APPEAL from the Court of Claims.
This is a suit by James S. Clark and Edward Fulton, partners under the name and style of J. S. Clark & Co., to recover from the United States the sum of $10,000 alleged to have been extorted from the petitioners in December, 1864, by Col. Harai Robinson, then acting provost-marshal-general for the Department of the Gulf.
The court below found the following facts:–– I. On the 26th of October, 1864, the Secretary of the Treasury signed and delivered to the claimants the paper of that date, annexed to the petition; and on the same day Abraham Lincoln, President of the United States, signed the order of that date, accompanying said paper, and also annexed to the petition.
II. On the 16th of November, 1864, the claimants delivered to George S. Denison, the acting collector of customs at New Orleans, a bond, duly executed, with proper and sufficient sureties, in the sum of $250,000, as required by the aforesaid paper signed by the Secretary of the Treasury.
III. On the 13th of December, 1864, on the United States ship 'Choctaw;' off Bayou Sara, La., John J. Cornwell, lieutenant-commander of the United States navy, commanding the second and third districts of the Mississippi River, issued the following order, addressed to naval officers between Bayou Sara and New Orleans: 'Pass the steamer 'Sciota,' Captain Owesney, with a cargo of three hundred and thirty-six (336) bales of cotton, to New Orleans, without molestation. The cotton was taken on board at Bayon Sara by my consent.'
IV. On the arrival of the steamer 'Sciota' at New Orleans, she and her cargo were seized by the United States military police, under the control of Col. Harai Robinson, then acting as provost-marshal-general of the Department of the Gulf, of which department Gen. S. A. Hurlbut was then in command.
V. After the seizure of the 'Sciota' and her cargo, General Hurlbut issued a special order, stating that, by direction of the major-general commanding the military division west of the Mississippi, the cotton brought by the steamer 'Sciota' should be disposed of as follows: A certain number of bales (number not shown) to be given to the claimants; the remainder to be turned over to O. N. Cutler, the United States purchasing-agent; and that the claimants, should give bonds for their appearance when required. On said Robinson's receipt of said order he sent for the claimants, and they appeared before him, and gave bonds; at which time they did not exhibit to him any papers in relation to the shipment of cotton. It was not the province of said Robinson to have anything to do with the receiving or disposing of the cotton.
VI. On or about the 21st of December, 1864, in the evening, after office hours, and claimants called on the said Robinson at his dwelling, and showed him the papers aforesaid, dated Oct. 26, 1864, signed by the Secretary of the Treasury and the President, which the said Robinson had not before seen or had any knowledge of, and the claimants asked him what he thought of that permit. He told them he thought it was a sweeping one; that it covered all ground. They answered that, notwithstanding that permit, the cotton aboard the 'Sciota' had been seized and detained, and themselves put under bond. He asked how that could be. They answered that the permit was of no account unless signed by the major-general commanding the department. He asked them if they had presented it to the general commanding. They said yes, and it had been refused. He then advised them to go to General Canby, who commanded the military division west of the Mississippi, and show the permit to him. They replied, 'You know that is useless by the very order which put us under bond: it states by order of the general commanding the military division west of the Mississippi.' They further said they were satisfied that it could not be done except by money; that money was wanted; and that they were willing to pay most liberally to have it signed; that that would cover and release their cotton. They said they would pay $10,000 to have that presidential permit indorsed, and their cotton released. He then told them to leave the permit with him, and he would see about it.
The next day the said Robinson took the permit to General Hurlbut, and told him the parties wished to have it signed by him. General Hurlbut replied, 'Yes, I have seen this permit before. I have refused to sign it.' Robinson then said, 'General, these men have offered a large amount of money to get this permit indorsed; there's money in it.' Hurlbut perused the permit carefully, and said, 'You must take that to Mr. Denison, and have him certify that the proper bonds have been filed by these parties, Clark and Fulton.' Robinson took the permit to said Denison, and advised him of the wishes of General Hurlbut. Denison then indorsed on the permit the following certificate:–– 'CUSTOM-HOUSE, COLLECTOR'S OFFICE,
'NEW ORLEANS, LA., NOV. 16, 1864.
'I certify that J. S. Clark and E. Fulton have delivered to me a bond, duly executed, with proper and sufficient sureties, in the sum of $250,000, as required by the foregoing authority from the Secretary of the Treasury.
'Sp. Ag't of Treasury Dep't & Act'g Collector of Customs.'
Robinson then took the permit back to Hurlbut, who placed on it the following indorsement:––
'HEADQ'RS DEP'T GULF, Dec. 23, 1864.
'The above executive order will be obeyed and respected by all military officers within this department.
'S. A. HURLBUT, M. G. C.'
That day, or the next, the claimants handed Robinson, at his dwelling, $5,000; and subsequently, on the same day, he handed that money back to them, stating to them that it did not suit him to receive it in that manner. They asked him how he would receive it. He told them he would receive it through Denison, the collector of the port. The next morning Denison handed him an envelope with $5,000 in it, out of which Robinson took $2,000 or $3,000 and gave it to General Hurlbut, and laid away the balance in the provost-marshal-general's office.
After that money was given to Robinson, the claimant Clark saw him again, and said to him, 'Now I have the permit indorsed, see if you can get my cotton released; see if General Hurlbut will give an order releasing or justifying the release of my cotton.' Robinson then saw Hurlbut and stated ...