37

1855, by which that court had been created. He voted, first, for an amendment which substituted, for the pending measure, a brief, simple and complete repeal of the former law-in short, abolished the Court of Claims altogether. That failing, he voted for a provision that any claim against the United States might be brought and heard in any United States district or circuit court, simply transferring the business of the Court of Claims to these other tribunals.38 This also failed, and he next voted against adding two more justices to the Claims bench; " but they were added. Finally, he voted against the passage of the bill. Nevertheless, it passed, and he was destined to be one of the appointees to the position whose creation or continuance he had so consistently resisted.

39

40

A statement handed down from one brief chronicler to another runs to the effect that Wilmot's failing health made his service in the Senate scarcely more than perfunctory, and prevented his renomination. The official record gathered in the preceding chapters disposes of the first part of that statement. Judge Wilmot continued, in fact, to render distinguished service on the bench for some years afterwards. Indeed, in April, 1866, he was accepted as a good risk by the Equitable Life Assurance Society; the medical examination did not show any defect in his physical condition nor any history of serious previous illness. Even as late as June, 1866, he was assured in a note from the agent of the New York Life Insurance Company, to which he had also applied, that "his examination was very satisfactory" and that the policy had been made out and mailed to him." Nevertheless, as Mrs. Overton wrote in a letter already quoted, "his irregular habits (of eating and drinking) and the excitement incident to political life no doubt undermined his health"; or even more probably, there may have been some lesion not readily discoverable by the diagnostic methods of the day that caused both the

87 Senate Journal, p. 130.

89 Senate Journal, p. 133.

38 Senate Journal, p. 132. 40 Senate Journal, p. 134.

41 Letter now in the possession of Wm. M. Spalding, Esq., Towanda, Pa.

He

abnormal appetite and the comparatively early decline. came, as his sister suggested in the same letter, of a shortlived family, at least on his mother's side, and he aged prematurely; but the final break was more rapid that most of the accounts would indicate.

As to the failure to receive the indorsement of a second term, Col. A. K. McClure gives a wholly different explanation.12 He says Wilmot would have been the unanimous choice of the republican senatorial caucus, in 1863, if he could have been elected. By that time, however, the democrats had secured a majority of one on joint ballot. Cameron, who had meantime retired from Lincoln's Cabinet under pressure, had been given the Russian mission and had relinquished that in turn to seek reentry into the Senate, was represented by his friends as able to secure one or two democratic votes, and as being the only republican who could possibly be elected. "His resultant nomination and the contest that followed led to an eruption that not only prevented any democratic support but deprived him of a solid republican support, and Buckalew was elected."

Wilmot, however, was not destined to leave Washington. March 7, 1863, President Lincoln commissioned him as a judge of the newly created (or, as it was styled, "reorganized") Court of Claims.

42 Lincoln and Men of War Times, p. 137.

CHAPTER XXXIX

THE COURT OF CLAIMS

THE appointment to the Court of Claims by which Wilmot took his seat made him a member of that Bench from the time of its reorganization under the act of 1863, when it was for the first time created an actual court, empowered to find and to give judgment finally in matters of fact, and in matters of law subject only to appeal to the Supreme Court of the United States. Prior to that date, as the Court existed under the act of 1855, it was in fact only a sort of advisory commission, whose function was to investigate, and whose findings and recommendations must all be reported to Congress for action.

Wilmot was thus a member of the Court of Claims during the important and interesting period of its organization and the establishment of its rules of practice and the prescription of the regulations under which appeals from its decisions might be taken to the Supreme Court.1 As constituted at that time, the Claims Bench was made up of Joseph Casey, Chief Justice, and Edward Loring, James Hughes, David Wilmot and Ebenezer Peck, judges. Hughes resigned, December, 1864, and was succeeded by Charles C. Nott. The sittings of the court during the earlier years of its existence were held in a room in the center of the Capitol, under the library; Wilmot's residence throughout the whole term of service on the Claims Bench was at Mrs. Carter's, No. 4 North A Street.

In the first case recorded in the reports of the new tribunal (Gordon's case) it is noted that "Wilmot, J., not having heard the argument, does not take part in the decision," which was against the claimant. The first case in which he appears to have

1 Presented at the December term of the Supreme Court, 1865.

sat was Pitcher's case, for profits on six patented broommachines used by the warden of a United States penitentiary without authority from the patentees. He concurred in an opinion dismissing the case as not within the jurisdiction of the court under the statute creating it. The first case in which he wrote and delivered the opinion of the court was Grant's case, which was thus stated in the syllabus:

The officer of the United States commanding troops in the vicinity of Tucson, Arizona, orders his subordinates to destroy such government stores as he cannot transport, together with such private property of the claimants as may be of value to the public enemy or to the disloyal people of Tucson. The subordinate officer, acting under circumstances of immediate and pressing necessity, notifies the claimant to save his papers, and in half an hour fires his mills and other property.

The principles determining the findings of the court, as briefly condensed at the head of the opinion, were that:

The taking of private property for use or destruction, when the public exigency demands it, by a military officer commanding any part of the public forces, is an exercise of the right of eminent domain.

Whenever the officer is justified, the government is liable. The state of the facts as they appeared to the officer when he acted must govern the decision.

There is no discrimination to be made between property taken to be used and property taken to be destroyed.

It is no defense that the circumstances must have rendered the property valueless to the owner if the officer had not destroyed it. It is the imminence of danger that gives the State the right to destroy property; but the certainty of the danger does not relieve the State from liability for the property which it takes to destroy.

Wilmot's written opinion, delivered on behalf of the court, fills about ten pages. It gives a vivid statement of the details

2

2 Court of Claims Reports (Nott & Hopkins), 1863-1865, pp. 41-52.

of the case, which arose out of the operations of the Civil War, on July 15, 1861, when Texan rebel forces were preparing to cut off the Federal troops in the territory of Arizona, and had the active sympathy and support of a surrounding population of "lawless adventurers, intensely hostile to the government of the United States." Grant was a contractor for furnishing commissary and quartermaster supplies, and he had erected at his own expense "flouring mills, dwelling houses, storehouses, shops and corrals," full of personal property. These were burned to prevent their falling into the hands of the enemy, by Lieutenant Lord, commanding a company of United States dragoons, under the orders of Captain Moore, his immediate superior officer. The opinion next presents an authoritative statement of the law of eminent domain, and a clear and sensible analysis of the measure of damages; and in conclusion orders and adjudges that the claimant have and recover from the United States the sum of $41,550, to be paid in due course of law.

Wilmot wrote and delivered the opinion of the court also in the Bonner case, in which Allen G. Thurman appeared as one of the counsel for the claimant. The substance of the issue was that:

Virginia cedes territory to the United States, reserving a tract for her quota of the Continental troops. The western boundary of the reservation is not fixed by the grant. Virginia neglects to fix the boundary, but the United States do so by act of 26th June, 1812. The claimant locates his warrant beyond this boundary. The United States grant the property to another party, who enters upon and possesses the same.

The opinion in this case held that:

Congress has the power to fix the western boundary of the tract reserved by Virginia in the northwest territory, in case of neglect of Virginia to do so. A Virginian land warrant located anywhere between the Sciota and Miami, without such western boundary, is void.