
    CHARLES DE ARNAUD v. THE UNITED STATES.
    [No. 16442.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    A Russian officer of engineers is employed and paid by General Fremont “for secret service." His services consist in going into the enemy’s line for military information. On it alone General Grant took possession of Paducah. He produces the highest testimonials as to the value of the services rendered and the dangers incurred from General Grant, General Fremont, and Admiral Foote. His information was coupled with military advice, and his action is brought for services as a military expert.
    I. A military expert is unknown to military organizations, is not recognized in the statutes or Army Regulations, and is not named in any dictionary, military or civil.
    II. Where a military engineer was employed to go within the enemy’s lines and make observations and procure information, and his service was designated as “ secret service," and he gave receipts “for account of secret service rendered," it must be held that he was a secret agent within the rule in Totten’s Case (92 U. S. R., 105), who can not maintain an action.
    
      The Reporters’ statement of the ease.
    The following are the facts of this case as found by the court:
    I. The claimant is a native subject of Russia, residing in the United States. The following is a translation of the provisions of the law of Russia, according to citizens of the-United States the right to prosecute claims against such Government in its courts.
    “Section1292. The decision of thecourtis announced to both parties according to general rules, but independently thereof a copy of the decision is forwarded to the local government institution spoken of in section 2084.
    
      “ Section 1296. In the execution of a judgment against a government institution the claimant presents a certified abstract of the decision to the institution, which is bound to execute the judgment accordingly.
    “ Section 1519. Aliens residing in Russia are subject to Russian laws, as well personally as in regard to property, and enjoy the common defense of safeguards and protection thereof.
    
      
      “ Section 1288. Claims of private persons against the government institutions are governed by general rules, and are brought according to the location of the property or according to the place where the loss was sustained by the private person, or according to the place where the government institution or where the government officer is situated or resides who represents the Government in court.”
    II. The claimant came to this country about the year 1860, and was, prior to that time, an officer in the Russian army, where he served in the Crimean war as lieutenant of engineers, and was serving as such when the armistice was concluded between Russia and the contending allies.
    III. In the year 1861 John C. Fremont was a major-general in the United States Army, in command of the Western Department of Missouri. In the month of August, 1861, he entered into an agreement with the claimant, by which the claimant was employed by him to go within the Confederate lines, make observations of the country in the States of Kentucky, Tennessee, and Missouri, to observe the position of the rebel forces, the strategic positions occupied by them, and advise him (General Fremont) of the movements necessary tobe made by the Union forces to counteract the movements of the enemy and to facilitate the advance of our troops and aid them in attacking and repulsing the Confederate forces.
    IY. In consequence of that arrangement he did go within the Confederate lines, and, agreeably to what he was instructed to do, brought back to General Fremont full information of the kind desired, maps of the country, of various roads, the number of troops, their stations, condition, and, as far as he could judge and find out, their projected movements.
    He was absent on that business a number of days-, came back, and reported in St. Louis about the 12th of August, 1861, to General Fremont, who was so satisfied with the information, that he brought, with the intelligence and sagacity he displayed in collecting it and the usefulness of his information, that he (Fremont) then made an arrangement for him to continue in the service of the department. About the 12th of the month of August, 1861, he again left for the country occupied by the Confederate forces to collect information. The most important part of the services rendered by him was in the beginning of the next month, September, when, with the information that he bad collected, he was returning' to report to General Fremont a movement of the Confederate forces upon Paducah. On reaching Cairo he found that he had only time to report to Fremont by telegraph, and reported forthwith personally to General Grant, informing him that troops were advancing upon Padu-cah, and that it was necessary to move immediately in order to occupy the place. General Grant did move instantly, and took possession of Paducah, Ky., solely on information given by the claimant, and to the effect that the rebels were moving upon that city with a large force.
    Y. The claimant was paid $600 on the following orders and receipts:
    “ Headquarters Western Department,
    “ Gamp near Jefferson OHy, Get. 6,1861.
    “Major Phinney, U. S. A., paymaster, etc., will pay to Charles De. Arnaud the sum of three hundred dollars ($300), for secret service.
    
      “ J. C. Fremont,
    “Major-General.”
    “Received, Warsaw, Mo., October 23,1861, of Major Jas. H. Phinney, paymaster, U. S. A., the sum of three hundred ($300), “ for account of secret service rendered to the U. States ” by special order of Major Geni. Fremont, dated near Warsaw, Mo., Oct. 23,1861.
    “Chas. De. Arnaud.”
    “ In the Field,
    “ Headquarters Western Department,
    “ Get. 23, 1861.
    “ Major Phinney will pay to the bearer, Mr. Charles De. Arnaud, three hundred dollars, for secret service to the United States.
    “ J. C. Fremont,
    “ Mayor■ General, Common)dgP
    
    “ Received, Jefíerson City, October 6,1861, from Major J. H. Phinney, three hundred dollars, for secret service, as per special order of Major Geni. J. C. Fremont of this date. $300.
    [Signed duplicate.]
    “ Chas. De. Arnaud.”
    YI. On Jany. 6, 1862, claimant presented his claim to the War Department, and it was reported upon by the Quartermaster-General, as follows:
    
      “No. 22. — The United States to Charles de Arnaud, Dr.
    
    “ January 6,1862. For special services rendered to United States Government in traveling through the rebel parts of Kentucky, Tennessee, &c., and procuring information concerning the enemy’s movements, &c., which led to successful results (as per certificate hereunto appended), $3,600.”
    “ Q. M. Gen’l’s Oeeice. 9th Jan’y, 1862.
    “In view of the certificate of Gen. Grant of 30th Nov. and the more general certificate of Maj. Gen. Fremont of 2d Jan’y, herewith, covering all Mr. Arnaud’s services, the sum of thirty-sis hundred dollars appears to me to be a not unreasonable compensation. I state this at Mr. Arnaud’s earnest request.
    “M. 0. Meigs,
    
      "Q. M. Oen’l.”
    
    VII. On the 13th of January the claimant went to President Lincoln, and laid before him his claim with the following letters:
    “ Gaiko, III., January 6,1862,
    “ Hon. A. Lincoln,
    “ President, U. S. A.:
    
    “ The bearer, Charles de Arnaud, has to my knowledge rendered important services to the Government. He, at the risk of his life, gave information which led to our capture of Paducah, Ky., in advance of the rebels; thereby he saved the country thousands of lives and millions of dollars. I fully indorse his certificate of Maj. Gen. J. C. Fremont. He is entitled to the largest remuneration the Government pays for such services.
    “ Bespectfully, etc.,
    “ A. H. Foote,
    “ Flag Officer.”
    
    “ Headquarters District Southeast Missouri,
    “ Cairo, November 31,1861.
    “ Chas, de Arnaud :
    “ Sir : In reply to your request, and the note from Major-General Halleck presented me by yourself, I can state I took possession of Paducah, Ky., solely on information given by yourself, and to the effect that the rebels were marching upon that city with a large force. This information 1 afterwards had reason to believe was fully verified: First, because as we approached the city secession flags were flying and the citizens seemed much disappointed that Southern troops expected by them were not in advance of us. It was understood that they would arrive that day. I also understood afterwards that a force of some four thousand Confederate troops were actually on their way for Paducah when taken possession of by my order. A point through which many valuable supplies were obtained for the Southern army was cut off by this move, and a large quantity of provisions, leather, etc., supposed to be for the use of the Southern army, captured. For the value and use to which these were put I refer you to General Paine, whom I left in command. Only remaining in Paducah a few hours, and being busily engaged with other matters during that time, I can make no estimate of the cash value of the stores captured.
    “Yours, etc.,
    “U. S. Grant,
    
      “Brig. Gen.”
    
    “ Astor House, New York, January 2,1862.
    “ This is to certify that Mr. Charles de Arnaud was employed by me from about the first of August in traveling throughout the rebel parts of Tennessee and Kentucky, with the object of ascertaining the strength, condition, and probable movements of the rebel forces. He made under my direction many such journeys, reporting fully and in detail upon the force of the various encampments and the condition and strength of garrisons and various works in Tennessee and along the Mississippi Fiver. He obtained this information at much personal risk and with singular intelligence, and performed the duties entrusted to him entirely to my satisfaction. He continued on this duty until the termination of my command in the Western Department. His services were valuable to the Government, and I consider him entitled to the largest consideration that the Government allows in such cases or to such agents.
    “J. G. Fremont,
    “ Mag. Gen., Ü. 8. A.”
    
    President Lincoln folded the letters together and wrote on the back of General Grant’s letter the following:
    “ I have no time to investigate this claim ; but I desire the accounting officers to investigate it, and if it be found just and equitable to pay it, notwithstanding any want of technical legality or form.
    “A. Lincoln.
    “ JAN. 13,1862.”
    Thereafter, on the next day, January 14, the Secretary of War made the following indorsement on said claim :
    “I have considered this claim, and can not bring my mind to the conclusion that the sum charged is not exorbitant. I am willing to allow $2,000 in full of the claim, and the dis. clerk, War Dept., is authorized to pay Charles de Arnaud that sum.
    “Simon Cameron,
    “ Sec. War.
    
    
      " War Dept., Jan’y 14,1862.”
    
      The claimant was thereupon paid, under protest, by said disbursing clerk of the War Department, out of appropriation for “ Contingencies of the Army,” $2,000, and gave the following receipt:
    
      "The United States to Charles de Arnaud, Dr.
    ‘‘January 14,1862. For services and expenses as special agent of the Govt., $2,000.
    “Deceived, Washington, January21,1862, from John Potts, disbursing clerk for the War Department, two thousand dollars, in full for the above account.
    “ Chas, de Arnaud.”
    YIII. At the time of giving the receipt in full, January 14, 1862, he was not in a state of dementia and was able to comprehend the terms of the receipt; but the effects of his wounds in the head were beginning to affect him mentally, and he was in a condition of nervous apprehension and unnaturally desirous of securing his personal safety by getting out of the country, and he accepted the money paid by the War Department in order that he might do so. While engaged in the military service of the Government, as aforesaid, he received a wound in his head in the fall of 1861, from which afterwards, in the same year, he became insane, and did not recover prior to February, 1886.
    IX. About September 4, 1886, the claimant presented his claim to the Treasury Department, without naming the specific amount claimed, but incidentally claimed $50,000, because he was told by General Fremont that during the Mexican war one •McGoffin, a secret agent, had been paid that sum. The Auditor reported to the Second Comptroller as follows :
    “Act of July 17, 1861, appropriated $100,000 ‘for contingencies of the Army’ (12 Stat., 263).
    “ This claim was paid out of above fund.
    “ Accounting officers have no jurisdiction to open up a settlement made by War Dept, from secret service fond and determine unliquidated damages.
    The Second Comptroller made the following indorsement thereon:
    “ June 29,1888.
    “The within recommendation is approved. De Arnaud seems to have rendered unmistakable valuable services as a secret agent, and there appears to have been provision made for the payment of services of that nature. But this claim must be rejected pursuant to the recommendation of the 2nd Auditor, because payment in full seems to have been made and accepted years ago, and because this office has no means or jurisdiction to consider so plain a case of unliquidated damages.
    “ That the officer was not paid eommensurately with his services, and deserves recognition at the hands of Congress, seems to be amply evidenced by President Lincoln’s memorandum and by the testimony of Generals Grant and Fremont.
    “ Sigourney Butler,
    
      2nd Comptroller.”
    X. The claimant was informed of the action of the Comptroller by the following letter:
    “ Washington, D. 0., July 10,1888.
    “ Captain Charles De Arnaud,
    “ Washington, D. G.:
    
    “ Sir : I have the honor to inform you that your claim for compensation for services as a military expert in 1861has been disallowed by the Second Comptroller, without prejudice, because payment in full seems to have been made and. accepted years ago, and because the accounting officers have no means or jurisdiction to consider so plain a case of unliquidated damages. * * *
    “William A. Day,
    “Auditor.”
    On the 20th of October, 1888, the claimant renewed his application to the Treasury Department, and asked that the case be referred to the Court of Claims. This communication was indorsed by the Second Comptroller as follows:
    “ January 9th, 1889.
    “Respectfully referred to the Second Auditor.
    “ The application of the claimant, Charles De Arnaud, seems to have merit. This case is plainly beyond the jurisdiction of the accounting officers, but it bears upon its face distinct marks that should give it a fuller consideration than can be accorded by the accounting officers. Furthermore, there is no adequate machinery in the accounting offices for properly sifting the very extraordinary evidence in this case. This can only be done by the Court of Claims.
    “ With your reply, which the claimant asks be made special, stating your views on this case, please forward all the papers pertinent thereto.
    “Sigourney Butler,
    “ Comptroller.”
    
      XI. On January 12, 1889, the Second Auditor transmitted all the papers on file in his office to the Second Comptroller, stating that his views had been fully expressed in previous communications hereinbefore set out. The Comptroller made a recommendation to the Secretary of the Treasury that the case be transmitted to the Court of Claims; which was accordingly done by the following letter of transmission:
    “ TREASURY DEPARTMENT,
    “ Office of the Secretary,
    “ Washington, D. G., January 25, 1889.
    
      " To the honorable the Chief Justice and Judges of the Court of Claims:
    
    “ Under the provisions of section 1003 of the Revised Statutes of the United States I transmit herewith to your honorable court, upon the recommendation and certificate of the Second Comptroller, the claim of Charles De Arnaud, for services as military expert, now pending in the Department, and involving disputed facts and controverted questions of law, with all the vouchers, papers, and documents pertaining to said claim, for trial and adjudication by your honorable court, as provided by law,
    “ Respectfully, yours,
    “Hugh S. Thompson,
    
      " Aeting Secretary.
    
    
      Mr. James Coleman for the claimant.
    2. If the court shall be of the opinion that there has been no express contract shown, then we submit that the defendant having received the benefit of the services of the claimant, an implied promise is created by law that the claimant shall receive from the defendant the value of his services.
    The law defines an implied contract to be—
    “Acontract implied by reason and justice, and which therefore the law presumes that every man undertakes to perform.” (1 Burr. Law Die., p. 46; 2 Black. Com., 443; 3 Black. Com., 1G5; Ogden v. Saunders, 12 Wheat., 132,204; Burchill v. The United States, 4 C. Ols. R., 549; Reathfield v. The United States, 8 C. Ols. R.; Hearsch v. The United States, 15 O. Ols. R., 385; Munson v. The United States, 14 O. Ols. R., 49 ; Beside v. The United States, 7 O. Ols. R., 82; Walters v. The United States, 4 O. Ols. R., 389; United States v. Bussell, 13 Wall., 630; Solomon v. United States, 19 Wall., 17; United States v. Gill, 20 Wall., 517.)
    If the court shall find that the amount of compensation to be paid claimant was not fixed, then we submit that the amount and value of the service is to be determined by evidence showing what would be the ordinary charge for such service. (Vilas v. Downer. 21 Yt., 419; Stanton et al. v. Em-brey, admr., 93 U. S. B., 548.
    3. The contract between the claimant and defendant was made by General Fremont; he had authority from the President of the United States, as the Commander in Chief of the Armies of the United States, to make the contract in question. {United States v. Tingey, 5 Pet., 114;’ United States v. Bradley, 10 Pet., 343; United States v. Linn and others, 15 Pet., 290; Jessup v. United States, 106 U. S. B., Í47; Totten, admr., v. United States, 92 U. S. B., 105.)
    
      Mr. William J. Rannells (with whom was Mr. Assistant Attorney General Cotton) for the defendants.
   Bichabdson, Ch. J.,

delivered the opinion of the court:

The claimant alleges in his petition that on or about the 31st of July, 1861, General Fremont, for and on behalf of the United States Government, employed him as a “ military expert ” to perform special and important duties; and in his requests for findings of fact he asks the court to find that the service was not that of a spy, neither was it a secret service, but was the service of a “ military expert.”

In the findings of fact the court has specified the services actually performed, without designating them by name or character, whether those of a secret agent, a spy, or a “ military expert.” It was held by the Supreme Court in Totten’s Case (92 U. S. R., 105) that the President “ might employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy; and contracts to compensate such agents are so far binding upon the Government as to render it lawful for the President to direct payment of the amount stipulated out of the contingent fund under his control.” They also held that such an agent could not recover in an action at law, because “ the secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.”

The services of a spy in time of war are well understood in military law. They are held honorable on one side and criminal on the other, where they are invariably punishable with death. (Rev. Stat., § 1343; 1 Winthrop’s Military Law, §§1106, 1109.) Whether or not contracts for such service could be enforced at law it is not necessary to discuss, since the claimant disclaims that character altogether, and it is not material in the view we take of the case.

A “ military expert,” as a distinct official or unofficial personage, is unknown to military organizations, and is nowhere provided for in the statutes, is not mentioned in the Army Eegulations, and is not recognized in any dictionary or other publication, military or otherwise, that has been called to our attention or that we have been able to find. We have always supposed that such generals as Grant, Sherman, Sheridan, and the other distinguished officers who led the Union Army to victory in the late war of the rebellion were “military experts,” and were the only such “ experts ” employed by the United States in that conflict. The compensation sought to be recovered by the claimant in this action is greater than the amount paid to either one of the generals named for his services during the entire period of war.

It is evident from the finding that the claimant was employed in “ secret service,” and that his case comes within that of Tot-ten, above referred to. Finding v shows plainly enough that in October, 1861, both lie and General Fremont so regarded the service. In that month General Fremont gave him two orders on a United States paymaster of $300 each “for secret service.” The claimant was paid thereon, and gave receipts for “account of secret service rendered to the United States.”

In the letters of General Grant, dated in November, 1861, and of Commodore Foote and General Fremont, dated in January, 1862, set out in finding vix, with which he presented his claim to President Lincoln when he was seeking pay for his services through the executive branch of the Government, and upon which he relied, it is nowhere intimated that he was employed as a “ military expert.”

General Frémont’s letter thus refers to claimant’s services:

“Astor House, New York, January 2, 1862.
“ This is to certify that Mr. Charles de Arnaud was employed by me from about the first of August in traveling throughout the rebel parts of Tennessee and Kentucky, with the object of ascertaining the strength, condition, and probable movements of the rebel forces.
“ He made under my directions many such journeys, reporting fully and in detail upon the force of the various encampments ; and the condition and strength of garrisons and various works in Tennessee and along the Mississippi River.
“ He obtained this information at much personal risk and with singular intelligence, and performed the duties entrusted to him entirely to my satisfaction. He continued on this duty until the termination of my command in the Western Department.
“ His services were valuable to the Government, and I consider him entitled to the largest consideration that the Government allows in such cases or to such agents.
“J. C. Frémont,
May. GenH, U. 8. A.”

These letters were all written just after the claimant’s employment, and seem to correctly describe his services.

There is no doubt that the claimant did perform valuable services, especially valuable to General Grant, who gives him credit for having communicated information on which alone he took possession of Paducah, Ky. Thus he contributed to one of the most important strategic movements during the war, and he was otherwise of use to the Army. While he deserves the good will of the country, and undoubtedly reasonable compensation for his services, if he has not already received it, we are of opinion that his case can not be distinguished from that of Totten, and that his remedy is not in this court, but in Congress.

Upon these views the case is disposed of without passing upon any of several other questions which might be raised upon the findings.

1. Whether or not the Government of Russia, of which the claimant is a subject, “accords to citizens of the United Stages the right to prosecute claims against such Government in its courts ” within the meaning of Revised Statutes, section 1068, under which aliens have the privilege of prosecuting claims against the United States iu this court, the findings of fact show that “ aliens residing iu Russia are subject to Russian laws, as well personally as in regard to property, and enjoy tlie common defense of safeguard and protection thereof,” and that “ claims of private persons against the govern'ment institutions are governed by general rules, and are brought according to the location of the property, or according to the place where the loss was sustained by the private person, or according to the place where the government institution or where the government officer is situated or resides who represents the Government in court.”

2. Treating the jurisdiction of this court as dependent upon the transmission by the Secretary of the Treasury; whether the claim was not within the exclusive jurisdiction of the War Department to determine, on the authority of Totten’s case, before the Treasury Department could act upon it at all, or whether the latter Department could take up a claim which had been settled and paid through the proper Department more than twenty-five years previously, open the settlement on petition of the claimant first made there after that lapse of time, and confer jurisdiction on this court by transmission by the Secretary. (Alexandria, Loudoun and Hampshire R. R. Co., 26 C. Cls. R., 327.)

3. Treating the case as commenced either by claimant’s petition or by transmission from the Treasury Department; whether insanity prevents the running of the statute of limitation as set out in the Act of 1887, March 3, ch. 359, § 1 (24 Stat. L., 505), which, after reenacting the jurisdiction of the court with some additions and one exception, adds this proviso, u that no suit against the Government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made,” with no exceptions mentioned.

The petition is dismissed.  