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Title: Henry Stanbery to Schuyler Colfax, 28 February 1868

Date: February 28, 1868

Whitman Archive ID: nar.00450

Source: National Archives and Records Administration. 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.

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February 28, 1868.

Hon. Schuyler Colfax,

Speaker of the H. of Representatives


I have the honor to acknowledge the receipt of a Resolution of the House of Representatives adopted February 11th, 1868, directing the Attorney General to furnish the House, "a statement of the amounts paid during each year since 1860, to counsel who have been employed to assist the Attorney General or District Attorneys in cases in which the United States have been interested, whether as fees, costs, commissions, special allowances, or travelling or other expenses, with the names of persons to whom money has been paid, with the amount to each, specifying the cases or business in which services have been rendered; and also to state whether any amounts are now claimed for similar services hitherto rendered, and by whom; and also what persons, if any, other than the officers authorized by law, are now employed as assistant counsel in his Department, and for what compensation, and how paid, or agreed to be paid, and under what authority such counsel have been retained and employed, and for what purposes."

In compliance with this Resolution, I transmit herewith statements marked respectively "A," "B," "C," & "D."

Statement A contains a list of counsel employed to assist the Attorney General in cases pending in the Supreme Court of the United States, or classes of cases, showing by whom employed, and the compensation paid. Statement B contains a list of counsel employed to assist District Attorneys in special cases, or classes of cases, in District Courts, showing by whom employed, and the compensation paid. Statement C contains a list of counsel employed as regular assistants to District Attorneys, at annual compensations. Statement D contains a list of persons employed at the date of the Resolution, Feb. 11, 1868, as assistant counsel to the Attorney Gen'l, showing for what services they are employed, and for what compensation.

The Resolution, as I understand it, also requires the Attorney General to report under what authority such counsel as those named in the last clause of the resolution, and who are mentioned in Statement D, have been retained and employed. This authority is found in the first section of the Act to regulate fees, &c, of Feb. 26, 1853, (10 Statutes at Large, p. 162,) one clause of which is as follows:—"For the services of Counsel, rendered at the request of the Head of a Department, such sum as may be stipulated or agreed on"—and in the Appropriation Act of March 2, 1867 (14 Stat. at Large, p. 448,) one clause of which is as follows: "For defraying the expenses of the Supreme Court and District Courts of the United States, including the District of Columbia, and also for jurors and witnesses, in aid of funds arising from fines, penalties and forfeitures, in the fiscal year ending June 30th, Eighteen hundred and sixty eight, and previous years, and likewise for defraying the expenses of suits in which the United States are concerned, including legal assistance to the Attorney General, and other special and extraordinary expenditures in cases in the Supreme Court of the United States, in which the United States are concerned, and for prosecutions for offences committed against the United States, and for the safe‑keeping of prisoners, One million, three hundred thousand dollars."

It may be, however, that it is intended by the last clause of the Resolution to call for the authority under which counsel have been employed in all the other cases named in the prior clauses—and which are set forth in statements A, B, and C.

As to the authority to employ counsel to assist the Attorney General in cases before the Supreme Court, that stands upon the clause quoted from the Act of 1853, and upon clauses in the Appropriation Acts of 1860 and since, similar to the clause quoted from the Act of 1867, but which are less specific than that clause, except as to the Act of 1866, which is in the same terms; and as to the Land cases from California, upon special appropriations.

As to the authority of the Attorney General to employ counsel to assist the District Attorneys, that is given by the Act of August 2, 1861, (12 Stat at Large, p. 285, sec. 2,) as follows: "That the Attorney General be, and he is hereby empowered, whenever in his opinion the public interest may require it, to employ and retain, (in the name of the United States,) such attorneys and counsellors at law as he may think necessary to assist the District Attorneys in the discharge of their duties, and shall stipulate with such assistant counsel the amount of compensation."

The practice of employing counsel to assist the District Attorneys at an annual compensation began, and understand, in the time of Attorney Gen'l Bates, and has been since contained and extended as the exigencies of the public business required. But long before this special authority was given, such employment upon an annual compensation had been held to come within the power of the Attorney General. Attorney Gen'l Black, in an opinion given to the Secretary of the Treasury, May 25, 1858, says: "When the office of a District Attorney is so burdened with business that he cannot possibly get through it himself, I have no doubt whatever that the Departments may employ other counsel to aid him in defending suits against the public officers - or, what amounts to the same thing, and is better, because more economical, may allow him to employ a regular assistant, at an agreed salary. This had better be arranged by the Secretary of the Interior, who is charged with the administrative supervision of the accounts."

I am not advised that any claims not designated in the tables accompanying this Report, are now on file in this Office.

I have the honor to be,

Very Respectfully,

Henry Stanbery

Attorney General.


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