from the sovereign authority, but the power of granting a passport may be delegated by the sovereign to persons in subordinate command, and they are invested with that power either by an express commission or by the nature of their trust. The general of an army, from the very nature of his power, can grant safeconducts.

He who promises security by a passport is morally bound to afford it against any of his subjects or forces, and to make good any damage the party might sustain by a violation of a passport.

Wheaton's International Law (p. 690, sec. 408) says: Passports, safe-conducts, and licenses are documents granted in war to protect persons and property from the general operations of hostilities. Such documents are to be interpreted by the same rules of liberality and good faith with other acts of the sovereign power. (See Garden de Diplomatic, liv. 6, sec. 16; Marten's Precis du Droit des Gens, sec. 292; Phillimore on Int. Law, vol. 2, pp. 28, 29; U. S. Statutes at Large, already quoted; U. S. Army Regulations of 1857, secs. 769-773; Rayneral, Int. du Droit Nat., etc., liv. 3, ch. 9; Heffter, Droit International, sec. 142; Real, Science du Government, tome 5, ch. 3, sec. 4.)

The Hon. William Lawrence, chairman of the Committee on War Claims of the House of Representatives, Forty-third Congress, in his report on "Alien claims," says (p. 29):

When, by the terms of the capitulation of a hostile city or army, there is a distinct stipulation by the proper officer commanding the Union army that rights of persons and property shall be respected, this pledge is to be respected, and a violation of it by military officers clothed with authority to act in the name of the Government would create a liability to repair any damages. But this protection only extends to such enemies as strictly observe neutrality and the terms of the capitulation and to property, the nature of which does not take it out of the condition of neutrality. The same rule of protection is extended to persons and property where there is no capitulation, but an authorized military proclamation promising it, when a city or district of the enemy is subdued and occupied.

This same principle will apply generally to duly authorized safeguards. (See case of Planters' Bank v. Union Bank, 16 Wall., 468; also, The Venice, 2 Wall., 258.)

SCOUTS AND GUIDES, EXTRA-DUTY PAY, ETC.

CLAIMS FOR PAY AS SCOUTS AND GUIDES, EXTRA-DUTY PAY, ETC.

Claims for extra-duty pay are filed under section 1287, Revised Statutes, as amended by the act of July 5, 1884 (23 Stat., 110).

Under the Army Regulations of 1861 (par. 1065), the expenses of hiring" scouts, escorts, interpreters, spies and guides," is properly payable by the Quartermaster's Department, from the annual appropriation for "Incidental expenses, Quartermaster's Department. Accounts of this character, as a rule, pertain to the Third Auditor's office, but there are exceptional cases in which the Secretary of War, in his discretion, has authorized payment either from the appropriation for "Contingencies of the Army," or from the appropriation for "Secret service."

jurisdiction of

Such cases come under the jurisdiction of the Second, Under the Auditor, now Auditor for the War Department. The the Second former appropriation is an annual one and will be found Auditor. in all the acts making appropriations for the support of the military establishment during the last seventy-five

years.

The appropriation for "Secret service" was first made July 1, 1862 (12 Stat., 508). Subsequent appropriations were made June 15, 1864, and March 3, 1865 (13 Stat., 129, 497), the total amount appropriated being $700,000.

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The only authority under which claims on account of Contingencies of the Army" and "Secret service" are presented is the acts making appropriations for those

purposes.

Compensation allowed

guides.

for fatigue

The compensation allowed scouts and guides seems to have varied from thirty dollars per month to five dollars scouts and per day. Under the provisions of the act of Congress of August Allowance 4, 1854 (10 Stat. L., sec. 6, 576), soldiers employed on duty. extra duty east of the Rocky Mountains, as laborers and teamsters, were allowed and paid 25 cents per day, and mechanics 40 cents per day; those thus employed west of the Rocky Mountains were allowed and paid 35 cents and 50 cents per day, respectively.

The payment of extra-duty pay to soldiers was prohibited by act of Congress approved March 3, 1863 (12 Stat. L., sec. 35, p. 736), except to those employed as clerks and messengers in the military offices in Washington and at the several geographical divisions and department headquarters.

The payment of extra-duty pay to enlisted men employed in the Quartermaster's Department ceased under that law from March 3, 1863, to July 13, 1866, on which date an act was approved providing that,

Details to

how made.

special service,

Soldiers em

When soldiers are detailed for employment as artificers or laborers in the construction of permanent military works, public ployed as artificers or laroads, or other constant labor of not less than ten days' duration, borers in conthey shall receive, in addition to their regular pay, the following stant labor of compensation: Privates working as artificers, and non-commis- not less than ten days in any sioned officers employed as overseers of such work, not exceeding case to have exone overseer for twenty men, thirty-five cents per day, and privates tra pay. employed as laborers, twenty cents per day. (14 Stat. L., sec. 7, p. 93).

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DECISION OF THE COURT OF CLAIMS, IN CASE OF DAVID C.
ALLEN, FOR SERVICES AS A SPY.

[Court of Claims. Congressional case No. 3925. David C. Allen v. The United States. Decided January 4, 1892.]

STATEMENT OF CASE.

The claim in the above-entitled case was transmitted to the court by the Committee on War Claims of the House of Representatives on the 16th day of April, 1888. The claimant, in his petition, makes the following allegations:

"That in the fall of 1861, Springfield, Mo., was occupied by Federal troops under command of Gen. John C. Fremont; that at the same time the Confederate Missouri State Guard, commanded by Gen. Sterling Price, was encamped not far off, and its size and intentions were uncertain; that General Fremont was in great need of accurate information as to the numbers and purposes of the enemy, and authorized one Martin J. Hubble to obtain a competent man to visit their camp and secure this information, stating that $1,000 would be paid for such service; that in accordance with such authority from General Fremont, said Hubble engaged this claimant to render said service upon the terms stated; that in pursuance of said engagement the claimant visited the Confederate camp and returned with valuable information which he imparted to General Fremont in person; that thereafter, by direction of General Fremont, the claimant made another trip to the Confederate camp, resulting in the capture of a Confederate spy in the person of the wife of one of General Price's officers; that a third time, at the request of General Fremont, the claimant undertook to visit the enemy's camp and secure information, but while so absent General Fremont was succeeded by General Hunter, Springfield was evacuated by the Union forces, and on claimant's return he was made prisoner by the Confederates.

"That the agreement to pay this claimant $1,000 for the first-mentioned service was approved and ratified by General Fremont, but claimant has never received said sum or any part thereof; that no definite agreement was made as to the amount which this claimant should receive for his subsequent services aforesaid, but that, considering the great peril incurred by him and the value of the information which he secured for the Union authorities, such services were reasonably worth not less than $500 for each trip; making altogether $2,000."

The case was brought to a hearing on the 27th day of May, 1891.

Charles and William B. King, esqs., appeared for claimant and the Attorney-General, by James H. Nixon, esq., his assistant, and under his direction, appeared for the defense and protection of the interests of the United States.

OPINION.

RICHARDSON, Ch. J., delivered the opinion of the court The claimant, in his petition, sets out a contract made under the direction of Gen. John C. Fremont, while in command of military forces of the United States, fat Springfield, Mo., in the autumn of 1861, for the perfor's m ance of certain duties as a spy.

In Totten's Case (92 U. S. R., 105) the Supreme Cost urt held that the President in time of war had a right to make such contracts binding on the United States. The

general officers of the army in the field are under the actual or implied direction of the President in all their movements, and their contracts in the line of their duty must be held to be made by his authority. That the employment of spies is directly and peculiarly within the line of duty of a commanding general in actual warfare can not be doubted. Their character and employment are as old as the art of war and as necessary, often, as implements of warfare.

That being the case, the claimant had a cause of action upon which suit might have been maintained in this court unless excluded from its jurisdiction for special reasons, which we shall consider later.

To such a claim, if within the jurisdiction of the court, there is a statute bar much more pronounced than any mere statute of limitations, which bars the remedy only and not the claim. It is in these words:

"SEC. 1069. Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues: Provided, [saving rights of persons

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*

under certain disabilities]."

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The Bowman Act, under which this case was transmitted to the court by a committee of the House of Representatives, provides in section 3 (1 Supplement to Revised Statutes, 2d ed., p. 403) as follows:

"Nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States."

At first view this provision would seem to exclude from our jurisdiction all claims to which section 1069 of the Revised Statutes is applicable. But, considering the object of the act, which is declared by its title to be "An act to afford assistance and relief to Congress and the Executive Departments in the investigation of claims and demands against the Government," and knowing that there were many cases pending in the Departments and in Congress which had accrued more than six years previously, and giving a liberal interpretation to the act in order to accomplish its object, the court early held that the bar of Revised Statutes, section 1069, did not still apply to a claim which was barred from the general jurisdiction of the court if it could be considered and paid by any Executive Department-that the bar intended is a complete bar in the Departments as well as in the courts, that while there is any avenue open to the claimant through which he can have his claim adjusted and paid, it is not barred within the meaning of the act and can be transmitted to this court by the head of a Department or by a committee of Congress, and the court can take jurisdiction.

The rejection of a claim by executive officers alone does not of itself bar a claim, but it removes an obstacle in the way of the operation of the statute of limitations, and allows the latter to apply with full force. The act has received interpretation in the following cases reported in the Court of Claims Report: McClure, 19, p. 18; Dunbar, 19, p. 489; Ford, 19, p. 519; Dennis, 20, p. 119; Blair, 21, p. 253; McDonald, 21, p. 320; McLenare, 21, p. 327; Mitchel, 21, p. 466; Vance, 21, p. 488; Norfolk Tr. Co., 23, p. 19; Furlong, 23, p. 32; Belt, 23, p. 317; Dennis, 23, p. 324; Kimbrough, 25, p. 21; Nutt, 26, p. 15.

The avenue open to the claimant for the settlement of his claim was the War Department, where it accrued and which alone had authority to settle and adjust it. It was peculiarly and exclusively within the jurisdiction of that Department to determine the validity and amount before it could have any standing with the accounting officers, as is to be inferred from the language of the Supreme Court in Totten's Case: like claims for the refund of internal-revenue taxes, which the Supreme Court held in Kaufman's Case (96 U. S. R., 570), affirming the judg ment of this court (11 C. Cls. R., 659), must be first submitted to the Commissioner before any liability is fixed. They say:

"It is not the allowance of an ordinary claim against the Government, by an ordinary accounting officer, but the adjudication by the first tribunal to which the matter must by law be submitted. Until so submitted, and until so adjudicated, there is not even a prima facie liability of the Government; but when submitted, and when allowed upon the adjudication, the liability is complete until in some appropriate form it is impeached.'

The claimant has in fact been to the War Department, as he admits in his brief, where he states as follows:

"The claim was presented to the Quartermaster-General in April, 1869, with evidence to sustain it. It was suspended by the War Department in August, 1869, for the claimant to obtain the testimony of General Fremont, and it was subsequently rejected in 1870."

The claim having been rejected by the War Department, and the only avenue for its settlement by the executive officers having thus been closed against it, the bar of section 1069 of the Revised Statutes is left to apply to it with all its force and effect, if this court ever had jurisdiction of the cause of action.

But another reason why the court can not find the facts, even if it never had jurisdiction under its general powers and the statute of limitations never did apply to it. The claim is for services as a spy. The Supreme Court says in Totten's case (96 U. S. R., 105, 107):

"It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice the trial of which would inevitably lead to the dis