Title: Amos T. Akerman to Stanley Mathews, 28 November 1870
Date: November 28, 1870
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.01498
Contributors to digital file: Elizabeth Lorang, Vanessa Steinroetter, John Schwaninger, and Nima Najafi Kianfar
November 28, 1870.
Stanely Mathews, Esq.
The Secretary of War has called my attention to certain suits pending in the Circuit Courts of the United States for the Eastern and Middle Districts of Tennessee, against the East Tennessee and Virginia, the East Tennessee and Georgia, the Nashville and Chattanooga, and the Nashville and North Western, Railroad Companies, in behalf of the United States, for railway material and rolling stock, sold to said companies, under the provisions of Executive orders, of August 8, and October 14, 1865—and informs me that you, and Aaron F. Perry, Esq. were retained by the War Department to conduct these suits, on the part of the United States, in connection with the District Attorneys.
It has been supposed at the War Department that the Act to establish the Department of Justice makes it necessary that the further employment of special counsel on the part of the United States shall be made by this Department.
Though I am not convinced that the effect of that Act was to dissolve existing contracts for professional services, made by other Departments—yet, as the true construction of the Act in that particular may be a matter of doubt, and as there is a manifest convenience in comprising all the litigation of the Government under one direction, I feel entirely at liberty to undertake for this Department, a continuance of the engagement between the War Department, on the one hand, and yourself on the other, as special counsel for the United States in those cases.
The Act requires that, in case of your retainer by this Department, you should receive a commission as Assistant District Attorney for the occasion, and that you should take the oath required by law. I request that you will furnish me with a statement of the cases, and the Districts in which they respectively are pending, in order that a commission may be properly drafted.
There is a question in the case of Mr. Perry, who, I learn, has been elected a member of the 42nd Congress. Under the Constitution of the United States, Art. I, Sec. 6, it would seem that, while a Member of Congress, he can hold no other office under the United States; and such a retainer, with the conditions at present annexed by law, would seem to create an office. If there is a probability that the litigation in Tennessee will terminate before his service as a member begins, it is desirable that the Government should have his services in the cases, as well as your own; otherwise it would seem to be unnecessary to retain him. Will you, after communicating with Mr. Perry upon the subject, advise me what are the probabilities in this respect?
A. T. Akerman,
Cases of The U. S. vs. certain RR Companies, in Tenn, &c. (question of retaining Messrs. Mathews & Perry, for U. S.)