3d Session.

IN THE SENATE OF THE UNITED STATES.

JANUARY 28, 1879.-Ordered to be printed.

No. 639.

Mr. PLUMB, from the Committee on Military Affairs, submitted the

following

REPORT:

[To accompany bill H. R. 2294.]

The Committee on Military Affairs, to whom was referred the bill (H. R. 2294) for the relief of William S. Massie, having had the same under consideration, do make the following report thereon:

The following facts appear from testimony submitted to the committee: That on the 18th day of August, 1861, the said Massie was duly enlisted in the service of the United States in Company H, Ninth Regiment West Virginia Volunteer Infantry, then being organized at Guyandotte, on the Ohio River, opposite Lawrence County, Ohio, from the citizens of which latter county the regiment was chiefly recruited; that on the night of the 10th of November following, the town of Guyandotte was attacked by Confederate cavalry, who captured about seventy of said regiment, including said Massie, he (Massie) being thereafter taken to Richmond, Va., and, subsequently to Salisbury, N. C., where he was confined in the military prison until about the 10th day of September, 1862, when he escaped, and after traveling about six hundred miles through the enemy's country, reached his home in said Lawrence County, Ohio, on the 13th day of October following, and the 25th day of said month he reported to his company commander for duty.

At the time of Massie's capture the muster-roll of his company was also captured, and afterward destroyed. It is satisfactorily proven that Massie's name was borne upon it; but he was not taken up on the new roll of his company, and there is no official record whatever extant of his connection with the regiment.

Massie claimed on his return to have been compelled while at Salisbury to take an oath not to serve during the war unless exchanged; and, on that statement, the commanding officer of his company declined to allow Massie to do military service in the company; and from that date until the expiration of his enlistment, Massie rendered no military service whatever, though it seems he occasionally went through the form of reporting to his company commander for duty.

There is no evidence of Massie's parole except his own statement. The committee think Massie is entitled to pay and resulting bounty for service from the date of his enlistment to the 25th day of October, 1862, the date when he returned to his regiment, and after which date he rendered no service, and recommend the passage of the accompanying substitute for the original bill.

3d Session.

IN THE SENATE OF THE UNITED STATES.

JANUARY 28, 1879.-Ordered to be printed.

No. 640.

Mr. PLUMB, from the Committee on Military Affairs, submitted the fol

lowing REPORT:

[To accompany bill S. 1650.]

The Committee on Military Affairs, to whom was referred the bill (S. 1650) for the relief of the State of Kansas, having had the same under consideration, make the following report:

The bill under consideration provides that the Secretary of the Treasury shall be authorized to examine, settle, and audit all proper claims of the State of Kansas for moneys expended by it in organizing, arming, equipping, supplying, subsisting, transporting, and paying the volunteer and militia forces of the State called into active service by the gov ernor thereof, after the 15th of April, 1861, to aid in repelling invasions, and suppressing Indian hostilities in said State and upon its borders, and report his action thereon to Congress.

It appears to the satisfaction of the committee that the State of Kansas has actually incurred and paid expenses in repelling invasion and suppressing Indian hostilities, and that such expenditures were made necessary by the state of affairs existing at the time; the question remaining to be considered is whether or not the general government is properly chargeable with such expenditures.

Your committee are of the opinion that from the legislative history of Congress it has been the understanding that the government was so liable.

By act approved March 21, 1828, the Secretary of War was required to pay the claims of the militia of the State of Illinois and the Territory of Michigan, called out by any competent authority, on the occasion of the then recent Indian disturbances, and that the expenses incident to the expedition should be settled according to the justice of the claims. (See Laws of United States, vol. 4, p. 258.)

By act approved March 1, 1837, an appropriation was made for the payment of the Tennessee volunteers, called out by the proclamation of Governor Cannon, on the 28th of April, 1836, to suppress Indian hostilities; and a direct appropriation was also made to Governor Cannon to reimburse him for moneys expended on account of such volunteers. (See Laws of United States, vol. 5, p. 150.)

By act approved March 3, 1841, a direct appropriation was made to the city of Mobile, for advances of money and expenses incurred in equipping, mounting, and sending to the place of rendezvous two full companies of mounted men, under a call from the governor of Alabama

at the beginning of the hostilities of the Creek Indians. (See Laws, vol. 5, p. 435.)

By act of August 11, 1842, $175,000 was appropriated as a balance for the payment and indemnity of the State of Georgia for any moneys actually paid by said State on account of expenses in calling out her militia during the Seminole, Cherokee, and Creek campaigns, or for the suppression of Indian hostilities in Florida and Alabama. (See Laws, vol. 5, p. 504.) By act approved August 29, 1842, a similar appropriation was made to the State of Louisiana. (See Laws, October 5, p. 542) By act approved July 7, 1838, an appropriation was made to the State of New York of such amount as should be found due by the Secretary of War and the accounting officers of the Treasury, out of the appropri ation for the prevention of hostilities on the northern frontier, to reimburse the State for expenses incurred in the protection of the frontier in the pay of volunteers and militia called into service by the governor. (See 5 U. S. Stats., p. 268.) By an act approved June 13, 1842, the State of Maine was reimbursed for the expenses of the militia called into service by the governor for the protection of the northeastern frontier. (See 5 U. S. Stats., p. 490.)

By act approved March 2, 1861, the State of California had appropriated to her $400,000 to defray the expenses incurred by the State in suppressing Indian hostilities for the years 1854, 1855, 1856, 1858 and 1859. (See 12 U. S. Stats., p. 199.)

By act approved July 2, 1836, Captains Smith, Crawford, Wallis, and Long, of the militia of Missouri, and Captain Sigler, of the Indiana militia, were paid for services rendered in protection of those States against Indians, and an appropriation of $4,300 was made for that purpose. (See 5 U. S. Stats., p. 71.)

By act approved February 2, 1861, there was appropriated to reimburse the Territory of Utah, "for expenses incurred in suppressing Indian hostilities in said Territory in the year 1853," the sum of $53,512. (See 12 U. S. Stats., p. 15.) This bill was considered by the House Military Committee, and was reported by Mr. Stanton, who, in his report,

says:

The liability of the Federal Government for necessary expenses incurred by the States and Territories in repelling invasions of their territory by a foreign enemy, or of histile tribes of Indians within our borders, has been so often recognized that it can no longer be considered an open question.

The committee also believe that the action of the State and Territorial authorities in calling out their military force and engaging in hostilities furnished at least prima facie evidence of the necessity of their action.

As there is no evidence before the committee tending to show that these expenses were unnecessarily incurred, the committee feel bound to recognize the liability of tas claim.

By the act approved June 21, 1860 (it being an Army appropriation bill), the sum of $18,988 was appropriated to reimburse the State of lowa for the expenses of militia called out by the governor "to protect the frontier from Indian incursions." (See 12 U. S. Stats., p. 68.)

By the same act the sum of $123,544.51 was appropriated to the State of Texas for the "payment of volunteers called out in the defense of the frontier of the State since the 28th of February, 1855." By the “act making appropriations for the sundry civil expenses of the government for the year ending June, 1864, and for other purposes," an appropriation was made "to pay the governor of the State of Minnesota, or his duly authorized agent, the costs, charges, and expenses properly incurred by said State in suppressing Indian hostilities within said State

and upon its borders, in the year 1862, not exceeding $250,000, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury." (See 12 U. S. Stats., p. 754.)

In the sundry civil bill of the following year an appropriation of the sum of $117,000 was made to the same State "to supply a deficiency in the appropriation for the costs, charges, and expenses properly incurred by the State of Minnesota in suppressing Indian hostilities in the year 1862." (See 13 U. S. Stats., pp. 350, 351.)

By act approved May 28, 1864, the sum of $928,411 was appropriated for the payment of damages sustained by citizens of Minnesota "by reason of the depredations and injuries by certain bands of Sioux Indians." (See 13 U. S. Stats., p. 92.)

Besides the appropriation made to the State of California, before referred to, by act approved August 5, 1854, the sum of $924,259.65 was appropriated to reimburse the State for expenditures "in the suppres sion of Indian hostilities within the State prior to the 1st day of January, 1854." (See U. S. Stats. at Large for 1853 and 1854.)

The question of the liability of the general government for the payment of this class of demands seems to have been carefully considered by the Committee on Military Affairs of the House, in connection with this claim of California for reimbursement.

Mr. McDougal submitted the report of the committee, in which he said:

The question remaining for consideration is, whether or not the general government is properly chargeable with their expenditures?

It is the opinion of this committee that the obligation of the Federal Government to furnish specific and particular defense to each several State is included in its obligation to maintain the "common defense" of the Confederacy. That invasions from abroad, insurrections at home, and aggressions from the savage tribes inhabiting our borders, are alike within the protective province of the Federal Government. Congress possesses the exclusive power "to raise and support armies in time of peace," and possesses the power to call forth the militia "to suppress insurrections and repel invasions." In the tenth section of the first article of the Constitution, the States stipulate that they will not "keep troops or ships of war in time of peace."

The conclusion necessarily follows that the general government is, by the implied, if not the express, terms of the Federal compact, bound.

The question here presented appears to have been distinetly raised in 1831 upon a claim presented by the State of Missouri. By act approved March 3 of that year, Congress made an appropriation for the service of the Missouri militia against the Indians, "provided that the Secretary of War shall, upon full investigation, be satisfied that the United States are liable for the payment of said militia, under the second paragraph of the tenth section of the first article of the Constitution of the United States. (See Laws, vol. 4, p. 465.)

General Cass, then Secretary of War, examined the subject submitted, and gave the opinion of the government as to its constitutional obligations, affirming the liability of the government, and directing payment to be made to the State of Missouri.

Instances of similar legislation might be cited, but it is believed that but little doubt can exist either as to the constitutional obligation or the exposition given by Congressional legislation.

Your committee, after having given the subject such consideration as time and opportunity would allow, feel bound to conclude that the general government owes to the States the duty of protection, especially against the incursions of hostile savages, over whom the United States authorities have, from the foundation of our government, exercised a kind of parental control. And this being the case, when, from any cause, the States are not given such protection, and reasonable and necessary expenses are incurred by such States in repelling invasions from the Indians and suppressing hostilities, reimbursement should be made for the same by the United States.