Title: Henry Stanbery to Durbin Ward, 13 December 1867
Date: December 13, 1867
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00353
Contributors to digital file: Elizabeth Lorang, Kevin McMullen, John Schwaninger, and Nima Najafi Kianfar
December 13, 1867
Durbin Ward, Esq.
United States Attorney,
I enclose a copy of a letter from Hon. David Tod, late Governor of Ohio, addressed to the Secretary of War ad interim under date of the 27th ultimo,—and also a copy of the communication of the latter to this office, of the 4th instant, requesting me to instruct you to "make the necessary defence in all suits brought against Gov. Tod for acts done under authority of the United States."
It is a recognized practice that the head of any Department may exercise his judgment as to whether the proper business of his Department renders it requisite for him to interpose in any suit brought against officers or agents of the government for acts done under the authority of the United States. In such cases his request, with the consent of the Attorney General, is the proper authority for the District Attorney to appear in the suit, the compensation of the latter being a matter of contract between him and the Head of the Department requesting his services.
The accompanying papers do not afford me any knowledge of the particulars of the suit, or of any suit against Gov. Tod. If the acts complained of had been done exclusively in his character of Governor of the State of Ohio, upon that State rather than the United States, the obligation would seem to rest to support her chief officer for the performance of his duty. That he acted at the instance of the United States, however, is sufficient to authorize my consent to your compliance with the request of the Head of the War Department in the premises. * But the necessary distinction as to Federal obligation between performance by an official or agent of the United States, and the action taken by persons on their own responsibility, or on that of a State, if lost sight of, might involve the General Government in numberless and burdensome obligations. It appears to have been the frequent practice in England, and in former times in this country, to leave to the Legislature, after final judgment, the expediency, upon the whole, of indentifying a party who had suffered in court for acts done in furtherance of the public good.
* This letter ends here, omit the rest.