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Ebenezer Rockwood Hoar to Schuyler Colfax, 2 July 1870

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July 2, 1870. To the Hon. Schuyler Colfax, Vice President. Sir: I have the honor to acknowledge the receipt of the Senate Resolution of the 17th instant, by which the Attorney General is directed "to inform the Senate in regard to the practise of The Court of Claims in the matter of remanding for further evidence or argument cases submitted by the parties to its consideration, and of ordering new trials in cases decided by the Court, with any particulars tending to show whether further legislation is necessary to secure the rights of the United States in that respect." The practise of the Court of Claims in respect to the matter inquired of is governed by its own discretion exercised in each case, no general rule upon the subject having been established. It is proper, in this connection, to observe that in respect to the trial of cases, the practise of the Court is peculiar. The claimant prepares his case entirely at his leisure. He may take months or years to do this. And when the case is ready on the part of the claimant, he may bring it to trial within a month. The Attorney General, defending cases in the Court, cannot either by law or under the rule of the Court, press a case to trial; but, by a rule of court, the brief of the Attorney General must be filed within twenty days after receiving that of the claimant, "unless the time be extended by the Court, upon cause shown." Considering that the Attorney General has an impersonal client, with whom he cannot consult, this anomalous practise bears hard upon him in the defense of cases in the Court of Claims. The Claimant knows his own case in advance, knows where his witnesses are, and what they will testify; while the Attorney General must await the development of the case, search out his witnesses, and then ascertain by correspondence or otherwise, the extent of their knowledge. This should induce liberal rules of practise in the Court, in the matter of new trials and rehearings upon application of the defendants.— In furtherance of this idea, it was provided by the second section of the Act of June 25, 1868, Statutes at Large, Vol. 15, p. 75,— which transferred the defence of cases in the Court of Claims to the Attorney General—that the Court of Claims might grant new trials, on motion in behalf of the United States, while a case is pending on appeal, or within two years after judgment, upon such evidence as should "reasonably satisfy the said Court that any fraud, wrong, or injustice in the premises has been done to the United States." But this does not in terms require the Court to grant a new trial upon newly discovered evidence simply affecting the merits of the case. And as matter of fact, since the Attorney General has been charged with the defence of suits in the Court of Claims, out of twelve cases in which motions for new trials have been made by claimants, in only three has the motion been refused; while similar motions on behalf of the defendants in nine causes have all been refused. And of the twenty cases remanded to the general docket for further proceedings, either at or after the hearing thereof, but two were so remanded in the interest of the defendants. These facts refer only to cases that have heretofore been under the charge of the Attorney General—not to suits for the proceeds of captured and abandoned property. The legislation proposed in the accompanying paper I regard as calculated to improve the practise in the Court of Claims, and as proper for the better security of the interests of the United States. Very respectfully, E. R. Hoar, Attorney General. (Bill enc.)
Answer to Senate Res. in relation to Court of Claims, &c.
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