then Governor of Virginia," &c. —(Hening's Statutes at Large, 1782 and 1784, No. 2.)
All of which is respectfully submitted.
C. GRATIOT.
W'ASIINGTON, October 31, 1850.
The PRESIDENT of the United States.
(a) President Tyler, on an appeal to him, set aside the decision of a
former administration, in the case of Major Rt. B. Lee, namely:
The question in this case, was Major Lee on duty or had he a commanct according to his rank?
" Rules for the Secretary of War."
1. "Hereafter the Secretary of War will not reconsider cases brought
before him for his action, which  s',lall have been previously decided by
himself or his predecessors; unless in the application for such reconsideration it is distinctly and briefly stated, that material facts or evidence
which changes entirely the former character of the case is adduced and
which was not before the Department when the case wis decided, or other
peculiar circumstances."
2. "The Secretary will act upon no case of any description that is or
may be likewise acted upon by the accounting officers, and which depends
upon the construction or applicability of a construction already given by
law; the Second Comptroller being the proper officer to give the construbtion in the one case and to apply it."
The rule within stated is of no obligatory force. It is against reasomi
and right to say, because a Secretary has decided a case, however erro



15                                 [ 2]
neously, it shall never be revised. We should be careful how we interfere
with a decision of another administration, but we should sanctify our own
errors merely, if the administrative officers had not authority to correct
them, within which they are committed.
Major Lee's  case was decided against him by Mr. Spencer.  The subject has again been referred by the Secretary of' War to the commanding
general of the army.  He has expounded many of the points in favor of
Major Lee.  I concur with General Scott, whose opinion is sustained by
decisions involving the same points presented by Major Lee's case. The
fact that justice has been delayedfor eight years only calls the  stronger
foriprompt action.  My opinion is, that the claim is just and ought to be
allowed within the period mentioned by General Scott.
JOHN TYLER.
November 18, 1844.
The review of this opinion by General Gratiot appears to assume that the only power
which the President had to remove him from office, was derived from the statute, and consequently could not be legally and constitutionally exercised until the case contemplated by
the statute had actually arisen; but it appears to mIe that the right of removal is a power
vosted by the Constitution. True, it is not granted in express terms, but it has been held to
result by construction in all civil offices except judges; and though it is seldom exerted, yet
there is no diffiernce made by the Constitution between a civil and a military cfflce, and I
am of opinion that the power is the same in both. It is, therefore, immaterial in determining the validity of the act, what the motive was for exercising the power. It may have
been good or bad, right or wrong, but the act itself was constitutional and perfect, and
nothing can restore him but. the appointing power, re-exerted in his fivor, and this power
consists not of the President alone, but of the President and Senate.
MILLARD FILLMORE.
Deceimber 6, 1850,
B.
A brief statement of the circumstances which led to the dismissal from  the
armay, of Brevet ]Brigadier General charles Gratiot, (itief`Engineer,?without trial, by President Van Buren, in 1838; showing the injustice
and illegality of the act.
On the 19th of July, 1838, the Secretary of War referred to General
Gratiot a report fiocm the Third Auditor of the Treasury to him, presentAng
a statcm&ent of General Gratiot's account as it stood cn the books of the
auditor.  Upon this report was the following endoisement, viz:-" The
Secretary suggests the propriety of transferring the first item of this stat ement ($85,000) for the fort of Grande-Terre, or whatever balance of that
appropriation may remain in hand, to some other work in progress:  as
neither the wants of the Treasury, nor the regulations lately adopted, permit its remaining in its present state."
Shortly afterwards, and before the above suggestion was replied to, the
Secretary of' War left the seat of Government for the springs in Virginia.
In September followving, the acting Secretary of WVar informed General
Gratiot of the contents of a letter lie had received from the Secretary of
War, dated Salt Sulphur Springs, August 31st, 1888, on the same subject,
and requested such information in reference to the auditor's report, and.
the suggestion endorsed thereon, as would enable hinm to answer the Secretary's letter,  To this request General Gratiot replied, verbally, that the
Government was indebted to him in  a considerable ancount on a current




12]                                16
account of many years standing; that items charged in his accounts for
which he believed himself legally and justly entitled to credit, had been
dlisallowed or suspended; that his pay ha.d been stopped in consequence of
these disallowances and suspensions; and tlhat he desired to hold the monev
with which le was charged till a final legal settlement of his accounts could
be obtained.
On the 17th of October, 1838, the Secretary of War addressed a letter
to General Gratiot, referring generally to the above, and requiring that
his re asons for not complying with his suggestion should be given in writing.
(See HIouse document 77, 25th Congress, 3d session, page 3.)  To thlis
i-etter the following reply was made.-(Seoe Iouse document 77, 25th Congress, 3d session, page 5.)
ENGINEER DEPART.MENT,
Ias/iington, NAovember 26, 1838.
"SIR: In compliance with your instructions, under date of October 17th,
to submit in writing my reasons for retaining in my hands the unexpended
balance of funds for the fort at Grande-Terre, I Iave the honor to state
that I have delayed returning these funds to the Treasury in consequence of the unsettled state of my former accounts, by whichl the true
balance to be refunded is not ascertained; that the manner these were
audited is yet unknown to me; but I have understood (not officially) that I
have been under stoppage of pay since April,,1836.  Under these circum
stances, unable to say what amount Lad to be refunded, I have postponed
mnaking the (leposit required under the regulation of March 2d, 1838.
"As the President has now determined that this money can no longer
be thuns retained, I have to request that my account may be made out in
cdetail by the accounting officer, with his reasons for the suspension of the
several items, in order that the whole case may be laid before the President,
vwhen the balance that shall appear aTrainst me will be refundedl to the
Treasury.  Tile depo-iting of.thie whole am:ount of the balance for Grande
Terre, a large portion of which would have to be immediately refunded to
me on allowed ell,ims, will not, I presume, be insisted upon; a portion of'
it I have used, considering it as my own property; and the r;aising of the
whlola of this, large slum immediately, would, to say nothing of the injustico
of requiring it, at the present juncture be ruinous.
" The above statement will, I trust, prove satisfactory to the President,
and convince him that nothing could be further firom  my wish than to re.
tain in my hands public funds for any other purpose than to secure what J
consider a jksSt claim on the Governmient.
I aml, ir, very respectfully, &c.
C. G.A,.OT."
" -on. J. R. POITNSETT,
6.c$tcra, of -tir, Wavhntgton."
On the 27'tl Nooveml)er, 1838, thle Secretary of WiaL made  a report to
the Presiedent o- the state of C-enrl GCatiot's account (ee tl:-se docu.ment, No. 77, 2.th. Congress, od session, peite 10t) as pctpeetl  ify- thle accounting ofecrs of the'reasuy, tnd as uand ersood by In!!-; y   ancd th
President thereupon issuedt the  illowirg order, vix —-z  (:ce    use docj
inent, No. 77, 25th Congress, 3d session, paWe 13.)




17                             [2]
" WASIIUNGTON, Arovezber 28, 1838.
"The President has carefully considered the communication of the Secretary of War in the case of General Gratiot, who has been reported to
himi Tio not rendering his accounts according to law, and for retaining certainl public funds in his hands.
"He concurs fully in the opinion, tlht the retention, and more especially
the application to his own use, by a public officer, of moneys drawn from
the Treasury for the public service, and so retailled to satisfy alleged claims
upon the Government which have been rejected by the regular accounting
officer of the Treasury as not authorized by law, is an abuse of trust, which
if countenanced by the Executive, would subvert the most salutary portions
of the existing enactments for the security of the public moneys.  The Secretary of War will therefore direct General Gratiot to pay into the Treasury the sum of $21,654, which lie admits to be still in his hands, and
against which he presents no claim, forthwith; and the remaining sum of
$10,058 in the course of thirty days.  A decision of the question in relation to the sufficiency of General Graitiot's reasons for not rendering his
accounts according to law, will be deferred until an opportunity is afforded
General Gratiot to comply with the directions to be given to him in respect
to the re-payment of the public funds inl his possession.
" The Secretary of War will cause General Gratiot to be furnished with
a copy of this order and of his report.
"TI. VAN BUREN."
This order was demurred to for the following reasons:
1st. Because it demanded the unconditional payment of money iwhich
General Gratiot liad all along contended he did not owe.
2d. Because the payment would have been a virtual recognition of' inlebtedness to the amount demanded, and would have left no recourse for
the recovery of the amount for which a credit was claimed, while, on tihe
other hand, the Government could at any time cause the legality and justice of that claim to be judicially (letermined; and,
3d. Because the order was oppressive and believed to be illegal.
On the 3d of December, 1838, the Secretary of War reported to the
Presidentf.that his order of the 28th of November had not been complied
with, and the President thereupon issued the following order, viz:
(See HBouse document No. 77, 25th Congress, 3d session, page 14.),
WASHING TON,  Decem)ober 4, 1838.
" General GOratiot having failed to pay into the treasury the balance of'
the moneys plac l in his hands in 1835, for public purposes, after suspenling tlierefolml the imount which lie claims to be due him on settlement
of accounts, accordling to'my order, communicated to him by the Secretary
of War on the 28th of November last; and having neglected to render his
accounlts in obedience to the law of January 31, 1823, the said General
Charles Gratiot is hereby dismissed friom the service of the Unite(d States.
"31. VAN BUREN."
In the order just quoted it will be seen that the President assigns two
distinct reasons for dismissilg Gencral Gratiot from  the service of the
2




[2 ]                             18
United States.  Both, reasons are wrong in point of fact, as will now be
shown.
The first and principal reason is, " having failed to pay into the Treasury
the balance of the money placed in his hands in 1835, for public purposes,
after suspending therefrom the amount which he claims to be due him on
settlement of accounts, according to my order, communicated to him by the
Secretary of War on the 28th of November last."
Now, the order of the 28th of November did not require him to pay into
the Treasury the balance "' after suspending therefrom the amount which
he claimed to be due him on settlement of acounts," but a specific sum, to
wit, $31,712-a balance which the Secretary of War assumecd to be duet
from him, and so reported to the President.  General Gratiot had repeatedly stated his readiness and willingness to pay into the Treasury whatever balance might be found due from him on final settlement of his accounts, and could not, therefore, have refused to pay such balance if permitted to designate it himself, or, as the Prssident states, to " suspend'
from the charges against him the amount which he claimed to be due to
him.
The second reason assigned for the dismissal is " having neglected to
render his accounts in obedience to the law of January 31, 1823."
That there was no such neglect on General Gratiot's part, is manifest
from the following statement of Benjamin Fowler, chief clerk of the Engineer Department, which had been laid before the Secretary of War on the
20th of November, 1838, viz:
(See House document No. 77, 25th Congress, 3d session, page 9.)
"The subscriber, principal clerk in the office of the Chief Engineer.
among other duties, is charged with that of transmitting the accounts of dis.
bursing agents to the office of the Third Auditor of the Treasury, after they
have received the examination required by the regulations; he also prepares
the quarterly statements of disbursing agents, called for by the Third Auditor, in which are shown the names of agents whose accounts for the quarter
have been received, and transmitted to the Auditor; those whose accounts
have been received, but for want of time to give them the required examinlation, remain in the office; and of those who have failed to render accounts
-for the period stated, noting, whenever so advised by the agents, or positively known to the Department, that no disbursements had been made.
within the quarter.  This has been the practice for a considerable time
back, and he has never understood otherwise but that it was perfectly
satisfactory.  In the particular case of General Gratiot, the statement
furnished to the Third Auditor of the agents having to render accounts for
the fourth quarter of 1837, it is written opposite his namne —' Received andl
in the office of the Chief:Engineer;' for the first quarter of this year it is
stated,' Accounts in the Engineer Department;' and for the second quarter,' No Disbursements.' As these explanations were not objected to as insufficient by the accounting officers, so far as I am advised, the strict conformity
with the requirements of law has been lost sight of; and if any blame is to
attach for this it must be to myself, whose duty it was to see that the
accounts current were sent to the Auditor, whether disbursements were
made or not.
BENJAMIN FONWLER,
Clerk in the office of the Chief Eriaineer.
November 20, 1828,"




19                             [2]
lt is thus shown, conclusively, that General Gratiot neither failed'" to
pay into the Treasury" that balance imputed, the refusal to do which wa,,
the first reason; nor " neglected to render his accounts," which supposed
tegqlect-acknowledged, iJ' real, to be another's-was the second reason for
Lis distnissal.-In other words, it is shown that he was dismissed for delinyquencies imputed to himn, and of which he was not guilty.
The President's order of dismissal was communicated to General Gration
by the late Major-General Alexander Macomb, and has never been published in General Orders.
It is contended that the action of the President was not conformable to~
law, nor to the rights of General Gratiot, and that the power to dismiss an
officer of the army on mere allegation of crime is not left to his discretionm,
but to the examination of a court martial, whose findinc: and sentence he
(the President) may approve or not according to law and facts.-(See
Dehart's Courts-Martial, from page 235 to page 243.
That these premises are correct, so far as regards the settlement of'
public accounts, is manifest from the provisions of the act of Congress of
January 25, 1828, entitled "An act to prevent defalcation on the part of'
disbursing agents," &c.  The first section of which is as follows:
Be it enacted, &c., " That no money hereafter appropriated shall be paiid
to any person, for his compensation, who is in arrears to the United States,
until such person shall have accounted for, and paid into the Treasury, al
sums for which he may be liable; Provided, That nothing herein contained
shall be construed to extend to balances arising solely from  the depreciation of Treasury notes received by such person to be expended in the public
service; but in all cases where the pay or salary of any person is withheld
in pursuance of this act, it shall be the duty of the accounting officers, if
demanded by the party, his agent or attorney, to report, forthwith, to the
agent of the Treasury Department, the balance due; and it shall be the
duty of the said agent, within sixty days thereafter, to order suit to be comrnmenced against such delinquent and his sureties."
No authority is here, nor in any other enactment, given to demand assent to the balance found by the accounting officers of the Treasury, but it
is left with the alleged delinquent to demand a judicial investigation, which
it is made the duty of the Treasury agent to commence within sixty days
thereafter-certainly there is nothing in this act, nor in any other, whiclh
-authorized the summary proceedings in General Gratiot's case, particularly
as his account had ultimately to be judicially settled.
The inference must be that when the President required the payment
into the Treasury of a specific sum of money, he did so from representations
and belief that it was a balance due on a legally settled account which was
not susceptible of alteration; or, in other words, that the balance claimed
was an ascerta ned one which could not be increased or diminished on a
final settlement.  In this case such was not the fact, as the record of the
circuit court of the United States for the Missouri district, in which General
Gratiot was finally sued, will show.
The Treasury transcript, brought in evidence agmiust General Gratiot
on the trials of this suit, may be referred to for dates, amounts, &c., of'
settlements made of his accounts by the accounting officers of the treasury.
These settlements will prove that the President was not correctly i aformed in regard to his accounts.




[2]                              20.It appears from the record of proceedings of tlthe court, wir the first trial,
pages 42 and 43, that on an official settlement bly thle acco-ntinr g offieles.
of the treasury on the 16th of January, 1837, a, balance of $43,958 911
*lwas claimed for the United States.
In the record of the court, on the. second and final trial of this case, it is
shown at pages 76 and 92 that the Paymaster-Gelneral of the Army, and
the Second Auditor of the Treasury, both testify that General Gratiot's
pay was stopped from  the 31st of March, 1836.  The settlement just
referred to contains noucredit for the amount of pay, &c., stopped between
the 31st of M arch, 1836, and its date. (16th January, 1837,) as it clearly
should have done.  The omission of tlis credit, amounting to upwards of
$3,500, proves the settlenment to be erroneous and its showing unjust
towards General Gratiot.
On the 27th of November, 1838-more. than ten nmonths after the settlement-the Secretary of War assumed the above balance to be the true
amnount due.  He, however, admllitted a credit of $12,246 for pay, &c.,
stopped from General Gratiot to that date, and thus reduced the claimn of'
the United States to $31,712, which amount he reported to the President.
General Gratiot had failed to account for.-(See his letter to the President
int House document No. 77, third session of 25th Congress, page 10.)
The President, assuming this latter sum to be a balance due from Gen-.
eral Gratiot, ~gainst which he was not entitled to further credit, demanded;
payment of the whole sum. —See his order of, the 28th of November,
1838, quoted above.
The next official Treasury settlement was on the 17th of December,
1838-thirteen days after General Gratiot was dismissed.  It is found in.
the record of first trial, at pages 44 and 45.
In this settlement the balance of $43,958 91 claimed in. the preceding.
settlement of 16th of January, 1837, is charged, and a credit of $12,284 46(,
is given for pay, &c., stopped; so that the balance resulting. from, and
claimed on this settlement, is $31,674 45.'On the 30th January, 1839 —fifty-seven days, after General Gratiot was.
(lismissed-anothey and final official settlement -was macde.  This settlement
l$ay be found in record of first trial, at pages 50 and 51.  In it the balance
o(,nd in the last preceding  settlement ($31,674 45) is charged, and a credit'is given for $1,7'69 59, "for sundry cdisbu',remee;ls macdye by himn ct F0ort
Jlfonroe in 1825, 1826, and 1827," which amn-ount consistted of some of tlhe
items in General Gratiot's accounts whiclh  -ad be en unj, ustly disalloived —,as their being now credited admits —and foir wich,  and other sinili.
credits, he had for years contended in vain.  The balance resulting from
this settlement is $29,292 13, for which amount Generial Gratiot was siue(l.
After the suit was brought, a further credit of $6,034 wasls admitted JO'
disbursements made at Port M~ionroe.r.io' to 30th Se1 tember,  129.-(S
record second trial, page 109.)  This amoount a:lso cnsists of items which
had been unjustly disallowed,, antd for which, as for the preceding, credit
lacd been several years contendedl for in vain.
A voucher which was essential. to, the establishment of an i.mportant itemr:in my claim, and whlich would have more than absorbed the whole claim of
the United States against me, could not be produced in evidence, for the,reason that it had beer t(akent froqml the files of the Second Auditor's Office!!...-(See deposition of Second Auditor, in recordl of second trial at pages 77




21                              [2j
and 80.)  That vouch-er Was submitted to the Secie'tary of War, who
endorsed on it a declaration to the effect that the brevet pay claimed by it
was in consideration of milit-'ary service, and did not include compensation
for any services of a civil chtracter.  The copy produced in e\Tidence
agcainst Gene'al Gratiot purporting to be " a true copy," could not have
been so, because it lacked the Secretary of War's endorsement, which was
made only on the voucher seat to the Auditor for settlement, and not on
the duplicate retained by the paymaster from which the " true copy" was
made.-(See deposition of SecondL Auditor in the record of second trial, at
page 80.)
r'-~ The plaintiff (the United States) wvas the custodian of this paper, and
all the efforts of General Gratiot to cause it to be produced were unavailing; negligence in losing it deprived General Gratiot of the evidence relied.
on to sustain the validity of the important item referred to, and it is conLfidently believed thet the want of the evidence the lost paper would
have afforded, and the effect of the copy produced in evidence against
General Gratiot, caused the fina.l judgment against him.
From the foregoing, the following facts are believed to be conclusively
established:
1st. That General Gratiot was ordered on the 28th of November, 1838,
to pay into the treasury a balance, claimed to be due from him to the United States, of $831,712.
2d. Thlat before suit was brouglht against him, viz: on the 30th of
January, 1839, this claim was reduced, by admitting some of the credits for
which he had contended for years prior to the 28th of November, 1838, to
$29,292 13.
3d. That after suit was brought another portion of this claim, amounting to $6,034, (one-fifth of the amount first claimed from General Gratiot)
wa.s abandoned by the Government, clearly showing that he was dismissed
for not paying $31,712, when it was afterwards voluntarily admitted
that the demandl against him  was erroneous and unjust, at least to the
amount of $S,463 87, and that the President's orderj therefore, required.
him to pay into the treasdlry at least $8,463 87 which, as was afterwards
admitted, was actually his own money; and,
4th. T'hat but for the loss, through negligence on tho part of the
agents of the Government, of a paper containing evidence material to the
support of an important itemn of General Gratiot's claim, there is reason
to believe he would have legally established that he was not indebted to
the United States at all! 
Concede the power to dismiss an officer from the public service on such.
grounds, and the precedent in General Gratiot's case can be visited upon
any (disbursing agent whose misfortune it may be to disagree with the accounting  officers of the treasury on the settlement, of his accounts by
them.  The rights of the agent under such rule would merge, of necessity,
in the will of the tlreasury officers.
In reference to the alleged neglect to render accounts in obedience to
law, it has already been sthown by the letter of Benjamin Fowler, before
quoted, that the neglect, if any, was his.
But it may be well to examine whether there was, in this respect, any
neglect at all.
The second section of the law of 31st January, 1823, requires that dis,,




['2]                              22
bursing agents shall render their accounts "quarter-yearly" for settlemnent.
The President by his General Regulations of 1825, article 67, paragraphs 897 and 898, prescribed the manner in which the quarter-yearly,
accounts of disbursing agents should be rendered to the propel accounting
officers of the treasury for settlement.  These regulations imade the Engineer Bureau one of the intermediates between its disbursing agents and
the Treasury.  It follows, then, as a consequence on the proper executiol
of the requirements of these regulations, that all accounts which had been
received, and so reported, as being in the Engineer Bureau, were and had
been " rendered " according to, and in strict "I obedience" to the requirenents of the second section in question.  (For the usage and practice under
the regulations, see House Document, No. 77, 25th Congress, 3d session,
pages 34 and 35.)
As regards my case, the same practice maintained; there could be no
good reason why a contrary one should have been enforced.
The accounts, when received at the Bureau, were either forthwith examined, or, as it frequently occurred, were permitted to lie over for some
time before examination.  In order, however, to conform to the requirements of the law, and also for the inforimation of the accounting officers, aI,
general report of the accounts received at the Bureau during each quarter was made to them.  These reports were regularly made from  the Engineer Bureau at the commencement of each quarter, and were acquiesce(d
in by the Auditor and Comptroller.  Their reason for this acquiescence is
obvious, because, so far as each disbursing officer was concerned, the provisions of the law had been fully satisfied; else, why was the practice permitted to run on for so many years?
Moreover, if at any time the accounting officers had wished to be further informed in reference to any one account so reported as being in the
Bureau, either of them  could, as in 1832, (see House Document No. 77,
25th Congress, 3d session, page 23) have officially required its forthlcoming, or have asked additional explanations.  This was not done, and their
silence was a tacit acknowledgment that my quarter-yearly accounts, reported as in the Engineer Bureau, were considered as having been ren4ered and received at the Treasury according to law.
This view of the subject is admitted by the Third Auditor in his letter
to the Second Comptroller of the 20th October, 1838.  (See House Document No. 77, 25th Congress, 3d session, page 34.)
The preceding is respectfully submitted, under the honest belief that a:review of all the facts stated will establish my innocence, and prove that
neither of the allegations against me, and upon which I was dismissed froum
the army, were founded in fact.
C. GRATIOT.
WASHINGTON, Ap2ril 9, 1849,




23                             [2]
C.
Extracts from  I ouse Document No. 77, third session, 25th Congress.
No. 1.
[Letter from the Secretary of War to GenerAl Gratiot, and his answer thereto.]
WAR DEPARTMENT, November 19, 1838.
Sin: The act of January 31, 1833, "concerning the disbursement of
public money," requires, among other things, that " every officer or agent
cf the United States who shall receive public money which he is not authorized to retain as salary, pay or emoluments, shall render his accounts
quarter-yearly to the proper accounting officers of the treasury, with the
vouchers necessary to the correct and prompt settlement thereof, within
three months at least after the expiration of each successive quarter;":and it directs that every officer or agent who does not do so "shall, by
the officer charged with the direction of the department to which such
offending officer is responsible, be promptly reported to the President of
the United States, and dismissed from the public service: Provided, That
in all cases when any officer in default as aforesaid shall account to the,satisfaction of the President for such default, he may be continued in
Office.
You are responsible to this department, and I am  charged with the
(lirection of it; and proper evidence having been laid before me of your
llavir.g offended against the provisions of the above act, by not having
accounted, as required by it, for public money in your hands, it has consequently become my painful duty to report you to the President, as is
imperatively required by the act.  This was done on the 16th instant,
since which timle I have received the directions of the President to inform
you of your having been reported to him.  You are hereby informed accordingly.
Very respectfully, your most obedient servant,
J. R. POINSETT.
Brevet Brig. Gen. CHIARLES GRATIOT,
/hief Engineer.
ENGINEER DEPARTMENT,
Washington, November 20, 1838.
Sin: I have the honor to acknowledge receipt of your letter of October
23d, enclosing copy of one from the Comptroller of the Treasury, reporting me for "having neglected, since the first quarter of 1837, to render
his rmy] accounts quarter-yearly to the proper accounting officer of the
treasury, with the vouchers necessary to the correct and prompt settlement thereof, agreeably to the act of January 31, 1823;" also, your letter
of the 19th instant, informing me that, in the fulfilment of your duty, this
circumstance had been reported by you to the President, who directed
that I should be informed thereof.
The first letter was detained at the office till my return, (I being absent
from Washington at the date of its reception.)  Almost immediately after
this return I was taken sick, and have been confined since that time till




[2]                              24
yesterday, when I was able to resume my duties; but for this interruption,
the subject would have received an earlier attention.
In explanation, I have to state, that it has been entirely through inadvertence that these accounts have not been rendered(.  There being no
(lisbursements for the work for which the money was retained in my hands,
the account would have been a simple "account current,".a mere statement that such an amount was due the United States; and it was from
this circumstance, and not being strictly a disbursing officer, that its
transmission to the accounting officer was omitted.  In cases of other disbursing officers of the department, wiho have retained money in their
hands without making disbursements, the explanation, in the quarterly
report rendered rregularly to the accounting officer, against their names, of
"no disbursements,' has apparently been always satisfactory, without a
formal account-current, though not according to strict legal requirements.
I regret that this inadvertence has subjected me to official censure, and
enclose herewith, for the files of the Auditor's office, (in order first to be
submitted to the inspection of the President,) the accounts in form, for
the several quarters wanting; and I have to request that any action in
my case, should such be deemed necessary, may be suspended until the
whole of my accounts are settled, when whatever balance may be found
against me will be accounted for.
In explanation of the manner in which the transmission of the accounts
has been neglected, I enclose herewith a statement of the chief clerk in
the office, whose duty it is to prepare and transmit them.
Very respectfully, your obedient servant,
C. GRATIOT.
I-Ion. J. R. POINSETT,
Secretary of War, Washington.
No. 2.
[Letter from General Gratiot to the Secretary of Wrar, and a letter from the Secretary of
War to the President.]
ENGINEER DEPARTMENT,
WVa.shington, XNovemnber 26, 1S38.
SrR: In compliance with your instructions under date of October 17, to
submit in writing my reasons for retaining in my hands the unexpenlde(
balance of funds for the fort at Grande-Terre, I have the honor to state,
that I have delayed returning these funds to the treasury, in consequence
of the unsettled state of my former accounts, by which the true balance
to be refunded is not ascertained; that the nmanner these were audited is
yet unknown to me; but I have understood (not officially) that I have
been under stoppage of pay since April, 1836.'Under these circumstances, unable to say what amount had to be refunded, I have postponed
making the deposite required under the regulation of March 2, 1838.
As the President has now determined that this money can no longer be
thus retained, I have to request that my account may be made out in
detail by the accounting officer, with his reasons for the suspension of the




25                             [2]
several items, in order that the whole case may be laid before the Presi(lent, when the balance that shall appear against me will be refunded to
the treasury.  The depositing of the whole amount of the balance for
Grande-Terre, a large portion of which would have immediately to be refunded to me on allowed claims, will not, I preumer, be insistedl upon; a
portion of it I have used, considering it my own property; an'd the raising
of the whole of this large sum  immediately woull, to s-ty nothling of the
injustice of requiring it at the present juncture, be ruinous.
The above statement will, I trust, prove satisfactory to tile President,
and convince him that nothing could be furtherl from  my wish than to
retain in my hands public funtis for any other purpose than to secure what
I consider a just claim  on the Government.
I am, sir, very respectfully, your obedient servant,
C. GRATIOT.
IIon. J. R. POINSETT,
Secretary of Tactr, Washington.
WAI DEPARTMVIENT,
1\ovember 27, 1838.
SIn: Agreeably to your instructions, to present to you the facts in the
case of General Gratiot, who has been reported to you, both for not rent
dering his aceounts according to law, and for retaining certain public
funds in his hands, I have the honor to report:
That-General Gratiot, in rendering his accounts for the disbursements
he made while superintending the works at Forts Monroe and Calhoun,
charged, in the first account he rendered to 31st March, 1822, a per diem
allowance of two dollars as disbursing-officer from November 13, 1821, to
the end of the first quarter of 1822, which being a legal charge, was allowed and paid; and he continued this charge up to the second quarter of
1825, which was admitted to his credit.  In his account rendered for the
third quarter of 1825, lie claimed for the first time a per diem  of two dollafrs for ectch of the works under his superintendence.  The charge for Fort
Calhoun was dcisallowed, and lie receivedlfor that period only two dollars
per dlay, being, in tile opinion of the Third Auditor, all he was entitled to
unLler lhe arly regulations.  The General continued to charge at the rate
of four dollars per daly, although he was informed at the settlement of his
accounts for' each quarter that only two dollars a day was admissible, and
htl been allowed to his credit.  The Chief Eginieer, General Macomb, in
tra nsmitting to the Third Auditor's office the accounts of General Gratiot
for the third quarter of 1826, disallowed the four dollars a dlay, andt redluced it to two dollars.  From this period until the final rendition of his
accounts to the close of the quarter ernding'30th September, 1829, General Gratiot made no charge for a per diem allowance, or for any compensa.tion for dlisbursing on account of those  works; but in his final account
rendered in 1829, he chlarges on each work a per diem of two dollars froiom
the 13th November, 18321, to the 30th September, 1829, amounting  for
each work to five thousand seven huldred and fifty-eight dollars.  On the
settlement of this account, he was allowed at the rate of two dollars a
lday, instead of four dollars, which he charged up to the 30th September,




[2]                               26
1829, being five thousand seven hundlrcd and fifty-eight dollars.  From the
foregoing facts, it would appear that General Gratiot did not consider himself
entitled to a greater per diem allowance for his extra services as disbursing officer on the works he was superintending than two dollars a (lday, as
provided for by the army regulations, until the third quarter of 1825,
nearly four years subsequent to the commencement of his duties; and that,
after the opinion expressed by the Chief Engineer of his understanding
of what per diem General Gratiot was enltitled to, lie ceased to charge for
his services as disbursing officer in his quarter-yearly accounts, until, rendering his accounts to the close of his disbursing, to wit: for the quarter
ending on the 30th Septentber, 1829, he again charged for the whole period, at the rate of two dollars a day for each work, notwithstanding the
opinion of the Chief Engineer and the decision of the accounting officer.
In the final settlement made by the Third Auditor, General Gratiot being
allowed the full per diem to which he was entitled under the regulations of
the azrmy, a balance was found against him of $8,958 91 on the 24th of
Miiarch, 1831, whereas, in the account presented by himself, he acknowleodged the balance due by him to the United States of $2,508 52, making
a difference of $6,450.39.  The balance of $8,958 was reported to the
Second Comptroller of the Treasury for stoppage, as being due by General Gratiot on the 31st of August, 1831, and again on the 11th of AuguAt,
1.832.  In September, 1831, the acting Secretary of War, Mr. aMcLane,
suspended the stoppage, and in April, 1833, General Gratiot presented a
new account, by which he abandoned his former claims to a per dienm  allowance under the army regulations, considering them as not applicable to
his case, but to that of an engineer performing the duties of a military
agent at a fortification.  IIe then claimed one per cent. on tile amount of
hIis disbursements, under the provisions of the law of 1803), regulating the
compensation of disbursing officers; by which lie brought tlhe United
States in dtebt to him  six hundred dollars, making a difference in his
favor of $1,908 52 between his first and second accounts.  This account
was reported upon adversely by the Third Auditor, and transmitted by the
Second Comptroller to the Secretary of War, requesting its submission to
the Attorney General for his opinion in the premises.  According to the
dec'sion of the accounting officers of the treasury, a balance of $8,958 was
due by General Gratiot, from August, 1831, and lie reuained in possession of this money until 1836, when the order for stcppage of his pay was
r:enewed and carried into execution.
In 1835, there was placed to his credit in the Mechanics' Bank of New
York, $50,000 for the works of Grande-Terre, by two drafts, $15,000 of
which was soon after returned to the treasury, leaving in his hands a
balanev of $35,000, which he still retains.  In March, 1838, the President determined that ino chief of a bureau should be a disbursing officer,
and this order was signified to General Gratiot, in order that he might
turn over the money then in his hands.  In July following, lie was again
directed to pay over that money, and the order was reiterated in August
following.  Upon receiving this order, which was directed to the acting
Secret;ry of War, General Gratiot stated verbally to Major Cooper that
the Government was indebted to him a. considerable amount on account of
disbursements made at Old Point Comfort many years ago; that his accounts ha:d been regularly rendered, but were disallowed or suspended, and




2)7                             [ 2 ]
hlis pay ordered to be stopped; and that he therefore desired to hold the
mnoney to his credit until a final settlement of his accounts could be obtained.  On my return to the office in October, I required a written answer to the order given in August: shortly after which the Second Colpptroller reported General Gratiot for having neglected,  since the first quarter of 1837, to render his accounts quarter-ycarly to tile proper accounting
officers of the treasury, with the vouchers necessairy to the correct and
prompt settlement thereof, agreeably to the act of Jinnuary 31, 1823. Ilt
explanation, the general stated that it had been entilely through inadvertence that these accounts had not been rendlered, there being no disbursemlents for the work for which the money had been retained in his hands.
" The account," he says, " would have been a simple account-current-a
mere statement that such an amount was dlue by me to the United States;
and it was fi'om  this circumstalnce, and my not being strictly a disbu'sing
officer, that its transmission to the accounting  officer was omitted."  Olt
the 26th of this month, I received the letter from'General Gratiot )which
accompanies this report.  By this report it will be seen that General Gratiot delayed returning the funds to the treasury, according  to the repeated
orders he had received, because lie -was ignorant, fi0om tile unsettled state
of his accounts, of the true balance to be refunded; that he acknowledges
to have  used a portion of it, which he regardedl  as hlis own property,  until
a balance was struck by a final settlement with  the  ccounting   officers;:and presumes that the orders to deposite the whole amount of the 835,Q00
will not be enforced, as a, large portion of it ixolld haxve to be immnediately refimded to himll on alloxed claiLl; and tllat the raising of the whole
of this large sum immedialtely,  would,  to say nothing  of' the injustice of
requiring it at the plesent juncture, be ruinous.  This pretension, oil the
part of General Gr~atiot, to consider as his own property the funds placed
in his hlands as Chief Engineer, to be employed in the public service is:ulbvcrsive of all enactmlnts for the security  of tihe public moneys.  BP
such means, an officer may evxade the law w llich priov-ides that his pay shall
be stopped until the balalnce found agaiinst. him  by the accounting  officer
of' tile Goverunment be paid, as General Gratiot has donel; and by such
reasoning,   an officer would be excused for applying  to his use the
public fuilds in his hands, although, by the " Rules ancl Articles of War,'
lie is liable to be cashiered f6r so doinlg.  In short, if such conlduct be toleratedl, and such principles aldmitted, there will no longer be any security
for the public moneys in the hlandls of any officer of the Governmelnt,
whose  clailms,and charges are not allowed by the accounting officers,
however illegal and unconscionable they may be.
It appears, then, that General Gratiot enjoyed the use of public money
to the amount of $8,958, at least friom Septenlber, 1829, the period of the
final rendidtion of his accounts, until his pay was stopped in 1836; andl
firom 1835 to this date, had in his hands the additional sum of $35,000,
inaking an aggregate of      -       -       -       -       -     43,958
From which, if tfhe amount of his pay alnd emolulments stopped
to thui date be dedlucted                                        12,24d;
There will remain a balance due the Government of            -     31,712
If, however, his own statements be admitted, and the first account be




[ 2 ].28
allowed, in which he:claimed two dollars a day for each wo:-k he superintended, there will be a balance against him of      -        -;6,450
To which add, in his hands since 1835         -        -       -     35, 0()
Total       -       -       -       -        -       -     41,450
From which deducting his pay and emolunments, stopped firom
1836       -       -       -       -        -       -       -      1    (
Therc remains due the United Sta.tes         -       -     29,204
Admitting the whole of his claim to be (lue himn  pon his account, as.
subsequently presented by hint on 1 cdifferent principle, of one per cent.
upon the whole amlount disbursed, the balance will be in his
favor 1       -       -.                                               $600
Pay and emoluments stopped since 1836                          -     12,246
Unsettled and unpresented claims for transportation -          -        500
Total due General Gratiot, according to his own statement  -         13,346
AlWhich deducted from         -       -       -        -             35,00
Leaves a balance due by him to the United States of-           -     21,654
which, it is presumed, is still in the MIfechanics' Bank in Ncw York to his
credit, as le could on no pretext consider this sum as his own property; and
wnhiCil  it it shall;t  appear that lhe ]ias usedl, I recommened that lhe be tried by
a 1 cou' t-mnr:til,:acco'rding to the "ules andl Articles of War,', for applying
public money to his own use.  I should not do my duty if I failed to express my firm conviction that General Gratiot is amenable to that tribunal,
-tnd liable to be cashiered for using any portion of the thirty-five thousand
dlollars confided by th'e department to his charge; and I only refrain from
-aldising thl l,t c)urse, beelause thle opinion of' the Attorney General on his
accolount (l does not aplpear to have been required by the Secretary of War,
in conmform)ityi wif ittl the request of the Second Comptroller, and the reference
of the accuotnt: to thle dopartment has im both i btll intnce3, remained unllated
upon. I am lihkewie reluctantly compelled by nmy duty to state that Gen-,eral Grtvtiot's excuses and( reasons for not having presented his accounts
quarter-yealy,   as required by law, are not satisfactory to me.  The safekeepinS, of so large an amount of public money is a girLve concern, and its
emplovymect  ouglht to be regulnarly accounted fotr; an(tl if unemployed, the
f;act of it- bhing in hand ought to be punctually stuated and, in my opinion,
the place of its deposite specified.  Tihe fact of Generael  Graltiot not beingi
a reIllar disbursin    officer does not, as lie supposes  alter the case; for
the 1Law requires qua.rter-yearly accounts to be rendee(l by all officers holdling public moneys, and makles it the duty of the President  to disfliss theim
froni the service if' they fail to do so, or to assign rea-sons satisfactory to
Iillml for thlel' fa:ilure to comply with the lavw in this respect.
All of whlich  i sI respectfully submitted.
J. R. POINSETT..
To the PI ziSID NT of' tte Uitecl Stcates.




29                               [2]
No. 3.
[Order of the President.]
WVASttINGTONx, YNovetuber 28, 1838.
The P'e3sident has carefully considered the communication of the Secretary of War in tie case of General Gratiot, who has been reported to him
for not rendering his accounts according to law, and for retaining certain
public funds in his hands.
lIe concurs fully in the opinion, that the retention, and more especially
the application to his own use, by a public officer, of moneys drawn from
the treasury for the public service, and so retained to satisfy alleged claim:
U:tpon the Government which have been rejected by the regular accountino
officer of the treasury as not authorized by law, is an abuse of trust, which,
if countenanced by the Executive, would subvert the most salutary portions
of the existing enactmelts for the security of thle public moneys.  The Secretary of War' will therefore direct General Gratiot to pay into the treasury
the sum of $21,654, which lie admits to be still in his hands, and against
which lihe presents no claim, forthwith; and the r~emaining sum of $10,058,
in the course of thirty days.  A decision oL the question in relation to the
sufficiency o)f General G:atiot's reasons for nut rendering his accounts
a.,ccording to law, will be deferred until an opportunity is afforded General
-ratiot to comply with the cldirectios to' e given  to him in respect to the
r.epaymeant of the public funds in llihs possession.
The Secretary of Watr will cause General Graltiot to be furnished with a
copy of this order, and of his report.
MA. AVAN BPU.REN.
[The above order, and a copy of the report of the Secretary- of War,
were furnaislhed General Graetiot on the 28th of Novesnrber, 1838j3
No. 4.
[Letter of the Secretary of Watr to the President.]
WAR DEPARTTMENT, December 3, 1838..
SIR: Since the report presented to you on the 27th Nevamber last,
General Gratiot's account-current with thle AIechanics' Bank of New York,
ini which the Government funds were deposited to his credit for public purpoSes, has been receivedl at this department.  By this statement it appears
tfltat the whole amount of the $50,000, deposited for carrying on the works
at Grande-Terre, was drawn out of the bank by General Gratiot in the'oebrs 1.835 and 1833; and that only $15,000 of that money has been
tacco(unted for.*
I have t'le honor further to report, that General Gratiot has not yet paid
the amount, or any part of it, that you directed should be fortlh.with paidl
into tlhe treasury of the United States.
Respectfully, your obedient servant,
J. RP. POINSETT.
The PRESIDENT of the United States.
* See No. 6, page 30.




[2J                                30
[Copy of thle endorsement made by the President of the United States on the above.]
"General Gratiot having failed to pay into tile treasury the balance of
the moneys placed in his hand in 1835 for public purposes, after suspendinl therefrom the amount which he claims to be due him on settlement of
taccounts, according to my order, comnmunicated to him by the Secretary of'
WVar on the 28th of November last; and having neglected to render his
accounts in obedience to the law of JaLnuary 3L, 1823, the  aid General
Charles Gratiot is hereby dismissed from Jihe service of the United States.
M. VAN B UREN.
WASIINGTON., Decemnber 4, 1838."
No. 5.' An act to prevent defateations oin the part of disbursing agents of the
Governmzent, and for other 2urposes," app roved January 25, 1828.
SECTION 1. Be it enacted by the Senate and hfouse of Representatives qof
the United States of America, in Congress assembled, That no money
hereafter appropriated shall be paid to any person, for his compensation,
who is in arrears to the United States, until such person shall have accounted
for, and paid into the treasury, all sums for which he may be liable: Proticled, That nothing herein contained shall be construed to extend to b; l-:ances arising solely from the depreciation of treasury notes received by such
person to be expended in the public service; but in all cases where the pay
or salary of any person is withheld, in pursuance of this act, it shall be the
duty of the accounting officers, if demanded by the party, his agent or.attorney, to report, forthwith, to the agent of the Treasury Department
the balance due: and it shall be the duty of the said agent within sixty,days thereafter to order suit to be colnmenced against such delinquent altnd
his sureties.  (Cros.s's Mlilitary Laws, chapter 142, page 223.)
No. 6.
Extract of a letter from General Gratiot to the Hon. Jf. R. UnderwoodI
dated Washington, January 6, 1839.
In April, 1833, these differences still existing, the Secretary of Wartl
submitted the subject to the Attorney General, who declined giving ai
opinion in the case, and the matter remained unsettled.
In December, 1835, during the existence of difficulties with France,
Congress having refused an appropriation of money for defence of the
country, it was determined to make use of such balances of existing appropriations as could be diverted from  their proper objects without serious
injury to the service, and to apply them  to the purposes of repair and
armament of the fortifications.  To do this, the money was drawn from the
treasury and placed in my hands, as a general fund, to be remitted to
various officers of the engineer and ordnance departments, for the purposes
stated.  Of the whole sum, (say $100,000,) about $95,000 were thus drawn




31                           [2]
from the banks in which they had been deposited to my credit.  These
funds were advanced to different officers; and when appropriations for
the particular purposes for which they had been used were afterwards made,
the sums thus advanced were refunded to me, and paid back into the
treasury to the account of the appropriations from  which they had been
first drawn, commencing with the object for which they were most needed.
Some of these funds were returned to me only in 1838.
The works at Grande-Terre, Louisiana, having been suspended, the
amount drawn originally from that appropriation was to be the last refunded, as not being required for the purpose to which it was applicable. Pending these occurrences, in April, 1836, whilst I was still chargeable witli
this large amount of funds, which were actually not in my hands, (as above
shown,) my pay was ordered to be stopped on account of the balance reported against me in the former settlement.  Of this stoppage of pay I was
not even officially advised; and but for an accidental conversation withl a
paymaster at a public place, I should have remained ignorant of the fact
until informed of it by the refusal of the paymaster to discharge my pay
whenever I might present an account.  It was under these circumstances
that I considered myself entitled to the use of the public funds in my hands,
so far as necessary for my own subsistence and that of my family; andl
finding myself placed in this unpleasant situation, I informed the Secretary
of War, when called on, that I intended to retain the unexpended balance
in my hands until a final adjustment of all my accounts, when I would pay
over the balance which might be found due to the United States.  The
Secretary of War's call on me, dated 17th October last, was handed to me
on the eve of my departure from this city, with a verbal message that it
need not be answered until my return.  In consequence of this message
and of my subsequent sickness for some days, the answer was deferred until
the 20th of November; and in the mean time, (through whose means I
know not,) I was publicly stated to be a defaulter.  On the receipt of my
answer, the President directed that the whole amount claimed by the
United States should be paid-about two-thir'ds of it forthwith, and the
balance in thirty dacls.
My impression that the course here directed would enable tile Government to deny the charge of defalcation, and would be used for that purpose,
was confirmed by a conversation with others; but, in the course of my
arrangements for effecting the object, I learned, with surprise, that I should
be expected, after complying with this demand, to sacrifice my commission.
As such a course could have been considered only as an acknowledgment
of guilt, and, by throwing it out of the power of the Government to bring
at suit, (whilst there was no such power on my part,) would have deprived
nme of any means to bring the matter to a proper adjudication-would, in
fact, have inflicted on me the deepest injury without hope of redress in any
manner; I determined to refuse compliance with such injunctions, and to
suffer such consequences as my refusal might produce.
The matter in dispute will now be brought, without delay or impediment
on my part, to a judicial decision; and the judgment of a court of justice
will place the subject in its proper light.
I have the honor to be, very respectfully, your obedient servant,
C. GRATIOT.
AHown J. R. UNDERWOOD,
House of Revresentatives.




[2]                                 3
No. 7.
EXTRACT FROM  A LAW  OF JANUARY 81, 1823.
CAIlPrTE R 9.-An act concierningy the disbur.sement of public 1monley.
SrEcT. 2. Ancd be it furather enacted, That every offier or agent of the
1United St ates, who shall reccive  public money which he is not authorized
to retain, as salary, pay, o~0 emoluments, shall render his accounts quarteryearly to the proper accounting  officers of the treasury, with the vouchers.
necessary to the correct anid promrpt settlelment thereof, within three months,:zt least, after the expiration of eacli successive quarter, if resident within
the United States; and within six months if resident in a foreign country 
Provided, That nothing herein contained shall be construed to restrain the
secretaries of any of the departments from requiring such returns firom any
officer or agent, subject to the control of such secretaries as the public
interest may require.
SECT. 3. And be it further enaceted, That every officer or agent of the
United States, who shall offend against the provisions of the preceding
sections, shall, by the officer charged with the direction of the department
to which such offending officer is responsible, be promptly reported to the
President of the United States, and dismissed from the public service': Pro-,ided, That in all cases where any officer, in default as aforesaid, shall:account to the satisfaction of the President for such default, he may be
continued in office, any thing in the foregoing provision to the contrary
notwithstanding.
SECT. 4-. And be it further enactedcl, That no security given to, or obligation entered into with the Government, shall be in any wise impaired bhy
the dismissing any officer, or from failure of the President to dismiss an.n
officer, coming under the provisions of this act.
[Approved Jatnuary 31, 1823.]
No. 8.
[Letter of thn3 S crctary of War to the Speaker of the I-louse of Representatives.]
WAR DEPARTMENT,
January 12, 1839.
SIn: In compliance with so much of the resolution of the H1ouse of Representatives as relates to the defalcation of General Charles Gratiot, late
Chief Engineer,   I have the honor to transmit herewith copies of all the
papers (from No. 1 to 40) which relate to that subject.  The facts respecting the defalcation are all embodied in the letter of the Secretary of War
to the President of'the United States, dated the 27th November, 18388
(document 9.)
Very respectfully, your i.ost obedient servant,
J. R. POINSETT..
lion. J. K. POLK,
Speaiker of the fHoutse of' Psepresentatiives.




33                            [2j
Nc. 9.
[Letter of the Second Comptroller to the Secretary of War.]
TREASURY DEPARTMENT,
Second Comptroller's Office, January 5, 1839.
SIR: In answer to the resolution of the House of Representatives of the
3d instant, referred to me from the War Department, I have to report,
that from the books and records of this office, and the records and files in
the office of the Third Auditor of the treasury, it appears that General Gratiot, under the direction of the War Department, was charged withs the
superintendence of the works at Fortress Monroe and Fort Calhoun, and,
as superintendent, was intrusted with the disbursement of public money.from November 13, 1821, to Septemnber 30, 1829. On the settlement of
his accounts on the 24th of March, 1831, a balance of eight thousand nine
hundred and fifty-eight -lollars and ninety-one cents was found due from
him to the'United States.
On the 2d of September, 1831, the Paymaster General was directed by
the Second Comptroller to stop this amount of $8,958 91 from said Gratiot's pay.
On the 28th of September, 1831, this order for stoppage was suspended
by the acting Secretary of War, Mr. McLane, and General Gratiot continued
to receive the pay and emoluments of his office until April 1, 1836, whene'the stoppage was renewed and and continued up to December 6, 1838, the day.of his removal from office.  The amount of pay and emolhunents retained'nder the order for stoppage exceeds the $8,958 91, ordered to be stopped
by the Second Comptroller in 1831.  I am not aware that the resolution,
calls for any further information relating to the accounts before referred to.
On the 30th of June, 1834, Congress appropriated fifty thousand dollars
for a fort at Grande-Terre, Louisiana, which was drawn from the treasury'upon requisitions of the War Department, in favor of General Gratiot, then
at the head of the corps of engineers, as follows:
On the,17th of November, 1835, twenty thousand dollars.'On the 21st of December, 1835, thirty thousand dollars.
On the 31st December, 1836, General Gratiot deposited to the credit of
the United States the sum of fifteen thousand dollars, retaining the residue,
as understood by the accounting officers, to be applied, to the purpose for
which it was appropriated.
On the 22d of October last, General Gratiot, having neglected to account
for the expenditure of the thirty-five thousand dollars, was reported to the
Secretaries of War and of the Treasury as having failed to render his accounts according to law; and a transcript, showing a balance due the'United States, of $31,674 48, was made out as soon as practicable, and
transmitted to the Solicitor of the Treasury, for suit.
As all disbursing officers are by law required to render their accounts to
the auditors of the treasury, the correspondence with General Gratiot, relax
tive to the settlement of his accounts, so far as appertains to the accounting
officers, will be found with the Third Auditor.
It is believed that the foregoing contains all the information caled fo'




L2]                              34
relative to the case of General Gratiot. so far as it has come under the cognizance of the Second Comptroller.
I am, sir, very respectfully, your obedient servant,
ALBION  K. PARRIS,
Comptroller.
lion. J. R. POINSIETT,
S'ecretary of JVar.
No. 10.
(Benjamin Fowler's statement, and letter of thle Third Auditor to the Second Comptroller.]
NOVEMBER 20, 1838.
The subscriber, principal clerk in the office of the Chief Engineer, among
other duties, is charged with that of transmitting the accounts of disbursing agents to the office of the Third Auditor of the Treasury, after they
have received the examination required by the regulations; he also prepares the quarterly statement of disbursing agents, called for by the Third
Auditor, in which are shown the names of agents whose accounts for the
quarter have been received, and transmitted to the Auditor; those whose
accounts have been received, but, for want of time to give them the
required examination, remain in the office; and of those who have failed
to render accounts for the period stated, noting, whenever so advised by
the agents, or positively known to the department, that no disbu sements
had been made within the quarter. This has been the practice for a considerable: time back, and he has never understood otherwise but that it
was perfectly satisfactory.  In the particular case of General Gratiot, the
statement furnished to the Third Auditor of the agents having to render
accounts. for the fourth quarter of 1837, it is written opposite his name,
"Received, and in the office of the Chief Engineer; " for the first quarter of
this year, it is stated, " Account in the Engineer department;" and for
the second quarter, "NVo disbursements."  As these explanations were not
objected to as. insufficient by the accounting officers, so far as I am advised,
the strict conformity with the requirements of law has been lost sight of;
and if any blame is to attach for this, it must be to myself, whose duty it
was to see that the accounts-current were sent to the Auditor, whether disbursements were made or not.
BENJAMIN FOWLER,
Clerk in the office of the Chief Engineer.
TREASURY DEPARTMENT,.
Third Auditor's Ofice, October 20,. 1838.
SIR: I have received your letter of the 19th instant, on the subject of
the advances made to General Gratiot out of the appropriation for a fort at
Grande-Terre, Louisiana, and requesting from me " a special report in this
case, setting forth all the facts, and especially the reasons why said Gratiot
has not been reported as having failed to comply with the law of the 31st




35                           [2]
January, 1823, agreeably to the instructions of the Secretary of the Treasury of the 24th November, 1829, and June 14, 1832."
In compliance with your request, I have to state, that in regard to the
advances made to General Gratiot out of the appropriation for a fort at
(Grande-Terre, there was advanced to him, by requisition of the Secretary
of War bearing date 17th November, 1835, $20,000, and by requisition
dated 31st December, 1835, $30,000: making, together, $50,000.  That
on the 31st December, 1836, he transmitted to this office evidence of having
deposited to the credit of the Treasurer of the United States $15,000, with,aa accouit-current for the fourth quarter of 1836, in which he acknowledg-,ed a balance to be remaining in his hands of $35,000, agreeing with the
tfficial balance on the settlement of his account in this office, and now
standing at his debit on the books thereof; that the only account found to
be subsequently rendered by General Gratiot to this office is an accountcurrent for the first quarter of 1837, in which he states the above balance
then to be due to the United States, "on account of the appropriation for,a fort at Grande-Terre, Louisiana."  In regard to the reasons why General
~Gratiot has not been reported as having failed to comply with the law of
the 31st January, 1823, and the instructions of the Secretary of the Treasury, I have to state, referring to the sixty-seventh article of the General
Regulations for the Army, that as paragraph eight hundred and ninetyseven, containing instructions to be observed in keeping and rendering
accounts for disbursements made under the direction of the engineer department, directs that the accounts and vouchers are to be transmitted to
the engineer department within ten days after the expiration of the quarter;;and paragraph eight hundred and ninety-eight, requiring that accounts so
transmitted must be minutely examined, and when the examination shall
tbe completed the accounts must be transmitted to the Auditor for settleiment, accompanied by a statement from the Chief Engineer that they have
ibeen examined agreeably to this regulation, and were approved; and as all
accounts for disbursement made under instructions from the engineer
department are, in accordance with this regulation, rendered to that office
by the disbursing officers and agents, as are also the accounts of the dis-'bursing officers and agents under instructions from the other bureaux of the
War Department, it became indispensable, when a report was to be prepared in tliis office, under the law of 31st January, 1823, that information
should be obtained from each bureau as regarded the officers and agents
held accountable at this office; therefore, with a view to make my report
as early after the end of the quarter as practicable, a request is sent to the
different bureaux, some days previously, to be furnished with a list of the
disbursing officers who had to render accounts for the preceding quarter,
and of those who had failed to do s O. On receiving the list furnished by
each bureau, such officers and agents only as are there stated to have omitted to render their accounts are embraced in my quarter-yearly reports
made to the Second Comptroller.  The following remarks opposite the
name of General Gratiot, in the lists furnished by the Chief Engineer, commencing with the fourth quarter of 1835, to the second quarter of 1838,
inclusive, will show that he is in no instance represented as having omitted
to render his accounts; but in each quarter his accounts are stated as being
rendered or in the engineer department, with the exception of the first
quarter of 1836 and second quafrter of the presept ypren, when he is report,




[ 2.                              36
ed as having made "no disbursements;" consequently his name has not
been included with those officers and agents who have been reported from
this office as having omitted to render their accounts for settlement.
Lists.                       Remarks.
4th quarter, 1835,  "Accounts in engineer department."
1st quarter, 1836,  "No disbursements."
2d quarter, 1836,' In engineer department."
3d quarter, 1836,  "Accounts rendered, and transmitted to the Third
Auditor."
4th quarter, 1836,  "Accounts rendered, and transmitted to the Third
Auditor."
1st quarter, 1837,  " Transmitted to Third Auditor's office."
2d quarter, 1837,  " Received in engineer department."
3d quarter, 1837,  "Received, and in the office of the Chief Engineer."
4th quarter, 1837,  " Accounts rendered, and in the engineer department."
1st quarter, 1838,  " Account in the engineer department."
2d quarter, 1838,  "No disbursements."
Most respectfully, your obedient servant,
PETER HAG-NER.
Auditor.
ALBION K. PARRIS, Esq.,
Second Coomptroller.
No. 11.
[Extracts from Document B.]
The inference must be, that when the President required the payment
into the treasury of a specific sum of money, he did so from representations
and belief that it was a balance due on a legally settled account which
was not susceptible of alteration; or, in other words, that the balance claimed
was an ascertained one, which could not be increased or diminished on a
final settlement.  In this case such was not the fact, as the record of the
circuit court of the United States for the Missouri district, in which General Gratiot was finally sued, will show.
iThe treasury transcript brought in evidence against General Gratiot on'the trials of this suit, may be referred to for dates, amounts, &c., of settlements made of his accounts by the accounting officers of the treasury.
These settlements will prove that the President was not correctly in,
formed in regard to his accounts,
It appears from the record of the proceedings of the court, on the first
trial, pages 42 and 43, that on an official settlement by the accounting officers of the treasury on the 16th of January, 1837, a balance of $43,958 91
was claimed for the United States.
In the record of the court, on the second and final trial of this case, it is
shown at pages 76 and 92 that the Paymaster General of the army, and the
Second Auditor of the treasury, both testify that General Gratiot's pa.y was
stopped from the 31st of,Mar e. 1836.  The settlement:just referred to




37                            [23
contains no credit for the amount of pay,. &c., stopped between the 31st of
March, 1836, and its date, (16th January, 1837,) as it clearly should have
done.  The omission of this credit, amounting to upwards of $83,500, proves
the settlement to be erroneous, and its showing unjust towards General
Gratiot.
On the 27th of November, 1838, more than ten months after the settlement, the Secretary of War assumed the above balance to be the true
amount due.  He, however, admitted a credit of $12,246 for pay, &c.,
stopped from General Gratiot to that date, and thus reduced the claim of'
the United States to $31,712, which amount he reported to the President
General Gra.tiot had failed to account for..-(See his letter to the President,
in House document No. 77, 3d session of 25th Congress, page 10.)
The President, assuming this latter sum to be a balance due from General Gratiot, against which he was not entitled to further credit, demanded
payment of the whole sum. — (See his order of the 28th of November, 1838,
quoted above.)
The next official treasury settlement was on the 17th of December, 1838
-thirteen days after General Gratiot was dismissed.  It is found in the
record of first trial, at pages 44 and 45.
In this settlement the balance of $43,958 91 claimed in the preceding
settlement of 16th January, 1837, is charged, and a credit of $12,284 46
is given for pay, &c., stopped; so that the balance resulting from, and
claimed on this settlement, is $31,674 45.
On the 30th January, 1839, fifty-seven days after General Gratiot was
dismissed, another and:final official settlement was made.  This settlement
may be found in record of first trial, at paoges 50 and 51.  In it the balance
found in the last preceding settlement ($31,674 45) is charged, andl a credit
is given for $1,769 59, "for sundry disbursements emade by him at Fort
Monroe in 1825, 1826, and 1827," which amount consisted of some of the
items in General Gratiot's accounts which had been unjustly disallowedas their being now credited admits-and for which, and other similar
credits, he had for years contended in vain.  The balance resulting from
this settlement is $29,292 13, for which amount General Gratiot was sued.
After the suit was brought, a further credit of' $6,034 was admitted for
disbursements made at Fort Monroe prior to 30th Septeimber, 1829.-(See
record second trial, page 109.)  This amount also consists of items which
had been unjustly disallowed, and for which, as for the preceding, credit
had been several years contended for in vain.
A voucher which was essential to the establishment of an important item
in my claim, and which would have more than absorbed the whole claim of
the United States against me, could not be produced in evidence for the
reason that it had been taken from the files of the Second Auditor's office!!
(See deposition of Second Auditor, in record of second trial, at pages 77 and
80.)  That voucher was submitted to the Secretary of War, who endorsed
on it a declaration to the effect that the brevet pay claimed by it was in
consideration of military service, and did not include compensation for any
services of a civil character.  The copy produced in evidence against General Gr-ratiot, purporting to be " a true copy," could not have been so, because it lacked the Secretary of War's endorsement, which was made only
on the voucher sent to the auditor for settlement, and not on the duplicate
retained by the paymaster from which the " true copy" was made.-(See
deposition of Second Auditor in the record of second trial, ant page 80.)




[2]                            38
The plaintiff (the United States) was thie custodian of this paper, and all
the efforts of General Gratiot to cause it to be produced were unavailing;
negligence in losing it deprived General Gratiot of the evidence relied on
to sustain the validity of the important item referred to, and it is confidently believed that the want of the evidence the lost paper would have
afforded, and the effect of the copy produced in evidence against General
Gratiot, caused the final judgment against him.
From the foregoing tile following facts are believed to be conclusively
established:
1st. That General Gratiot was ordered on the 28th of November, 1838,
to pay into the treasury a balance, claimed to be due from him to the United States, of $31,712.
2d. That before suit was brought against him, viz: on the 30th of January, 1839, this claim was reduced by admitting some of the credits for
which he had contended for years prior to the 28th of November, 1838, to
$29 292 13.
3d. That after suit was brought, another portion of this claim, amounting
to $6,034, (one-fifth of the amount first claimed from General Gratiot) was
abandoned by the Government, clearly showing that he was dismissed for
not paying $31,712, when it was afterwards voluntarily admitted that the
demand against him was erroneous and unjust, at least to the amount of
$8,463 87, and that the President's order, therefore, required him to pay
into the treasury at least $8,463 87, which, as was afterwards admitted,
was actually his own money; and,
4th. That but for the loss, through negligence, on the port of the agents
of the Government, of a paper containing evidence material to the support
of an important item of General Gratiot's claim, there is reason to believe
he would have legally established that he was not indebted to the United
States at all!!












.39                                                                        []
No. 12.*
1)D.                               Gcneracd COharles Gratiot, in account with the  United States.                                              CR.
Fortifica-    Fort        Fort                                                  Fortifica-    Fort        Fort
tions.    Calhoun.   Monroe.                                                    tions.    Calhoun.   Monroe.
1821.                                                                           1822.
Aug. 27  To warrant No. 8396, on account..........$18, 500 00$11, 550 00  Jan.  7 By James Maurice,  agent, for
Sept. 1  To   do.  No. 8438, on account1,000 001                                             amount turned over to him,7th
Oct. 13  To   do.  No.8518, on accounti.........  6,400 001                                and 20th Sept. 1821...$..........$19, 500, 00$26, 550 00
23  To   do.  No.8547, on accountj.......... 10,100 001                   June 26 Forexpendituresmade by him in
1822.  the fourth quarter, 1821, and
3May 13  To   do.  No.9182, on account!................. 20,000 00      1st quarter, 1822............$38,041 61 12,195 38
20  To   do.  No.9287, on account'52, 550 00                                     26 For this sum entered to his credTo Jacob Lewis & Co., for the                                                     it, on account of fortifications,
fbllowing sums received  from                                                    in the official statement of this
them  on their contract, for ad-                                             i date, as an advance to James
vances, viz:                                                                     3: Maurice, and which, on settlevances, viz~ ~ ~~2  0                                                                          Jan a
10th Nov., 1821, $29.......... 297..      09.                                    ment of his account in Janua21st N ov..................   39  62                                     ry last, was  entered on the
4th Dec..................             97                                     books  to Colonel Gratiot's
12th Dec.,~..................    201 981                           I             credit, on account of Fort
14th Dec..................        258 62                                     3Monroe, to reconcile  which
28th Dec.,.................  23 541                                 difference this entry is made.. 15,000 00O
2(1 Jan.  1822...............        33 43                          Sept.14' For sundry expenditures made
26th May,  ".................        327 07                                      by him on account of fortifica1st June,  ".................        147 58.          tions on Old Point Comfort,
4th June.  ".................          267 95                                   viz:
6th June,  "..................       208 67                                    For amount psassedto his JredTo  amount received froni  D.                                                     it on settlement    26th  June,
Shea, for smithing.............       6 40i                                     1822, under the head of Fort
To Charles Gratiot, General, f(r                                                  Calhoun, instead  of fortificathis sum transferred to his debit                                               tions;  being stoppages made
on this account, firom  that of                                                  from  Jacob Lewis & Co., befortifications................................ 15,000 00/                  tween 10th Nov., 1821, and
June 22 1To warrant No.  9485, on account..........  20,000 00  7,000 00                    2dJan., 1822, of..... $535 29
jIly   8  To requisition No. 26, on account..........   10,000 00 12,000 00             For  amount of stoprAug.r 13  To    do.  No. 172, onaccount...........' 900 00  3,550 00                       pages made from  JaTo Jacob Lewis &- Co. for the tobl-                                               cob Lewis& Co.,firom
lowing sums received from them                         1May 26  to June 25,
on their contract, for advances,                                                 1822...............1,127 59
viz:                                                                                                               1,662 88
26th June, 1822...............    176 32                                    141 For purchases and expenditures
2d July,................    878 90i                                      made by him  in second quarIlth and 13thJuly, 1822........       369 091                                     ter 1822, and for items sus22d and 24th July,  "...              480 57                                      pended  in  last settlement
31st July, 1822................   346 35'                                       of...............$14,394 84....................  15,629 86
12th Aug.................    504 77                                       Fromwhich deduct this
12th................      246 09                                      amount carried to his
19th  "................    176 751                                         credit  on  account
21st."     "                        214 811                                     of fortifications, the
4th Sept.................         88 00                                      same  having  been
Sept 20  TorequisitionNo. 308,onaccount'..........   6,500 00 10,000 00                     passed to his credit
hct. 10  1 To    do.   No. 367, on account..........     7,000 00  5,000 00                 on settlement, 26th
To this sunmreceived from Capt. i                                                 June,1822, under the
Carson for a coffin.......$4 00  headofFortCalhoun,
Ditto fromE. Mix, for land-      i                                                instead  of fortificainug his vessel, &c.........3 48i...................          7 48              tions, being for stop* Book D, Old Record-Supreme Court of the United States, January term, 1841.-No. 40. Charles Gratiot, plaintiff' in error, vs.. the United.
States, defendants in error.  A writ of error to the Circuit Court of the United States for the District of Missouri.




[2]                                                                    40
No. 12 —Continued.
IDni.                           Generieal Charles Gratiot, in account with the United States.                                      Ci.
Fortifica-    Fort      Fort                                             Fortifica-    Fort      Fort
tions.    Calhoun.  Monroe.                                              tions.    Calhoun.  Monroe.
1822.
Oct. 10  ToJacobLewis& Co.for amount                                       1822,   pages made from Jareceived from them for advances                                           cob Lewis& Co., beon their contract, 19thSep.1822.   $661 45                               tween the 10th Nov.
26th Sept. 1822........    530 78                                  1821, and 2d JanuaDec. 6  To requisition No. 521, on account.......... $4,500 00 $4,500 00           ry, 1822........$535 29
27  To    do.  No.595, onacconnt......  1,100 00                                                  __ _...........$13,859 55
1823.                                                                    Dee. 7 For sundry purchases and exMar. 5  To    do.  No.837, on account......... 21,000 00 11,500 60                 penditures made by him in the
ToJacobLewis& Co.foramount    third quarter of 1822, viz:
received from them for advances                                          Fort Monroe.......$32, 080 87
on contract, viz: 7th Oct. 1822.    306 62                               Fort Calhoun.......29,516 16
To Jacob Lewis & Co., for amount received from them for                                                                $61,597 03,
advances on contract, viz:                                               Deduct amount of stop17th Oct. 1822................    169 391                                pages made from Ja21st''''............4..1...2 34                                    cob Lewis & Co., car24th      ".................    223 50                                 nied to his credit on
31st''''...........            294 58                                 separate  statements,
7th Nov..'...............    314 78                                    on account of fortifi15th.................    290 69                                   cations; the advances
21st'.................    483 491                                 to them having been
9th Dec. ".................    111                     1                made out of that ap10th.................    256 40                                  propriation:
13th.............          374 74                                 For Fort Monroe....$4,108 91'
April 10  TorequisitionNo.968,onaccount...... 11,500 00 12,500 00                  For fort Calhoun.....  577 12..
May  2  To   do.   No.1056,on account..             9,000 00  9,800 00                                     __.......... 28939 0 7 
To~~~~~ac ob':,00ewis&0 0                                         o o.fort amlonnt..  [T!2 ~~-    89~0~7~
To Jacob Lewis & Co, for anionnt                                       For this sum, being amount of
received fromthem for advances                                           stoppages made firom  Jacob
on contract, viz: 7th January                                           Lewis & Co., in third quarter
and 31st March, 1823.........    499 00                                  of 1822, charged to him on this
June 10  To requisition No. 1178, on ac-                                          I statement, and which amount
count....................   5,000 00  5,000 00                          is charged by him on account
July  5  To requisition No. 1238, on ac-                                            of Fort Monroe and Fort Calcount...................................   9,400 00 17/,00 00           houn, from which they have
Aug. 15  To requisition No. 1400, on ac-                                            been deducted, per statement
count........................    106 42                                 of this date..................  $4,686 03
26  ToJacobLewis &Co. foramount                                               For requisition No. 79, on acreceived from them for advances                                          count, refunded..............     11 00
on contract, viz:                                               1823. 
23d April, 1823...............    387 591                        Mari. 16 For this sum, being the amount of
28th..........    154 93                                stoppages fromJacob Lewis &
14th May,.'...'....... 344 61                                        Co., in the fourth quarter 1822,
17th''''................       89 96                                 bharged to him on this account,
27th''''...............      111 23                                 and which amount is charged by
31st''''.........    100 92                                 him in the abstract of payments
6th June,.''.............   260 47                                   made on account ofFortMonroe
14th    " "...............       138 49                                 and Fort Calhoun............   3,238 24
11th' "...............     171 93                             16 For sundry purchases and ex21st. ".......        109 39                                 penditures made by him in the
25th'................    113 04                                  fourth quarter 1822 6. account
28th..177 17,                     1                     FortMonroe........$22,897 42
To Major Samuel Cooper, for                                                  Fort Calhoun.....7,346 66
amount received from him 18th                                           His per diem allowance
and 21st June, 1823.......310 40                                       from Ist April to 31st
Aug. 1-9  To requisition No. 1409, on ac-                                           December, 1822, 275
count......................... 11,000 00  9,500 00! days, at $2,being less




41                                                                     [2]
No. 12-Continued.
l~)it~. ~                General Charles Gratiot, in account with the  United States.                                            CR,
Fortifica-  ~ Fort       Fort                                                Fortifica-    Foft       Fort
tions.    Calhoun.  Monroe.                                                  tions.   Calhoun.  Monroe.
1823.                                                                        1823.'Sept. 16  To requisition No. 1483, on ac-                                    Mar. 16  than 2- per cent. on
count...................................$11,000 00 $13,000 00               the amount disbursed,
Nov. 14  To requisition No. 1608, on ac-                                                 including 50 cents decount............................................ 20,000 00                  ducted on former setDec. 27  To requisition No. 1722, on ac-                                                tlement............   $550 50
count........................  $8,000 00..........   7,000 00                                    0 4
1824.                                                                                                     $30, 794 58
Jan.  7  To Jacob Lewis & Co. for amoun                                                 Deduct amount of stopreceived fromthemfbr advances                                                pages  frontm Jacob
on their contract in third quar-                                             Lewis and Co., carried
ter, 1823.....................  3,323 23                                    to his credit on stateTo Major Samuel Cooper, for                                                   ment forfortifications,
amount received fiom him per                                                the advances to them
receipts in July, August and                                                 having been made out
September, 1323..............      486 66                                    of that appropriation,
April 29  To requisition No. 2136, on ac-                                               viz:
count.......................1.........   0,000 00 15,000 00                  FortMonroe$2,909 55
May 24  ToJacobLewis& Co.foramount                                                      Fort Calhoun 328 69 3,238 24
received from them in fourlh...,.... $7,017 97$20,538 37
quarter, 1823..............  1,525 18........    289 97              For amount of stoppages made
To Major Samuel Cooper, for                                         June  2  fromJacobLewis &Co., infirst
amount received from  him  in                                                quarter, 1823, charged to him
fourtlh qnarter, 1823.......~..  227 69                                    in this settlement, and which
nMay 295  To requisition No.2250, on ac-                                                amount is charged  by him
count................................  12,000 00 23, 000 00                 in the abstracts of payments
-June 23  ToJacobLewis& Co.for amnount  made on account of Fort Monreceived from themn in first and                                             roe and Fort Calhoun, from
second quarters, 1824.......................  1,543 60         which they have been deducted
July 13  To requisition No. 2404, on ac.                                             2  as chargeable to this account...  $499  00
count..................1...... 10,000 00 10,000 00              For sundry purchases and exAug. 18  To requisition No. 2503, on ac-                                                penditures made by him in the
count................................. 24, 800 00 19, 500 00       first quarter of 1823, including
Nov. 10  ToJacobLewis&Co.for amount                                                     his per diem  allowance from
received from  them  in third                                                1st January to  31st March,
quarter, 1824....................................  3,292 36             1823, 90 days, at $2, on a~To amount received for three                                                  count of Fort Monroe,
horses sold, &c.................        155 00                                $22237  5
To Major Samuel Cooper, for                                                  Deduct amount ofstopamount received from  him in                                                 pages made from Jathird quarter, 1824...........  1,925 18                                     cob Lewis& Co., car9  To Major Samuel Cooper for                                                  ried to his credits on
amlounlt received from  him in                                               account of fortificathird quarter, 1824, as per re-                                              tions...............   163 14.             2..2,074 21
ceipt, 15th November, 1824...       50 39                                   For sundry purchases
30  To JacobLewis & Co. for amount                                                 &  expenditures made
received fromthem for advances                                               by him in first quarter
on contract, 15th Nov., 1824..........  1,874 07              1823, on account Fort
Dec.   5  To requisition No. 2751, on ac-                                               Monroe............ 8, 140 21
count...........................32,600 00                             Deduct amount of stop10  To requisition No. 2826, on ac-                                               pages made from Jacount........................................... 23 552 51                 cob Lewis & Co., car1825.                                                                                      ried to his credits on
Mar. 25  To requisition No. 3277, on ac-                                                account of fortificacount...........................................25,000 00          tions.............     335 86.............7,804 35
IMay  1  To Major Samuel Cooper, for
amount received  from  him                                               2 Requisitions Nos. 174 & i75, on
23d April, 1825....      23..    3 30i                            account.........................................        9o 06




42
No. 1 2 —Confinflhed.
DR.                                 General Charles Gratiot, in accounlt wiIth thl  e United States.                                           CR.
Repairsandi Fortifica-  Fort Cal- Fort Mon-                                          Repairsand Fortifica-  Fort Cal- Fort Moncontingen-   tions.       houn.       roe.                                           contingen-   tions.       houn.       roe.
cies.   i           i          i           ii       ~                            I  cies.
1825.  1822. 
Jnne  2 To requisition No                                                  Aug. 12' For expenditres made by
34~~~~~~~~~~~~~~~u.10,i o1'epnde maccount.
3410, o n account..............................$20,000 00!  him on account of' officers'
2 To requisition No.                                   i                      permanent quarters  during
8411, on acconnt...........I...........$15,000 001                      the quarter   ending June
15 To requisition No.                                                         30, 1823................3.........           0  17
3445, on account.2..........6.............. 26, 8(0 00             25For this sum, being the am'nnt
July  1 To am'nt received                                                           of stoppagesmade fromJac.'
from Capt. Whi-                                                           Lewis & Co. in the 2cd quarting, quartermas-I                                                        ter of 18:3, charged to him
ter, for sundry ar-                                                       in  this  settlement,  and
ticles of public,                      which amount is charged
prop'rty sold him                                   i                     to him on the abstracts of
in 1st quarter of'                                                        payments made on account
1825.................................               8, 2!)5 48        i of Fort Monroe, from which
Aug. 18 To requisition No.                                                          they have been deducted
3655, on account.,...............................  0000 00              on statement of this date as
18 To requisition No.                                               i         chargeable  to
3656, on account....................  23,600 00   4,242 38]           fortifications... $2, 159 7813
Sept. 14iTo requisition No.                                                        For this amount,'
3712, on account..........  8,00 00                                      stop'd as above
To requisition No.                                                         from Maj. Sam3713, on  account.................... 10,800 00                          uel Cooper...      310 40
Oct. 24 To requisition No.....         2, 470 131
3800, on account......................          14,026 92
Nov. ITo requisition No.                                                        25!For sundry purchases and ex3832, on account...................... 13,906 951                      I penditures made by him in
3'To amount of sun-                                                          the 2d quarter of' 1823, on
dry supplies fur-           I                                             account of'Fort
nished to and la-                                                         Monroe......$21,760 34
bor performed at                                                         His per dienm alFort Calhoun to                                                           lowance  firom
31st Dec., 1824,                                                          April 1 to June
heretofore  pro-                                                          30,  1823 — 91
cured  for  and                                                           days, at $2 per
charged  to this]                                                         day...........     182 00
appropriation, &I
subsequently taken and applied                                                 I                          21, 942 34
to Fort Calhoun.............................. 13,906 95i               Deduct amount of'
10 To am'nt received    stoppages made
from  Major IH.                                                           from Jac. Lewis
Whiiting, quart'r-                                                        & Co., carried
mast'r, for sundir                                                        to his credit oin
articles of public                                  i                     separate  stateprop'rty sold him                                                         ment on acc'nt
in 2d quarter of'                                                         of fortifications,
1825..............1........................    151 50                   the advances to
1 To requisition No.  them    having
3833, on account.  $8,000 001                                             been made out
8 To requisition No.           I                                             of that appr'pri3854, onaccount....................        647 37 13,906 915            ation,$2,159738
J)ec. 29 To am'nt received                                                          deduct amount
from  Major H.t  stoppage  friom
Whiting for sun-  Sam.  Cooper,
dries sold him in                                                         $310 40......  2,470 13
third quarter ofj
1825.1...............................    191 67                            19,472 21




43                                                                        [      1
No. 12, -Conltinued.
DR.                                 GJeneral (J/wles'c/at/ot,;.l1 weout Wi//1w  ], i?~ted,Smtates..                                     Ci.
Repairsand Fortifica-  Fort Cal- Fort Mon-                                          Repairsand Fortifica-  FortCal-  Fort Moncontingen-   tions.      houn.        roe.                                          contingen-   tions.        houn.       roe.
cies.                                                                               ciOs,
1826.
Mar. 25 To requisition No                                                   1823. Deduct requisit'n
4251, on account!.................... 15, 000 001l5,1 01 000 No. 228, on acApr. 21 To requisition No.!          1i                                             count.........   $106 42
4383. onaccount..................   4,300 00i 10,700 00....                      $21,743 365$19,578 63
May  2 To requisition No.                                                   1824.
4416, onaount..................  7,500 00  7,000 00 Jan.  7Forsundrypurchasesandex21To requisition No.                                                         penditures made by hinm in
4417, on account................  7,800 00! 7,000 00                     the 3d quarter of 1823, on
June 14 To requisition No.                                   I                      account of Fort
4555, onaccount................. 10,000 00  5,000 00              Monroe.......       372 60
14ITo requisition No.                                                        His per diem al4556, on account....................5, 000 00  9,000 00                   lowance  from
July  1ITo am'nt received             I                                             July 1 to Sept.
for  sundry  ar-                                                          30 1823.184 01'
for  snnd~~~~~~~~~~~~v ~~30, 1823,......8  O
tidcles sold in 1st                                 i                    Ditto, for permaquarter of 1826..........         2 501    469 90            nent quarters..  6,014 4
Aug.  2 To requisition No.
4683, onaccount.....................  9,000 00 27,000 00                                  41,571 0<
Sept. 16]To requisition No.                                                       Deduct amount of
4823, onaccount......2,300 00  6,900 00                                  stoppages fron
Oct. 15!To am'nt received                                                           Jacob Lewis &'fiol iI. tI WhitingI)                                                    Co,, carried to
for  sundry  ar-   his credit on acticles sold in 2d                                              I          count of fortificquarter of 1826..................         172 65           cations, the adil To requisition No.                                                         vances to them
4885, on account..................... 10,000 00 10,000 00               having    been
Nov. 8 Torequisition No.                          I                                 made  out  of
4947, on account...................  6,500 00  8,500 00             that appropria11 To requisition No.                                                         tion..........  3,323 23
4960, on account.'.....$2,614 89.38, 247 80
1827..                                                                   Ditto, on account
Mar.  7 To requisition No.                                                          Fort Calhoun..$28, 484 55
234, on account.....................  4,500  012000 00                  Deduct amount of
23 To requisition No.                                                        stoppages from
302, on account.$11,000 00                                                SamuelCooper,
April 51To requisition No                                                           carrried to his
337, on account..................  9,000 00 14,000. 00              credit  on  acMay 17 To requisition No.                                                           count of fortiff481, on account...............   8,500 00  7,500 00                    cations, the adJune 11 To am'nt received..                   vances  having
for sale of public                                                        been made out
property in third                                                         of that appr'priand fourth quar-                                                          ation, $486 66;
ters, 1826...........................   1,078 51            deduct this sum
13 To requisition No                                                          credited by Col.
555, on account....................  8,500 001  9,500 00                 Gratiot as  so
16 To am'nt received                                                          much refunded
for sale of public                                                        by E. Mix for
property in first                                                         supposed error
quarter, 1827...............................    22[2i     ct    15               4     4     -
qua"rter, 1827.,,1,,.,...,,,/.........   224 12                      in ac't, $357 84.    844 50
Aug. 1 To requisition No                                                                                                                 7,640 05
707, on account...................       6,000 00 23,000 00           7For this  sum, being  the
Sept. 1 To am'nt received                                                           amount of stoppages made
for sale of public                                                        firom Jacob Lewis & Co., in
property  in  2d                                                          3d quarter of 1823, charged
quarter, 1827...                                 75       82 91           to him  in this settlement,
B




[2]                                                                    44
No. 12-Conitinued.
DR.                              GeCuce'al'harles Gratiot, in account with tihe Uitited States.                                   Cu.
Repairs &  Fortifica-    Fort      Fort                                       Repairs &  Fortifica-    Fort      Fort
contingen-   tions.    Calhoun.  Monroe.                                      contingen-  tions.    Calhoun.   Monroe.
cies.                                                                         cies.
I
18'27*                                                               1824.
Oct. 10'To requisitionNo.i                                           Jan. 7  and  which  amount  is
898, on account!.............. $5,000,00 $  00000  charged to him in the ab-I
Nov. 20 To requisition No.                                                    stract of payments made
968 on account...........    13,2900  6,753 00            on account of
1828.i                                                                       FortMonroe... $3,323 231
Jan. 23 To requisition No                                                   For an't stopp'd
1116, on account.5.........             835 45  3898 94            as above from
Mar. 27 To requisition No.                                                    Major Samuel
1266, on account.................... 115,000,001 15:000 00         Cooper on acApril 21To amount receiv-                                                     count of Fort
ed for saleofpubh                                                   Calhoun......    486 66
lic property, and                                                                      $3,809 891
forlaborsuppliedi                                           May22For amount of stoppages
in 2d and  3di                                                      made fi'om J. Lewis & Co.
quarters 1824, &i                                                   in fourth quarter of 1823,
4th quarter 1827...................      4  88  1,402 78          charged to him in this set~23 To requisition No                                                   tlement, and which amount
1363, on account! $5, 300 00..........  7,000 00  3,000 00         is charged in the abstract
23 To requisition No.1                                                  of payments made on ac1364, on account..................  5,000 00  5,000 00             count of Fort Monroe, from
May  7 To requisition No i!                                                  which they have been de1400, on account.............         4,000 00  7,600 00           ducted on statement of this
27'To requisition No.         i/date as chargeable to for1485, on account.................... 10,300 00 12,600 00           tifications, Fort
July 16To requisition No                                                     Monroe....... $1,525 18
1657, on account...............   16,000 00 16,500 00         For this amount
Sept. 41To requisition No.                         i                         stopped  as a1829, on account....................  5,000 00  5,000 00          bove friom Maj.
20 To amount receiv-   Sam'l Cooper,
ed for sale ofpub-                                                  Fort Calhoun..   227 69
lic property, and.1,752 87
forlabor supplied                                               22 For sundry purchases and
in  1st and 2d                                                      expenditures made byhim
quarters, 1828.............................578 16..  in the 4th quarOct. 18To requisition No                                                     ter 1823, Fort
19366, on account............. 10, 000 00 20,000 00            Monroe.......$34,161 77
Dec. 3 Torequisition No.i                                                   His per diem al]2082, on account1Hsprdea12.2082, on account............    7,700 00 13,800 00           lowance  from
1829.                                                                       1st October to
Feb. 7 To amount receiv-                                                     31st December,
ed for repairs ofi                                                  1823........   184 00
chairs in 3d quar-]                                                Stopped from Jater 1828..............             5 25          cob Lewis & Co.
13 To requisition N2                                                    on account....    289 97
2310, on account..................  3,000 00 16, 000 00
Mar. 31 To requisition No                                                                  $34,635 74
2484, on account....................  5,000 00 11,000 00         Deduct amou't of
April27 To requisition No.                                                   stoppages made
2601, on account...................   11,000 00 15,000 00          from  J. Lewis
May 19 To requisition No                                                     &  Co., carried
2686, on account,.............. 11,000 00 14,000 00          to his credit on
June  1 To requisition No.                                                   separate state2727, on account..        13,500 00 18,000 00          ment on  acAug. 5 To requisition No.                                                    count of fortifi2952, on account                                                    
Ag 2952, 5T on acoun,..........      22,500 00 11,300 00           cations, the ad18 To amount receiv-.                                                   vances to them




45                                                                      [2]
N(. 12 —Cotltinul d.
Dt.                               Gf(eneral C/ arlte8 G(r'atiot, in account with thie United States.                                      CR.
Repairs &   i Fortfica- I  Fort     Fort                                         Repairs &  Fortifica-    Fort        Fort
Icontingen-   tions.   Calhoun.  Monroe.                                           contingen-   tions.    Calhoun.  Monroe.
ci.                                        cies. ies.
1829.                               I                                   1824.
ed from M.Parks,|                                                       having    been
for a coffin in 2d                                                      made out ofthat
quarter 1829.........................          $5 00  appropriation.. $1,525 18,Sept. 15 To requisiti on No..
3130, on account..................... $12,500 00  5,000 00                          33,110 56
23 To requisition No.                                              M ay 22 For requisitions
3150, on account $3,115 801                                             Nos. 323, 324,
1831.                                                                            and 325, on ac3Mar. 24 To amount receiv-l                                                       count.........    219 50
ed for old cop-.................33,830 06
per and iron, for                                                      Ditto on account
hire of laborers  Fort Calhoun.. $6,458 66
on surveys, and                                                        Deduct amount of
for materials andl                                                      stoppages made
labor transferred                      I  from   Samuel
to account for re-j                                                      Cooper, carried
pairs and  con-'                                                        to his credit on
tingencies......................           50  2()  3,250 80          separate  stateTo this  amount,                                                          ment on acc't.
being for labor                                                         of fortifications,
supplied,and ma-  the advances to
terials furnished'  himhavingbeen
in fourth quarter          I                                            made out of that
1825, and 1st &                                                         appropriation..   2227 69                         $
2d quarters 1826...........             $6,230 97
out of the funds                                              IJune23For sundry purremitted to himi                                                        chases and exfor repairs and                        I                      I         pendit'resmade
contingencies of                                                        by him in the
fortifications,and                                                      first quarter of
applied to Fort                                                         1824,onaccount
Monroe, and ad-                                                         of Fort Monroe $9,687 28
mitted  to  his'Amount stopped
credit on that ac-                                                      from  J. Lewis
count, and now                                                          & Co.........    205 25
charged to him,                                                        For  permanent
and admitted to                                                         quarters......  7,276 93
his credit on the                                                      His per diem  alfirst above named                                                       lowance  from
accounts in this                                                        1st Jan. to 31st
settlement............... 19,717 91            March,1824...    182 00
17,351 46
Deduct the following   sums
credited in his
account,  viz
Received from
J. W. Jordan  
for smithwork
for his vessel,
$37; J. Bulkley, for repairs,
$24 64; for fuel
distributed  to
Carried forward.., 27,415 80 84, 325 581616,878 06 848, 501. 90  mechanics,from




46
No. 12 —Colitinllud.
DR.                               General Charles Gratiot, in account with the United States.                                        CR.
Repairs and Fortifica-  Fort Cal- Fort Mon-                                    Repairs and Fortifiea-  Fort Cal- 1 Fort Moncontingen-   tions.     houn.       roe.                                       contingen-   tions.      houn.       roe.
cies.   i         i                                                            cies.
1831. Brought forward.. $27, 415 80 84,325 58616,878 06848,501 90    1-st November
to 31st March,
1824, $478 51.  $503 52
1824.                            I.................... $1, 132 74$16,847 94
Nov. 10 For amount heretofore suspended, and for sur-dry purchases and  expenditures
made by him in the 2d quarter, 1824, and for stoppages
I H.     made by him from Samuel
Cooper and Jacob Lewis
& Co........                          $4)05 34 lg, 278 86 39,07764
Dec. 9 For sundry purchases and
exapenditures made by himI
atWFortress Monroe in the
third quarter of'
1824.........$41,169 46
Amount stopped
from  J. Lewis
& Co.........  2,424 08
His per diem allowance  from
July 1 to Sept.
30, 1824.....    184 00
-.........43,777 54
17 For sundry purchases and
expenditures made by him
in 3d quarter of 1824, on
account of Fort
Calhoun......$21,217 85
Deduct am'unt of
stoppages made
from S. Cooper
and carried to
his  credit on
separate acc'nt
for fortificat'ns,
the advances to
him     having
been made out
of that appropriation......  1,358 62,.. -............ e 19,859 23
For amount of expenditures
made by him at Fort Monroe, in the 3d quarter, 1824,
on account of
fortifications...   $125 00
For  this  sum,
stopped  from
Samuel Cooper
in the 2d qr. of
1824, charged
to him  in this
settlement, and
il___- I- - — 1whichis charg'd
Carried forward.. 27,415 801 $4,32o 58.616,878 06848,501 90           by him  in the
\~~~~~~~~~~~~~b hi.n th




47                                                                  [2]
No. 12-Corntitlued
DR.                              General Charles Gratiot, in account with the United States.                                       CR.
Repairsand Fortifica-  Fort Cal- Fort Mon-         j                          Repairsand Fortifica-  Fort Cal- I Fort Mloncontingen-   tions.     houn.      roe.   contingen-   tions.     houn.                                           roe.
cies.                                   I                                     cies.
1824.
1831. Brought forward..$27,415  80 84,325 58 616,878 06848,501 90 Dec. 17 abstract of payments  on account of Fort
Calhoun, from
which they have
been deducted
on  settlement
of this date as
chargeable to
fortifications... $1, 358 62
1825.                 -----.......... $1,483 62
iJune 3 For sundry purchases and
expenditures made by him
in the 4th quarter, 1824, on
account of Fort
Monroe....... 33,836 04
His per diem ali owance  fromI
the 1st October
to 31st December, 1824          92 00
33,928 04
Deduct this sum,
credited    for
smith-work....      5 00                                 $    2  0
Ditto, on account
Fort Calhoun.. 12,359 37
His per diem allowance  from
the 1st October
to 31st December, 1824.....    92 00
12,451 37i
Deduct amount
stopped from S.
Cooper and carried to his credit
on separate account for fortifications, the advances to him
having    been
made  out of
that appropriation..........   233  30
_ —— __...|_.e  |...........  $12,218 07
For this sum, being amount
of stoppages made from S.
Cooper, in the 4th quarter,
1824, charged to him  in
this settlement, and which
was charged in the abstract
I. I — -.... o  -  _- I — l-l         I of payments on account of[
Catried forward.l 27,415 80 84,325 58 616,878 06 848,501 90!          Fort Calhoun, from whichl
C




~[29~]                                                 ~48
No. 1i2-Conltinued.
1DR.                               General  charles Gratiot, in accou'nt with the United States.                                          CR.
Repairs and| Fortifiea-  Fort Cal- Fort Mon- l                                    Repairs and Fortifica-  Fort Cal- Fort Moncontingen-   tions.      houn.       roe.   [                                     contingen-   tions.      houn.       roe.
cies.   cies,
1825.
1831. Brought forward. j$27,41.5 801 84, 325 58 616, 878 061848, 501 90 June  38 they have been deducted
as chargeable to this acI I aCcont..................   $233 30
Julv   IFor sundry purchases and
J!       expenditures made by him
at Fort Monroe in the 1st
quarter of 1825, including,
per diem  allowance from
1st January to 31st March,
1825........................................  $1,855 14$13,502 62
Oct. 4IFor requisition No. 572,
1 drawn on requisition No.t
3222, dated September 26,
1825, received from the office of Second Auditor, to
be brought to his credit on
this account..........5............                      2 50
NoV. 1 For amount of supplies furnished to and labor performed at Fort Calhoun to
Dec. 31, 1824, originally
ptvocurecd for and chargedl
to Fort Monroe, and subse-i
quently taken and appliedi
to Fort Calhoun, per state-I
ment, sanctioned  by the
Secretary of War............................. 13,906 95
5For requisition No. 585, on
account...............................................    13, 906    95
10!For sundry purchases and
expenditures made by him
at Fort Monroe in the 2d
quarter, 1825, including his
per diem  allowance, (91
days, at $2)................................... 24, 126 49 50, 927 73
Dec. 281For sundry purchases and
1  expenditures made by him
at Fort:Monroe in the 3d
quarter, 1825, including his
per diem  allowance, (92
days, at $2)..............................    46,287 21 33,502 60
31|For requisition No. 623, on
i account.........................   1,773 54 11,235 57,
182s6.
July  IFor sundry purchases and
expenditures made by him
in the 4th quarter of 18256
and 1st quarter of' 1826, ineluding his per diem  allowance firom  October I,|
1825, to March 31, 1826.......24, 189 92 33899 51
Oct. 15For sundry purchases and[
expenditures made by himl
in the 2d quarter of 1826,
i____ I____ I___   i    I _______including his per diem al-I    -— j ]               |                   ilowance from  April 1 toI
Carried f,)rmard. 1   27,415 80, 84,325 581616,878 061848,501 90        i to June 30, 1826.........        27,668 89! 37,558 48




49                                                                     [2]'No. J2-Continued.
DR.                              G~eneral Chlarles Gratiot, in account with the United States.                                          CrR.
Repairs &  Fortifica-    Fo| t      Fort                                         Repairs &  Fortifica-    Fort       Fort
contingen-   tions.   Calhoun.  Monroe.                                          contingen-   tions.    Calhoun.  Monroe.
cies.                                                                            cies.
1826.
%831. Bronlght forward.. $27, 415 80 84, 325 58 616, 878 06 848, 501 90  Dec.12 For requisition  No. 777,
drawn on requisition No.
4991, dated 29th  Nov.,
1826, for expenditures in 3d
quarter 1826, to be brought
to his credit by counter re- 
i quisitions on accournt.....   $339 40
1827I
Mar.16 For requisition   No. 806,.
drawn on requisition No.
225, dated 18th March,
1827, received from Second
Auditor's office, to be
passed to his credit on the
books of this office on accounat.............................   $143 09
May l-5For requisition No. 4960,
issued  11th  November,
1826, and charged to him 
on that day, the same hav- 
ing been  cancelled, thisr
entry is made to correct i
the debit raised  against
him.... $..........6. $2614 891
June 1For sundry purchases and
disbursements  made by
him at Fort Monroe, in the
d andl 4th quarters of 1826,
inclucing suspensions  in
formnier accounts now adrmitted, and his per diem
allowance, from  1st July,
to 30th September, 1826,
on      |               account|.         *. - |$40, 787 51 58,449 64
For sundry purchases and
i disbursements  made  by
I him in the 1st quarter of
] 1827, on account.............................  5,441 24 11,061 1.9
Sept. lFor sundry purchases and
expenditures made by him
in the 2d quarter of 1827,
i on account..............2,874 738...........  13,952 21 31,687 66
1828.
Ap. 28!For sundry purchases and
expenditures made by him
at Fort Monroe, and Fort
Calhoun, in the 3d and 4th'
quarters of 1827, and for
provisions supplied through
the Commissary General,
for laborers employed at
Fort Calhoun, from 6th Oc- 
tober, 1826, to 30th September, 1827.............    4,925 14.......... 26,755 30 36,464 69
__-_- _ Sept. 28 For sundry purchases andl
Parried forward..| 27,415 8Q.. 84,325 58616,878 06,848,501 -901        expenditures made by him




[2]                                                                  50
No. 12-Continued.
Dn.                             General C'harles Gratiot, in account with the United States'.                                     0n.
Repairs &  Fortifica-    Fort     Fort                                       Repairs&  Fortifica-    Fort      Fort
contingen-   tions.    Calhoun.  Monroe.                                     contingen-  tioh s.   Calhoun.  Monroe.
cies.                                                                        cies.
1828.
1831. Brought forward.. $27, 415 80 84, 325 58 616, 878 06 848, 50o  90 Sept. 28 at Fort Monroe and Fort
Calhoun, in the 1st and 2di
quarters of 1828, includingj
amount  heretofore  sus-I
pended, and now admitted! 
on account........     $926 57........   $40, 923 40!$43,686 94
1829.
Feb. 29 For sundry purchases and
expenditures made by him,
at Fort Monroe, in the 3dquarter of 1828, on ac 
count..                    1,34  64.......  24597  16 24,288 26
Aug. 18 For sundry purchases and
expenditures made by him
during the 4th quarter o
1828, and 1st and 2d quari  ters of 1829, on account..  2,37~ 10  52,269 24  75,740 86&
22 For amount of provisions
supplied through the Commissary General of Subsistence for the laborers employed at Fort IMonroe and
Fort Calhoun, from   1st
April, 1828, to 31st May,
1829, which amount was
deposited to the credit of
the Treasurer on account!
of subsistence, per state- 
mnent dated 21st August.
1829, on account..............'.........;...  4,353 10 10,851 66'
1831.  
Mar. 241For sundry disbursements
I  made by him in the 3di
quarter, 1829, includingf
his per diem  allowance, 
from 1st October, 1826, tol
30th Sept.,1829, 1095 days
at $2,including also amount
received during the 4th
quarter of 1825, and. 1st
and 2d quarters of 1826,i
on account of repairs and
contingencies, $11,631 30,
& fortifications, $8,086 61,
and expended for labor and
materials for Fort Monroe,
on account.............. 14,292 63  8,088 61 48,962 27 98,298 59
27,070 21 84,325 58610,539 00846,227 64
By balance due the U States    345 59..........  6,339 06  2,274 26
27,415 801 84,325 581616,878 06/848,501s 90                                 27,415 80 84,325 581616,878 061848,501 90
To bal. per contra|  $345 59....   "    6,339 06  2,274 26




51                                                                       [2]
No. 12 —Continued.
GENERAL ACCOUNT OF MONEYS ADVANCED.
DsR.                                General Charles Gratiot, in account with the United States.                                               CR.
Fortifica- Repairsand Fort Cal-  Fortress                                           Fortifica- Repairsand Fort Cal-   Fortress
tions.   contingen-   houn.    Monroe.                                               tions.   contingen-   houn.    Monroe.
cies.                                                                               cies.
1829.
Aug. 18 To balance on set-                                                  1829. For amount suspended in
tlem't, No. 8879,                                                         former settlement for the
on account...   $8,086 61 $11,522 421                                   reason then stated, now al22 To balance on set-!                                                        lowed, per voucher filed....................             $3 92       $3 00
tlemn't, No. 8903,8                                                      For  sundry  disbursements
on account.........................$42, 751 131$12, 604 12               made by him during the 3d:ept. 15 To requisition No.                                                         quarter of 1829, per ab3130, on acc'nt.........1...........  12, i00 00i 5,000 00               stracts and vouchers filed
23tTo requisition No.                                   I                     herewith, viz:
3150, on acc'nt........       3,115 80                                  F. FortMonroe. $37,200 591
To ditto, received                                                        His per diem alof old copper and'                      t                                 lowance  from l
iron.....$452 351                                                         Oct. 1, 1826, to
To ditto, for hire                                                          Sept. 30,1829of laborers em-                                                           1,095 days, at
ployed  on  sur-                                                          $2; halfof which
veys.....$5 40                                                           is chargeable to
To ditto ditto, for                                                         Fort Calhoun,
repairs & contin-                                                         below........   1,095 00
gencies, 2,793 04........!.......... 38, 295 L
-|! _   |*.*............................  3, 250 82       G. FortCalhoun. 47,863 35.. 
To am'nt received                                                         His per diem alfor hire of labor-                                                        lowance  from
ers employed oni                                                          Oct. 1, 1826, to
surveys, &c...................         0 20|                      Sept. 30,1829 —
To  this amount,                                                            1,095 days, at
being  for labor|                                                         $2; halfofwhich
supplied and ma-3                                                         is  chargeable,
terials purchased                                                         above, to Fort
in the 4th quarter          I                                             Monroe......    1,095 00
of 1825 and 1st.-........... 48,958 358
and 2d quarters                                                          H. Repairs and contingen-92
of 1826, out ofl                                                          cies........$3,006 92
the funds remit-                                    i                    For this amount received du-'ted to him for re-                                                        ring the 4th quarter, 1825,|
pairs and contin-I                                                        and 1st and 2d quarters of'!
gencies, and ap-i                                                         1826, on this account, and!
plied to Fortress;                                                        expended for labor and maMonroe, and ad-| terials for Fortress Monroe,
mit'd to his cred-l                                                       as per explanatory stateit on that acc'nt,                                                        ment, marked I, filed here-I
and now chargedt                                                          with............................. 11,631 30
to him, and ad-                                                          For this amount received du- 
mit'd to his cred-   ring the 4th quarter, 1825,
it -on account of                                                         and 1st and 2d quarters ofl
repairs and con-                                                          1826, on this account, andi
tingencies at the|          j                                             expended for labor and mapresentsettlem't,                                       I                 terials for Fortress MIonroe,
as per explana-                                                           as per explanatory state-,'tory statement I,|                                                       ment, marked K, herewithi
herewith.......!.........    11,1  0                fled....................$886 61




[ 2   }                                                               - 52
No. 12-Continued.
GENERAL ACCOUNT OF MONEYS ADVANCED.
Dn.                              veneral Charles Gratiot, in account with the United States.                                         Cn.
Fortifica- Repairsand[ Fort Cal-  Fortress                                     Fortifica- Repairs and Fort Cal-  Fortress
tions.   contingen-   houn.    Monroe.                                         tions.   contingen-   houn.    Monroe.
cies.!_                                                                      cies,
1829. To ditto ditto, out                                            1829. Balance due United States............. $6, 339 06 $2,274 26
of the appropri- 
ation for fortifi-I
cations, and ad- 
jmitted  to  his
credit in  present statement, as
per explanatory 
statem't K, herewith................................            $8,086 61
$8,086 61 $14,638 22 $55,301 33 40,5 72 85                                     $8,086 61 $14, 638 22 55,301 33 40, 572 85
iDeduct amount of voucher
4 from repairs and contingencies, the  same being
suspended in consequence
of the receipt not being
signed..................   $345 59
Amounts brought don....  8,086 61 14,292 63 55,301 33 40,572 85
Balance due the U. States,i
as found by the Second[
Tobal., per contra.........    345 59 $6,339 06 $2,274.26             Comptroller.......................     345 59  6,339 06  2,274 26
TREASURY DEPARTMENT, Third Auzditor's Ofice, 3iarcacb 3, 1831.
Stated by      R. BURGESS.
TREASuTR~ DEPARTMEN'T, Secotzd Comptroller's O fice, lIarch 24, 18381
Ex.            JOHN DAVIS, Clers,,




53                            [2]
Statement of differences on settlement of aeneral Charles Gratiot's
accounts, to the 30th September, 1829.
Due the United States, per official statement, on
account of Fortress Monroe    --------     $2,274 26
Ditto, of Fort Calhoun —- -  --------------   6,339 06
8,613 32
Ditto, per his general account —---------- ---   2,508 52
Difference —-        ------------   -   -   6,104 50
Accounted for as follows: Abstract E, 3d quarter 1825, vo. 29. F. S. Taylor, for hire of
quarters for Lieuts. Mordecai and Dutton;
disallowed by the Second Comptroller, being
chargeable to the Quartermaster's Depart-ment —---— $> i.....  $20 00
Abstract for 4th quarter, 1825. This sum recharged for quarters for Lieuts. Mordecai and
Dutton, referred to the Second Comptroller
for decision, by whom they were originally
disallowed —------ ---                                       20 00
Abstract F, 3d quarter 1825, vo. 31.'Lieut.
Col. Charles Gratiot, for per diem allowance
from 1st January to 30th September, 1825,
for Fort Calhoun; not admissible, having
~eceived the same allowance for'Fortress Monroe, during the same period —-----------------     --       546 00
Abstract H, 4th quarter 1825, vo. 28. Lt.
Col. Charles Gratiot, per diem allowance for
Fort Calhoun, from 1st October to 31st December, 1825; not allowed, for the reason
above stated —         -------------------                  184 00
Abstract B, 1st quarter 1826, vo. 15. Lt. Col.
Gratiot's charge per diem allowance for Fort
Calhoun, from 1st January to 31st March,
1826; not allowed for reasons above stated ----------       180 00
Abstract C, 2d quarter 1826, vo. 58. Lt. Col.
Gratiot's charge for per diem allowance for
Fort Calhoun, from the 1st April to 30th
June, 1826; not allowed, for the reason above
stated; one half of the per diem charged to
Fortress Monroe, was admitted to his credit
on this account -> ---- - ------ ----                -      182 00'Abstract E, 3d quarter 1826, vo. 65. Lt. Col.
Gratiot's charge'for per diem allowance for
Fort Calhoun, frsom 1st July to 30th September, 1826; disallowed, as in No. 58 ------------            184 00
Abstract L, 4th quarter 1828, vo. 22. Overpaid IH. Goldsborough for 80 feet of stone, at
$2 per perclrh' ---        -~ —--.....- -.-  1 60




[2]                              54
Vo. 18. Overpaid Dr. Robert- Archer, for medical attendance, from  1st April to 31st December, 1828. Dr. Archer being an army
surgeon, was allowed by the Secretary of War
$20 per month, by letter 21st September,
1825; the charge now made is at $40 per
month, which is not allowed, for want of authority — -                                                 $90 —- 
Abstract K, 4th quarter 1828, vo. 29.  Same
as above, ditto —-------------------------                    90 00
Abstract A, 1st quarter, 1829, vo. 28. Overcharged on record roll, No. 4, for Charles
Bullock; not paid, and not embraced in the
list of non-payments ------ ------------------------
Abstract C, 2d quarter 1829, vo. 44. Overpaid Underhill Dann, for ten perches of stone
at $2. 50 — ----- ------  --------                           25 00
This sum paid Dr. Robert Archer, on vo. No.
4, of abstract for 2d quarter of 1828, for
medical services, from 6th November, 1827,
to 31st March, 1828, at $40 per month; disallowed for want of the authority for increasing the allowance to that sum —------------------             96 66;
Abstract F, 3d quarter 1829, vo. 52, No. 7,
for August, being amount due E. Richardson,
not paid, and not deducted on roll of nonpayments-  -------------------------------                       88
Abstract F, for Fortress Monroe, 3d quarter
1829, vo. 53. Gen. C. Gratiot, for per diem
allowance, from 13th November, 1821, to 30th
September, 1829, 2,787 days, at $2 per day- $5,758 00
Credit by this amount received --- - -    3,016 00
2,742 00
Of which his per diem from 1st October, 1826,
to 30th September, 1829, 1,095 days, at $1
per day, is admitted on this account, he receiving a credit in his account for Fort Calhoun, for the balance.      ---.        1,095 00
Disallowed, (see remarks annexed) —--                        1,647 0
Abstract G, Fort Calhoun, 3d quarter 1829, vo.
51.  Gen. C. Gratiot, for per diem allowance
from 13th November, 1821, to 30th September, 1829 —----------------------------   5,758 00
Credit by this amount received —------------   1,826 00
3,932 00
Of which per diem ~fom 1st October, 1826,. to
30th September, 1829,. 1,.095 days, at $1 per,
day>, is admitted ok this account; he receiving.




55                           [2]
credit on account Fortress Monroe, for the
balance —----------------------------- $1,095 00
Disallowed, see remarks annexed — -                       $2,837 00
Amount of differences- - - - - - - - - - - - - - - - - - - - - - - -  - - -   -    6,104 80
Balance due United States, per Second Comptroller's statement —------------------   8,958 91
Balance due United States, per Third Auditor's
reports —--------------------------   8,613 32
Difference —----- ---- ----------              345 59
Arising on the suspension of vo. 4, of abstract
for repairs and contingencies, by the Second
Comptroller, the receipt not being signed —--    345 59
General Gratiot's per diem allowance for disbursing, at two dollars per
day, being less than two and a half per cent. commission, has been regularly allowed, agreeably to regulations, to 30th September, 1826. In the
present settlement he is allowed in continuation from 1st October, 1826,
to 30th September, 1829, for a part of the time General Gratiot was Chief
Engineer, stationed at Washington, and received the emoluments attached
thereto; but inasmuch as the moneys were advanced to him, and the expenditures were made for him by Lieutenant Talcott, and the amounts all
rendered in the general's name and have been so settled, the per diem
allowance is passed to his credit.
In regard to the charge of two dollars per clay on each fortification, say
that of Fortress Monroe and Fort Calhoun now made, extending back to
13th November, 1821, for the latter it is not deemed to be admissible. By
the regulations of March, 1821, article 67, No. 14, it is provided, that
where there is no agent of fortifications, the superintending officer shall
perform the duties of agent; and while performing such duties, the rules
and regulations for the government of the agents shall be applied to him.
And as the compensation for the performance of that extra duty, he will be
allowed for moneys expended by him in the construction of fortifications
at the rafe. of two dollars per day during the continuance of such disbursements, provided the whole amount of emolument shall not exceed two and
a half per cent. on the sum expended.
By the regulation of March, 1825, article 67, paragraph 893, it is
stated, "The engineer superintending the construction of a fortification,
will disburse t1e moneys applied to the same, and as compensation for the
performance of that extra duty, will be allowed at the rate of two dollars
per diem during the continuance of such disbursements, provided the whole.
amount of emolument shall not exceed two and a half per cent. on the sum
disbursed."  Until the 30th June, 1825, Colonel Gratiot continued to
charge as disbursing officer, only at the rate of two dollars per day; in the
3d quarter of that year he made a charge separate for Fort Calhoun, extending back to the 1st January, 1825, which was disallowed, on the ground
that he was not entitled toga' double allowane, the regulations, in the
opinion of the accounting offichss, not warraating it, and no case of the kind
having ever been allowed.,




[2]                             56
No. 10,808.                              TREASURY DEPARTMENT,
Third Auditor's Office, March 4, 1831.
I certify that I have examined and adjusted the accounts of General
Charles Gratiot, and find that he is chargeable with the following sums, viz:
To balance on settlement No. 8,879, dated 18th August,
1829, on account of fortifications-                      $8,056 61
Repairs and contingencies --------------------------       11,522 42
To balance on settlement No. 8,903, dated August 22, 1829,
on account Fortress Monroe —-----  -------------    12,604 12
Fort Calhoun —------------------------    42,751 183
To requisition No. 3,130, dated 15th September, 1829, on
account of Fortress Monroe —----------   ----------       5,000 00
Fort Calhoun —--------------------------    12,500 00
To ditto No. 3,150, dated 23d September, 1829, on account
of repairs and contingencies-               - - - - - - -   3,115 8)
To amount received for sale of old copper and iron, and for
hire of laborers, &c., Fortress Monroe —--------------    3,250 82
Fort Calhoun -------------------         50 20
To this amount, for labor supplied and materials purchased
in the 4th quarter, 1826, out of the funds remitted to him
for repairs and contingencies and applied to Fortress Monroe, and admitted to his credit on account of repairs and
contingencies in the present statement, Fortress Monroe-   11,631 3()
To ditto out of the funds remitted to him  on account of
fortifications, and admitted to his credit in present statement, ditto -----------------— 8,086 61
118,599 01
And that he is entitled to credit on the same
accounts as follows, viz:
By amount suspended in former settlement for
reasons then stated, now allowed on account
Fortress Monroe -                   - -        $3 00
Fort Calhoun —----------      -- ------         3 92
By- sundry disbursements made by him in 3d
quarter, 1829, including his per diem allowance, from 1st October, 1826, to 30th September, 1829, on account of Fortress Monroe- 38,295 59
Fort Calhoun —-- 48,958 35
Repairs and contingencies- - - - - - -- --     3,006 92
ly this sum received during the 4th quarter,
1825, and 1st and 2d quarters, 1826, on this
account, and expended for labor and materials
at Fortress Monroe, as per explanatory statement filed on account; repairs and contingencies —----------     ------------       11,631 30
By  ditto   ditto   ditto  fortifications —----  8,086 61  109,985 69
Leaving a balance of —- -.. —--  8,613 32




57                            [2]
Due to the United States on account of Fortress
Monroe -----------------                - $2,274 26
Fort Calhoun —-------------  - --           6,339 06.-.    $8,613 32
As appears from the statement and vouchers herewith transmitted for
the decision of the Second Comptroller of the Treasury thereon.
PETER HAGNER, Auditor.
To J. B. THORNTON, Esq.,
Second Comptroller of the Treasury.
Third Auditor's balance brought down ---------------      $8,613 32
Add for suspension of voucher No. 4, repairs and contingencies, hospital kitchen, the receipt not being signed -.. —  345 59
Balance due the United States as found in office of Second
Comptroller —------------------------------------        8,958 91
SECOND COMPTROLLER'S OFFICE.
I admit and certify the above balance, this 24th day of March, 1831.
J. B. THORNTON,
Second Comptroller.








GENERAL ACCOUNT OF MONEYS ADVXNCED.
ItR.                            General Charles G(ratiot, in account with the United States.                                     OR.
F't Colum-  Fortat   Fort at  iF't Colum-  Fort at   Fort at
bus & Cas- Throg's    Grande                                            bus & Cas- Throg's   Grande
tieWilliams  Neck.   Terre, La.                                          tleWilliams  Neck.  | Terte, La
1835.                                                                    1836.
Nov. 17  To requisition No. 4476, on ac-                                 Oct. 6. By Major John L. Smith, for
count.........................................$20,000 00              amount turned over to him,
Dec. 21  To requisition No. 4575, on ac-                                            15th April, and 30th June,
count.................................          30, 000 00            1836, on account............ $3,000 00 $47, 956 62
1836.                                                                            By requisition No. 2570, on acJan. 26  To requisition No. 4728, on ac-                                            count....;.................................  $15, 000 00
count..........0........... $3,000 00 $47,956 62                      By balance dii the United States........... 85,000 00
$3,000 0o  47,956 62  50,00 00                                           3,000 00 47,956 62 50,000 00
To balance as per contra.
He is also charged with the Iollowing balances on settlerient
1080, dated March  -.
24, 1831.
Fort Monroe........ $2,274 26
Fort Calhoun....... 6,339 06
Repairs,& contingencies 345 59
TREASURY DEPARTMENT, Third Auditor's Office, January 11, 1837.
Stated by.. BURGESS.
TREASURY DEPARTMENT, Second Comptroller's O0ice,' Janziary, 16, 1837.
Exaniined by           JOHN DAVIS, Cierk4








61                           L2]
No. 1,233.                              TREASURY DEPARTMENT,
Third Auditor's Office, January 11, 1837.
I certify that I have examined and adjusted the account of General
Charles Gratiot, and find that he is chargeable with the following sums, viz:
To requisition No. 4,476, dated 17th November, 1835, on
account fort at Grande-Terre —- ---                  $20,000 00
To requisition No. 4,575, dated 21st December, 1835, on
account dittc ------   -       --------------         30,000 00
To requisition No. 4,728, dated 26th January, 1836, on account Fort Columbus and Castle Williams — ----------    3,000 00
Fort at Throg's Neck- --.. ---    47,956 62
100,956 62
And that he is entitled to credit as follows, viz:
By Major John L. Smith, for amount turned
over to him, 15th April and 30th Junoe, 1846,
on account Fort Columbus and Castle William —-------------------,000 00
Fort at Throg's Neck --- ------      - -   47,956 62
By requisition No. 2,570, drawn on him on account fort at Grande-Terre —-------—. —---   15,000 00
65i,956 62
Leaving a balance of- ------------— 35000 00
due to the United States on account of fort at
Grande-Terre.
He is also charged with the following balances on settlement No. 10,808,
dated 24th March, 1831, viz:
Fort Monroe-           - - - -           $2,274 26
Fort Calhoun —-------------------------  6,339 06
Repairs and contingencies       ------      345 59
As appears from the statement and vouchers herewith transmitted, for the
decision of the Second Comptroller of the Treasury thereon.
PETER HAGNER, Auditor.
To ALBION K. PARRIS, Esq.,
Second Comptrotller of the Treasury.
SECOND COMPTROLLER'S OFFICE.
I admit and certify the above balance, this sixteenth day of January, 1837.
ALBION K. PARRIS,
Second Comptroller.








63fi~                                                 r[2]
No. 12 —Continlue d,
1)u.                              GeLncrai Charles Gratiot, in account with the United Stutes,                                         Ca.
Fort AMon- Fort Cal-                                                      Fort Aon, F7rt Cal-    
roe      houn. hon  _,    v   roe.                                            hoin.    
-181-41 -_ —_I — _ 1    -_  ___ -_ _:Mar.24( To balance                                                               By requision settle-                                                               tion  No.
|ment No.                                                                 3 448, (la- 
10808..  $2,274 26 $6, 3309 06; $345 59                                 ted   17th:~enrt No.                                t                                                        OEINo.  710,  
11223... L -Oo, 000 00                                                 I cated 1d3th
Balanci due                                                              I Dec,1838 
Gen. Gra-,                8        6      &  leceivtiot.....$906.........G7..   A              1edfrom 2d
Auditor's
office.. $2,274 26 $3,339 OC:$0045 59 $1,805 08
By general
account of,  c.."                                                                 d~ |thvance Gfor
quaters & 1
1836,  to
on1~~~;settl       l           |                   | ~~~~~~filed heree-|i
23.................                     I0  dIwith.e                   d.....                 90 08 614 67
Bala I:   I                                                                 E,,                        3Balancedue
} [ | g] I.... I |the U.S........ 33,194 92
ic-,.1           I.                                   59
2,274 26  6,339 061 845 59 3t5,000 00 905 80 614 671                    2,274 26  6,339 06 345 59 35,000 00 905 80 614 67
To balance                                                          |    By balances|
dule  Uni-                                                               due Gen.
ted States..........!......33 194 92                                  Gratiot...............      905 80 614 67
I; I  {  I    l      I    I.4 acco uf                                   I    I
tcd~~tates..~.......33 194 92i           G       quartrato......... 9 0                      06 6
i                                 ~~i~el,  from 
e                                                             ist April.~~~~~~~~








65                             [2]
No. 4,697.                               TREASURY DEPARTMENT,
Third Auditor's Office, December 15, 1838.
I certify that I have examined and adjusted the account of General
Charles Gratiot, United States Engineer,.;and find that he is chargeable as
follows, viz:!831. March 24. To balances on settlement No. 10,808,
on account of Fort Monroe —----------    $2,274 26
Fort Calhoun --------  --------             6,339 06
Repairs and contingencies of fortifications-  345 59
8,958 91
1837. January 16. To balance on settlement No. 1,223, on
account of fort at Grande-Terre- - - - - -   35,000 00;
Amounting to —- -- - - ----   43,958 91
And that he is entitled to credit as follows:
By requisition No. 3,448, dated 17th December,
1838, drawn on requisition No. 710, dated
13th December, 1838, and received from
the Second Auditor's office, on account of
Fort Monroe —-                  $. —-. —-----   $2,274 26
Fort Calhoun —---------          6,339 06
Repairs and contingencies of fortifications —. —--- ----  --- -.   345 59
Fort at Grande-Terre —--------  1,805 08
—.  $10,763 99,
By general account of moneys advanced for his allowance for quarters and fuel, from the 1st April,
1836, to 6th December, 1838:
Barracks, quarters, &c —------    905 80
Quartermaster's department-. —    614 67
1,520 47    12;284 4G
Leaving a balance due the United States- - - ----     31,674 45
as follows:
Balance due the United States, on account of
fort at Grande-Terre -..-                              $33,194 92
Balances due General Gratiot, on account barracks, quarters, &c- - -------- --------  $905 80
Balances due General Gratiot, on account Quartermaster's department -----— 614 67
1,520 47
Balance due the United States —-------       31,674 45
For the balances due General Gratiot (say $905 80 and $614 67) a
requisition will issue in his favor, to be carried to his credit by counter
requisition, on account of fort at Grande-Terre, as appears from the state




[2]                            66
ment and vouchers herewith transmitted, for the decision of the Second
Comptroller of the Treasury thereon.
PETER HAGNER, Auditor.
To ALBION IK. PAImS, Esq.,
Second Comptroller of the Treasury.
SECOND COMPTROLLER'S OFFICE.
I admit and certify the above balance, this seventh day of December, 1838.
ALBION K. PARRIS.
Second -Comptroller.




67                                                                      [2
No. 12-Continued.
Treasury transcript marked B, and referred to in the foregoing bill of exceptions, is in the words and figulres following, to wit:
GENERAL ACCOUNT OF MONEYS ADVANCED.
DR.                                General Charles Gratiot, in actcount with the United Stattes.                                           CR.
o.1"     t      C 
-%       o      Fotrt
o ~ d,                              ~ ~    ~ ~ C; %alhoun.  Calhoun. i
188.                                                          188.
Dec. 17 To balance                                                            Dec. 17'By  balance'
on settle-                                                                   on   settle- i
ment No.                                                                     ment,  No.
4697..............................$.....          $,194 92              4697.......1$64 G7  905 0
To balance                                                         |         For sundrydue hi... $634 67 $905 80 $612 75 $8345 59 $1,404 00;                         disbnrsemnents made
by him  at
Fort Monroe in 1825,
1826,  and
1827, including vonchers   heretof;ore  suspended and
now  allowed, and also
his acct's for
transportation of baggage for various jour- 
neys  performed  by
unim, as chief
of the corps
of engineers 
in 1836 and I
1837,per abstracts and
vouchers fled herewith  20 00....   612 73 $345 59$1404 00
By balance
dIe U. Se..........I.............. $3,194 92
$634 671 905 80 612 751 345 59 1,404 00 33,194 92                              634 67 905 80 612 73 345 591 1,404 01 33,194 92
To balance                                                                   By  balance
per contra, 1.........         *1.......33, 194 92                     due him....  634 67 905 80 612 73 345 59 1,404 00
TREASURY DEPARTMENT, Third Auditor's Office, Jcanuary 30, 1839.
Stated by       R. BURGESS.








69                            [2]
Statement of differences on settlement of General CMarles Gratiot's. accounts. Reported January 30, 1839.
Due United States, on official statement on account of fort at Grande-Terre- - - - -  $33,194 92
Diae him on account of quartermaster's department —----------------------------    $634 67
Barracks and quarters, &c —-- -...-    905 80
Transportation of officers' baggage —------   612 73
Contingencies of fortifications —-----------    345 59
Fort Calhoun —---------- ----—... ---  1,404 00
3,902 79
29,292 13
Balance claimed per his account-current, dated
11th January, 1839 ----------                            14,860 61
Difference -------—. —-------—.         -    44,152 64
Arising as follows: Thefirst item in General Gratiot's account is for disbursing' $603,727 42 on account of Fort
Calhoun, from the 13th November, 1821, to the 30th September, 1829, 2,879 days, $2 per day, being less than two
and a half per cent. on the amount disbursed, as allowed
by the general regulations of the army, to an officer disbursing at a fortification, vide article 67, paragraph 893-    5,758 00
The second item is for ditto, $848,718 80 on account of Fort
Manroe, during the same period, 2,879 days at two dollars
per day —.-. ------------ -                    ---       51758 00
11,516 00
And in his account he credits, "Amount credited my account
by the Third Auditor, as allowance for disbursements" —   5,758 00
5,758 00
in the various statements of General Gratiot's accounts he
has been allowed and credited. with two dollars per day,
for disbursing for the whole of the period above charged
for, at'Old Point Comfort, agreeably to regulations. The
above-mentioned charges havihg heretofore been made.and decided upon by the accounting officers of the treasury, reference is made to those decisions, and the abovementioned item of $5,758 is aocordingly disallowed- -.. 5,758 00
The third item is for ditto, $33,447 26 on account of contingencies of fortifications, at two and a half per cent.,
-as authorized by regulations above referred to, not admissible ----------------      ----------------             836 18
These disbursements were all made at Old Point Comfort,
and were for objects connected with and formed part of
the fortifications at that place, and during the entire period within which the disbursements were made. tie has
already charged and been allowed the full amount authorized by' the regulations for disbursing. See former decisions of the accounting oficers of the treasury.




[2]                             70
General Gratibt charges this amount disallowed
by accounting officers of'the treasury, for the
quarters furnished to Lieutenants Dutton and
Miiordecai ----------------    $40 00
Of which this sum, being the actual amount paid
for the above mentioned- quarters, and originally suspended on the settlement of his accounts, as chargeable to. the quartermaster's
department, is now admitted —----              20 00       $20 00
General Gratiot subsequently re-charged the above mentioned sum of twenty dollars, but at the same time omitted
to credit the disallowance, thus making a double charge
of the amount.
The next item is for ditto, ditto, ditto, payment to Dr. Robert
Archer, for medical services ------------------------      276 00f
This charge has before been made and disallowed by the accounting officers of the treasury, for the reasons before
stated, to which reference is now made.
This sum charged for his extra services in conducting the
affairs connected with the civil works of internal improvement carried on by the United States, and referred to the
engineer department for execution, and which did not
constitute any part of his duties as a military officer, from
the 1st day of August, 1828, to the 6th day of December,
1838, inclusive, 10-1-2- years, at $3,600 per annum,. that
being the pay granted to John S. Sullivan, David Shriver,
James Geddes, and Nathan S. Roberts, esqs., civil engineers, employed under the act of 30th April, 1824, entitled
"An act to procure the necessary surveys, plans and estimates, upon the subject of roads and canals" —--  37,262 46,
Not allowed. This is a new claim, now for the first time
presented by General Gratiot.. Lieutenant Colonel Gratiot, of the corps of engineers,. was made a full colonel on
the 24th of May, 1,828, and on the 30th of July, 1828,;
assumed his station; as chief of the corps of engineers, at
tie seat of government, as required by the general regulations of the army, of 1825.  Act 67, par. 887, directs
" that the chief of the corps of engineers shall be stationed
at the seat of Government, and shall direct and'regulate
the duties of the corps of engineers, and those also of such
of the topographical engineers as may be attached to the
engineer department, and shall also be the inspector of the
Military Academy, and be charged with its' correspondence."
Par. 888.  " The duties of the engineer department comprise reconnoitring and surveying for military purposes,
and for internal improvements, together with the collection and preservation of topographical and geographical
memoirs and drawings referring to those objects," &c.
"Also the superintendence of the execution of the acts of
Congress in relation to internal improvements, by roads
and cinals, the navigation of rivers,, and the repairs and




rI~ [s~2]:improvements connected with the harbors of the United
States, or to the-eontrance into the same, which may be
authorized by acts of Congress, with the execution of
which the War Department may be charged."
By these regulations it is made the express duty of the chief
of the corps of engineers to superintend the execution of
the acts of Congress in relation to all works of internal
improvement, andit does not appear in these or any subsequent regulations, or in any of the acts of Congress authorizing works of internmal improvement, that any extra
allowance was ever made or contemplated to be made to
the chief of the corps of engineers, for extra services, nor
canmthe services here charged for be deemed extra, when,
by the regulations in force before and at the time of his
assuming the duties of his office, were in part the very
duties he was, by his appointment, directed to perform,;
and further, on the 26th of March, 1829, Colonel Gratiot
received a brevet of brigadier general, to take effect from
the day that he received his promotion as colonel, on the
24th May, 1828, and with it all the pay and emoluments of
a brigadier general, besides double rations allowed to him
in consequence of his promotion and residence at the seat
of Government. The brevet rank was unquestionably conferred upon General Gratiot in consequence of his new
command as chief of the corps of engineers, to whom was
confided the superintendence of all works of internal improvement, as appears by the regulation before mentioned;
and in that way was he compensated for all the duties lihe
was required to perform. On the 30th of June, 1831, the
Secreta.y of War established a separate bureau for the
topographical department, and directed a transfer from
the office of the chief engineer, of the correspondence connected with the topographical department, to that bureau;
thus relieving the chief of the engineer department from
the direction and superintendence of all that portion of
duty whieh, by the regulations of 1825, above recited, he
was charged with.
The cases cited by General Gratiot, of pay granted to John
S. Sullivan, David Shriver, James Geddes, and Nathan S.
Roberts, civil engineers, are by no means analogous to his
claim; they were civil engineers, appointed by the Secretary of War, in virtue of an act of Congress, and charged
with the performance of certain specific duties, and for
which they were paid out of an appropriation for that purpose, a compensation fixed by the Secretary of War: they
held no military rank, nor received compensation from the
Government, in any other capacity or for any other service.  Not so with General Gratiot; he was an officer of
the army, exercising a position as chief of the corps of engineers, and-in virtue of which he had received the brevet
rank of brigadier general, and the pay and emoluments of




[2]                             72
his brevet, besides double rations. It is fair to presume
that the brevet was conferred, in part, in consequence of
the increased number of persons and the importance of
the works under his charge, produced in a great measure
by the appointment of civil engineers and their attendants;
besides, the act of the 3d March, 1825, expressly prohibits
any extra allowance whatsoever to any Qfficer of the army.
See act entitled "An act making additional appropriations for the Delaware breakwater, and for certain harbors, and removing obstructions in and at the mouths of
certain rivers, for the year 1835."
Amount of difference  ----              -  $44,1521 64
No. 5,186.                            TREASURY DEPARTMENT,
Third Auditor's Office, January 30, 1839.
I certify that I have examined and adjusted the account of General
Charles Gratiot, and find that he is chargeable, on account of fort at
Grande-Terre, La., as follows:
To balance on settlement No. 4,697, dated December 17,
1838 -—. —----------- —. —-                          $33,194 92
And that he is entitled to credit as follows, viz:
By balance on settlement No. 4,697, dated December 17; 1838, on account quartermaster's
department —--   $614 67
Barracks, quarters, &c. — ---------------       905 80
Sundry disbursements madee'by him at Fort
Monroe, in 1825, 1826, and 1827, including
vouchers heretofore suspended and now allowed, and also his account for transportation
of baggage on various journeys performed by
him, as chief of the corps of engineers, in 1836
and 1`837, as follows, viz:
Quartermaster's department —                     20 00
Transportation of officers' baggage —-    -    612 75
Contiigencies of fortifications-        -       345 59
Fort Calhoun- -                               1,404 00
3,902 81
Leaving a balance of ----------------- ----         29,292 11
due the United States as follows:
On account of fort at Grande-Terre, La. — -    ---  -   33,194 92
Balances due him on account quartermaster's
department —----                            $634 67
Barracks, quarters, &c.   -  -...... 905 80
Transportation of officers' baggage —---------    612 73
Contingencies of fortifications- - -    345 59
Fort Calhoun -------—...  1.404 00
3,902 79
$29,292 13




73                             [2]
As appears from the statement and vouchers herewith transmitted for
the decision of the Second Comptroller of the Treasury thereon.
PETER HAGNER, Auditor.
To ALBION K. PARRIS, ESC.,
Second Comptroller of they Treasury.
SECOND COMPTROLLER'S OFFICE.
JR admit and certfy the above balance, this 15th day of February, 1839.
ALBION: K. PARRIS,
Second Comptroller.
Facts admn'tted by the parties?
The United States, by the district attorney, admitted that the diefendant should receive credit for the sum of $5,758, being the fifth item of his
account to be deducted from the balance found due from him to the United
States on the treasury transcripts given in evidence; and also that the
sum, of $276, being one-half of the eleventh item in his account, should, in
like, manner, be credited to him.a~gainst the balance on said transcripts.
The defendant withdrew his claim for the fourth, ninth, tenth, twelfth,
and thirteenth, and one-half of the eleventh items in, his account, the same
having been allowed.him in former settlements.
No. 13..Jctaor Lewvis's deposition.
Interrogatories. propounded by the defendant to William B. Lewis:
1st. What office or station do you fill, and how long have you filled th,
same?
ad. Examine the files of your office, and furnish therefrom a copy of
Charles -Gratiot's pay account for March, 1829, it being the first of the duplicate account of said Gratiot,,presented by Paymaster T. P. Andrews,
and passed to his. credit on the settlement of his account which included
that item of charge.  A copy of thee voucher then submitted by said Andrews, and reported on, is the one now called for, and not a copy of the
duplicate retained by Paymaster Andrews and kept in his private files.
And state further, whether the uniform practice in the Second Auditor's
office is not, on the presentation of an account for retrospective pay, to pass
the same only on the authority of the Secretary of, War or Second Comptroller.  And state what have been the exceptions, if any, to the rule and
practice, since you have held the office of Second Auditor.
1st. To the first interrogatory, the deponent, William B. Lewis, replies:
That he is now Second Auditor of the Treasury Department, which office
he has held since-the 22d of March, 1829.
* Book D, new Record.-Supreme Court of the United States. No. 60. Charles Gratiot, plaintiff in error, vs. the United States. In error to the Circuit Court of. the United.
States for the district of Missouri,




L2]                             74
3d. In answer to the third interrogatory the deponent declares.: That,
after repeated searches in the files of the office, he has been unable to find
the pay account of Charles Gratiot for March, 1829, in the place where it
should be filed. This, in all probability, has arisen from its having been
heretofore referred to, and when returned to the files was misplaced in some
other settlement than that to whieh it belonged. The account is believed
to be still in the office: but to make a thorough search for it, without any
guiding clue, would require much labor and a long time. The deponent
further states, that the usage of the Second Auditor's office, on tihe presentation of an account for retrospective pay or allowances, not expressly
authorized by law or regulations, is, to require the special sanction of the
Secretary of War or Second Comptroller. The only exception to this
usage the deponent is at present aware of, is when an officer claims retrospectively his brevet pay and emoluments for the command of troops, and
supports his claim by satisfactory proof from the rolls of the army, that his
command was actually " according to his brevet rank," as required by the
act of 16th April, 1818; the claim is allowed without any other sanction.
Additional interrogatories propounded by defendant to W. B. Lewis,
Second Auditor of the Treastury.
Additional interrogatories by defendant:
1st. You state, in your answer to defendant's third interrogatory, " that
after repeated searches in the files of the office, he [you] has been unable
to find the pay account of Charles Gratiot for -MAarch, 1829, in the place
where it should be filed." Please state the period when the search for the
said account was first made, and it was discovered not to be " in the place
where it should be filed."  State also whether the paper marked'P," appended to the Third Auditor's report of the 5th of April, 1841, on Charles
Gratiot's account of the 23d March, 1841, to which is annexed your certificate in the following words, namely:'" I certify that the above is a true
copy taken from the account of General Gratiot as passed in this office.W. B. Lewis, Second Auditor, April 5th, 1841," is a true copy in every particular of the pay account which "passed" your office, and should now be
there on file.:1st. In answer to the first interrogatory, the deponent, W. B. Lewis,
states that he has no knowledge of any unsuccessful search for the original
pay account of Charles Gratiot, for March, 1829, prior to the time when
the copy marked " P," referred to in the first interrogatory, was obtained
from this office. And the deponent further states that the words " as passed
in this office," contained in his certificate annexed to said copy, marked
"P," and " appended to the Third Auditor's report of 5th April, 1841,"
had reference to the amount of that account, "as passed in this office,"
to the credit of the paymaster, and not to the details or remarks on the face
of it as being " a true copy" of the original account, inasmuch as said
original not being found on the file where it belongs, the copy nmaikea
" P" was made from the pay account retained by the paymaster.




Defe ndan t's Inter'dogatories.
Interrogatories propounded to the Honorable J. TI. Eaton, by the defendant:
1. Whhat offices or stations did you fill during the month of March, 1829,
and how long did you fill the same?
Answer. I was a senator in Congresq until the 13th of March, (I think
it was,) when I was appointed Secretary of War, where I remained until
the summer of 1831.
2. Look at the two papers hereto appended, and state whether you have
seen the originals of which they are copies. Please state further the when,
as also the action you gave to the pay account, on their being submitted to
you for consideration.
Answer. I reeollect that, shortly after entering the War Department,
General C. Gratiot, then at the head of the Engineer Corps, submitted a
claim for pay as brevet brigadier general, submitting for my information,
at the same time, an order mnade by President Monroe in the case of General Macomb, who had occupied the same place held by General Gratiot,
and which awarded to him the pay of brevet brigadier.  Acting upon that
rule, I allowed the claim of General Gratiot; and I am impressed with the
belief, nay, feel confident, that I endorsed on the account " allowed," and
signed my name; indeed, I must have signed it, or the auditor would not
have passed it. Whenever a claim was laid before me, if "allowed," I
so wrote; or if refused, " disallowed" was written, and my reasons given
for doing so. The order annexed is the one I have made reference to in
my statement.
JNO. H. EATON,
Late )Secretary of War.
Cop y.
The nature and extent of General Macomb's command, taking into view
the military academy at West Point, and the topographical engineers which
are attached to his command, as chief of the corps of engineers, his brevet
pay appears to be clearly within the meaning of the laws applicable to the
case. The allowance of the pay of a brigadier to the assistant engineer,
General Bernard, is an additional reason in favor of the allowance.
JAMES MONROE.
JUNE 12, 1822.
The brevet pay and emoluments of brigadier will commence from the
time that he was arranged to his present command.          J. M.
The above order is the one I have made reference to
JNO. H. EATON.
DISTRICT OF COLUMBIA, Washington county, to wit:
Sworn and subscribed before me, this seventeenth day of March, eighteen
hundred and forty-two.
N. CALLAN, Jr., J. P. [SEalL.]
5




[2]                                76
No. 14.
General Scott's opinion on the power of the President to remove an officee'
of the army, in the absence of conviction before a general conurt-mrartial,
or of a special law to that effect..,(See extracts from  Story's Commentaries, hereto annexcl.)
Brief on the power to dismiss without trial, and sentence to that eficet, a
military stornkeeper or other commissioned officer of the army.
1. Letter of Mr. Miller, of Springfield, M{assachusetts, April 18, 1845, claiming for the
President the right to dismiss-the storekeeper there;
2. Letter dismissing Mr. Charles Little, storekeeper, August 28, 18385; and
3. Opinion of Mr. Attorney General Butler, February 25, 1837, on which Mr. Little was
restored to office.
These papers have been referred to me by the Secretary of War.  They
present a grave question-one that has been but little discussed, and only,
as far as I know, between President Adams and myself, in 1828.  On that
occasion the President practically admitted his want of power to dismiss,
without a judicial sentence to that effect.
I am aware that many Presidents have exercised the power in, qestion;
b at a strong negative is found in the fact that every officer so dismissed
from the army has, on demand to that efect, been restored and allowed
the benefit of a trial by his peers.  The dismissed officers who neglected to
make such dem!njd, and who, therefore, were never restored, probably
looked upon their arbitrary dismission as an act of mercy to themselves,
respectively, as covering up the details of guilt and shame which, otherwise, would have gone on judicial record and been made perpetual.
I do not mean to discuss the question of "removals," or the ponwer to,dismiss from  the public service in general.  That has been elaborately
argued and reviewed at different periods, and perhaps yet remains an open
question.  I shall confine this brief to the tenure of the commissioned o~ffcers of the army, which rests on special grounds.
An army, in a republic, it,will be admitted, is a delicate, nay, a most
dangerous machine, unless held in the strictest discipline, i. e. in the strictest
obedience to the constitution and the laws.  It is equally essential to the
good of a r.epublic, that its army should also.not be a slavish machine;
that al. arbitrary and capricious action over it should he excluded; that it
be at all times under the government of fixed and constitutional authority.
Misera est servitus ubi jus est aut vaagum ant in cognitum.
"The Government (with us, the legislature) ought precisely to determine the functions, duties and rights of all military men, soldiers, officers,
chiefs of corps, generals,' "-Vattel.
" The Congress shall have power to make rules for the government and
regulation of the land and naval forces."
This power was taken up, and, for the time being, in respect to the army,
exhausted, by the act (commonly called the rules and articles of war*) of
April 10, 1806.-Cross's M. Laws, pp. 107, 123.
* Established by the old Congress, June 30, 1775; November 7, 1775; September 20,
1776, &c., &c.; which were recognised under the constitution by the act of September 29,
1789.-Cross, 41.




[77                             2]
it is of the very essence of rules for the government of the p~-lic forces,
thAt they should define and prohibit offences, prescribe penalties, and, in
addlition, designate the- tribunal which is to ascertain such offences and apply the prescribed penalties.
Now all this is clearly done in the act of 1806.  Congress has therein
ollrefully enumerated and defined every possible act which it chose to consider an offence in the military, State, or land forces; and to exclude all
arbitrary action, has placed in juxtaposition with each and every offence
so er'eated, in the same article, the tribunal (a court-martial, and not the
Presi lent) to judgee the alleged offence and to apply the prescribed punishment.  How caln that connexion, in a constitutional act, and therefore
part of the "supreme law of the land," be legally dislocated, (except by
another such act,) and the President seize upon a jurisdiction so carefully
lodgled in other hands?
A remarkable legislative construction, supporting, nay, establishing my
view of the power in question, is found in the " act concerning the disbursemint of public money," January 31, 1823, sect. 3, Cross, p. 216.  Here
an offence, previously created, and made punishable only by a court, under'
the 39th- article of war, (Cross, p. 114) is, by special dislocation, to " bepromptly reported to the President of the United States, and (the offender).
dismissed from the public service."  (This power has, in the case of Quartermaster Captain D.a-vis, been exercised within a week.  The dismission:
could only have been summarily made by direction of law.)
General courts-martial must, under the 64th article of war, (Cross, p.
117,) consist of from five to thirteen itibers, each taking an oath (69tharticle) to " try and determine," according to the rules and articles; "'and
if any doubt shall arise, not. explained by the said articles, according to
your conscience, the best of your understanding, and custom of war in like
eases," or what may be termed the common law of the army.
This common law is recognised by Mr. Attorney General Wirt, April 5,
1824; and again, February 20, 1828, he distrusts his "own judgment," in
reference to the existing usage and practice of the army, known only to
military men.-Opinions of the Attorney Generals pp. 489-596.
No sentence of a court-martial, " in time of peace, extending to the loss
of life, or'the dismission of a commissioned officer, or which shall, either in
time of peace or war, respect a general officer, shall be carried into execution
until after the whole proceedings (of the court) shall have been laid before
the President of the United States for his confirmation or disapproval and
orders in the case." —65th article, Cross, p. 117.
Here is extreme care taken by Congress of the commission of an officer,
often more dear to him than life, even after it has been submitted to the
judgment of his peers.
In respect to the army and navy, the President is only the "first general and admiral of the confederacy."-F-_ederalist, No. 69, by General
Hamilton, written in 1788, pending the question, Shall the constitution be
adopted? in order to dispel the fear that the President would become, like
George III, the fountain of all honor and power over the army and navy,.,
Indeed, it was only as the " first general" that the President ever ap,pointed a general court-martial, down to 1830; for the 65th article of war
only gives that power, in terms, to " any general commanding an army, or'
colonel commanding a separate department."  In a certain class of cases,



[2]:78
provided for in the new and anomalous act, May 29, 1830, sect. 1, (Cross,
p. 225,) the power to appoint courts is first given to the President in terms.
XWhat power has the " first general" or any officer over the army, except
such as is clearly derived from the constitution or laws?
In all cases (except those arising under the act of 1823, respecting the
settlement of accounts) it has been shown that trial by a court, is as mluch
a part of the rules and articles of war, as the offences therein severally
created, or the punishment to be decreed.
Suppose a court sentence an officer to a year's suspension: would any
President think of substituting the higher punishment of dismission?
But it may be contended that if the President cannot summarily dismiss
for any statutory offence, other than that created by the act of 1823, (nonsettlement of accounts,) hle may, nevertheles, exercise that power without
the assignment of any cause.
Besides, the reply that no such case has ever occurred in the army, that
attribution of prerogative to the President would give him a power over an
unaccused and innocent officer, which he could not have exercised over the
greatest and most apparent guilt, the cowardice or treason of a Hull! The
surrenderer of Detroit was tried by a general court-martial, and was only
dismissed, in mitigation of the sentence which doomed him to die!
The fifth amendment of the constitution only excepts from a preliminary
presentment by grand juries, cases arising in the land and naval forces,
and does not take away from their officers the benefit of a trial in chief by
their respective peers.
Mr. Attorney General.Butler's opinion, before me, admits that military
storekeepers are duly "appointed by the President and Senate, commissioned and sworn."  And being further placed under the rules and articles
of war, it follows that they are as much officers of the army as our generals.
See Army Register, p. 10.
But Mr. Attorney General Butler, speaking of storekeeper Little, ignorantly and complacently adds: "He was liable, like all other officers, to
be dismissed by the President"! Mr. Butler had evidently never investigated the question of power, or he threw out this obiter dictum-this sentence of universal dismission-merely to cover up the former blunder of
-his chief, taking care to atone for that blunder by deciding that the power,
in point of fact, had not been exercised, and, therefore, that Mr. Little
was still in service!
I have omitted to state that the power in question has been claimed for
the President, but never exercised, under two other headss:
1. Under the eleventh article of war, (Cross, p. 109,) every individual
who enters the army by enlistment or by commission, is held to remain in
it, under the penalty of being considered a deserter until regularly discharged. Non-commissioned officers, musicians, privates, &c., &c. (enlisted
men) receive a formal paper called a discharge, signed, as the article directs, at the end of the engagement of each; or, if by sentence of a court,
the order in the case is such discharge.  Commissioned officers are " discharged " in three ways: 1. Upon tender and acceptance of commissions,
called resignations.  2. Partial reductions, or disbandments of the army,
when all surplus officers go out, and are declared by the President, in orders,
to be honorably discharged.  3. Sentences of general courts-martial, when




the term honorable is, of course, omitted.  In all these cates tire officers
are put out by order of the President giving the discharges.
But it may be said, if, in each class of the cases, the last, as in the first
and second, the President gives the order of discharge, why does the article
specify "by sentence of a general court-martial?"  Because, in timne of
war (see 65th article) a general officer in command of a particular army,
&c., &c., has also the power to discharge a commissioned officer sentenced
to be dismissed by such court; and but for the words in the 11th, " by
sentence of a general court-martial," this article would not have been in
harmony with the 65th.
The 11th article, therefore, gives no power to the President to make
arbitrary discharges of officers-in other words, dismissions.
2. The words found in every officer's parchment: " This commission to
continue in force during the pleasure of the President of the United States,
for the time being."
This dirante bene placito would seem to conclude the question; and it
certainly would be conclusive if those words were, in any manner, founded
on or derived from specific legislation.
June 17, 1775, a committee appointed for the purpose submitted to Congress the draught of a commission for General Washington, which was
adopted.-Journals, vol. 1, p. 85. This draught, in all its formal parts,
was closely copied from British commissions, (there were at least twenty
members who had held such,) substituting in the closing words, " This
commission to continue in force until revoked by this or a future Congress." And Congress then, and down to the adoption of the present constitution, it will be remembered, exercised over the federal forces all the
powers of the British King and Parliament united.
That draught was substantially followed in all army commissions given
by the old Congress.
Since the adoption of the constitution of the United States, there has
been absolutely not a syllable of legislation on the form of army commissions.  The old form has been continued, substituting, "the President of
the United States " for the King, (in the sentence quoted, and originally
borrowed from  British commissions.)  This, probably, was the pen-work
of some clerk, or, at most, the hasty direction of the Secretary of War,
without reflecting that the chief magistrate, in a republic, is not the fountain of all honor and power.
All which is respectfully submitted to the Secretary of War.
WINFIELD  SCOTT.
APRIL 23, 1845.
The powver of making regulations and punishing in the army and navy, is
in Congress.
"The whole power is far more safe in the hands of Congress than of the
Executive, since, otherwise, the most sunmmary punishments might be inflicted at the will of the Executive."  (Story's Commentaries, 3d vol., p. 80.)
" Senate declared its right to regulate promotions and appointments in the
army, by the power to make regulations." (Story's Commentaries, 3d vol.,
page 390.)




80o
" One of the morst distinguished friamers of the constitution 4dIJared that
the removal of a faitlful officer, by the President, would sulbject him  to
impeachment."  (3d vol. Story, p. 394, and, Lloyd's Debates, pp. 351,.
356, &c.)
"T'''he constitution has committed, wisely, the whole trust of tte army to'
courts-martial."  (Story, 2 vol., pp. 258, 259.)  The Presidcvlet cannot,
therefore, dismiss without trial.
No. 15.
E~xtract from register of the officers and yradute.s of the Urste'd States;
Military Acadeimy at West Point, NTew York, from  lar h 16( 1802, ta
January 1, 1850.
CHARLES GgATIOT —Promed Seconld Lt., Corps of Engineers, Oct. 30,
1806.-Capt,, Feb. 23, 1808.-=Chief Engineer of the Northwestern Army,
under command of Maj. Gen. Harrison, durilig the campaigns of 1812 and
1813.-Appointed Bvt. Col., AMichiglan Militia, Oct. 5, 1814.-Ma- j. Corps
of Encgineers, Feb. 9, 1815.-Lt. Col., March 31, 1819.-Col. aimd Chief
Engineer, Many 24, 1828.-Bvt, Brig. Gen., Maxty 24, 1828, " fo' meritorious services."-Inspector of the Military Acldemy, from May 24, 1828,
to Dec. 6, 1838. - Dismissed Dec. 6, 1838, by the Pr'esident of the United
States, for " having failed to pay into the treasury the balance of the moneys placed in his hands, in 1835, for public purposes, after suspending
therefrom the amount which he claims to be due him on settlement of accounts, according to the President's order, communicated to him by the
Secretary of War on the 28th Nov., 1838; ancld having neglected to render
his accounts in obedience to the law of Jan. 31, 1823."-Residetce, Washington, D. C.