To THE llONORAB[LE SCHUYLER COLFAX,
Speaker of the House of Representatives:
My attention has been called to the defence of Gen.
Butler before. the lIouse of Representatives, in relation to
the New Orleans gold. That defence, as published in the
Globe, I propose to review, and leave you to say whether
it is not an audacious sham which ought to be exposed.
I am entirely certain that the very eminent and honorable gentleman who conducted the defence fully believed
that it was fairly made, and that there was a full,
honest, and just exposition of the whole case. But he has
been entirely misled, and Samuel Smith & Co., my clients,
llave suffered great injustice thereby. The counsel of
Gen. Butler commences his defence of that gold transaction by reading a letter fromn Mr. Rufus Wapples, dated
May 12th, 1864. The letter says:-" As I left the city
(New Orleans) soonr after the commencement of hostilities,
and staid in Washington city till.2ay of last year, I cannot speak froom   personal knowledge."
Says Mr. Boutwell, " I have caused that to be read as
"furnishing a basis in evidence for the seizure of the money
"in question."
As the gold was taken a little more than two years before, and as Mr. Wapples admits that he was not in New
Orleans, but in Washington, and knows nothing whatever
upon the subject himself, " that basis in evidence' looks a
little " shaky."  The structure was built two years before
"4 the basis" was laid. The foundation has not eom the
firmness of moving sand, it is " airy nothing.'  A Rruc
ture upon such a base will be likely to tumble, and somebody will "get hurt" in the ruins.
In the New York Court of Common Pleas the case of
Samuel Smith & Co., agst. Benjatnin F. Butler, will soon
come on before the Court and a jury. Many living wit



nesses will be examined, and new documentary evidence
will be produced. I bespeak your attention to that trial;
the proceedings will not be drowsy reading. Meanwhile,
let me briefly review the case presented by General Butler
before the House. My excuse for this apparent intrusion is
that I am Mr. Smith's counsel, and from him Gen. Butler
took $50,000 in gold, and has kept it himself through
a period of two years and nine months, although Mr.
Smith, by his counsel, proposed in writing simply that
Gen. Butler "pay over the money to the War Office or
"to the Treasury, and leave me to such remedy there as
"the Government may think fit," which reasonable propositions continued never accepted, but evaded and declined,
until the 26th of last October, when the counsel wrote to
the General-" You leave Mr. Smith no alternative but to
"commence an action." General Butler, in his letter of
the 28th of March, 1864, excuses himself thus for not paying over this money:-" When I settled my accounts at
the War Office, the question of what should be done with
this money of Samuel Smith & Co. came under discussion,
and I then said to the Secretary of War'that, as a lawyer,
"' I supposed that I might be held personally for the sum?."
Of course, "as a lawyer," he knew that he was personally
liable, and that was a good reason why he should pay it to
the one to whom he was liable. But Gen. Butler, "as a
lawyer," and as a man of common sense, well knew that,
when Smith urged him "to pay over this money to the
War Office or to the Treasury, and leave me to such remedy
there as the Government may think fit," that the payment
of the money to the War Office or to the Treasury, as Smith
proposed, would relieve General Butler from all responsibility whatever. This appears in the record; it cannot be
evaded; no subterfuge can dispose of it. This proposition
of Smith to relieve General Butler, and to look to the Government for " such remedy as the Government may think
fit to give," was made in writing March 26, 1864, was
never withdrawn, and after seven montha of subsequent
and fruitless negotiation the letter of October 26, 1864, was
written, saying, " You leave Mr. Smith no alternative but
to commence an action."
Why, during those seven months between the proposition




3
and the commencement of this suit, did not General Butler
pay over the gold to the Government, and thus relieve himself and leave Smith " to such remedy as the Government
might think fit?"
There is no answer to this. Is it suggested that the Government would not receive the money I I assert deliberately, and after careful investigation, that during that whole
time it was never offered to the Government; that they did
not refuse to receive it; and I will peril the whole case upon
the truth of this statement.
Instead of accepting this simple proposition of Smith's to
pay over the gold to the Government, and thus relieve
General Butler from all claim, the general kept the gold
himself, devising new propositions, coupled with impossible
conditions, and thus contrived to keep the gold from Mr.
Smith and from the Government to the present hour.
This will appear from the written documents which
follow.
This bold fact stands out, and refuses to be covered up,
namely: That General Butler took this $50,000 in gold two
years and nine months ago; that he has kept it ever since,
and still keeps it, though Smith, as early as March 26, 1864,
in writing, proposed that General Butler "pay over the
"gold to the War Office, or to the Treasury, and leave me
" to such remedy there as the Government may think fit;"
which offer was never withdrawn, but remained open for
seven full months, and until the 26th of October last, when
tile counsel, tired out by the evasions and subterfuges of
impossible conditions, wrote: "You leave Mr. Smith no
"alternative but to commence an action."  General Butler
still keeps the gold. Is it right that he should keep it?Let us have that question settled. Officers in the army,
from generals to corporals-the Government-the countryall have a lively interest in the disposition of this question.
It will insist on being answered. No specious talk, in
flurried debate, in an excited House, where not a man but
the defendant himself knows a word of the evidence, can
smother this question. It will rise up out of the smoke
and insist on being answered.
But there are other grave matters in this case which
cannot be slurred over. 1 especially invite your attention
to tha di4.e f th;




4
HISTORY.
The brilliant success of Admiral Farragut at New Orleans enabled General Butler to enter the city on the 1st
of May, 1862. On the same day the general issued his
proclamation, containing the following solemnu pledge:
"All the rights of property, of whatever kind, will be held
"inviolate, subject only to the laws of the United States.
"All the inhabitants are enjoined to pursue their usual
" avocations.  41 shops and places of amusement are to be
"kept open in the accustomed manner, and services are to
"' be'held in the churches and religioushouses, as in times' f profound peace."
Mr. Stnith, in accordance with the proclamation, opened
his banking house for business. On the 10th of May, 1862,
General Butler took from him this $50,000 in gold. Not a
word was said to the Government about it until the next
July, when General Butler, by letter, now on file in the
department, wrote to Mr. Chase, then Secretary of the
Treasury, excusing himself for not sending the gold to the
Treasury, on the ground that he was obliged to use it in
paying his troops.
This letter is dated July, 1862, and is now on file in the
department.
Subsequently Mr. Smith came on to Washington to ask
the Government to repay him, having no suspicion that
the gold had not been paid to the troops, as General Butler
had written.
I was employed as counsel to present the claim, but
was not able to give it attention till April. The Secretary
of the Treasury examined the case and wrote as follows to
the Secretary of War:
"TREASURY DEPARTMENT, 1
April 2d, 1863.
"Sir,-Application has been made to this department
"for the repayment to Samuel Smith & Co. of $50,000
"alleged to hlave been seized by General Butler at New
" Orleans.
" An examination of the report made to this department
"by General Butler discloses the following facts: That




"$50,000. in coin in the possession of Smith & Co. was
" seized by General Butler, and by him  appropriated to.
"wards the pay of the Army, and that the amount referred
"to hlas never reached the- Treasury of the United States"Under these circumstances, the transaction being a mili"tary one, the jurisdiction of the case rests exclusively with
" the War Department."
Mr. Smith was a stranger to me, but he brought testimonials both from gentlemen of New Orleans and New
York, of the very highest character. Those high testimonials have been subsequently confirmed in the most
ample manner.
On the 11th of May, 1863, Mr. Smith's application was
made to the War Department, and his long, full, and
minute deposition of all the circumstances was there filed
and referred to the Solicitor, who made no decision upon
the case, but suggested that to get the money an act of
Congress or resort to the Court of Claims might be necessary. Mr. Smith having gone back to New Orleans I
awaited his return.
Meanwhile, learning that it was difficult to get money
from the Treasury once paid in without an act of Congress,
I prepared to apply to Congress for such act, and early in
February, 1864, I wrote to the Hon. Henry G. Stebbins,
member from New York, stating the case, and asking him
to see Secretary Chase and firld exactly how the money
stood in the Treasury. Colonel Stebbins saw the Secretary,
who gave the, matter his prompt attention, and I was telegraphed to come to Washington. The Secretary then sent
a clerk with me to go through the office of the Paymaster
General and the other offices in w]hicll a record of the
money must necessarily appear, to find oln what account it
stood. After a thorough investigation of the accounts of
every paymaster through whom  the money could have
been paid out to the troops, no such payments could be
found. And on the second day, after a fruitless re-examination, the officer in chlarge of' the Paymaster General's
office, suggested that I write to General Butler, then at
Fortress Monroe, and learn through what paymaster he
had paid out this $50,000 of gold to his troops; and




he then turned to a young clerk in the office and said,
(addressing him familiarly by name,) "You must know
about this gold, as you were in New Orleans at the
time?" The young man smiled and said that he did know
about the gold, and gave us to understand that we were
wasting our time-that General Butler never paid a dollar
of the gold to his troops; that they were paid in paper,
and there was no difficulty in tracing the paper from
Washington to the paymasters, and from the paymasters to
the troops. And thus was revealed to us for the first time
the reason why we could not find how that gold got to the
troops. The simple reason was, it never did get there;
that was all. I had no personal acquaintance with General
Butler, but through my hatred of the rebellion and belief
that the General was of service to our cause I had been
his defender, and hoping that there might be some possible
mistake and that the General had not retained the money,
I wrote him my first letter, as follows:
"February 29th, 1864.
"Dear Sir, —Samuel Smith, of Saratoga County, l ew
York, formerly private banker in New Orleans, has a claim
for $50,000 in gold used by General Butler in 1862 for payment of his troops in New Orleans. I write this in the
Treasury Department with the letter of General Butler to
the Secretary before me; it is dated July 2d, 1862. It was
supposed by the Secretary that as the letter of General
Butler stated that the money was used to pay the troops,
that the credit for that $50,000 would be found in Paymaster-General's or Auditor's office. I have this day been
over the accounts with the clerks, and no mention of the
money appears. Will you do me the favor to say to what
paymaster this money was given, and in what accounts this
$50,000 should appear? I am the counsel of Mr. Smith,
and the Paymaster-General suggests this as the quickest
way to learn what paymaster had the money. Your letter
of July 2d, 1862, only states the fact that the money was
paid to your troops, without naming through what paymaster.
"The accounts of Hewitt, Sherman, Locke, and Usher
have all been examined, and we find no account of it.
Will you do me the favor to reply to this at my residence,
No. 103 Fifth avenue, New York city, and much oblige,
"Yours very respectfully,
"EDWARDS PIERREPONT.
"Ge Maior-(eneral BurLEE'




Three days after I mentioned this matter to the Secretary
of War, and learned to my surprise that General Butler
claimed to retain the money, because " as a Lawyer he
" thought he might be held' liable to Smith &  Co., the
"owners."  I then addressed the following to the General:
"TREASURY DEPARTMENT, |
March 3, 1864. 
"General,-When I had the honor to address you on the
29th ultimo, I was not as well advised as now. As counsel
for Samuel Smith & Co., whose $50,000 in gold was taken
in New Orleans, and which matter you had referred to the
Treasury, together with all the papers, I have had the case
examined, and have produced Mr. Smith and had his deposition with others taken here and filed. I had reached the
point when I had supposed the money would be paid over,
and the Secretary undertook to find to what credit it stood,
and not being able to find out, at the suggestion of the
Paymaster-General, I wrote to you.
" Now I have just learned from the Secretary of War
more about the matter. Will you do me the favor to inform me who has the money, and to whom, in your judgment, I ought to look for it, and to whom it rightfully belongs?
"I am, very respectfully, your obedient servant,' EDWARDS PIERREPONT,
"16 Wall street, New York.
"Major-General BUTLER."
I waited two weeks and no reply came to either of my
letters, and I sent the following:
" 16 WALL STREET, NEW YOR, 
March 15, 1864.   ~
" General,-Two weeks ago this day I wrote from Washington to learn where the $50,000-in gold taken from Samuel Smith & Co., New Orleans, now is. I wrote with yours
of July 2, 1862, directed to the Secretary of the Treasury,
before me, in which you speak of this gold; the letter is
now on file with the report of Governor Shipley and others.
I am Samluel Smith's counsel. Will you do me the favor
to say what was the disposition of Mr. Smith's gold, where
it is, and to whom, in your judgment, it rightly belongs?
"I also addressed you a second letter on the same subject.
As I have no reply from either, I fear that you may not
have received them.




8
"To avoid accident, I will send this in duplicate, and
very respectfully await your reply.
"Ever your obedient servant,
" EDWARDS PIERREPONT,
"' Counsel for Samuel Smith.
"Major-General BuTTLER."
By accident I met an earnest supporter of the Government, a brave and well known public man, who was on his
way to Fortress Monroe. I wrote a few words upon my
card, and asked him to deliver it to General Butler.
On the 26th of March, 1864, I was honored with a reply
commencing thus:
" HEADQ'Rs DEP'T VIRGINIA AND NORTH CAROLINA,
Fortress Monroe, March 21, 1864.
"EDWARDS PIERREPONT, Esq.:
" I am in receipt of your letter in regard to the money
alleged to be of Samuel Smith & Co., bankers, at New Orleans, up to the time of the capture of that city by the
United States forces. As you are aware, I am in the field,
and have, therefore, no books or papers with me relating to
ormer transactions, and was obliged to wait until I had
examined some memoranda before I could make as full an
answer as I could wish. This must be my apology for the
delay in answering your letters. I am now without date
and amounts, but the facts and the order of sequence I am
quite sure will be without mistake."
This letter is very long, and is all published in the General's congressional defence, and charges Smith with having concealed the money, changed his books, &c., but
admitting that he, the general, has not paid it over to the
Government. Mr. Smith's books are all open; any one
can look at them, and they will show for themselves; and
Mr. Smith assures me that there is no foundation whatever
for the statements about erasures and entries of " tin, &c.;"
that a daily blotter used by an eccentric clerk had the
word "tin" upon it, which was a cant word for "cash"
used by the clerk on his daily blotter, but that there is no
such thing in the books, but it is entered " cash" in the
usual way; and that the books now existing prove it, and




9
that this very thing was explained to General Butler at the
time, in New Orleans.
Wishing to relieve General Butler of all responsibility in
longer keeping my clients' money, and urgent to get the
gold into the Treasury in ample time to get a bill through
Congress, if necessary, before adjournment, I forthwith
wrote:
"16 WALL STREET, NEW YORK, t
March 26, 1864. f
" My Dear General,-I am very truly obliged by your
satisfactory letter received this hour. It fully explains the
delay by which I lhave been a little annoyed. Pardon this
suggestion; why not pay over the money to the War Officee
or to the Treasury, and leave me to such remedy there as the
Government may thinkr kt?'" They now say the money is not in, their hands. Please
let me hearupon this.
"Very truly yours,
" EDWARDS PIERREPONT.
"Major-General BUTLER."
No imaginable excuse for non-compliance with this proposition has been offered. No honest excuse can ever be
offered. Compliance was a release to General Butler from
all claims whatsoever, and the General well knew it. Wo
did not ask that it be paid to Stnith, the owner, but simply
to the Government. The General, instead of accepting the
simple proposition, comes back with the following evasive
reply:
"HIIEAIQ'RS DEP'T VIRGINIA AND NORTH CAROLINA,
FORT MONROE, Mattrch 28, 1864.
" Dear Sir, —Your note of the 26th instant is received,
and I am glad to be able to answer it speedily. I am much
obliged for your suggestions. When I settled my accounts
at the War Office, the question of what shall be done with
this money of Sanmuel Stnith & Co., came under discussion,
and I then said to the Secretary of War, that as a lawyer,
I supposed that I might be held personally for the sum, and
that if he would give me an order to pay over the money to
the War Office in such form to release rme from the responsibility if hereafter called upon by Smith & Co., I should
be glad to pay the money over. He doubted whether this
could be done, and suggested the money might lie in my




10
hands until the Department was called upon for it, and
that a proper memorandum should be put'on file, so that
Smith & Co.'s rights, if they had any, should be preserved
as well as my own. There is no difficulty in dealing with
the money now in the same way.
" If the War Department directs an order to me to pay
the money either into the Treasury or contingent fund of
the Department, and Smith & Co., acting under your advice, will give me a memorandum stating that such payment shall relieve me from personal responsibility, I will
give a draft for the amount on the Assistant Treasurer of
the United States that will be honored at once.
"I think it but right, however, that my first letter to you
stating the facts of the capture of the money should be laid
before the War Department for its information before any
order is made on the subject, transferring the funds to
Smith & Co.
" I have the honor to be, very respectfully, your obedient servant,
" BENJ. F. BUTLER,
"Major-General Comnmanding."
Hoping that I could hold himn to his own suggestion in
some form, I replied as follows:
"16 WALL STREET, NEW YORK, April 1, 1864.
"My Dear General,-I am very glad to receive your letter of the 28th of March.  I am not one of your enemies.
That matter will now be adjusted, and I will write you
some statement of facts of which it is evident you are not
apprised. Immediately after the seizure of the gold, Smlith
came here; he was born in Saratoga county, where his
mother now lives, and he has been with her here, and in
Washington, most of the time since.
" Ie employed Senator Reverdy Johnson and myself as
his counsel; as the younger man, I lhave been the more
active. The report of the commissioners which you appointed clearly established beyond all controversy that the
gold belonged to Smith.  Tile commissioners so report;
and the evidence returned with the report abundantly established the conclusion.
" These papers, with your letter of July 2, 1862, are now
in the Treasury Department, and I have complete copies of
them all. I took Mr. Smith to Washington, and his depoposition was taken at great length, and is now on file with
the other papers. Mr. Smith is a Yankee, born of a Yankee, bred a Yankee, has taken the oath of allegiance, and
is as true and loyal as you or I. He has not been in Canada




11
at all; he tried, in the fright and terror which prevailed in
New Orleans, to save his property in part. Dr. Mercer,
who acted -on the commission, is now here. I am truly glad
that this matter is about to be adjusted.  Not every one
who has been in the case has the same desire to have it
quietly settled as I have. My own view about the case is
this: I think it quite clear that you could not successfully
resist a suit in New York brought by Smith to recover
whatever damages he can prove. 1 think the true way to
settle it is for you to pay Smith and take a release, with the
assent of the War Department. If you agree with me I
will see that it is done in such a way as you shall say is
liberal and just. 1 await your reply.
"Ever truly yours,
"1 EDWARDS PIERREPONT.
"Major-General BUTLER."
To this I received the following still more evasive
reply:
"April 4,1864.
" My Dear Sir: Ican only repeat my offer that whenever
the War Department will order the money paid over to your
client, and he shall give me a release, my draft for the
amount will be forwarded.  I am glad to hear that Mr.
Smith is loyal.  His conversion I trust is sincere.  For
yourself, I tlhank you for your expressions of kindness and
confidence, and while they are very gratifying indeed to
one who has been so much maligned as I have been, yet
you will see in this transaction I have so lived as to defy
my enemies. Allow me, my dear sir, further to say that,';ie uno disce omnes.' For a while you will confess to your.
self that you doubted my action in this business.  I am as
willing that every act of my official life shall'be as thoroughly
investigated as this may be. Therefore you will see that,
while I am obliged for the friendly feeling which prompted
you to desire the case'quietly settled,' still if those who
desired otherwise had had their way I should have been
as well pleased, because conscious of having endeavored
to do my duty. An attack upon me in this case would have
failed, and thus answered a thousand others to which no
reply can ever be otherwise made. Upon the point of law
which you suggest, pardon me if I differ with a lawyer so
distinguished as yourself. I do not believe that a military
commander in a captured city, taking money (contraband
of war) which might be used against that officer's army,




12
from an alien enemy, can -be held liable for the capture as
a trespass for the tort for not returning upon demand which
might sustain trover after the enemy became a friend
and capacitated to sue. I am inclined that having paid the
money to his Government would answer the demand. It
was to avoid this after-guestion, however, (I had no doubt
on the first.) that I hesitated to pay the money to the Govern.
ment.  Still I am rusty at the law, and my opinions are
not now, if they ever were, worth much.
" Yours truly,
"B. F. BUTLER."
We did not expect the iVar Department to order General
Butler to pay Smith; we asked that Gen. Butler pay the
Treasury or the War Department, which he would not do,
but replied by a proposition to pay Smith, coupled with
conditions, which he well knew the War Department could
not comply with. The General says at the end of the
above Letter, "IT WAS TO AVOID THIS AFTER QUESTION, THAT
I HESITATED TO PAY THE MONEY TO THE GOVERNMENT."'
To avoid something, the General has " hesitated to pay
the money to the Government" to this very hour.
He has Aesitated for two years and nine months, and still
hesitates; he also hesitates to pay it over to Snlith & Co.,
the owners; he does not hesitate to keep every dollar of
this Gold himself.
I deliberately charge that neither the Secretary of the
Treasury or the Secretary of War ever refused to accept
this money from General Butler; that he did not take it or
retain it by the order, or at the request of any Secretary of
the Treasury or of War.  It was the General that " lesitated to pay the money over to the Government" and not
the Government that" ~hesitated to receive it. The Secretaries are both living  Let the General call upon them in
this matter.
I now call your attention to my reply to the above, and
which reply the General carefully suppresses-in his published defence.  Why it was suppressed will be apparent:




'NEW YORE, 16 Wall street,
May 4, 1864.
"Major-Gen. BUTLER            May 4, 1864.
" Dear Sir,-Since your proposition to pay over to Smith
& Co. the $50,000 upon order from the Secretary of War.
I have seen the Secretary, and have just returned from
Washington.  The Secretary first thought that there was
no objection, but upon consultation with Mr. Whiting, he
concluded that as the money never came to the War Department, and as it was never taken by any order of the
Department, and as General Butler had retained it on the
ground that he might be personally liable  if he paid it
over; the Department would take no action whatever as
to the payment of the money. I think the Department
acted wisely. I do not see what business the Department
has with the money which you hold and not they, and
which they have never had, and whAich theg never authorized to be taken  Sinitli wNas with me; the Smiths both
live in Ballston's Spa, N. Y., where they were born; they
long since took the Oath of Allegiance, the amnesty oath,
and are ready to take any others required-they are as
loyal as you or 1. I propose this; send your draft for the
monley to any one in New York in whom you trust, to be
paid over on full release.  Or let any one appear for you,
and you may have an amicable suit in any Court in New
York, Uniited States Court or State Court, as you please.
"' This is not a hostile but a friendly proposition, as any
one will tell you. Otherwise, you force me to a suit by
long publications in the newspapers, as you are not resident.
" I await your reply, and am
Truly yours,' EDWARDS PI]ERREPONT."
P. S. June 4. —"I retained the above, because the
General was in the Field; but your letter of last evening
in the [New York Express, causes rue to hope for an answer
to this.
Yours, truly,
" E. P."
The General read this letter, as his replies of October 8
and 28, both prove, but he still "' hesitated" to part with
the Gold! He " hesitated" to accept any possible practicable proposition or suggestion which would relieve him
of the gold. He " hesitated" to answer this letter until
the 8th of the next October, and then wrote making excuses




14
for delay and repeating his impracticable propositions.
My courtesy, which I had tried to have delicate, as well as
patient, grew a little weary, and I wrote the following:
-" Enclosing a Summons."
16 WALL STREET, 
October 26, 1864.
"My Dear Sir, —You leave Mr. Smith no-alternative but
to commence an action. It is not necessary there be any
publications in the papers if you will authorize any attorney to appear for you, but otherwise it is necessary.
l do not wish any publication unless you wish it. Please
let me know your attorney at once, if you have one here.
Truly,       EDWARDs  PtERREPONT.
Major-General BuTrR.a
The following is his reply:
HEADQUARTERS NEAR VARNA,
October 28, 1864. 
My Dear Sir,-Y-our note inclosing the summons and
complaint in the case of Mr. Smith and Brother was received
last evening in the field. I hasten to answer.
Although not a resident of New York or amenable to the
jurisdictions of her Courts, so that a summons could hardly
bring me in, yet I shall at once acknowledge service and
instruct my attorney, John K. Hackett, Esq., to make answer. Having done this, I shall rely on your courtesy to
allow me a little time to go to Washington to make the following disposition of the, cause. When you desired me to
assent to a friendly suit I could make no answer to the
proposition, because as an official I could do nothing in any
way to compromise the rights of the United States. Now,
however, your proceeding in invitutm leaves me in a different situation, because, although I am acknowledging service, still as I must come to New York and can hardly
travel incog., you could obtain service, and therefore without prejudice a suit may be considered fairly begun.
I will now apply to the War Department, and ask the
Government to assume the defence; if that is done, then I
have no further interest in the matter; if not, then I am at
liberty to arrange with your client, or contest the suit as I
choose, and am left free to negotiate about a matter in
which I can have no personal interest except to save myself from cost. So soon, therefore, as I can get away, which
I hope to be in a few days, I will make answer, or will
meet you as you prefer, and be able to state exactly my




15
position on this subject. Of course, the suit, if it goes forward, will be removed into the Courts of the United States.
You will not need to be told that these suggestions do not
proceed from any desire to delay your clients; but, in fact,
to further their interest, if they have any. You will please
answer me at once whether this course will meet your concurrence.
As to the publication, I beg leave to repeat to you that I
can have no objection to any person knowing every fact connected with this transaction. The most exaggerated stories
have been told about it privately, from which I am suffering; but what can I do about it that I have not done.
Respectfully,
BENJ. F. BUTLER,
Major-General.
ion. EDWARDS PERREPONT.
I replied as follows:
16 WALL STREET,    ]
November 2, 1864. )
My Dear General, —Yours received, and satisfactory.
You have been a general since you were a lawyer, and
when you speak of jurisdiction I think you have not read
our recent statute.
We have a way to get jurisdictionm not like the old way;
but that is no matter. I will show you when we meet.
Your proposition is satisfactory, and I shall confer with
your attorney.
I send you my speech.
Yours,
YEDWARDS PIERREPONT.
Major-General BUTLER.
This reply is published in the Globe, before the letter to
which it relates-any one who can read, will see that
the words "yours received and satisfactory" relates to Gen.
Butler's attorney, and to the future conduct of the suit, and
yet it being inserted before the letter of Gen. Butler, has
led the newspapers to say in their comments that I had expressed myself perfectly satisfied with the General's course
about the gold. The whole defence before the House, partakes of the same character. It seems got up for effect
upon an excited house in an excited hour, when Smith had
no advocate, and no hearing.
The action being commenced, the General then hesitated
about his answer, and commenced delays by a motion to




remove thie cause out of the State Court, which holds a term
monthly, to the United States Court, which has but two
terms for the trial of civil causes in an entire year.
On the 6th of November, I received a friendly note from
the General, expressing a desire to see me at the Hoffman
house in New York-on the 8th I called- we soon reached
the matter of the gold. The General said, that if the
Government did not assume the defence, he would adjust
tle case fairly. I imet him once afterwards; he then said
that he was going direct to Washington, that he would see
the Secretary of War, and have the matter settled up. I
was quite satisfied, and parted with the General in the full
belief that tardy justice was about to be done to my client.
The General departed for Washington on Tuesday, November 15th, and on Thursday morning, under the head of
telegraphic news from Washington, appeared the following:
(From the Tribune.)
GEN. BUTLER S GOLD.
The copperhead attachment for General Butler's New
Orleans gold will have to penetrate the vaults of the
United States Treasury before it will be forthcoming, every
dollar being in the keeping of that department.
(From the Times.)
THAT GOLD.
Concerning the attachment applied for against General
Butler, in ~Nev York, on behalf of the parties in New
Orleans, to recover $60,000 in gold, seized by General
Butler in that city, it is proper to say that the gold referred to is in the Treasury of the United States, and that the
plaintiffs must seek redress, if they feel aggrieved, against
the government, and not General Butler.
(From the Herald.)
THE ATTACHMENT AGAINST GENERAL BUTLER.
The parties who lhave brought suit inll New Orleans
against General Butler for gold seized in New Orleans,
will find that it is the government, and not the individual,
they have a claim against. The gold in question was condemned by a military commission as the proceeds of the
robbery of the United States Mlint in New Orleans, and
was accounted for to the War Department, in whose custody it has since been. General Butler has at all times




17
been ready to pay over the money claimed whenever an
order of the War Department should be presented.
And on the following morning, in the Tribune, appeared
this also:
Special Des1patch to:The N. Y. Tribune.
WASHINGTON, Thursday, Nov. 17, 1864.
THE WAR OFFICE OFFERED TO GENElRAL BUTLER,' The physical prost;ration of Secretary Stanton rendering
his witlldrawal from the War Office inevitable, the President, according to a wide-spread and strongly fortified desire, tendered the position to Gen. Butler yesterday in person. It is understood that the general, four tile present at
least, declined the honor, and left for more active opera.
tions at the front."
MSr. Smith's gold hopes drew dim. If this was the kind
of settlement the general intended to make, we felt that
we had been a little " humbugged."  The world was given
to understand  that this Smith  was a " copperllead,"
bringing an outrageous suit against General Butler for gold
of which Smith had robbed the United States Mint, and
which thie General had restored to the vaults of the United
States Treasury. It would also appear that this worthy
act was appreciated, as "the President had tendered the
office of Secretary of War to General Butler in person" —
a rough kind of "settlement" that, Smitll thought. His
gold, the toil of years, had been taken away by force, and
now it was publicly charged that " the gold was the proceeds of a robbery of the United States Mint."
I was in Washington the next day, and found that not a
dollar of the money had been paid over, and that the whlole
fabrication, from the beginning down to the statement that
"the President yesterday tendered the position of Secretary of War to General Butler in person," wvas exactly what
Lieut. General Grant and Admiral Porter publicly stated
of Butler's Fort Fisher Report.
L The motion to remove the cause was pending. I applied
to General Butler's very capable and honorable counsel,
Mr. Hackett, to get the motion adjourned, and twice I got
it adjourned. MIy object was to give ample time to have
these libels upon Mr. Smith retracted. No corrections were
2




18
made. I sent for MrI. Smith, and told him to make a fill
statement of the facts-such as he could swear to-such as
would stand every test in future.
No one who knows IMr. Smith will doubt his statements,
whether under oath or not. lie is a Irman of established
character, well known.
He made an affidavit, which was read in Court. I made
a few remarks-not quite so courteous as my letters, which
were read before Congress. General Butler lost his motion.
This is the affidavit;
"Court of Common Pleas for the City and County of
New Yorlk.
" Samuel Smith and Andrew W. Smith vs. Benjamin
F. Butler.
"City and County of New York, ss.:
"Samuel Smith, one of the plaintiffs above named, being
duly sworn on solemn oath, deposes and says:
"That some twenty years ago he left the county of Saratoga, in this State, where he was born, and where his
mother still resides, and wert to New Orleans, without any
means but youth and hope, to seek for better fortune. By
severe economy, constant toil, and the unremitting industry
of long years, he and his brother Andrew together, succeeded in acquiring a considerable property, and they
became extensively engaged in the business of private
banking. Their very business compelled them to make
constant advances of money on Southern credits. When
the war broke out they were extended, and it was not pos.
sible for them to collect in their claims without iruch de-.
lay. The State of Louisiana seceded —deponent opposed
the secession, and quietly remained to liquidate his affairs,
and save what he could.  It is easy for those who
were safe in the North to talk bravely about their patriotism, and to boast of what they would have done; but had
such been where we were they might have thought differently.
" On the 24th of April, 1862, news came that Admiral
Farragut had passed the lower forts. The greatest consternation prevailed. All who had any mioney wished to
conceal it. Tile fear was of the wild mob and the soldiery,
in case tile city sLonld be given up to pillage. Deponent
had about sixty thousand dollars in gold coin in Lhis safe,
which he had been collecting together, and which he had
hoped to save. In this fiightful consternation, deponent
took $54,000 of the gold coin and secreted it in the air




19
cells around his safe, and left about $6,000 of his own in
the safe, besides a small amount belonging to some of his
customers. Admliral Farragut's success left. New Orleans
at his mercy, and General Butler entered the city on the
1st of May, and the rebel soldiery fled, and there was no
pillage of the town. Forthwith General Butler issued his
proclamation, dated May 1, 1862, and directed every man
to return to his business, and promising the fullest protection, and expressed himself in these words:'All the riqhts
of property, of whatever kind, will be held inviolate, sueject
only to the laws of the United States. All the inhabitants
are er!joined to pursue their ausual avocations. All shops
and places of amusement are to be kept open in the accustomed manner, and services are to be held in the churches
and religious houses, as in times of profound _peace.' Deponent did not suppose that this solemn proclamation by a
general of the United States was intended as a delusion
and a snare, and opened his banking house in the fullest
confidence that the general would not violate his plighted
faith. The secreted coin could not be reached without
tearing down a wall of masonry, and deponent being unwilling to excite notice by tearing down a heavy brick
wall and withdrawing the coin, when the city was in such
a fearful state, let it remain for a few days to await events.
General Butler soon began to examine into the affairs of
banks, batnkers, and men supposed to have money, for what
public end no one could understand.
" On the 10th of May General Butler ordered deponent
to open his safe, which he did; but the general finding but
six thousand dollars in coin in the safe,while deponent's books
showed sixty thousand dollars in hand, demanded the concealed coin, which deponent refused to give up, telling Gen.
Butler that it was concealed, and the object of the concealment, but declining to reveal the place where it was secreted.
The general then ordered deponent to prison, and threatened to confine himn in Fort Jackson until he revealed the
place of concealment. Deponent was powerless, without
the protection of law, and at the mercy of despotic force.
After being imprisoned in the manner above described,
deponent revealed the place where the gold was secreted.
General Butler tore down-the masonry, and carried off the
fifty-four thousand dollars in gold, besides the money in
the safe, and after a few days he returned to deponent the
six tllousand left in the safe, and four thousand dollars of
the concealed coin, keeping fifty thousand dollars in gold,
which he has retained from deponent to this hour. The
general then let deponent go, despoiled of his hard-earned
property', and with his business broken up and destroyed,
and now when deponent seeks in a lawful way to obtain




20
redress, le is met with tlhese false telegrams from Wash.
ington. The statemenct tilat' this gold wvas condemned by
a military cominiission as thle proceeds of tle robbery of the
United States Minit at New Orleans' is withlout a shadow
of truth. is utterly malicious, and is in every syllalble blasely
failse. Every dollar of it belonged to the plaintlif.  It was
the proceeds of lonrg and patient toil; not a penny of it ever
belonged to tile mint or to any confederate state office or
department thereof, and the mnilitary commission so foundl;
and tlhe one wlho ordered tlhat false teleraram  sent knew or
oughlt to have known it. Deponent makes this affidavit
witlh a true copy of thlat commission and report before lhim.
Tl.at coinmission was coinposed of three able and uprighlt
men —Governlor Shipley, Ilon. Thos. J. Durant, and Dr.
Mercer-and their report was mnade in June, 1862, and
proves the shameless fa!sity of these slanderous telegrams.
" Deponent took the oath of allegiance —thle amnesty
oathi-and is as true and loyal a man as he who by military force lhas taken away deponent's property.  Deponent
resypectfully submits thlat thlis false charge about a copperhead attachllnent, and these false and slanderous charges
thlat del)onent's gold'is the proceeds of a robbery of the
United States Mint,' published in the newspapers through
telegrams from  Washington wlhile General Butler was
there, and for the p)urpose of deceiving the public, and of
prejudicing their minld, before the trial of the cause (which
cause had been legitimrately commenced under the order of
this court), deserved thle rebuke and severest condemnation
of every judge and right.thinking Inan in this community.
(Signed)             SAM SMITH.
Sworn to this 29th of November, 186k, before me, Fred.
Smyth, Notary Public, New York.
The suit was commencad in October, 1864. Did the
General then  propose to pay the money into Court or
to the Government?  Not a bit of it.  But contriving a
new devise by which to retain the money in hlis own hands,
he wrote to the Solicitor of the War Departmnent the following very persuasive letter:
IIAIADQ'RS DEP'T VIRGINIA AND NORTH CAROLINA,
F(oITRrESS MoNROE, VA., Hocvemnber 28, 1864.
MY DEAR WnI'IoN, —   I inclose herewith to you a note to
the Secretary of War, in relation to the matter of Samuel
Smith & Co., bankers at New Orleans.




21
1 think it a clear case for a test question, and hope tAe
Government will defend it. Please brinc the paper to the
notice of thle Secretary, and get his perlinission to allow me
to publish the note inl my own julstification.
Althoul11 somewhat thlick-skinned to newspaper attacks,
et soime of my good and true fiiends are writing ne that
ou0ght to explain the facts, and I know no better way to
do so than by suchl publication.
If I may rely upon those friendly relations which exist
between us, upon you to procure this to be done, you will
a!'d another to thle many obligations under which I am to
yourself.
By the by, why do you not come to the " fiont" and see
how war is actnully carried on?  I will give you a " plate
and a blanket."
Yours, truly,            BENJ. F. BUTLER,
lfajor- Generalt.
Hon. WILLIAM WHITING, Solicitor of the War Department.
The avowed object of this letter was to get the Government to defend the suit.
He says: "1 I think it is a clear case for a test question,
and hope the Government will defend it."
A test of what? and why did he wish the Government
to defend it?
It seems that he wished, not only that the Government
should defend the suit, but that the Government should indemnify him also.
The Government refused, and replied to him as follows:
WAR DEPARTMENT, WASHTNGTON CrIT, 1
December 6, 1861. f
GENERAL, —I am instructed by the Secretary of War to
inform youFirst.-Thlat your communication dated at Fortress Monroe, November 2S, and addressed to him  in relation to the
claim of Samnuel Tmith & Co. against you, was referred to
the Judge Advocate General for opinion and report on the
question of indemnity you ask for.
Upon that reference, the Judge Advocate General reports:
"The question of indemnification cannot be determined
at this stage of the proceedings. Should there be a audgment
against the applicent his rights to be indemnified against it
will depend upon the character of his conduct, considered




22
in all its bearings, which has given rise to the suit. This
will be best understood when examined in the liglht of the
testimony which will be produced on the trial. If the applicant acted within the scope of his power, fairly interpreted, hlis claims to protection against the results of this
suit shlould be allowed. The fact that he has retained the
gold seized and now holds it, subject to the order of the Government, is not considered as afecting the right obligation
involved."
This report is approved, and will govern the action of the
Department upon your request for indemnity.
Second. —In relation to your request for leave to publish
your letter to the Secretary of War, the Secretary directs
me to say that no objection is made by the Department to
your publication of any statement in regard to the claim of
Smith & Co., which you may deem essential for your vindication.
Third.-In reference to the information given by you to
tne Department, a copy of your memorandum in relation
to the gold of Smith & Co., seized by you, filed with your
accounts and vouchers in the War Department, is hereto
annexed.
I am, general, very respectfully, yaur obedient servant,
E. D. TOWNSEND,
Assistant Adjutant General.
To Mlajor-General B1. F. BUTLER.
The Government declined to aid the General in longer
keeping Smith's gold; and yet the General still holds on
to it. Parting with $50,000 of gold, long kept, seems to
be attended with reluctance;-perhaps it is natural. Take
$50,000 of another man's gold —keep it two years and nine
months without giving security to any one-use it as your
own; let it rise to 285, and a natural affection springs up
for the increasing treasure not to be severed without a pang;
natural affections are to be respected; but Mr. Smith has
also a certain lingering attachment to that gold-the honest
earnings of many long and weary years.:M:r. Smith is not
a rebel; he is a true Northern man; when a boy he went
from Saratoga county down to New Orleans to better his
humble fortune; he opposed secession with all his power;
When it came, he did as he best could, gathered in something of his property, put it into gold, hoping to save it3
and to reach his old home where his mother still lives.




23
The next step in this history was Gen. Butler's defence
before Congress, which we have already reviewed.
I nnderstood Gen. Butler to suggest, in his defence, that
gold was not above par in July,.1S62, when it was snid he
paid it to his troops. Gen. Buntler's letter to the Secretary of
the Treasury, in which lie states that he shall pay the gold
to the troops, reached Washington about the 19th of July.
Gold was then 20 per cent. above pal'; on the 10th it was
18, and as early as the 3d it was over 10 per cent. premium.
And Gen. Butler's letter of July, now with the Secretary,
shows that lie then knew that gold was more valuable than
paper. Since Gen. Butler has had this gold it has sold as
high as 285. Whether the General sold it at these prices,
or whether he has kept this identical gold, we know not,
but we are willing to take the chances of his shrewdness
and to receive exactly the proceeds. I suspect that the
Government will not like to establish the precedent that a
General can seize another man's gold and keep it himself,
on any pretext or for any private speculations.
The grievances charged in this case are these:
First.-That in violation of his proclamation and without authority of law, Gen. Butler took $50,000 in gold from
Smith & Co., in New Orleans.
Second.-That this gold was the property of Smith &
Co., acquired by honest industry.
T/ird.-That Smith & Co. were northern men, engaged
as bankers in New Orleans, La. Their business was extended, their credits in that State of necessity were long.
They opposed secession with all their power, and when
secession came upon them  they tried to gather in their
property as best they could; What, being northern men,
they were more liable to suspicion, and were, of course,
compelled to be very circumspect. That when a safe opportunity offered, they gladly took the oath of allegiance,
and the amnesty oath also. That they concealed the gold
to keep it from the mob, which it was supposed would
pillage the city if Admiral Farragut passed the forts, and
this concealment was made a pretext for seizing the gold
by Gen. Butler.




21
Fourth. —That Gen. Butler has not paid out this gold to
his troops, but has retained it. (It is quite likely that Gen.
Butler left the gold for a time in tile safe keeping of a paymaster; but the point is, that the gold was returned to the
General and not paid out to the troops.
Fifth.-That Gen. Butler did not take the gold, nor has
he retained the gold, by any order, authority, or direction
of the Secretary of the Treasury or of War, and that he
did not pay it over to the Government as Mr. Smith
requ sted.
ixth. —That so gross was the wrong to Smith & Co.,
and so clearly were they entitled to this money, that even
General Butler's own Commissioners found that Smith &
Co. were the owners, and wrote to the General, advising a
restoration of the money, which has never yet been restored.
Seventh. —That Gen. Butler took this gold on the 10th
of May, 1862, and did not report it to the War Department
until February of the following year; and then reported
that Smith & Co. were " active rebels," and i' hesitated "
to pay it over to the Government, lest these " rebels "
sue him; to whom, " as a lawyer," he thought he might
be liable!
Some years ago a gentleman, eminent for his piety,
travelling on the Upper Nile, and lingering too late to
gather relics fi'om the shores of that ancient river, was
seized by Arabs; and, to save his life, was compelled to
outwardly adopt the religion of Alahomet.  When he
escaped to a christian land he hastened to worship with
more grateful devotion than before at the shrine of TzE
SAvIoR. Did not God forgive him?!
AMany a loyal man, lingering on the banks of the Missisippi to gather in his effects, was caught unawares and
obliged to seemingly acquiesce in that hated rule. My
client was one. At the earliest safe hour he returned to
the home of his youth and to renewed allegiance to the
government of his love.'Tis pitifful, to hear men whose religion and whose
patriotism has not been tried, talk so harshly of every fel



25
low-man who, by temporary and seeming acquiescence,
saved himself and his children from martyrdom.
When I foresee the bloody troubles through which our
country has yet to pass; when I perceive the increasing
difficulty of recruiting the armies which will surely be
needed; when I see a General, fretted at the loss of power,
trying by farewell order and by public speech, to make
our soldiers believe that the best Generals will but lead
them to uselessly bloody graves, and thus discouraging our
brave and saddened people; and when I see this same
General, through an honest member, palm off upon an
honest House what I know to be a sham, I feel impelled
by something higher than personal considerations to raise
my voice against it.
The General, in his communication with the Secretary of
War, excused himself for not paying over the money to
the Government, on the ground that, " as a lawyer," he
thought he might be held personally liable, in a Court of
Justice, to Smith & Co., who, as he wrote the Secretary,
" were active rebels."  Gen. Butler, "as a lawyer," knew
that " active rebels " could not sue in our Courts. Either
he did not believe that Smith & Co. were " active rebels,'f
or his excuse for not paying the money to the Government,
through fear of recovery by them, was a sham. The next
device to retain the money (after Smith proposed," that
" he pay the money over to the Treasury, or the War De-' partment, and leave him to such remedy there as the; Government might think fit "), was to require an
"ORDER" from the War Department. The General knew
that the Government could not give " Orders " about
every trespass, or other violation of municipal law, which
every officer might commit. That would be assuming that
the act was lawful. The Government receive money, or
other property, turned over to it by any of its officers, but
it will not, and it cannot make " Orders " about it, which
assume that the act was either right or wrong. There has
been no time in which Gen. Butler could not have turned:
over this money to the Government, as he well knows..
Why does he keep the Gold?
3




26
These facts cannot be denied; namely: That without the
least authority of law Gen. Butler took this gold and has
kept it two years and nine months and still keeps it;
That Gen. Butler's own commissioners found that the
money belonged to Smith & Co., and desired to restore it;
That Mr. Smith supposing that Gen. Butler had paid the
gold to his troops, as indicated by the general's letter, ap
plied to the Treasury and found, to his surprise, that Gen.
Butler had the gold;
That forthwith Mr. Smith, by his counsel, proposed in
writing to Gen. Butler that he pay the money over to the
Treasury or to the War Department and leave.Mr. Smith
to sucah remedy as the Government might thinkfit to give
him.
That the General (to use his own words) " hesitated " to
pay it to the Government and refused to pay it to the
owner, and by various devises has contrived to retain it
to this time, and without security either to the Government
or to Mr. Smith, and with the full use of this $50,000 of
gold during a period of two years and nine months;
Upon these facts an honest and intelligent people will.pass a just judgment.
Each man in his sphere, however narrow or extended,
will find that his fellow men, (whether he will or no) weigh
his character and his abilities often; and unconsciously
stamp him with their estimate, and that the average resultant of these frequent estimates is just.
If General Butler shall finally succeed in keeping Mr.
Smith's gold to himself, he will find it an uncomfortable
possession; and as his showy carriage rolls by, his honest
townstnen will look up, and think of the boy who from Saratoga county went down to:New Orleans in search of
better fortune, and whose $50,000 in gold, the proceeds of
patient toil, and the industry of long years, was taken from
him by General Butler. And some humble, pious neighbor
may say to the rich general:
" Your gold and silver is cankered; and the rust of them
A' shall be a witness against you, audshall eat your fihsh ax
"' it were fire."




27
Gen. Butler still keeps the gold, or the proceeds at 285,:if he sold at the highest price.
Is rr RIGHT? That is the question —and I am  truly,yours
EDWARDS PIERREPONT,
Counsel for Saml. Smith & Ct.
New York, February 10th, 1865.