CORRESPONDENCE 
 
 RELATING TO 
 
 MASSACHUSETTS CLAIM
 
 UCStf LitJKAKY 
 
 V r/*\ ^^- / // / / \ 
 CJ/ 75 ^/ ^-/ ( _x 
 
 REPORT 
 
 OP THE 
 
 HON. JOHN DAVIS, 
 
 afgent for tj>e 39rosecutfoti of ti)e 
 
 CLAIM OF MASSACHUSETTS 
 
 UPON THE 
 
 UNITED STATES, 
 
 FOR 
 
 MILITIA SERVICES DURING THE LAST WAR 
 
 TO 
 
 HIS EXCELLENCY LEVI LINCOLN, 
 
 GOVERNOR OF THE COMMONWEALTH, 
 
 Referred to in the Governors Speech, and transmitted 
 by him to the Legislature, by Special Message, 
 
 MAY 30, 1831. 
 
 Uoston : 
 
 BUTTON AND VVENTWORTH, PRINTERS TO THE STATE. 
 
 1831.

 
 SENATE.. ..No. 2. 
 
 WORCESTER, APRIL 2d, 1831. 
 SIR, 
 
 In my letter of the 20th of November last, I gave 
 you an account of my proceedings as the Agent of Mas- 
 sachusetts in settling her Claim upon the United States, 
 for disbursements, during the late war, and at the same 
 time communicated to you the correspondence, which 
 had then taken place between me and the Secretary of 
 War. I will now invite your attention to subsequent 
 transactions. I left this place in the latter part of De- 
 cember for Washington, having previously requested 
 the Secretary to inform me if my personal attention to 
 the business would hasten its termination, and assured 
 him, if such was the case, that I would at once repair 
 to that city. 1 found on my arrival that no delay had 
 been occasioned by my absence. 
 
 In order that the correspondence and documents to 
 which I shall refer your Excellency may be understood, I 
 will again state the condition of the claim, when it was 
 taken up by me, as the agent of the Commonwealth, 
 and the question which was pending between me and 
 the Secretary of War, when 1 made my report in No- 
 vember last. 
 
 Before the passage of the act of Congress of May, 1 830, 
 which provided for the adjustment of the demand, the 
 House of Representatives, by a. resolution, had directed 
 1
 
 the then Secretary of War, Mr. Barbour, to cause it to 
 be examined for the purpose of ascertaining what was 
 due, and in compliance with that resolution, the ac- 
 count with the vouchers were committed to the Third 
 Auditor for that purpose. The whole underwent a rigid 
 ex-parte examination, and his report to the Secretary 
 was made in 1828, and laid before the House of Rep- 
 resentatives without a re-examination or any alteration. 
 
 In this report the expenditures of the State were ar- 
 ranged under the following heads. 1. " Guards," which 
 embrace the charges for such troops as were detached 
 to watch the approach of danger and to transmit intel- 
 ligence thereof. 2. " Alarms," or disbursement for 
 troops who were called out on sudden emergencies to 
 repel actual or threatened invasion, where the circum- 
 stances did not allow of delay. These troops were de- 
 tached by orders which reposed discretionary authority 
 in the commanders of Divisions for that purpose. 3. 
 " Executive Calls," or the charges for troops taken into 
 the service by order of the Governor, upon the repre- 
 sentation of the inhabitants of the dangers to which 
 they were exposed by an armed force upon the coast. 
 Under these heads, nearly the whole claim is arranged, 
 but there are several subordinate classes, which there 
 is no occasion to enumerate. 
 
 So much of the report as presents a general analysis 
 was printed by order of the House of Representatives 
 in 1828, from which it appears, that the Auditor pro- 
 ceeded in his examination without reference to the con- 
 troversy between the two governments, professing to 
 allow or reject items on the same principles which had 
 been applied to the settlement of like claims from other 
 States. The whole amount demanded is
 
 and the amount allowed is $430,748 26. The princi- 
 pal items of charge are the pay of troops, their clothing, 
 the use of arms, rations, hospital expenses, fortifications, 
 hulks sunk or prepared to be sunk for the defence of 
 harbors, barracks, transportation, &c. &c. The deduc- 
 tions, which constitute nearly one half, are arranged 
 under several heads. 1. Clothing, which is said to be 
 inadmissible, because allowances of that kind have 
 not been made to the militia of any State. 2. Use of 
 arms, for which the State allowed to each soldier fifty 
 cents a month, is declared to be inadmissible for the 
 same reason. 3. Overpayments for rations. The State 
 allowed 20 and 25 cents for each ration, while the Au- 
 ditor allowed but 17 cents, on the ground that the Uni- 
 ted States had a contract in this Military District to 
 furnish all rations at that rate. On an early represent- 
 ation, however, to the President, Mr. Monroe, that the 
 contractor could not supply them, he agreed that they 
 should be estimated at 17 cents, and the balance should 
 stand for further consideration. 4. Overpayments. The 
 State, in making up the daily pay of the troops, ave- 
 raged it upon 30 days for a month. The United States 
 adopted a different rule, by averaging it upon the actual 
 number of days in the month when the service was ren- 
 dered. For example, the pay of a colonel is $70 a 
 month, and his daily pay, at this rate, in a month of 28 
 days, would be $2,50 ; in a month of 30 days, $2,33 ; 
 and in a month of 31 days, $2,25J. The application 
 of this rule caused considerable deduction. 5. Excess 
 of rations. The Auditor alleges that in some instances 
 a greater number of rations are charged than the troops 
 were entitled to, and in others, that officers drew a 
 greater number than their rank justified. The excess
 
 is disallowed. 6. Payments by the State for Servants. 
 These items are in all instances disallowed, where the 
 servants do not appear by the rolls to have been regu- 
 larly mustered. 7. Forage. It is, perhaps in most in- 
 stances, rejected, because the officers have not certified 
 according to the army regulations, that the horses were 
 actually employed in the service. 8. Many of the 
 charges for fuel and rooms, instead of barracks, are 
 deducted, because the evidence which supports them is 
 informal or unsatisfactory. 9. Fortifications. All charges 
 for the erection of fortifications and batteries are alleged 
 to be inadmissible, on the ground that such expenses 
 are never allowed. Other objections are made to many 
 of the expenditures which appear at large in certain 
 manuscript documents of the Auditor called " Rough 
 Notes," but there is no occasion to enter more into de- 
 tail. In all cases where the evidence in support of the 
 charges was considered informal or insufficient, the 
 charges are suspended for further proofs and explana- 
 tions, but where they are such as had not been allowed 
 to other States, they were noted as inadmissible. There 
 are charges, also, to a large amount, which, by the 
 established usage of the Department, fall within the dis- 
 cretion of the Secretary to allow or reject, as he thinks 
 proper, upon a view of all the circumstances. Such 
 charges were left by the Auditor for the decision of the 
 Secretary, but Mr. Barbour made none, and none has 
 since been made ; so they stand at present as rejected. 
 From all this, it is obvious that the sum allowed con- 
 sists of monthly pay, fuel, forage, hospital expenses, 
 servants, travel, rations, &c., embracing nearly every 
 kind of expenditure, which has, under the usage of the 
 government, been allowed to militia in the public ser-
 
 vice ; and that the greater part of the sum disallowed 
 consists of similar charges, which either require further 
 proof or explanation, or await the decision of the Sec- 
 retary where they depend on his discretion. 
 
 When the business was intrusted to my care, as agent 
 of the Commonwealth, I found the claim in this condi- 
 tion. I considered the adjustment, as it stood in the 
 report, as substantially ex-parte, for if 1 am rightly in- 
 formed, the State had no one present at that time to 
 furnish additional evidence, or to afford any explana- 
 tions. I need not inform your Excellency, that in such 
 examinations a most scrupulous regard to the interests 
 of the United States, is observed, all items being reject- 
 ed which are not sustained by proofs which agree in 
 form as well as substance with the rules of the Depart- 
 ment. This is but the natural result of a debtor's hold- 
 ing power to settle with his creditor according to his 
 own pleasure. 
 
 Under these circumstances, as you are apprised, a 
 proposition was made soon after the passage of the law 
 of 1830, to the Secretary of War, to pay to the State the 
 balance found due by the report of the auditor, amount- 
 ing to $430,748,26. He was invited to take this course 
 because it was believed the provisions of the act of Con- 
 gress, were broad enough to cover this entire sum, and 
 as advances had been made to other States, while their 
 demands were in a course of settlement, it seemed to be 
 manifestly unjust to withhold this sum from Massachu- 
 setts, until a final and complete adjustment should take 
 place. The first question which arose upon this pro- 
 position, was, whether any further auditing was neces- 
 sary as to that sum, and the Secretary early came to the 
 conclusion that it was not. The next question was,
 
 whether the terms of the act were broad enough to 
 cover this sum, being made up, as it was, of the services 
 and expenditures of every corps of troops called out by 
 the authority of the State during the war. 
 
 This question, as you are aware, was agitated during 
 my residence at Washington, in the month of October 
 and November last, and was left undecided. The dis- 
 cussion was resumed on my return in December, follow- 
 ing, and continued from time to time, until the 20th of 
 January, 1831, when I received a note from the Secre- 
 tary covering his decision, made then as you will per- 
 ceive in a confidential manner, but which, by subsequent 
 transactions has necessarily become public. Both docu- 
 ments are hereunto annexed and marked (A). In refer- 
 ence to the authority conferred on him by the Act of 
 Congress, about which the Secretary seemed at one 
 time to entertain doubts ; he observes in making his 
 decision. " In discharging the trust given to me under 
 this act, I have not felt myself called upon to consider 
 the claim in reference to the objections which were 
 originally made, but simply to determine under the pro- 
 visions of the act, if at the time these claims arose, and 
 when the militia were called out, there was ' an actual 
 invasion or well founded apprehension of invasion,' and 
 also whether ' the numbers were in undue proportion to 
 the exigency.' To determine these is all I feel myself 
 called upon or required to do." I ought here to observe, 
 that he was not only solicited to make this payment 
 upon the strength of the Auditor's report, but when that 
 was done to proceed to a re-examination of the suspend- 
 ed items. 
 
 In coming to a decision upon the above principles, the 
 Secretary as you will perceive rejected all the disburs-
 
 ments accruing under the denomination of " Executive 
 Calls," between the 14th of June and the 4th of Sept. 
 1814, amounting as is believed, to about $50,000. Not 
 being satisfied with the reasons assigned for this deduc- 
 tion, I had an interview with him on the 25th of January. 
 His objections are set forth in his decision, and not en- 
 tirely on the ground that there were troops enough in 
 the service to meet the exigences of that period. Exclu- 
 sive of those rejected, and therefore, in the terms of the 
 Act " the numbers [out] were in undue proportion to 
 the exigency." To remove this objection, I proceeded 
 to make him acquainted with the actual state and con- 
 dition of Massachusetts and Maine during that period. 
 
 1. I invited his attention to the geography of these 
 two States, as exhibited by the maps shewing a maritime 
 frontier of nearly or quite 600 miles which was not, and 
 could not be defended, except by a marine force strong 
 enough to hold possession of our waters. 1 drew his 
 attention to the fact, that this great extent of Coast is 
 indented and intersected with large rivers, broad, deep 
 and secure bays, inlets and harbours, affording a safe 
 and easy navigation to large ships, and also to the fact, 
 that the shores in most places are bold, and in Maine 
 especially, covered by a vast number of Islands, thinly 
 inhabited and wholly unprotected. I contended that 
 these facilities, enabled the enemy to penetrate with 
 safety into an undefended country, unless he was re- 
 strained by armed and organized troops. I pointed out 
 the convenience offered by the Coast to an enemy in 
 possession of the waters, showing that a squadron could 
 maintain itself in all weathers South of Cape Cod, by 
 finding secure anchorage and watering places in the 
 Vineyard Sound and among the Elizabeth Islands that
 
 8 
 
 another could with like safety cruise in Massachusetts 
 Bay, 'finding good and secure anchorage at all times in 
 the harbour of Cape Cod, where there is no population 
 capable of disturbing an enemy, that a third could main- 
 tain itself on the Coast of Maine, where the numerous 
 undefended harbours and Islands afford every conven- 
 ience in all kinds of weather. 
 
 2. 1 pointed out the full extent of measures which had 
 been taken to defend this extensive frontier, no part of 
 which could be said to be fortified except Boston Har- 
 bor. There were batteries at the entrance of some of 
 the principal ports, erected for the purpose of enforcing 
 the revenue laws, but some were without men, others 
 too feebly manned to make any resistance, and others 
 decayed and deserted. In proof of these facts, 1 ad- 
 duced the letter of Gen. King and others who were ac- 
 quainted with the condition of these batteries, and whose 
 declarations fully bear out the statements made by me. 
 
 3. After having shewn the extent and condition of our 
 Coast, I proceeded to prove, what is now, matter of his- 
 tory, familiar to all of us, who personally knew what 
 passed during that period, to wit, that the whole range 
 of frontier was rigorously blockaded that the ships of 
 the enemy were filled with an extra number of men, and 
 provided with barges and tenders to prosecute a maraud- 
 ing warfare that one of his squadrons cruised South 
 of Cape Cod, another in Massachusetts Bay, and a third 
 on the Coast of Maine, that the number of ships in that 
 service, as nearly as I could ascertain from a careful 
 examination of the Marine lists of the day, were about 
 six 74s and eight Frigates, with a proper proportion of 
 Sloops of war and smaller vessels. I contended that 
 this powerful armament could be speedily concentrated
 
 at any given point, or if desirable united with the ships at 
 the naval depot at Halifax, where it would have been irre- 
 sistible in its operations ; that all this was seen by the 
 government of Massachusetts, and common prudence 
 required that measures should be taken to guard against 
 the danger. 
 
 4. 1 next adduced evidence to prove that news from 
 the most credible sources had reached Massachusetts in 
 the month of June, that large armaments were fitting 
 out in England-for our coast, in addition to the above, 
 whose destination was unknown, and therefore appre- 
 hensions were excited throughout the country, and more 
 especially in places which, like Massachusetts, had no 
 resources of defence to rely on except the Militia. 
 
 5. I contended that none but a regular organized 
 force could be safely relied on to repel marine descents, 
 for they were ordinarily sudden and unexpected ; that 
 the movements of such a force are so rapid and decep- 
 tive as to leave no time for repose ; that what is ap- 
 parently abandoned in the morning, may be attacked in 
 the evening ; that we were apprized, from the declara- 
 tions and conduct of the enemy, that a principal object 
 was to destroy our shipping, which was then very great 
 and principally in port; that in June and July he ac- 
 tually entered Wareham, Gloucester, Cohasset, Saco 
 and other places, burning and cutting out vessels and 
 destroying other property. I urged that a single 74 
 could fit out a force of 400 or 500 men to enter our 
 harbors for these marauding purposes, and that none 
 but troops embodied and organized could successfully 
 repel such assaults, for the work of desolation would 
 be over before the unembodied Militia could be collect- 
 ed at a rendezvous. In support of this reasoning, I 
 
 2
 
 10 
 
 quoted the opinion of that distinguished and experi- 
 enced officer Commodore Bainbridge, who in speaking 
 of Boston at that period, in a letter to the late Gover- 
 nor Brooks, says, the work of destruction would be ac- 
 complished by the enemy before the Militia could be 
 collected to repel him. Hence I inferred that the Sec- 
 retary was erroneous in his opinion that the local and 
 unembodied Militia could be relied on to defend our 
 seaports against the assaults of such an enemy, so arm- 
 ed and provided for wasting and destroying our floating 
 property and undefended towns. 
 
 7. To prove that great and serious apprehensions of 
 danger were entertained, I showed that many thousands 
 of our citizens performed daily voluntary service, in 
 keeping up night-watches, and in laboring in fortifica- 
 tions and batteries, for which they never demanded or 
 received any remuneration ; that many municipal cor- 
 porations advanced large sums of money gratuitously 
 for the same common object ; and that great numbers 
 of the inhabitants moved their property into the in- 
 terior. 
 
 8. I next invited his attention to the allowances made 
 by the United States to Maryland, Virginia, and North 
 Carolina, during the same period, which, I had ascer- 
 tained from good authority, far exceeded the claim of 
 Massachusetts, although each of these States had much 
 less maritime frontier, and were much less exposed to 
 depredation. 
 
 9. I contended, that it was impossible to ascertain 
 the precise amount of force necessary to repel an ene- 
 my invading us from the sea. The movements of a 
 fleet are rapid ; the object was the destruction of prop- 
 erty, and the dishonor of the country. Our defence
 
 11 
 
 was confided to the militia, because the United States 
 could provide us with no other force, and they having 
 turned out in the most prompt and patriotic manner, 
 and sustained the honor of the nation, it would be a 
 most discouraging, ungenerous return to withhold their 
 pay, when that is but a most miserable indemnity for 
 their sacrifices. I enforced this reasoning by many 
 other considerations, which it is unnecessary to enume- 
 rate, as what I have recapitulated will possess you of 
 the general grounds assumed. At the close of the in- 
 terview, the Secretary observed he would examine the 
 documents to which I had referred, and then he should 
 wish for another interview. 
 
 Here the interview rested for some time. 1 called 
 whenever it was convenient, to ascertain what progress 
 had been made, but had no further conversation of im- 
 portance, nor were there any written communications 
 on this question, except a brief note under date of Jan. 
 26th, designed principally to furnish more accurate in- 
 formation as to the amount of tonnage owned in Massa- 
 chusetts and Maine than I possessed at the time of the 
 above conversation ; an extract from which is herewith 
 submitted for your consideration, and marked (B). 
 
 On the 5th of February following, I was at the de- 
 partment, and the Secretary observed that he should 
 probably make known his decision on the next day. 
 This was unexpected to me, as I supposed he would 
 have invited me to another interview ; but as I felt 
 anxious to bring the matter to a close as soon as possi- 
 ble, I made no objection to that course, but addressed 
 to him a letter, recapitulating the views I have already 
 communicated, accompanied by some additional re- 
 marks, a copy of which I herewith submit to you,
 
 12 
 
 marked (C). I took this course, lest the Secretary, 
 who is usually pressed with a great weight of business, 
 might have forgotten the arguments which had been 
 urged upon his consideration ; and I communicate the 
 letter to you because it forms a part of the history of 
 my proceedings, and contains some matters which are 
 not adverted to in the foregoing statement. 
 
 The Secretary, however, did not make known his 
 decision until the 27th of February, when I received 
 from him a letter dated the 26th of that month, in which 
 he reverses his former opinion, and allows the charges 
 for the troops, out under the denomination of " Executive 
 Calls," between the 14th of June and the 4th of Sep- 
 tember, 114. This letter is annexed, and marked (D). 
 By this and the decision of the 20th of January, the 
 whole sum found to be due by the Auditor, according 
 to his report in 1828, was agreed to be allowed to the 
 State, subject, however, to a deduction of $1 1,000, 
 which was advanced to the Agent some years ago 
 on general account. The balance, therefore, was 
 $419,748 26, for which sum I forwarded to your Excel- 
 lency a warrant from the Treasury upon the Branch 
 Bank in Boston, early in March. Congress appropri- 
 ated the exact sum found due by the Auditor; but as the 
 act was passed for the purpose of ending the controver- 
 sy between the governments, and as it seemed clearly 
 to look to a final ascertainment of what was due, with- 
 out reference to the amount, I, on the 5th of March, 
 addressed a letter to the Secretary of War, desiring him 
 to cause the residue of the claim to be brought under 
 examination, that the amount remaining due according 
 to the provisions of the act might be ascertained, a 
 copy of which letter is herewith submitted for your con-
 
 13 
 
 sideration, marked (E). On the 7th, I received a re- 
 ply, in which he declines entering upon the investiga- 
 tion, alleging a want of authority, and advancing the 
 opinion, in support of that decision, that the act gives 
 power to settle only for the personal services of the 
 troops, though the sum which had just been paid em- 
 braced almost every species of charge incident to the 
 service. This letter is submitted, and marked (F). 
 On the 8th, I rejoined, by a letter which was not deliv- 
 ered for some days, in consequence of a severe illness 
 of the Secretary, a copy of which is annexed and 
 marked (G). To this I received a reply on the 15th, 
 in which the Secretary adheres to his former opinion : 
 this is also submitted and marked (H). I left Washing- 
 ton immediately, but on the 28th of March, after my 
 arrival here, I again addressed him by letter, a copy of 
 which is also annexed, and marked (I). Here the cor- 
 respondence ended. These letters are so full on the 
 topics discussed in them, that 1 deem it unnecessary to 
 advert more particularly to their contents. They will 
 unfold to your Excellency the course of reasoning 
 adopted on the one side and the other. I have en- 
 deavored to maintain the interest and rights of the 
 claimants, by giving to the Act of Congress its fair and 
 legitimate meaning. It seems to me very clear that the 
 decision of the Secretary, allowing the sum which has 
 actually been paid, was founded upon just conceptions 
 of the meaning of the act. 
 
 Congress intended to remove the controversy be- 
 tween the governments up@n the constitutional law, and 
 leave the detail of the settlement to the Department, to 
 be conducted on the same principles it would have been 
 if no controversy had arisen ; and I cannot discover
 
 14 
 
 any thing in the act, which justifies the belief that it was 
 designed to provide for the payment of one part of the 
 claim, and to exclude another part resting exactly upon 
 the same principles ; and yet such is the practical effect 
 of the final decision of the Secretary. My wish was, 
 that he should proceed and ascertain what further sum 
 was due to the Commonwealth, upon the principles 
 adopted by him in allowing the amount which he had 
 paid, and then, if necessary, we would apply to Con- 
 gress for an appropriation to cover that sum as falling 
 within the principles and provisions of the Act of May, 
 1830. It seemed to me that his decision to allow the 
 amount reported by the Auditor was a clear concession 
 that all our troops were called out to repel actual inva- 
 sion or upon well founded apprehension of invasion, and 
 therefore were to be paid and in the same manner and 
 upon the same principles as payments had been made 
 to other States for the services of their Militia. The 
 act obviously provides for all such troops, and the de- 
 cision of the Secretary admits that it does so provide. 
 Yet it is true if the settlement stops here, we shall not 
 obtain satisfaction for a very large amount of disburse- 
 ments which were made for services and things pre- 
 cisely similar to those which have been allowed and 
 paid. I cannot better illustrate my views of this matter 
 and of the singular attitude in which we are placed, 
 than by referring your Excellency to an abstract from 
 one of the Pay Rolls, which will shew what is allowed and 
 what rejected, and the reasons for the rejections. A 
 single glance at it will satisfy any one that most of the 
 objections are mere matters of form and can easily be 
 removed, and therefore those items ought in fairness to 
 bo allowed, as much as those which have been admit-
 
 15 
 
 ted to be within the provisions of the act. The abstract 
 is annexed and marked (K). From this you will learn 
 the condition of a considerable portion of the balajice 
 of the claim. I still indulge the hope that the Secreta- 
 ry will yield to my request, and cause the residue to be 
 examined, that the amount may be known and provided 
 for ; but whether he yields to our wishes on this head 
 or not, I feel persuaded that Congress cannot refuse to 
 provide for the adjustment of the whole amount upon 
 the principles contained in the act, according to the 
 construction given to it by the payment which has been 
 made. I am not prepared to believe that Congress in- 
 tended, by passing their act, to allow pay and rations 
 to an officer, and to withhold his legal charges for ser- 
 vants, forage and travel ; and yet, if we are to receive 
 nothing more, such will be the result, as you will see 
 by examining the abstract of the pay roll annexed. 
 
 It appears to me, on the whole, that the act, by the 
 terms of it, as well as by the construction given to it by 
 the Secretary in his communication of the 20th of Jan- 
 uary last, must be considered as placing our claim on 
 the same footing as the claims which have been allow- 
 ed to other States, and if the Secretary shall continue 
 to decline proceeding in the adjustment because of the 
 insufficiency of the appropriation, or for any other 
 reason, Congress is bound, upon the principles of natu- 
 ral justice, to make prompt provisions to carry into full 
 effect the principles of that act. 
 
 It would give me very great pleasure to be able to 
 render your Excellency a better account of my steward- 
 ship ; but if I have failed of accomplishing all that was 
 desirable, I trust it has not come of any neglect or in- 
 attention to my duty or the interests of the State. The
 
 16 
 
 business has called for much labor and investigation, 
 which I have felt no inclination to shun, but have given 
 to it my most assiduous attention, taking care, however, 
 that it should not interfere with my other public duties 
 during the last session of Congress. 
 
 In closing this Report, your Excellency will permit 
 me to express the hope that this communication, with 
 the documents appended, will place the whole matter 
 in so obvious a view, that it will be fully understood. 
 I have the honor to be, 
 
 Your obedient servant, 
 
 J. DAVIS.
 
 (A) 
 J. H. Eaton to J. Dams. 
 
 SIR, I send you the enclosed Report, for your 
 examination. By thus placing it in your hands, you 
 will consider it merely intended for your consideration, 
 and not as being actually published. 
 Yours respectfully, 
 
 J. H. EATON. 
 
 Jno. Davis, Esq. of Massachusetts. 
 Jan. 20, 1831. 
 
 (A) 
 Massachusetts Claim. 
 
 The. Claim of the State of Massachusetts for services 
 
 
 
 rendered by her Militia during the late war, have been 
 examined in reference to what I considered was the 
 actual intention of Congress in their act of last session. 
 The controversy and doubt which heretofore have 
 existed in relation to these claims, between the General 
 Government and the State of Massachusetts, are fa- 
 miliar to every one. The Governor had refused to 
 place the troops of the State under command of any 
 General Officer. Of this character are the claims 
 3
 
 18 
 
 which are to be judged of under the directions and pro- 
 visions of the act of last session of Congress. 
 
 O 
 
 These claims had previously been placed before the 
 accounting officer of the Treasury Department, for ex- 
 amination, to be reported by the Secretary of War to 
 Congress for final adjustment. A labored and tedious 
 examination was gone into by the Third Auditor ; and 
 in 1828 the matter was brought to the consideration of 
 Congress for their decision. The report made presents 
 these demands under the following general heads : 
 
 Ami. claimed. 'Ami. admitted. Difference. 
 
 Guards, 39,810 39 27,711 54 12,098 85 
 
 Alarms, 37,652 86 24,141 76 13,511 10 
 
 Calls by Mil. Officers under ? 1Q7 ., QQ no , .,, Q?fl C1 eo io oa 
 
 orders 16th June, 1814, \ 197,48909 144,87681 52,61. 
 
 Executive Calls, 503,85281 227,66203 276,19078 
 
 Defence of Eastport, 1812, > lonfUIS fiTifi12 "5708 00 
 
 and Mil. on service U. S. ( lx} ' 054 12 6 ' 356 M 5 ' 70fc 
 
 790,869 27 430,748 26 360,121 00 
 
 These differences, amounting to more than $360,000, 
 are produced in consequence of payments which had 
 been made by the State, for various inadmissible arti- 
 cles, to wit, Clothing, Arms, &c.. which were not au- 
 thorized by any existing law ; allowances which have 
 not been conceded to other States, and which, conse- 
 quently, ought not to be admitted in the present 
 instance. 
 
 The act of the 31st of May, 1830, directs the adjust- 
 ment of these claims, under the superintendence of the 
 Secretary of War, upon the following conditions : 
 
 1. "Where the Militia of the State were called out 
 to repel actual invasion, or under a well-founded appre- 
 hension of it ; provided their numbers were not in un- 
 due proportion to the exigency."
 
 19 
 
 2. " Where they were called out by the authority of 
 the State, and afterwards recognised by the Federal 
 Government." 
 
 3. " Where they were called out by, and served un- 
 der the requisition of the President of the United States, 
 or of any officer thereof." 
 
 The essential difficulty, and which has involved much 
 and close examination, is in reference to the class of 
 cases under the first general head prescribed. These 
 are most numerous, and would present increased em- 
 barrassment, but for the opinion possessed, that in en- 
 acting the law of May, 1830, Congress intended, that 
 the objections heretofore arising, and which are pre- 
 sented in the correspondence of the Secretary of War 
 and Governor of Massachusetts during the late war, 
 were to be discarded. The right and privilege of both 
 parties (the General and State Governments) to exer- 
 cise control over the Militia, in a period of war, as they 
 were then argued and maintained, are not (as it appears 
 to me) matters now to be considered. The Governor 
 of Massachusetts, acting upon the advice of his Coun- 
 cil, and in reference to the alleged interest of the State, 
 did decline placing the Militia under the control of the 
 General Government ; and on the 7th of September, 
 1814, in communicating this determination, and assign- 
 ing his reasons, employs this language : " A few weeks 
 since, agreeably to the request of General Dearborn, I 
 detached 1100 militia, for three months, for the defence 
 of our sea-coast, and placed them under his command, 
 as Superintendent of this Military District ; but such 
 objections and inconveniences have arisen from that 
 measure, that it cannot now be repeated. The Militia 
 called out on this occasion will be placed under the
 
 20 
 
 immediate command of a Major General of Militia. I 
 will thank you, Sir, to consult with the President, and in- 
 form me whether the expenses thus necessarily incurred 
 for our protection will be ultimately reimbursed to this 
 State by the General Government." 
 
 This letter was written three days after the date of 
 Gen. Dearborn's communication to Gov. Strong, asking 
 for a detail of 4650 Infantry and Artillery, and was ad- 
 dressed to the Secretary of War. On the 17th of the 
 same month an answer was returned, from which the 
 following is extracted : 
 
 " If the force which has been put into service has 
 been required by Major General Dearborn, or received 
 by him, and put under his command, the expense at- 
 tending it will be paid by the United States. If this 
 force has been called into service by authority of the 
 State, independently of Major General Dearborn, and 
 be not placed under him, as Commander of the District, 
 the State of Massachusetts is chargeable with the ex- 
 pense, and not the United States. Any claim which the 
 State may hay^e to reimbursement must be judged of 
 hereafter by the competent authority, on a full view of 
 all the circumstances attending it. It is a question 
 which is beyond the authority of the Executive." 
 
 Here is a declaration by the Governor, which had 
 also previously been made, that the Militia of the State 
 could not be placed under the control of the United 
 States, or made subject to the command of any officer 
 of the Government ; and in reply is an avowal on the 
 part of the Secretary of War that the State " is charge- 
 able with the expense, and not the United States." This 
 ground of difference, the act of Congress removes. 
 
 These circumstances, and indeed the entire facts be-
 
 21 
 
 longing to the claim, were before Congress for consider- 
 ation on the 30th of May last, when the law for their 
 adjustment was passed, which declares, " that the proper 
 accounting officers of the Treasury, under the superin- 
 tendence of the Secretary of War, be, and they are 
 hereby authorized and directed to credit and settle the 
 claims of the State of Massachusetts against the United 
 States, for the services of her Militia during the late 
 war," under certain conditions and provisions which 
 already have been stated. 
 
 In discharging the trust given to me under this act, I 
 have not felt myself called upon to consider the claim 
 in reference to the objections which were originally 
 made, but simply to determine, under the provisions 
 of the act, if at the time those claims arose, and when 
 the Militia were called out, there was " an actual inva- 
 sion, or a well-founded apprehension of invasion ;" and 
 also, whether " the numbers were in undue proportion 
 to the exigency." To determine these, is all that I feel 
 myself called upon, or required to do. 
 
 There was no actual invasion, nor, seemingly, were 
 there any circumstances to authorize a well-founded 
 apprehension of one, during a portion of the time. 
 Early as the middle of June, 1814, subsequent to which 
 period those claims originated, application was made to 
 Major General Goodwin, by the citizens of Wareham, 
 setting forth that the British, a few days before had 
 landed, and burnt a factory and several vessels. Many 
 of the towns, impressed with like apprehensions, prefer- 
 red similar requests. The town of Brewster was put 
 under contribution, and had to pay a large sum to pre- 
 vent the burning of valuable salt-works which were 
 erected there. British ships of war were frequently seen
 
 22 
 
 hovering along the coast, and occasional landings were 
 made, and much damage done; but they were partial, 
 momentary descents, for marauding purposes merely. 
 Apprehension of invasion was confined to the citizens 
 of Massachusetts. At this time the Government did not 
 entertain it. It only looked to such a result as probable 
 and prospective. 
 
 On the 13th of June, 1814, Commodore Bainbridge, 
 apprehending a probable descent on the Navy Yard 
 at Charlestown, from some British vessels, solicited, 
 that assistance might be furnished him. He says, " The 
 force of the enemy in Boston Bay justifies, in my opin- 
 ion, apprehensions of an attack being made on this 
 place, [Navy Yard] and calls for united exertions to de- 
 fend it. The important public property entrusted to 
 my charge, might in such an event suffer severely, and 
 would in a considerable degree expose the towns of Boston 
 and Charlestown." The guards furnished under this re- 
 quest were discharged on the 23d of June. Commodore 
 Bainbridge remarks that " they can at present be dispens- 
 ed with." Whether this course was taken because he be- 
 lieved that no further apprehensions of attack or invasion 
 were to be apprehended, does not appear ; but about 
 the same time, 22d, Col. Osgood's regiment was order- 
 ed into service, proving thereby that the fear of the 
 citizens, at least, had not subsided. This regiment was 
 also discharged the 30th of July following. On the 4th 
 of July the Secretary of War wrote to the Governor of 
 the State. He does not advert to the probability of an 
 immediate, but of an invasion that might happen there- 
 after. He says, " The late pacification in Europe offers 
 to the enemy a large disposable force, naval and mili- 
 tary, and with it, the means of giving to the war
 
 23 
 
 here, a character of new and increased activity and 
 extent." 
 
 Upon these points we have no evidence of the opin- 
 ions which were entertained by the constituted authori- 
 ties of the State. Orders had been given by the Gov- 
 ernor, directing the Major Generals of Divisions, on the 
 happening of any emergency, to call forth the troops at 
 their own discretion. The different and respective 
 towns occasionally made their demands, and the Major 
 Generals acceded to them, under their general instruc- 
 tions, without any immediate or direct authority from 
 the Governor. The fact of a probable invasion, how- 
 ever, on the grounds presented, being admitted, the 
 question to be settled, is, whether the numbers called 
 for, " were in undue proportion to the exigency." 
 
 Those troops who are under the head of guards and 
 alarms, whether considered as to time or numbers, are 
 not in undue proportion. Nor are troops under the class 
 of Executive calls, which [is] the larger proportion of 
 the demand, so to be considered. The latter came into 
 the field at a time when general fear and apprehension 
 pervaded our entire coast. Rumor, in various forms, 
 told of a large force which was about to leave England, 
 destined to move against this country ; but at which 
 point to be landed none could tell, though apprehension 
 suggested it to be at any and every point. Previous to 
 this time, Eastport had been taken possession of by the 
 enemy ; though in this there was nothing indicative of 
 invasion, or as being for a purpose other than Fitzherbert, 
 the Lieut. Col. then commanding, avowed it to be. In 
 a letter addressed by him to Brigadier General Brewer, 
 on the 12th of July, the day after the surrender of the 
 post, and which letter he states was written by direction
 
 24 
 
 of Sjr John Sherbrook, " for the information of the peo- 
 ple of Robinstown, and elsewhere on the main land," 
 he observes, " the object of the British Government is 
 to obtain possession of the islands of Passamaquoddy 
 Bay, in consequence of their being considered within 
 our boundary line : that they have no intention of carry- 
 ing on offensive operations against the people residing 
 on the continent, unless their conduct should oblige us 
 to resort to the measure ; and in the event of their re- 
 maining quiet, they will not be disturbed either in their 
 persons or property." This official communication was 
 immediately made known to the Governor of Massachu- 
 setts. It shows the intention of the enemy, that no at- 
 tack was meditated " against the people residing on the 
 continent ;" that the object simply was, to take posses- 
 sion of those islands, which, by the original treaty of 
 boundary, was believed to belong to Great Britain. It 
 was subsequent to this period that serious apprehensions, 
 and upon reasonable grounds, began to be entertained ; 
 and when preparation against assault appeared indeed 
 necessary. Late in August, Castine was taken posses- 
 sion of, and occupied ; and about the same time, the 
 city of Washington, the Capital of the country, was at- 
 tacked, carried, and its public buildings destroyed. 
 Other neighbouring cities were threatened. At this 
 moment, and under these circumstances, the calls under 
 consideration, by the Executive of Massachusetts were 
 made. These I consider to be within the meaning of 
 the act of the last session, which was passed in refer- 
 to this subject, that there were grounds to apprehend 
 invasion, and that the number of troops called for, and 
 placed in service then, was not unsuited to the reason- 
 able peril the exigency of the occasion.
 
 25 
 
 That part of the claim presented, about which doubts 
 have been entertained, embraces calls of the Militia 
 which were made by the State Major Generals, under 
 an order of the 14th of June, and in pursuance of which 
 a considerable demand arises. Upon this part of the 
 subject I have advanced with much distrust, not feel- 
 ing entirely and altogether satisfied with the conclusion 
 to which I have arrived. 
 
 At the period when this call was made, is found the 
 declaration of Commodore Bainbridge, that the troops 
 which he had solicited for the defence of Charlestovvn, 
 and for protection against a probable attack upon the 
 Navy Yard, " can at present be dispensed with." This 
 was an important point. The Independence 74 was 
 there building, and much public property was at the 
 Navy Yard, the destruction of which could not but be 
 of high consideration with the enemy ; and yet, on the 
 23d of June, the Commodore dismisses these troops, in 
 whom he had great confidence, from service. If there 
 had been any probability of an attack, or an invasion, 
 so qualified and discreet an officer as Commodore Bain- 
 bridge, is every where known and admitted to be, would 
 not have proceeded with such want of precaution, as 
 this act would evidence. 
 
 During the months of June and July, at different 
 points in the State, more than one thousand United 
 States troops were stationed ; and in the month of 
 August were increased to 2060. These, with the auxili- 
 ary force, which under the head of Alarms and Guards, 
 had, during the time been called out, and which were 
 in service, appear to me to have been fully sufficient for 
 the exigency ; added to which there were detachments 
 
 4
 
 26 
 
 of Militia during the time, in service, under the imme- 
 diate control and command of General Dearborn. 
 
 It does not appear that the enemy was in such force 
 as to attempt an invasion. Partial descents along the 
 coast, in their barges, in inconsiderable strength, were 
 the only dangers to be apprehended ; and these wore 
 to be met and repelled, at all other than important 
 points, by the Militia of the neighborhood, held in read- 
 iness, but not called into service. They were fully 
 competent to such service, and should have been relied 
 upon to perform it. The governor, in a communication 
 made to the Secretary of War on the 5th of August, 
 1812, employs language which justifies this assumption. 
 
 He says, " Every harbor or port within the State has 
 a compact settlement, and generally the country around 
 the harbor is populous. 
 
 " In Boston, the Militia is well disciplined, and could 
 be mustered in an hour upon any signal of an ap- 
 proaching enemy ; and in six hours the neighboring 
 towns could pour in a greater force than an invading 
 enemy will bring against it. 
 
 " The same remark applies to Salem, Marblehead, 
 and Nevvburyport, places where harbors render an inva- 
 sion next to impossible. 
 
 " Kennebunk is unassailable by any thing but boats, 
 which the numerous armed population is competent to 
 resist. Portland has a Militia and independent corps, 
 sufficiently numerous for its defence ; and the same is 
 the case with Wiscasset and Castine. 
 
 " Against predatory incursions, the Militia of each 
 place would be able to defend their property, and in a 
 very short time would be aided, if necessary, by the 
 Militia of the surrounding country. Considering the
 
 27 
 
 state of the Militia in this Commonwealth, 1 think there 
 can be no doubt that detaching a part of it, and distrib- 
 uting it into small portions, will tend to impair the de- 
 fensive power." 
 
 It will be perceived that the Governor has enumerated 
 most of the principal towns, and given the assurance 
 that within themselves they possessed the capacity of 
 ample defence against any predatory system of war- 
 fare ; and none other, during the period adverted to, 
 was to be apprehended. Serious invasion was not 
 thought of; or at least there were no circumstances, no 
 show of actual force to induce to such a conclusion. 
 
 Under all the circumstances presented, therefore, I 
 cannot conclude otherwise than that the force employ- 
 ed by the State, under the calls of June, 1814, were, to 
 the 4th of the month of September, "in undue propor- 
 tion to the exigency," and hence do not feel myseli at 
 liberty, during that period, to sanction the allowance. 
 It is indeed but matter of opinion, which may or may 
 not be correct ; yet it is that which the law 1 am con- 
 sidering makes the touchstone of my action and decis- 
 ion on the case. I may be charged with prejudice ! I 
 have none. Under the same circumstances, with the 
 law which creates my authority, and the facts which 
 arise, I should come to the like conclusion, were the 
 claim presented from my own State. Acting in a public 
 capacity, I have no feelings to entertain no prejudice 
 to indulge. 
 
 My decision then is, that the claims under the class 
 of Guards and Alarms be " settled and credited," sub- 
 ject to any exceptions which have been made in cases 
 of other States. These acted under sudden emergen- 
 cies, were auxiliaries to the forces of the United States,
 
 28 
 
 were videttcs to give notice of danger, and of its ap- 
 proach, and at no time appear to have been in undue 
 proportion to the exigency. 
 
 Executive calls will be admitted under the same rule 
 of settlement, for the reasons already given. 
 
 The report of the Third Auditor, of January, 1828, 
 will form the basis of the adjustment to be made. From 
 the admissible amount then stated, to wit, $430,748 26, 
 there will be subtracted such items of that estimate as 
 by this report are disallowed. 
 
 The two companies called out the 15th of Septem- 
 ber, 1813, for the defence of Portland, are not to be 
 deducted ; nor will the Guard which acted with Com- 
 modore Bainbridge ; these being troops which served 
 under an officer of the government. Any payments 
 which have been made by the United States, on ac- 
 count of Militia service in the State, will be deducted. 
 
 J. H. EATON. 
 
 John Davis, Esq., Rep. in > 19th Jan. 1831. 
 
 Congress from Massachusetts. > 
 
 (B) 
 
 Extract of a Letter from Mr. Davis to the Secretary of 
 
 War, dated 
 
 Washington, Jan. 26, 1831. 
 
 " Since I had the pleasure of seeing you, I have as- 
 certained that Massachusetts, including Maine, had, in 
 the year 1814, 371,824 tons of shipping. Boston had
 
 29 
 
 107,199 tons, Portland 31,913, Wiscasset 16,715, Wal- 
 doborough 16,292, New Bedford 23,109, Gloucester 
 (Cape Ann) 8,953, Salem 28,847, Newburyport 19,890. 
 You will see by this statement, as a very large portion 
 of the vessels were then in port, the vast amount of 
 property at hazard. New Bedford is one of the places 
 attacked in June by nine barges, containing 400 men. 
 The torch applied to this shipping would do the work 
 of destruction very quick, and nothing short of artillery 
 could prevent it. The inhabitants of New Bedford 
 thought, and surely correctly, that there was no safety 
 without an organized military force, ready to act at all 
 times, while the enemy were in their waters, as the 
 fort had but 7 guns, and about 20 men and boys in it. 
 General Lincoln says it could only be defended outside 
 of its walls. 
 
 " You will also appreciate the danger and the prop- 
 erty at hazard in Gen. King's Division, when you look 
 at the amount of shipping at Bath, Wiscasset, &c., 
 especially when it is considered that the enemy had 
 avowed his purpose of destroying this property. 
 
 " You can learn something of the condition of the 
 forts, and of the amount of property, from Gen. King's 
 letters published in Doc. 83, 18th Congress, pages 159, 
 160. You will also see on this head his views, at pages 
 38, 39, of the Documents I left with you. 
 
 " I need not add that the shipping, to say nothing of 
 the other property, on Boston Bay, was worth several 
 millions of dollars. When we add to all this the fact, 
 that the enemy were almost daily assailing the country, 
 at some one or more of its exposed points, burning the 
 shipping, and in several instances carrying away or de- 
 stroying other property, it seems to me the people
 
 30 
 
 had most justly a well founded apprehension of in- 
 vasion. 
 
 " They saw also great danger in the circumstance 
 that the enemy had a large disposable force, which 
 could be easily and in a very short time concentrated, 
 for it moved on the wings of the wind. This was fully 
 proved when Castine fell into their hands. 
 
 " I could add much to strengthen this view of the 
 subject, but I will only trouble you with one remark. 
 It appears most abundantly, that the State was most 
 anxious to avoid any except absolutely indispensable 
 expense, and that the officers to whom authority was 
 confided were directed not to keep troops" in service 
 unless the public safety called for them. They were 
 on the spot, and saw the danger, and could form a more 
 accurate estimate than any one can who has less means 
 of arriving at the truth." 
 
 (C) 
 /. Davis to J. H. Eaton. 
 
 Washington, Feb. 5, 1831. 
 
 SIR, In my conversation with you, and also in a 
 hasty note I addressed you on the 26th ult. I pointed 
 out the condition of the State of Massachusetts in the 
 year 1814, and the dangers to which she was exposed, 
 and I now beg leave again to advert to the same facts 
 with some additional remarks. 
 
 1st. I called your attention to the great extent of 
 maritime frontier, being nearly, if not quite, 600 miles 
 exposed to depredations.
 
 31 
 
 2d. I described the character of that coast, pointing 
 out the facilities it afforded to an enemy of superiour 
 naval force to wage a destructive war upon us, by reason 
 of the numerous undefended points, and the numerous, 
 safe and convenient harbours which he could enter and 
 occupy at pleasure, and thus be enabled to maintain his 
 cruising ground, in all kinds of weather, as he did. I 
 referred you also to the maps of that territory, which 
 show how it is indented with bays, rivers, and harbours, 
 giving access to the interiour, by reason of the great 
 depth of water, and by a tide of 10 or 19. feet in its 
 usual flux and influx and stated also what is well known, 
 that many of these harbours and passages have upon 
 them very little population, and are and were wholly 
 undefended by fortifications. 
 
 3d. I stated that the shipping of Massachusetts in the 
 year 1814 amounted to 371,824 tons, which was proba- 
 bly mostly in port, and scattered along this frontier, 
 where it belonged, a great amount of it being in places 
 relying wholly on the militia for protection. 
 
 4th. I adverted to the fact, that in 1814, by reason of 
 the peace in Europe, the war here was prosecuted with 
 increased vigor, our coast being rigorously blockaded by 
 a great marine force which had a two-fold object ; first 
 to cut up all trade and intercourse by water ; and second, 
 to destroy all shipping, whether in port or out of port, 
 as well as to seize upon and occupy such weak points 
 as could not be defended, the possession of which would 
 annoy us and interrupt our intercourse. 
 
 5th, I show from the documents and the history of 
 the times, that during the Summer of 1814, a large ar- 
 mament well prepared and equipped with men, arms, 
 boats, tenders, &c. &c. was constantly hovering on our
 
 32 
 
 coast, menacing our towns and shipping; in many in- 
 stances destroying the latter, and constantly attempting 
 to land, or penetrate our harbours and rivers for the 
 wasting purposes of war. I also invited your attention 
 to another important fact, namely, that this force when 
 concentrated, constituted a powerful armament, and that 
 it was in the power of the enemy to draw together a 
 fleet made up of the vessels scattered along the coast of 
 Massachusetts, and those usually at the rendezvous at 
 Halifax, which would have carried dismay and destruc- 
 tion with it, in defiance of any force in the service of 
 the country, in the Summer of 1814, and that such a 
 concentration might be made before the news of the in- 
 tent could reach the point endangered ; for all commu- 
 nication by sea with our people was at an end. 
 
 6th. I also desired you to look at the evidence derived 
 from Gen. King and others, by which it appeared that 
 the forts of the United States in many places were de- 
 cayed, in some, deserted because incapable of being 
 defended, in others, only nominally manned, the troops 
 having been withdrawn and embodied with the army. 
 What the actual number left was, or how it was distribu- 
 ted, I have not by me any means of knowing, except 
 from the statements contained in your instructions to the 
 accounting officers of the Treasury. 
 
 Having pointed out these general facts which seem to 
 justify maintaining the force which was out in the Sum- 
 mer of 1814, I then invited your attention to the par- 
 ticular circumstances which attended the charges for 
 troops at some of the important points, and believing 
 that a brief review of that ground will not be unaccept- 
 able, as it will aid in ascertaining the truth, I will ven- 
 ture again to trouble you with some remarks upon it.
 
 33 
 
 The troops objected to serve under executive calls be- 
 tween the 14th of June, 1814, and the 4th of September 
 following, and the above observations show the general 
 state and condition of the country, and the mode of war- 
 fare. We will now see what was done at some of the 
 more important places, and the reasons for doing it. 
 
 Under Executive calls, marked (C) in Document 3. 
 page 498 published by the Senate at the first Session of 
 the 21st Congress, are charges for troops who served at 
 New Bedford and Fair Haven in June and July. New 
 Bedford which lies on a river which discharges itself into 
 Buzzard's Bay, had been largely concerned in the whale 
 fishery, and had then in port, as Col. Lincoln states, 
 more than 50 ships, besides a great number of other 
 vessels which tempted the cupidity of an enemy who was 
 a rival ia that business. The harbour was protected by 
 a small fort of 7 guns, manned as the same officer in- 
 forms us, with 23 men and boys. On the 13th of June 
 the enemy, who with several ships of war, was constantly 
 cruising off the coast in this neighbourhood, made a 
 sudden descent about day light, in the morning, upon 
 the place with 9 barges containing 400 men, with the 
 intent to destroy this property. It will be recollected 
 that previous to this time, Falmouth had been cannona- 
 ded by the Nimrod : Wareham had been invaded, the 
 shipping destroyed, and a factory set on fire. 
 
 These were towns in the same portion of the State. 
 On the 3d of July, Col. Lincoln says they had thrown 
 up a new battery, and " the enemy are in sight of the 
 harbour continually." 
 
 On the 21st of July, he says, a barge with 30 or 40 
 men was sent into West Port, but was beat off before 
 the shipping was destroyed. He also observes, that 
 
 5
 
 34 
 
 " the British force in our sound has been recently aug- 
 mented." This force, as I understand the matter, block- 
 aded this part of the coast, and continued active in its 
 exertions to do mischief through the season. I will not 
 go more into detail of the facts, for it seems to me there 
 can be no doubt, that the circumstances justified the 
 Major General in calling out troops to defend these 
 towns, and he would have been criminally guilty if he 
 had failed to do it. It will be borne in mind that Gen. 
 Dearborn confirms this view, for on the 8th or 9th of 
 August he stationed at Fair Haven a force of 90 men, 
 when most if not all the troops ordered out by the mili- 
 tia officers were dismissed. Now, if these troops are 
 not to be allowed, it follows that New Bedford was not 
 entitled to any measures of defence through all the peril 
 which existed antecedent to the 8th or 9th of August, for 
 there were no troops then except a few guards at Fair 
 Haven and those in the fort. The descents of a marine 
 force are generally sudden, and the work of destruction 
 is over before the assailed recover from surprise. An 
 armament spreads its flag in your waters in the morning, 
 and before mid day it is gone you know not where, to 
 surprise some other place, and will return when you 
 least expect it, and steal upon you in the night, or at a 
 moment when you are least prepared to meet it. These 
 movements are so rapid, that there is no safety short of 
 a constantly organized force, ready to meet and repel 
 assaults at all times. You will not be surprised when 
 you read in the documents that the inhabitants were in 
 a state of alarm and consternation, nor will you doubt 
 what can be proved by thousands of living witnesses, 
 that voluntary service was performed by vast numbers 
 of our citizens through the perilous periods of 1814, for
 
 35 
 
 which no pay was ever desired or sought for. That 
 New Bedford and the towns in that vicinity were in 
 eminent jeopardy in the Summer of 1814, from the ene- 
 my, does not admit of doubt, and that their shipping 
 would have fallen a victim to the marauding disposition 
 of the enemy if he had not been repelled by the Militia 
 is equally clear. The number of persons who were out 
 as guards, seem in the judgment of all the officers and 
 citizens to have been considered wholly inadequate to 
 arrest the enterprises of the enemy. The only question 
 therefore, is whether Col. Lincoln called out too much 
 force. By what rule shall this be measured ? Who can 
 tell when an attack is to be made from ships of war, the 
 precise number of men necessary to repel the assailant ? 
 If the force is too small, and is overcome, the calami- 
 ties which ensue in the loss of life and property can 
 better be imagined than described. The dishonor too 
 to the country must stand as long as there is a faithful 
 record of history. It seems to me clear that it is better 
 to have too much force than too little. We are to look 
 at the thing at hazard, the lives and property of our 
 fellow citizens, both of which the government stands 
 obligated to protect, if it be in its power to do so. We 
 learn at the very first onset at New Bedford, 400 men 
 were detached from the enemy's shipping to make the 
 assault, and it appears his force was afterwards increased. 
 Now the Militia had not only two tovyns to defend there, 
 one on each side of the river, but many other points 
 which commanded passes in other directions and to 
 other places. 
 
 This force of the enemy continued off these ports for 
 a long time, and perhaps at some moments of great 
 alarm, the number of men might have been greater than
 
 36 
 
 the result proved to be necessary, but at no time was it 
 equal to the number of the enemy ; and when we con- 
 sider the great difficulty in determining the precise num- 
 ber necessary to give efficient protection to so important 
 a place as New Bedford, it seems to me the government 
 is called upon by every patriotic motive to be liberal, if 
 they mean the frontiers shall be protected in time of 
 war. To say to the soldier who has promptly met and 
 repelled an invader, he cannot be paid because there 
 were enough without him, would tend to extinguish the 
 patriotic ardor of our citizens, and make men mercenary 
 by the exercise of a mercenary spirit in the government. 
 Before pay is withheld on this ground, there should be 
 a plain palpable error on the part of the officer com- 
 manding the station the excess of troops should be 
 obvious. This can hardly be said of the corps at New 
 Bedford, for the officer in immediate command thought 
 he had none too many for the emergency, and so thought 
 the people. They were on the spot and saw and appre- 
 ciated the dangers with more exactness than persons at 
 a distance. They saw and comprehended the various 
 ways in which this force might be brought to bear upon 
 them, and surely great deference should be paid to their 
 opinions. I will dismiss this part of my observations by 
 remarking that New Bedford and the neighbouring towns 
 must have fallen victims to the desolating hand of war 
 long before Sept. 1814, if the Militia had not defended 
 them. When danger first comes upon us, it creates 
 more excitement and apprehension, than when we be- 
 come accustomed to it and learn how to meet it ; and 
 there might have been moments of alarm, when the 
 people in that part of the country magnified the peril ; 
 but on a calm review of the circumstances, I cannot
 
 37 
 
 persuade myself that they did not act wisely and judi- 
 ciously. 
 
 Passing over many small places which it would be 
 too tedious to mention in detail, I will now notice Bos- 
 ton. The services here objected to fall under the class 
 (D), page 83, of the same document. We have it from 
 Commodore Bainbridge, who commanded at the Navy 
 Yard at Charlestown (which it will be observed is for 
 all military purposes a part of Boston), that on the 13th 
 of June the danger was so pressing as " to call for uni- 
 ted exertions to repel it." A company was placed under 
 his directions, and on the 23d of the same month, in a 
 letter to Capt. Sullivan, he agrees to dispense with the 
 services of that company. It has been inferred from 
 this, that the danger had subsided. I am not in posses- 
 sion of the letter from Capt. Sullivan to the Commo- 
 dore, but I infer from the reply that an application was 
 made for a discharge of this company. They were 
 business men from the city, and doubtless were in ser- 
 vice at a great sacrifice, and therefore anxious to be 
 discharged. The reason of the discharge, and of Com- 
 modore Bainbridge's saying their services could be dis- 
 pensed with, was doubtless this : on the 22d of June, 
 orders were issued by the Governor to detach a regi- 
 ment for the defence of this post, and it is obvious that 
 the occasion for their services was superceded in this 
 way. This regiment was detached from the militia of 
 Boston, and entered on duty for a month with four 18 
 pound battering cannon and two field pieces. That the 
 danger had not diminished is obvious from the fact that 
 the Bulwark 74, and Nymph and Tenedos frigates were 
 then cruising in our waters, and two of them manoeu- 
 vred in sight of the city on the 3d of July. In addition
 
 38 
 
 to this, on the 29th of June, news was received at Bos- 
 ton, that an expedition was preparing at Bermuda, and 
 to sail immediately for the American coast, consisting 
 of four 74s, six frigates, with several sloops of war and 
 transports, with troops. Its precise destination was 
 unknown, but the intelligence came direct, and the 
 ships were named. 
 
 This force, if I am not mistaken, entered the Chesa- 
 peake. 
 
 On the 12th of August, Gen. Dearborn requested the 
 Adjutant General that some small force might be sta- 
 tioned at Duxbury and Cohasset and other small towns, 
 as the inhabitants had made application to him for that 
 purpose. He desired that small detachments might be 
 turned out, without formality or ceremony. 
 
 This is the substance of the facts in relation to the 
 troops serving upon Boston Bay in June, July and Au- 
 gust, and without entering into a detailed examination 
 of them, I will merely inquire whether it would not have 
 been madness to omit making preparation for the dan- 
 gers which seemed to beset them. When so strong an 
 armament as a 74 and two heavy frigates, filled with 
 men, look into a port, and manoeuvre in the face of it, 
 it is time to prepare for their reception, unless you 
 mean to be taken by surprise. That experienced officer 
 Commodore Bainbridge, in his letter of the 5th Sep- 
 tember, writes as follows : " Allow me, my dear Gene- 
 ral [Brooks], to say that if the Militia is not embodied in 
 the field, I should much fear the work of destruction 
 would be over before they could rendezvous or oppose ; 
 for four or six hours would be all the time the enemy 
 would require." 1 feel confident that this officer would 
 not have reposed in peace in the month of July, with
 
 39 
 
 such a force staring him in the face, if Col. Osgood's 
 regiment had not been in service. I ought also to add, 
 that this regiment was ordered out upon a special appli- 
 cation of the Selectmen and inhabitants of Boston and 
 Charlestown. With these observations I submit to your 
 judgment whether this force which was before Boston, 
 as well as that upon the coast, which could easily be 
 concentrated, did not fully justify calling out a regiment 
 to protect so important a place, and whether the same 
 reasoning does not apply with equal force to the neigh- 
 boring towns. 
 
 The next place to which I shall call your attention is 
 Gloucester (Cape Ann), page 96. The town in a body, 
 on the 13th of June, represent that the enemy landed 
 at the wharves and burnt the shipping. The force sta- 
 tioned here, in consequence of the very strong repre- 
 sentations of the inhabitants of daily attacks upon them, 
 continued to occupy the port until a detachment of mi- 
 litia taken into the service of the United States on the 
 8th of July took their place, when they were about to 
 be discharged, but on the representation of the inhabit- 
 ants of their very exposed situation, they were directed 
 to remain. 
 
 It appears also that one of the batteries was taken, 
 and the cannon spiked, notwithstanding all the force. 
 
 The Selectmen also certify, page 101, that the town 
 was constantly, during the summer and fall of 1814, ex- 
 posed to the depredations of the enemy. " The enemy 
 was constantly attempting to land, and was prevented 
 from this and other outrages by the Militia." They 
 represent also that the houses were fired into. The 
 evidence of exposure and of actual injury is very strong 
 antecedent to the 4th of September as well as after ;
 
 40 
 
 and I will leave the matter for your judgment without 
 further comment. 
 
 I fear I shall protract these remarks beyond your pa- 
 tience, and will therefore give Portland, and the district 
 of General King, but a passing notice. On the 22d of 
 June, the Committee of Safety for Portland implored 
 the assistance of the government, representing that 
 " great consternation and alarm universally prevailed 
 among the inhabitants." They say, " the inhabitants 
 are removing their goods and effects out of town, in 
 consequence of our want of preparations for defence ;" 
 " a full meeting of the town was held on Monday last, 
 and the committee act by order and vote of the town." 
 They add, " The principal part of the United States' 
 force have marched oft." I refer you also to the letter 
 of the Hon. John Anderson, which is herewith transmit- 
 ted, who was then a resident of Portland, and confirms 
 all that is said, remarking that there was not a work 
 deserving the name of "fort" on the whole coast of 
 Maine. Under such pressing circumstances, with a 
 very great amount of shipping and other property ex- 
 posed, two companies, I think, were furnished for their 
 defence. This town, it will be remembered, fell a vic- 
 tim to savage ferocity in the war of the Revolution. 
 You cannot, perhaps, find stronger evidence of a sin- 
 cere conviction of danger than when you see people 
 fleeing from their homes to escape it, and turning their 
 town into a fort by the erection of batteries for volun- 
 tary labor, as was the case in Portland. After a portion 
 of the troops detached and placed under Gen. Dearborn 
 were stationed at that place, say in the fore part of Au- 
 gust, it was thought advisable still to retain in service 
 other militia, and you find strong reasons for this ex-
 
 41 
 
 pressed by the Committee of Safety, and also by Mr. 
 Anderson. The latter gentleman says there were then 
 (August) three 74s, a 60 gun ship, with a due propor- 
 tion of frigates and sloops of the enemy, constantly on 
 the coast and threatening attack. 
 
 At Bath, Wiscasset, &c., Gen. King has given a full 
 account of his proceedings, and of the reasons, (page 
 68, &c.) He says, on the 24th of June after describing 
 the active and threatening operations of the enemy, he 
 left 40 men in the fort at the mouth of Kennebeck river, 
 at the request of the Lieutenant of the fort. In his let- 
 ter of the 23d. he says, " no more of the militia have 
 been detained in service than is necessary to guard the 
 various points and narrow passes on the river. When 
 we were first alarmed, some of the companies were or- 
 dered into the forts, which were almost destitute of men, 
 presuming they would be more useful there than in any 
 other situation." In another letter of the 24th he says, 
 " It was quite an object with me to lessen the expense 
 as much as possible." It appears also that formal and 
 urgent application for protection was made by the in- 
 habitants of Bath. Gen. King also represents, that in 
 order to determine how many troops were necessary 
 near Wiscasset, he " sent for Capt. Perry, commanding 
 officer of the fort, and requested him to state what 
 number of men he considered necessary to defend his 
 fort in case of attack." His answer was, " One hun- 
 dred at least." To the question, How many men have 
 you in the fort? he answered, "Eight." I need not 
 add that there was one 74 and a frigate, with smaller 
 vessels, in these waters most of the time ; that there 
 was a very great quantity of shipping, and that every 
 effort was made to destroy it as well as to carry oft 
 6
 
 42 
 
 other property. The attempts to land were constant, 
 and the skirmishes as frequent. The barges when foil- 
 ed in one direction, took another, and kept the whole 
 district in constant jeopardy. 
 
 It is not my purpose to ask your attention to the con- 
 dition of particular towns, any further ; for the necessi- 
 ties and dangers which beset those I have enumerated, 
 were shared in common by all, and it would be difficult 
 to make any discrimination. I have gone thus far, not 
 for the purpose of shewing greater peril at the places 
 enumerated than at others, but to shew the nature and 
 character of the war, and that the population of the 
 coast, as well as their property, were in great jeopardy. 
 It has been my purpose to advance nothing, except 
 what is borne out by well-known facts. If the evidence 
 be not plenary, I am persuaded 1 can make it satisfac- 
 tory from sources on which you would place the most 
 implicit reliance. The general state and condition of 
 the coast the strong force of the enemy the vigorous 
 blockade the marauding character of the war the 
 settled determination to destroy our shipping the pe- 
 culiar preparation to carry on such warfare, and the 
 defenceless condition of the coast, are all facts so noto- 
 rious that no one can be ignorant of them who lived in 
 those times. They speak for themselves a language 
 which cannot be mistaken, and prove that the seaboard 
 was indebted to the citizen soldiers for its safety. The 
 Militia are in truth, and ever have been, the great ram- 
 part of the frontiers, and it is on their patriotic devotion 
 that we must rely. Important positions may be made 
 strong by military works, but our wide-stretching sea- 
 board can never have any other than a living breast- 
 work to defend it, until we become masters of our own
 
 43 
 
 waters. It is the armed population which an enemy 
 who approaches this country fears more than all other 
 strength that he is to encounter. Hence it is of vital 
 importance to us to cherish a regard for the Militia, and 
 to reward their exertions to save the country from dis- 
 honor. I trust, on the whole, that these proofs, though 
 brought together in a desultory manner, will fully sus- 
 tain me in my belief, that no force was out under the 
 order of June 14, 1814, and other orders, which the ex- 
 igency of the times did not call for, and which, in the 
 application of the rules which have been extended to 
 other States, will not be allowed. 
 
 I have written in much haste, for I did not think of 
 addressing you until this evening, as I had supposed, 
 until Friday last, that we should probably have another 
 conversation ; but as you seem much pressed with busi- 
 ness, and as you expressed a hope that you would be 
 able to bring the matter to a close in a day or two, I 
 thought, as it was possible I might not see you again, I 
 would run over the subject on paper. As I have HO 
 time to take a copy of this, you will greatly oblige me 
 by giving me an opportunity to take one after you have 
 perused it. 
 
 With great regard, 
 
 I am, dear sir, 
 
 Your obedient servant, 
 
 (Signed) J. DAVIS, 
 
 Hon. J. H. Eaton, Secretary of War.
 
 44 
 
 J. H. Eaton to J. Davis. 
 
 Department of War, > 
 Feb. 26, 1331. , 5 
 
 SIR, I have been so much pressed with various 
 kinds of business, so much engaged with different tribes 
 of Indians, who are at the seat of government upon 
 matters of interest to them, as to be unable until 
 now to examine and consider the remarks recently 
 offered by you on the subject of my report concerning 
 the Militia Claims of your State. My solicitude finally 
 to decide upon their merits has been great as your 
 own, and I have to regret the delay as much as you 
 do. 
 
 It is true, as you allege, that the various bays and in- 
 dentations of your coast presented an extensive mari- 
 time frontier, open constantly to the attacks of the 
 enemy, and which was necessary to be defended. But 
 in the examination which I made of the case (taking 
 into view the declaration of the British officer after the 
 capture of Eastport, and the assurances of the Gover- 
 nor as to the capacity of the militia at any time to repel 
 assaults, without any previous arrangement of them), 
 my opinion was formed that the force in service, exclu- 
 sive of the calls in June, 1814, was amply sufficient for 
 all the purposes of defence. This opinion, however, 
 was reluctantly arrived at, nor was I entirely satis-
 
 45 
 
 lied with its correctness. Subsequent information ob- 
 tained, and a more close examination, satisfy me it is 
 not correct, and hence with much pleasure it is re- 
 versed. 
 
 By adverting to the accounts for militia service in 
 two of the States (Virginia and North Carolina), during 
 the months of June, July and August (and which have 
 been settled and paid at this department), it appears 
 that in the latter State, during this period of our history, 
 about 900 militia were in service, at an expense to the 
 government of more than $60,000. In Virginia, the 
 number of militia, for the same time, amounted to 
 17,000, and were paid about half a million of dollars for 
 their services. The cause of this difference in amount 
 of expenditure within those States, may be traced to 
 this circumstance, that North Carolina possessed a sea- 
 coast so difficult of access as to afford to her a security 
 which did not attach to any other maritime State. But 
 as it regards Virginia and Massachusetts, the difference 
 is much in favor of the latter. A greater extent of sea- 
 coast, more harbors to defend, and more shipping to 
 protect, should necessarily require even a larger number 
 of militia than were employed in Virginia ; but they 
 were fewer. This reasoning and view being admitted, 
 I am constrained to say, that if the prospect of invasion, 
 during the summer of 1814, in North Carolina and Vir- 
 ginia, was such as to authorize payments to be made to 
 them for militia service, in discharge of the trust before 
 me I cannot, during the same period, declare that a 
 different rule of justice and settlement should be made 
 applicable to any other state. The adjusted balance, 
 therefore, of $144,876 81, which accrues for the months 
 of June, July and August, the payment of which was
 
 46 
 
 refused in my report heretofore submitted to you, is di- 
 rected to " be credited and settled" 
 
 Very respectfully, 
 
 J. H. EATON. 
 John Davis, Esq. > 
 
 House of Representatives. ) 
 
 (E) 
 J. Davis to J. H. Eaton. 
 
 Washington, March 5th, 1831. 
 
 SIR, That portion of the Claim of Massachusetts 
 which the examining officers- have certified to be fully 
 vouched, having been disposed of, I have now to ask 
 your attention to a large balance which was paid out of 
 the treasury of the State for military service during the 
 last war, and which was either suspended or disallowed 
 by said officers, for the reasons set forth in certain 
 manuscript documents called " Rough Notes." 
 
 Many of the items were suspended, as appears, on a 
 rule of usage, for your sanction ; others because of some 
 deficiency or informality in the evidence ; others upon 
 an agreement between the Executive and the agent of 
 the State, &c. &c. But these payments made by the 
 State were for expenses incurred in the same service, 
 by the same troops, and upon the same occasions, as 
 those which have been approved by the Department, 
 and are, therefore, to a great extent, to say the least, a 
 part of the same service and inseparable from it unless 
 by a violation of justice.
 
 47 
 
 I have always entertained the opinion that the statute 
 of May last provided for the liquidation of the whole 
 claim, as both my conversations and correspondence 
 will show ; and I have entertained the full persuasion 
 that you concurred in that opinion, from the tenor of 
 your favor of the first of November last, in which you 
 say, " The act of Congress has reference to a final and 
 full settlement of all claims, under the provisions and 
 principles which the act declares. It is hence necessa- 
 ry that all the claims should be presented before any 
 general decision shall be made." You intimated, how- 
 ever, yesterday, in our conversation, that the act might 
 call for a more limited construction by confining the al- 
 lowance to the State, and indeed the settlement of the 
 whole claim, to the amount of money appropriated. 
 The practical effect of such a limitation would be to 
 pay the troops of Massachusetts less for the same ser- 
 vice than is allowed to the troops of other States ; and 
 I am not willing to believe that Congress could design 
 to make such an invidious distinction. The great re- 
 spect I entertain, however, for even the suggestions of 
 the Department, has induced me to look at the act with 
 care, and to consider its provisions with attention ; and 
 I feel constrained to declare frankly that my convictions 
 remain unaltered. 
 
 It seems to me that the very terms of its provisions, 
 which are almost in the words of the rules of the De- 
 partment, which have been adopted from time to time 
 in settling the claims of other States, imply most strong- 
 ly that no discrimination unfavorable to the claimants is 
 to be made. This view of the matter is greatly strength- 
 ened by the facts, that the claim was not referred to 
 Congress to settle the amount due, for that was not the
 
 48 
 
 matter in controversy between the governments, but a 
 question of entirely different character. The charges 
 and payments of Massachusetts were like those of other 
 States, and could have been as easily adjusted, had not 
 a question of power arose.. The reference was made 
 to settle this question, because the Executive alleged it 
 was not in the scope of his authority. If the settlement 
 stops here, the State will be left in a most embarrassing 
 situation. She will still have a claim for the balance of 
 the same service which the act provides for, and which 
 has been in part settled, a portion of which balance is 
 clearly due within the very terms of the act ; for it is 
 for service to repel actual invasion, or rendered upon 
 well founded apprehension of invasion, and yet it is so 
 mixed with other matters that its amount cannot be 
 known until it is separated. 
 
 I have never supposed the appropriation was design- 
 ed for any other purpose than to pay at once what had 
 been ascertained to be due. If it is to go beyond this, 
 and give the construction intimated to the act, the other 
 provisions of the act cannot be executed ; for express 
 provision is made for the settlement and allowance of 
 all the services in the three cases mentioned in it. If 
 the sum is insufficient for this, and the settlement can- 
 not go beyond it, then a part of these services must re- 
 main unsettled. 
 
 I will forbear entering more at large into this question 
 at present, for I will not hazard the attempt to antici- 
 pate the views which led to the suggestion made by you 
 yesterday. You gave me to understand that your mind 
 was open to reasoning upon this subject, and from the 
 candor which has characterized your former decisions, 
 I feel assured that this question will meet with a careful 
 and dispassionate consideration.
 
 49 
 
 If objections to the course I propose still exist in your 
 mind, and I can be apprised of them, it will give me 
 great pleasure to make an effort to remove them. I 
 hope to hear from you soon. 
 
 I am, dear sir, with great regard, 
 
 Your obedient servant, 
 
 J. DAVIS. 
 Hon. J. H. Eaton. 
 
 
 /. H. Eaton to J. Davis. 
 
 Department of War, 
 March?, 1831. 
 
 SIR, 1 have received your letter of the 5th of March, 
 urging a further examination of the demands of Massa- 
 chusetts upon this government. 
 
 These claims have been a long time deferred. Near- 
 ly seventeen years have passed by since they originated. 
 Repeatedly they have been the subject of examination 
 by Congress, and until May 1830, nothing definite or 
 certain took place in reference to them. Then the act 
 passed which authorized and directed me to superintend. 
 their adjustment. 
 
 The provisions of the act of May 1 830 confines the 
 
 settlement of the claim to payments to be made on ac- 
 
 count of " the services of Militia during the late war." 
 
 No other authority than this was conceded by the act. 
 
 7
 
 50 
 
 The ground of argument to be assumed is, that the 
 items of miscellaneous charges, heretofore, in 1828, 
 deemed and declared to be inadmissible at the Treasu- 
 ry Department, may now be considered in a different 
 point of view. That the service being admitted, those 
 items of charge which are for clothing, rations, arms, 
 munitions, &c. &c., should rest upon the ground of sim- 
 ilar applications from, and allowances to other States, 
 subject only to the approval of the Secretary of War. 
 It is not in my power to adopt this reasoning. The 
 claim of Massachusetts has been uniformly resisted, and 
 its allowance refused, because the Executive of the 
 State had declined to place these troops at the disposal 
 of, and subject to, the control of the General Govern- 
 ment. Of course, while the refusal rested against the 
 legality and character of the service, it was not practi- 
 cable to admit claims and items of claims, which were 
 mere consequences of that service. 
 
 How can I consider of this matter differently now ? 
 But for the act of May, 1830, the claim under objections 
 previously urged and maintained, could not be paid. 
 The provisions of that act removed these objections, 
 and tbe department was directed to " settle and credit 
 the claims of Massachusetts" in cases where the Militia 
 had been called into service " to repel actual invasion, 
 or, under a well-founded apprehension of invasion." 
 Here the direction ceased. I am not at liberty to say, 
 that Congress having relieved against the objection here- 
 tofore insisted upon in reference to personal services, 
 that, therefore, it is to be understood, that the broad 
 and entire merits of the demand of your State, in all 
 their various bearings are alike to be considered as re- 
 moved, more especially, can I not argue thus, inasmuch
 
 51 
 
 as the appropriation made by the act of May, 1830, is a 
 limited one. It will be plainly perceived by you, that the 
 authority given me by that act is in reference alone to 
 personal service, which the troops of your State had 
 performed during the war, and whether a farther adjust- 
 ment, as to other matters of expenditure shall be con- 
 sidered, seems to me, to rest entirely in the discretion 
 of Congress. 
 
 Very respectfully, 
 
 J. H. EATON, 
 John Davis, Esq. of Massachusetts. 
 
 (G) 
 /. Davis to J. H. Eaton. 
 
 Washington, March 8th, 1831. 
 
 SIR, In reply to your note of yesterday, in which 
 you decline all further examination of the claim of 
 Massachusetts, on the ground that you have no author- 
 ity to proceed further, I beg leave to lay before you the 
 facts, which in my judgment have a bearing upon the 
 question between us, that they may stand in their appro- 
 priate connection, as the final decision of that question 
 may affect deeply the rights and interests of the States 
 concerned in this claim. 1 desire to be allowed to pur- 
 sue this course, for the objection now taken is new and 
 wholly unanticipated by me, and will, I have no doubt, 
 excite the surprise of the people of Massachusetts and
 
 52 
 
 Maine, should it be adhered to, for they are waiting 
 with confidence for a different result. It is necessary 
 therefore that I should recur to the history of events, 
 that the whole matter may be understood. This will 
 tend strongly to elucidate the subject, and will, I trust, 
 remove the objections which have been made against 
 further investigation. 
 
 On the 31st day of May last, the act r Congress pro- 
 viding for the settlement of the claim was approved by 
 the President. On the 9th of June, following, Governor 
 Lincoln addressed to you a note, in which he distinctly 
 avows his views of the provisions of the act, by asking 
 for payment of the sum certified by the Auditor, and a 
 speedy examination and adjustment of the balance. On 
 the 29th of the same month he again addressed you, 
 reiterating the same request. The first of these letters 
 was answered by Mr. Randolph, who stated that you was 
 absent, and that he had no authority to act in your be- 
 half. You replied to the second from Tennessee, under 
 date of the 18th of August, and among other things ob- 
 served " I have written to the Third Auditor to have the 
 account prepared and in readiness under the general 
 heads directed by Congress, that on my arrival it may 
 be acted on." On the 9th of July, having received 
 official notice of my appointment as agent of the Com- 
 monwealth for the settlement of the claim, I addressed 
 a letter to you, in which I requested that the portion of 
 the claim which had been suspended or disallowed might 
 be brought under examination for allowance. On the 
 first day of November following, I had an interview with 
 you in this City, and in pursuance of a suggestion made 
 by you in the conversation, I addressed another note to 
 you, in which after stating the condition of the claim,
 
 53 
 
 somewhat in detail, I expressed a wish that the portion 
 allowed by the officers of the Treasury might be paid, 
 and your attention be directed to the residue. In a note 
 of yours addressed to me, and bearing date on the same 
 day, you observe, " the act of Congress has reference 
 to a final and full settlement of all the claims under the 
 provisions and principles which the act declares," and 
 you add, " it is hence necessary that all the claims 
 should be presented before any general decision shall 
 be made." 
 
 I must be permitted to declare that from this corres- 
 pondence, and this interchange of views, I embraced the 
 belief that no difference of opinion existed as to the con- 
 struction of the act, and in truth, I never looked for any 
 on this head, for it never occurred to me that the lan- 
 guage was capable of the limited sense now given to 
 it, until the idea was thrown out at the Department 
 a few days since. I supposed the direction to the 
 Auditor, " to have the account prepared and in readiness 
 under the general heads directed by Congress," em- 
 braced the whole account. I entertained the belief also, 
 when it was made a preliminary requisite, " that all the 
 claims should be presented before any general decision," 
 because " the act of Congress had reference to a final 
 and full settlement," that the whole account was to be 
 adjusted and settled by virtue of the provisions of the 
 act. Having now reiterated the sentiments which have 
 guided my mind thus far in the transactions relating to 
 this settlement, and having also made known the feelings, 
 views and expectations of those I represent, I beg leave 
 in the most respectful manner, to submit to your consid- 
 eration my opinions more in detail as to the true inter- 
 pretation of the act.
 
 You maintain, if I rightly understand the tenor of your 
 letter of the seventh inst. that it covers only the personal 
 service of the Militia, while I entertain the belief that it 
 was designed to give to the State, the same measure of 
 relief which has been extended to other States, in all 
 the cases of service which it embraces. To arrive at 
 the true meaning of the act, two things are to be con- 
 sidered ; first, the subject matter which was the cause of 
 the enactment ; and second, the phraseology employed 
 by the Legislature to express its intentions. First, why 
 was the act passed ? In answer to this inquiry I will 
 take the liberty to repeat in substance what I have said 
 in a former communication. Neither the amount of 
 claim, nor the matters of charge were the alleged causes 
 of its reference to Congress. In these respects it was 
 in no wise dissimilar to the claims of other States, and 
 therefore legislative advice and instruction was neither 
 needed or sought for on this head. The President in 
 his message of the 24th of February 1824, has assigned 
 two reasons for this reference. First, because the Ex- 
 ecutive of Massachusetts, assumed to judge for himself, 
 when a constitutional emergency existed for calling the 
 Militia into the public service, and secondly, because 
 lie considered the Governor as having maintained the 
 doctrine, that the militia in actual service were not 
 subject to be commanded by any officer ot the United 
 States except the President. 
 
 He founded his objections to what he conceived to be 
 the opinions of the Governor on the constitution, and 
 committed the matter to Congress, because he viewed 
 it as involving nn important principle, which the execu- 
 tive could not settle ; but at the same time he strongly 
 urged that body to wave the objection, and place the
 
 55 
 
 claim on the same footing as those of other States. Now 
 I do not desire to draw these questions, raised by the two 
 executives, into consideration ; for you expressed an 
 opinion (in which I fully concur) in your communica- 
 tion of the 20th of January, that you are not called upon 
 " to consider the claim in reference to the objections 
 which were originally made" against it. My only mo- 
 tive for adverting to this message is to show the reasons 
 alleged for sending it to Congress, and I wish to be dis- 
 tinctly understood as not admitting the causes of differ- 
 ence to exist to the extent the President seemed to 
 suppose. If it were necessary or proper, I could at once 
 point you to the most plenary proof, that in many in- 
 stances the militia of Massachusetts did serve under 
 officers of the United States, and that the Governor 
 gave directions to some of the commanders of Divisions 
 on the seacoast to furnish as many men as were desired, 
 to officers commanding the forts of the United States. 
 A difference of opinion existed in 1812, as to the right 
 of calling out troops, but that question was not, and 
 could not have been raised in 1814, for there was an 
 entire concurrence of sentiment, as to the necessity of 
 making defence against the enemy. The reasons for 
 not mustering the troops into the service of the United 
 States at that time, were of a different character, and 
 founded on objections to the mode of organizing them. 
 But I will not dwell on this collateral matter. The 
 President alleges that the claim was referred to Con- 
 gress, because of a disagreement of opinion upon Con- 
 stitutional law. The very document in which this reason 
 is assigned, contains a declaration that the services were 
 patriotic and necessary, and that the claim ought to be 
 settled in the same manner as the claims of other States.
 
 56 
 
 It is clear, therefore, that I am right when 1 say that 
 neither the amount claimed, nor the matters of charge 
 were the cause of this reference to the Legislature. A 
 discrimination between personal arid other services had 
 not been thought of. 
 
 This brings me to consider, secondly, what is the true 
 meaning of the act ? Does it provide for zfull and final 
 settlement of the claim, or does it only provide for a 
 settlement in part ? The act is in the following words : 
 
 " SECT. 1. Be it enacted, &c. That the proper ac- 
 " counting officers of the Treasury under the superin- 
 " tendence of the Secretary of War, be, and they here- 
 " by are authorised and directed to credit and settle the 
 " claims of the State of Massachusetts, against the Uni- 
 " ted States, for the services of her militia during the late 
 " war, in the following cases. 
 
 " First, where the militia of said State were called out 
 " to repel actual invasion or under a well founded ap- 
 u prehension of invasion Provided, their numbers were 
 " not in undue proportion to the exigency. 
 
 " Second, where they were called out by the author- 
 " ity of the State, and afterwards recognized by the 
 " Federal Government, and 
 
 " Thirdly, where they were called out by, and served 
 " under the requisition of the President of the United 
 " States, or any officer thereof. 
 
 " SECT. 2. Be it enacted, &c. That the sum of four 
 " hundred and thirty thousand seven hundred and forty 
 " eight dollars and twenty six cents, if so much be 
 " necessary, be applied to the foregoing purposes out 
 " of any money in the Treasury not otherwise appro- 
 " priated." 
 The question before Congress was not whether a great-
 
 57 
 
 er or less sum should be allowed, nor whether, in any 
 particular service, this thing or that should be paid for, 
 but whether they would relieve the State from the Con- 
 stitutional objection raised by the Executive of the Uni- 
 ted States, and they passed the above act for that pur- 
 pose, directing that the services of the militia should be 
 settled in the several cases therein specified. 
 
 That I am correct in this view of the subject is proved 
 by the whole history of the claim ; but if the proof were 
 less complete from this source, still I should be sustained 
 by the authority of the Department. 
 
 In your communication of the 20th of January last, 
 you remark, " the essential difficulty, and which has in- 
 volved much, and close examination, is in reference to 
 the class of cases under the first general head (of the 
 act) prescribed. These are most numerous and would 
 present increased embarrassment, but for the opinion 
 possessed that in enacting the law of May 1830, Con- 
 gress intended that the objections heretofore arising and 
 which are presented in the correspondence of the Secre- 
 tary of War and Governor of Massachusetts, during the 
 late war were to be discarded." And after reciting 
 parts of the correspondence between the Governor and 
 the Secretary of War, in which the latter announces the 
 opinion of the President, that he had no'power to allow 
 pay to the troops of Massachusetts for their services, 
 but it would be a matter for the Legislature to settle, 
 you observe, " this ground of difference, the act of Con- 
 gress removes." Again you add, " in discharging the 
 trust given to me under this act, I have not felt myself 
 called upon to consider the claim in reference to the 
 objections which were originally made, but simply to 
 determine under the provisions of the act, if at the time 
 8
 
 58" 
 
 those claims arose, and when the militia were called out 
 there was an actual invasion or well founded apprehen- 
 sion of invasion," and also whether " the numbers were 
 in undue proportion to the exigency. To determine 
 these is all I feel myself called upon or required to do." 
 Thus far it seems to me that every circumstance which 
 has transpired in this affair tends to lead the mind direct- 
 ly to the conclusion, that the act was passed for the sole 
 purpose of removing the Constitutional objection, and 
 of placing the claim of Massachusetts, for all expenses 
 incurred by ordering troops into the service under the 
 circumstances therein prescribed, on the same footing 
 as the claims of other States. If other proof were need- 
 ed to establish this position, I would invite your attention 
 to the fact, that the act itself is obviously framed with 
 reference to the rules of the Department adopted as far 
 back as 1818, in settling the accounts of other States. 
 The three classes of cases enumerated in the act, I 
 think will be found identical with these pre-existing 
 rules, which circumstance is a pretty decisive proof that 
 Congress meant to give to Massachusetts the same 
 measure of justice, that has been meted out to others. 
 
 It is also worthy of remark, that in all the reasonings 
 and movements relative to this claim, in and out of Con- 
 gress, up to this time, no intention has, to my knowledge, 
 ever manifested itself to adopt a new principle in settling 
 the expenditures occasioned by any body of troops whose 
 service might be allowed to the State of Massachusetts. 
 
 But in your communication of the 7th of this month, 
 you appear to maintain that Congress by their act 
 have removed the Constitutional objection from the 
 personal services only of the troops. That no misap- 
 prehension may exist, I will here state what 1 understand
 
 59 
 
 by personal service. I understand that in your opinion 
 the monthly pay or wages only of the troops is provided 
 for, and consequently all other expenditures, as for ra- 
 tions, ammunition, fuel, forage, hospital charges, trans- 
 portation, &c. &c. are excluded. I must beg leave in 
 the most respectful manner to dissent from this opinion, 
 and with your permission will state the reasons which 
 has brought my mind to a different conclusion. This 
 construction is at variance with the object of the Execu- 
 tive in referring the claim to Congress, and with the 
 probable intent of that body in passing the act, unless 
 some good reason can be assigned for this singular dis- 
 crimination which admits the right of the State to re- 
 ceive the monthly pay of the troops, and denies the right 
 to reimbursement for all other expenditures, however 
 necessary. But what could have been the motive for 
 such a discrimination ? On what reasonable basis can 
 it rest ? Why should the monthly pay of troops be allow- 
 ed to the State, and the charges for their rations, fuel, 
 hospital expenses, &c. without which they could not 
 subsist or be useful, be disallowed ? no such rule has 
 ever been adopted in the settlement of military accounts, 
 and can it be that Congress by a deliberate act of legis- 
 lation, meant to impose conditions so offensive and un- 
 just upon the people of these two States ? I may safely 
 answer no ; for I most solemnly aver my full belief that 
 the thought of such a discrimination never passed over 
 the mind of a member of that body. Pay without sub- 
 sistence would be an anomaly in military affairs. It 
 would greatly surprise the States of this Union, if told 
 that their militia would be allowed monthly pay or wages, 
 but nothing for food, or shelter, or fuel, or medicine, or 
 nursing. This discrimination is invidious and unjust ;
 
 60 
 
 for it excludes charges for public service, such as have 
 been allowed to other States by the unanimous consent of 
 the nation, and against which we have never heard any 
 objection, except those which have been urged against 
 the whole claim. I am sensible that we must take the 
 act as we find it ; but if it is to receive this construc- 
 tion, I am confident Congress have not only failed to 
 express their meaning, but their language will be made 
 to utterly pervert their intention. It would seem to me, 
 therefore, that an interpretation so opposed by reason, 
 and so against the obvious sense of the Legislature, 
 ought not to be adopted. 
 
 But it appears to me these views are confirmed by 
 looking into the act, for I can find nothing there which 
 calls for this limited construction. It provides for the 
 services of the Militia of the State during the late war 
 in the cases enumerated. What is Militia? Not men 
 alone, for every man is not of the Militia. The term has 
 a broader signification ; it implies not only men, but men 
 furnished with the equipage and munitions of war ; and 
 when we speak of paying the Militia, we mean some- 
 thing more than the monthly wages of men, we mean 
 to include the expenses of a body of men in the public 
 service, provided with whatever is necessary to consti- 
 tute a Militia or armed force. 
 
 The act provides for the payment of the claims of the 
 State for the services of her Militia. What is military 
 service ? In common parlance and in legislation, it is 
 a phrase well understood, and in such common and 
 necessary use that we should find it difficult to make 
 ourselves intelligible without it. 
 
 Appropriations have been made for many years for 
 " the Military Service," so denominated in the acts.
 
 61 
 
 These acts contain the annual allowances to all the de- 
 partments of the army, to the Indian bureau, to pen- 
 sioners of all classes, for fortifications, arsenals, &c. &c., 
 and it is all called Military Service. We speak also of 
 the Naval service, and the public service, and mean to 
 use the phrases in a very comprehensive sense, reaching 
 much beyond the mere employment or mere pay of 
 men. The object provided for by the act is the Militia. 
 The Militia is an armed force with its equipment, and 
 expenditures incurred for such a body are expenditures 
 upon objects properly denominated Military or Mili- 
 tia Service, within the ordinary acceptation and mean- 
 ing of the phrase. If we take into consideration the 
 design of passing the act, it seems to me we can arrive 
 at no other conclusion ; for it cannot be presumed that 
 Congress, without any assignable motive, would make 
 an unjust and offensive discrimination between the 
 troops of Massachusetts and the troops of other States, 
 nor can it be presumed they meant to provide for the 
 allowance of monthly wages, and to exclude rations, 
 fuel, forage, hospital charges, and other expenses which 
 must be incurred, and which have been uniformly al- 
 lowed. The term services was not intended to be used 
 in that narrow sense, but to include the disbursements 
 occasioned by calling out the Militia ; to be adjusted 
 according to the established rules in settling such ac- 
 counts. 
 
 It is obvious, also, that the. appropriation itself fur- 
 nishes a strong argument in support of this reasoning. 
 The sum appropriated is the exact balance reported by 
 the accounting officer to be due. This balance is made 
 up of the usual elements of military service, consisting 
 of monthly pay, wages, rations, fuel, transportation, for- 
 age, hospital charges, &c. &c.
 
 62 
 
 If Congress intended to provide for the payment of 
 monthly wages only, it is singular that this balance pre- 
 cisely, composed as it is of almost every expense be- 
 longing to the service, should be appropriated for that 
 purpose. 
 
 In looking at the report of the Auditor, we cannot 
 fail to notice the fact, that the claim was never exam- 
 ined or dissected with reference to personal service. 
 This part of it was never brought under separate con- 
 sideration, nor was it ever thought by any one to be 
 privileged above other portions. 
 
 The act itself is far from favoring such an idea, for 
 its main provisions, as 1 have already observed, are 
 substantially a transcript of the rules of the Department, 
 which have never been applied in this manner. It is 
 singular, if Congress intended to provide for this portion 
 of the claim only, that they should pass an act from 
 which that intention can be gathered only by giving an 
 unusual and unprecedented meaning to the word ser- 
 vices. 
 
 I would remark, also, that the balance found by the 
 Auditor to be due, as I have stated, has been allowed 
 and paid over to the claimants. It covered part of 
 many charges which are admitted to be unobjectiona- 
 ble, but have been suspended because the evidence filed 
 in their support was adjudged to be informal or insuffi- 
 cient. These objections, I have no doubt, can at once 
 be removed, and then these items will stand on the 
 same footing as those which have been recognised as 
 allowable. I ought also to add, that a large sum for 
 monthly pay, forage, fuel, &c. is suspended in this man- 
 ner ; and I have noticed some charges as marked sus- 
 pended, merely to ascertain the distances travelled by 
 troops. It follows, therefore, if the investigation stops
 
 63 
 
 here, a portion of the personal services will remain un- 
 settled. 
 
 The insufficiency of the appropriation cannot form 
 any solid objection to settling the claim ; for Congress 
 cannot well provide for it until the amount is known. 
 As I view the matter, the act removes the constitutional 
 objection from all disbursements and expenditures on 
 account of troops called into the service under the cir- 
 cumstances specified in it, and the appropriation was 
 limited to the sum mentioned, because that sum had 
 then been found to be satisfactorily vouched. 
 
 I will, with a few additional remarks, take my leave 
 of the subject for the present. This is a question of 
 much interest to the people of Massachusetts and 
 Maine. They have been patient petitioners to the gov- 
 ernment for many years, suing for the same measure of 
 justice which had been promptly extended to other 
 States. That they turned out with alacrity, and per- 
 formed great and patriotic services in defence of the 
 country, has always been conceded. That they ad- 
 vanced from their own pockets the funds to meet the 
 expenditures occasioned by these services is admitted. 
 When the act of last Congress passed, they congratula- 
 ted themselves upon the prospect of a speedy, fair and 
 honorable adjustment ; and I cannot doubt, if the set- 
 tlement is arrested here, intelligence of such a step will 
 be received with bitter disappointment. 
 
 I have now communicated my views with freedom 
 and frankness, but I trust in a respectful manner, and I 
 assure you with entire sincerity that I feel myself justi- 
 fied in placing the greatest reliance on your candor in 
 deciding this important question. 
 
 With great respect, your obedient servant, 
 
 J. DAVIS.
 
 (H) 
 
 J. H. Eaton to J. Dams. 
 
 Department of War, > 
 March 15th, 1831. > 
 
 SIR, Your letter of the 8th was not received by me 
 until yesterday. I assure you it would afford me pleas- 
 ure to be able to adopt your reasoning and to proceed 
 with an examination of the claims of your State, which 
 have so long been deferred ; but candor prompts me to 
 say that after a patient examination of all you have sug- 
 gested, my mind is not brought to any conclusion differ- 
 ent from what was communicated to you in my last 
 letter. 
 
 Why have the claims of the State of Massachusetts 
 been so long postponed ? Why is it, while other States 
 of this Union, for services of their militia during the 
 war, have long since been heard and their demands ad- 
 justed, that for 16 years those of the State of Massa- 
 chusetts have lain over, unacted upon ? The answer is 
 to be found in the objections which constantly have 
 been urged, that the troops of the State, because not 
 placed under the control of the General Government, 
 nor made subject to its command, were not liable to re- 
 ceive compensation from that quarter. In 1814, the 
 Secretary of War distinctly assumes this ground, and in 
 his letter to the Governor of Massachusetts remarks, 
 that for this reason, the militia of the State must look
 
 65 
 
 only to the State, and not to the General Government, 
 for compensation for their services. 
 
 * 
 
 Jon this ground the objection rested, was met, and 
 argued on the one side and on the other, from the ter- 
 mination of the war until 1830. In that year, lor the 
 first time, Congress was induced to legislate, and did 
 legislate. To the particulars of that act I need not re- 
 fer, inasmuch as they are altogether familiar to you. 
 
 I may be permitted to remark, that then for the first 
 time was the objection, which had been previous urged, 
 surrendered. But why or wherefore surrendered is not 
 for me to inquire, nor is it necessary, in the examination 
 before me, that 1 should. It may be that it arose from 
 a conviction the previous course was wrong ; or it may 
 have been the result of liberality and good feeling, and 
 a desire to terminate a matter, which, being retained, 
 could only serve to keep alive unkind and unpleasant 
 feeling on the part of a sister State, towards the govern- 
 ment of the United States. Be the causes which led to 
 the passing of the act of 1830 what they may, they af- 
 fect not the question now under consideration, and 
 hence need not be further noticed. 
 
 But what are the provisions of the act of May, 1830, 
 under which are exclusively derived my powers to sit 
 in this case in the character of Chancellor ? I repeat 
 that the act threw off the old contested point which so 
 long had been battled, as to the troops not being in the 
 service of the United States ; and the only matters re- 
 ferred to me for decision were, whether there was an 
 invasion, or reasonable cause to apprehend it, and if so, 
 then whether the numbers called into service were in 
 undue proportion to the exigency ; but with this express 
 limitation, that whatever I might think, under the rules 
 9
 
 66 
 
 imposed on the reference, the allowance to be made 
 should not exceed a given amount. Now, in making my 
 award, it occurs to me to be very immaterial whether 
 I had looked to the personal service of the Militia (their 
 pay I mean), to arms and munitions furnished, to 
 clothes and rations claimed because not supplied, or to 
 any other miscellaneous items of charge. These could 
 make no difference : if by admitting them I had exceed- 
 ed the amount of the appropriation, no payment could 
 be made. 
 
 But in looking to the act of 1830, my construction of 
 it differs from your own. I have said, and I repeat, 
 that it provides merely for the adjustment of the per- 
 sonal services of the militia, or in other words, the pay 
 which it was alleged they were entitled to, in conse- 
 quence of these services. You ask of what benefit is 
 this in a time of war, unless subsistence is also afford- 
 ed ? Most readily do I grant you, that mere personal 
 service is of little avail, if the soldier be not clothed, 
 armed and fed. The policy of every government will 
 suggest the propriety of furnishing these, and whatever 
 else may be necessary to give efficiency to its armies, 
 rather than leave their procurement to the uncertain 
 exertions of the troops. But certainly it will not be 
 pretended that a government may not throw off the ex- 
 ercise of this policy, and leave her soldiers to their pay 
 merely, without an undertaking to supply either arms, 
 food or clothing. Every man is bound to defend his 
 country. The principle is indisputable. But what com- 
 pensation he may claim for doing this, is matter of con- 
 tract abiding in the discretion of the government, to be 
 exercised before the services are performed. 
 
 I intend not to discuss the original question involved
 
 67 
 
 in this enquiry farther than may be necessary to make 
 myself understood, and I had indulged a hope that my 
 last letter was so framed as to draw your attention un- 
 derstandingly to the precise difficulty which I felt to ex- 
 ist, and which I then sought to explain. It was howev- 
 er written hastily, and at a time when my health and 
 the fatigues of the Office were such as that most proba- 
 bly, (for I have no copy before me,) my expressions 
 may not have been in precise correspondence with my 
 intentions. 
 
 I intended to say, that the claim of Massachusetts had 
 uniformly been resisted ou the ground assumed in 1814 
 by the Secretary of War, because the Governor of the 
 State had refused to place the militia in the service of 
 the United States, or to make them subject to the com- 
 mand of officers of the United States, that Congress in 
 their legislation on the subject in 1830 removed this ob- 
 jection and directed the Secretary of War to allow the 
 claim, on account of the services of the militia with a 
 limitation as to the amount. Now if the troops could 
 not be paid, and were not paid during 15 years for their 
 personal services, because of the objections stated, so 
 neither could they be compensated for rations, arms, 
 munitions, clothes, &c. inasmuch as the right to the lat- 
 ter could be but a mere consequence of the admission 
 of the former. The whole being thus in doubt and dis- 
 pute, legislation took place, and directions were given 
 that a settlement should be made. For what ? For the 
 personal service of the Militia only ; and not for any 
 other item of charge which may be the mere sequiter of 
 the first. Congress has removed the objection in the 
 one case ; but not in the other. 
 
 Now suppose in all this, there is mistake and error,
 
 68 
 
 where is the wrong done ? In what does the injury con- 
 sist ? If I overstep the authority conceded to me, I am 
 subject to the imputation of having arrogated to myself 
 powers not intended to he given, an assumption, of 
 which Congress, (and rightfully too,) would be the first 
 to complain. 
 
 But on the other hand, the matter rests as before, 
 nothing changed, and in nothing effected to the preju- 
 dice of the claim. 
 
 The same justice abides in Congress and the same 
 good feeling will prompt, to do towards a Sister State, 
 as others could be done by. Were I to decide every 
 item which is claimed, of what avail would it be ? No 
 payment could be made because no funds for such a 
 purpose have been placed at my disposal. It would be 
 a mere extra judicial action, upon which an appeal to 
 Congress might be made, and which when made, might 
 receive for answer something like this. The Secretary 
 was neither authorized nor required to give an opinion 
 upon this subject, and we can regard it in no other 
 light, than merely as an opinion unasked for, and cer- 
 tainly not authorized or requested to be given. 
 
 You enquire, how can this matter fairly and under- 
 standingly be brought to the consideration of Congress 
 until the amount authorized to be allowed (under the 
 usage settled as to other States,) can be ascertain- 
 ed. The answer to this is I think not difficult. The 
 report of the Auditor in January 1 823 exhibits the vari- 
 ous amounts claimed by your State under the general 
 heads that they were presented. Under the head Mis- 
 cellaneous items, which are those now immediately un- 
 der discussion, and all of which have been declared in- 
 admissable is contained an amount of $240,759 59 cents.
 
 69 
 
 ' 
 There are also in the settlement recently made, and 
 
 which my report will show, various other items, under 
 the heads of alarms, Guards, and executive calls, which 
 have been dissallowed, the whole amounted to $360,000. 
 These will make up the items for the future considera- 
 tion of Congress. Infinitely more competent than I am 
 will they be, to examine and to decide upon the general 
 and particular merits of those disallowances, and with 
 a freedom beyond anything that I can feel myself au- 
 thorized to exercise, may admit them. 
 
 In conclusion I must entreat you to extend to me a 
 reasonable credit for good feeling, for comity, and a 
 disposition to meet every suggestion you make with 
 the respect that is due to the frank, open and courteous 
 deportment, which has characterized our intercourse, 
 written and verbal, throughout this intricate examina- 
 
 7 O 
 
 tion. The zeal and industry displayed by you in the 
 execution of the important trust confided by your State, 
 will prove to her abundantly that whatever failure has 
 arisen it is not attributable to a want of vigilance and 
 attention on the part of him to whom their trusts have 
 been confided. Did I feel myself clothed with power 
 to act, cheerfully would I take up the various items of 
 the account, and with patience go with you into an exam- 
 ination, to the extent your time and leisure would per- 
 mit. But feeling myself convinced that to do so, is 
 not, nor was intended as a privilege to be given, by the 
 act of 1830. I cannot consent to become a usurper of 
 authority. Public functionaries must be governed by 
 law. Discretion should only be resorted to, when some 
 previous legislation authorizes its exercise. 
 
 With great respect, J. H. EATON. 
 John Davis, Esq. Agent for the Claims of Massachusetts.
 
 70 
 
 (I) 
 J. Davis to J. H. Eaton. 
 
 Worcester, March 28, 1831. 
 
 SIR, Your favor of the 15th was received on the eve- 
 ning of that day, and having determined to leave the 
 City of Washington the next morning, various indispen- 
 sable engagements left me no time either to acknowledge 
 it personally or in writing. This I intended to have 
 done before now, but more pressing duties as well as 
 indifferent health have hitherto occasioned a postpone- 
 ment. 
 
 I have, however, but little to add to what has already 
 been presented for your consideration. I most sincere- 
 ly regret the decision you felt it your duty to make in 
 giving construction to the authority confided to you, as 
 it throws us back upon ground which will probably oc- 
 casion further delay in an adjustment which ought long 
 since to have been closed. When Congress passed the 
 act directing the settlement of the claim, it is well 
 known it had previously undergone a very strict exam- 
 ination by the third Auditor, under instructions from the 
 House of Representatives and that he had reported the 
 sum of $430,748,26 as due to the State, upon the 
 principles adopted in settling the claims of other States. 
 The residue of this sum, after deducting $11, 000, which 
 was advanced some years ago, has been adjudged to be 
 due under the provisions of the act, and t hasjbeen paid. 
 The amount thus found due and paid will on recurrence
 
 71 
 
 to the adjustment made, by the auditor, be found to con- 
 sist of almost every kind of charge claimed by the State. 
 It is in truth precisely similar to much of the residue, 
 which is suspended, and which consists of charges grow- 
 ing out of the services of the same troops. For exam- 
 ple, the items for forage, servants, travel, fuel, rations, 
 &c. of the staff of one regiment is allowed and paid, 
 while like charges for the staff of another regiment in 
 the same corps is disallowed, because the certificate at 
 the bottom of the pay-roll is not in the exact phraseolo- 
 gy required by the army Regulations. 
 
 Again in auditing charges, many items which are 
 acknowledged to be such as are usually allowed, have 
 been suspended, because the rule of the Department 
 early adopted in such settlements, requires that they 
 should be submitted to the Secretary of War for his ap- 
 probation. 
 
 I recapitulate these facts, to prove what seems to me 
 to be firmly established, that the principles which have 
 led to the allowances, which have been made, if follow- 
 ed out, would cover a large portion of what remains to 
 be satisfied, for the payment made is for wages, fuel 
 hospital charges, forage, servants, &c. and much of the 
 residue of the demand is for like charges, growing out 
 of the same service, and therefore involving no new ob- 
 jections. 
 
 I beg leave also again to suggest that the act con- 
 tains two main provisions, which do not necessarily de- 
 pend on each other. The first directs the claims in cer- 
 tain cases to be settled and credited to the State under 
 the discretion of the Secretary of War. This seems to 
 me to repose in the Secretary a complete power to set- 
 tle all the charges embraced by the terms of the act, so 
 far at least as to ascertain what is due.
 
 72 
 
 The second provision is an appropriation designed 
 to carry into beneficial effect the first. But at the time 
 it was made, the amount needed to meet the result, 
 which might ensue irom the examination authorized and 
 required by the act, was unknown and being unknown, 
 it was impossible to make an appropriation providing 
 with exactness for it. Congress did not therefore fix 
 upon the sum named in the act for the purpose of pass- 
 ing judgement that so much and no more was due. 
 There is nothing in the language which authorizes such 
 an inference. The settlement was directed to be made. 
 The amount which would fall to the State by that set- 
 tlement was unknown, but it became necessary to make 
 some provision for it. The auditor had declared the 
 sum named to be satisfactorily vouched and this was 
 inserted in the act. 
 
 I infer from all these circumstances and considerations 
 that Congress intended all the claim falling within the 
 principles of the act should be fully settled, and if the 
 amount should be found to exceed the appropriation, 
 the excess was to stand as an unquestioned demand 
 upon the United States. 
 
 Having, however, stated my views much in detail, on 
 all these points, in my former communications, I will 
 not press them further, but ask leave to observe that it 
 will give great satisfaction to the States interested to 
 resume at any moment the settlement, should you here- 
 after consider such step within the scope of your author- 
 ity. 
 
 In closing this communication, I take great pleasure 
 in acknowledging the courtesy and frankness, which 
 has at all times characterized the discharge of the la-
 
 73 
 
 borious duties which have devolved upon you in the ad- 
 justment of these claims. And while I would not press 
 my own views with unbecoming zeal, I cheerfully accord 
 to yours all the respect which is felt for an honest diff- 
 erence of opinion. 
 
 I am, with great respect, 
 
 Your Obedient Servant, 
 
 J. DAVIS. 
 Hon. J. H. Eaton. 
 
 Extract from a Communication to Governor Lincoln, re- 
 ferred to in the Report. 
 
 Lieutenant Colonel Towne commanded a regiment of 
 Light Infantry at South Boston, and the following facts 
 are taken from the Pay Roll of the Staff of that regi- 
 ment, and will show the general character of the deduc- 
 tions made by the Auditor, or other accounting officers 
 The roll as allowed by the State foots at - - $1329,24 
 
 The whole number of persons is thir- 
 teen ; the highest in rank a Lieutenant 
 Colonel, the lowest a fife major : the 
 highest pay allowed by the State $15 a 
 month, the lowest $1 1 : the time be- 
 gins on different days from the 13th of 
 Sept. 1814, to the 20th of the same 
 month, and the roll is made up on the 
 first day of November following. 
 Deductions. 
 
 1. Over payments - - $57,43 
 
 Townc was a Lieutenant Colonel 
 
 10
 
 74 
 
 Amount claimed, brought forward, $1329,24 
 
 Commandant, but the Commander 
 of a regiment. The United States 
 allow a Colonel $76 a month, as the 
 commander of a regiment : to a 
 Lieutenant Colonel but $60, being a 
 battalion officer. The State allow- 
 ed Tovvne $75, because by our law 
 he performed all the duties, and had 
 all the responsibilities of a Colonel 
 in the United States. The pay of 
 every commander of a regiment, is 
 reduced in the same way, for we had 
 no Colonels in the service. The pay 
 of all the persons on the roll is re- 
 duced, some from $5 to $6 others 
 only some 30 cents, but all the deduc- 
 tion except from Towne's charge, 
 arises from the different methods of 
 averaging the daily pay upon the time, 
 in the months, in which the service was 
 rendered. 
 
 2. Travelling expenses, noted as in- 
 admissible ------ - - 49,00 
 
 3. Forage to and from camp, noted as 
 inadmissible --- 18,00 
 
 4. Payment for clothing to non-com- 
 missioned officers, inadmissible - - 36,07 
 
 5. The charge for rooms, or quarters 
 is contrary to the regulations of the 
 army, and therefore must have the
 
 000653507 
 
 JPM 75 
 
 Amount claimed, brought fonvard $1329,24 
 special sanction of the Secretary of 
 War, before it can be allowed - - 20,90 
 
 G. Forage while in camp, must also be 
 sanctioned by the Secretary as the 
 certificate of Colonel Towne is in- 
 formal 177,00 
 
 7. The charge for servants is in like 
 condition, for it does not appear that 
 they were actually mustered into the 
 service --------- 165,90 
 
 8. The charges for transportation of 
 baggage and for rations to camp and 
 the charges of pay to and from camp 
 are suspended until the distance which 
 each person travelled shall be ascer- 
 tained, to wit, Baggage - - 44,22 
 
 Rations - - - - 16,24 
 
 Pay 77,15 661,91 
 
 Amount actually allowed by the Auditor. $667,33 
 
 It is apparent from the foregoing that the Secretary 
 of War, in the exercise of his discretionary power would 
 at once remove a portion of the objections, for he must 
 know that an officer cannot well get to camp without 
 travelling, nor can he perform the active duties required 
 of him in the field without horses, servants and forage. 
 This paper will subserve the purpose for which it was 
 designed, as it will show the character of the allowances 
 made, as well as of the charges rejected, and it will, I 
 think, carry with it the conviction that the same princi- 
 ples which admitted the one to be a just claim, rnu&t
 
 , 
 
 76 
 
 also admit the greater part of the other to be equally 
 just. When the reference was made to this document, 
 it was supposed an entire copy was at hand, but it turns 
 out that I am able to furnish only the objections made 
 to it by the accounting officers. This document and all 
 others were audited under the Resolution of the House 
 of Representatives of the 15th of December, 1826, as 
 has been already stated when no agent was present either 
 to make explanations, to procure additional evidence or 
 to obtain the sanction of the Secretary. It was to re- 
 move such objections as these that I proposed to the 
 Secretary of War, to go into a revision and examination 
 of the account, that we might ascertain what portion of 
 the balance was due to us upon the principles adopted, 
 in allowing what has been paid, but he declined acced- 
 ing to the proposition.