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oner. The existence of a hostile spirit on the part of the witness towards the accused is certainly not an objection which goes to his competency but it does as unquestionably affect his credit; for while human natur remains what it is, such a spirit will almost unavoidably dispose a witnes to give a coloring to his statements, for which a proper allowance ough always to be made by those who are to adjudge a case upon his evidence and this more especially in a doubtful case.
I am therefore of the opinion, not only that the power which has bee exercised by the President exists, but that it has been rightfully exercise in the present instance. I have the honor to be, &c.,
WM. WIRT. To the PRESIDENT OF THE UNITED STATES.
SURRENDER OF A MIDSHIPMAN TO A STATE AUTHORITY.
Although there is no act of Congress authorizing a call by a governor for the surrender of midshipman charged with having broken the peace of a State, nor any law authorizing an arrest by the Executive with a view to a forcible surrender of him for the purposes of trial it is important that the accused should surrender himself, and that an order from the Nav Department be given.
OFFICE OF THE ATTORNEY GENERAL,
October 20, 1818. Sır: I have considered the case of Midshipman Childs; the paper relative to which were handed me a few days back by Mr. Homans, the Navy Department, by your desire.
I have not been able to find any act of Congress which authorizes th call now made by the governor of Georgia for the surrender of Mr. Child for the purpose of taking his trial in Georgia for an alleged breach of th peace of that State; nor any law which authorizes an arrest of the perso of Mr. Childs by order of the Navy Department, or of the President, with a view to the forcible surrender of him to the State authorities for the purpose aforesaid. Nevertheless, the respect due to the civil authoritie and laws of the States, and the great importance of inculcating on the officers of the navy the principle that the public service in which they ar engaged gives them no authority to violate the civil laws of the States and will afford them no protection against the consequences of such via lation, make it desirable that Mr. Childs should surrender himself to th State authority of Georgia for the purpose of taking his trial; to which end I would advise that an order from the Navy Department be given him. If he should judge it important to his defence against the allege brcach of the peace, that any persons belonging to the ship should accom pany him as witnesses, it would be but an act of justice to him that the also should be ordered on.
But before an order should be issued either to him or them, the con venience of the public service - requires that we should know at wha time his trial will come on. An indictment for a breach of the peace ma be found against him in his absence. If this has been done, (as we ma presume it has,) the governor of Georgia will be able to inform the Nav Department at what time Mr. Childs must go on to meet his trial; an
the order should direct the attendance of himself, and any of the ship's crew whom he may allege to be material witnesses in his defence, in full time not only to meet the trial, but, if he thinks it necessary, iu time also to summon any witnesses in Georgia whom he may deem necessary. The papers handed me by Mr. Homans are here with returned.
[WM. WIRT.] To the PRESIDENT OF THE UNITED STATES.
CASE OF THE PEACOCK-ĻIABILITY OF THE UNITED STATES.
Where the Quartermaster General had entered into an agreement with an individual to pay
him $8,010 for a vessel upon condition that the latter should deliver her in good order at the mouth of the Apalachicola by a specified time, and the latter agreed to do so, “dangers of the sea, or being prevented by an enemy, excepted,” yet failed to deliver her in time; but under a division order from General Jackson, directing the Quartermaster General to purehase the vessel “if to be had at cost here," he took possession of her without any consultation with the owner or agent, and sent her up the river with supplies for the army--decided, that, by virtue of the conversion, the United States ought to pay for her, not the stipulated price, but quantum valebat,
OFFICE OF THE ATTORNEY GENERAL,
October 20, 1818. SIR: I have, in conformity with your request, considered the claim of Mr. John Rogers for the stipulated price of the barge Peacock, under arti. cles of agreement between that gentleman and Col. Gibson, Quartermaster General of the army, under the command of General Jackson.
The first question is: Whether, by these articles, the sale of the Peacock for $8,000 was an absolute sale at New Orleans, on the day of the date of the articles, (to wit, the 14th February, 1818,) with a covenant annexed, on the part of Mr. Rogers, that he would deliver the barge, complete and in good order, at the month of the Apalachicola, on or before the 28th day of the same month, “the dangers of the sea, or being preTented by an enemy, excepted ?" Because, if this be the nature of the contract, I should consider it as resting on the principle so often decided in regard to bills of lading. The master of a ship stipulates, by his bill of lading, to deliver a quantity of goods at a given port, “in like good order and condition” as he received them, “the perils of the sea ex cepted.” It has been repeatedly decided, that, if the goods be delivered not in like good order and condition, but damaged by the perils of the sea, without any default on the part of the master, the master is not liable to an action for damages on this stipulation, because the damage was done by the perils of the sca, as to which the shipper, by the terms of the stipulaion, undertook to become the insurer, and had expressly absolved the master from any kind of responsibility for a damage proceeding from that canse. In such a case, therefore, although the owner is liable for the stipulated freight, he has no offset or claim on the master for the damage done to the goods.
So here, if the undertaking on the part of Mr. Rogers to deliver the barge at the time and place appointed was an undertaking separate from the contract of sale, (the sale being absolute at New Orleans on the date of the agreement,) I should consider the failure to deliver the barge as not affecting the sale in any manner whatever; nor as subjecting Mr.
Rogers to any claim of damages for the failure to deliver; because I understand it to be admitted that this failure proceeded from the dangers of the seas, which form an express exception to the stipulation of delivery at the appointed time and place. On this hypothesis, therefore, I should consider Mr. Rogers as entitled to the $8,000, without any liability for such failure to deliver.
If, on the contrary, the sale was not an absolute sale at New Orleans, on the date of the contract, but was a conditional sale, made expressly to depend on the precedent condition of the delivery of the barge at the time and place appointed: then, unless such delivery took place according to the stipulations, the contract was void ; and Mr. Rogers can claim nothing under it, by virtue of any subsequent readiness or offer to deliver.
This makes it necessary to examine the articles of agreement themselves, and to ascertain the true character of the contract. The articles begin (without saying anything about a sale) with an engagement on the part of Mr. Rogers to deliver the barge “on or before the 28th February, at the mouth of the Apalachicola river ; the dangers of the sea, or being prevented by an enemy, excepted." But for the words underscored, Mr. Rogers would have been liable to an action of damages if he had failed to make the delivery, by whatever cause prevented; so that the only effect of the underscored words is to exempt him from this action, if the failure proceeded from either of the causes specified and excepted from his undertaking. Then, after another stipulation on the part of Mr. Rogers as to the order and condition in which the vessel should be delivered, her anchors, cables, and other equipments, the articles of agreement proceed to state the only stipulation which exists on the part of the Quartermaster General; that stipulation is in the following words: “ The said Colonel George Gibson, Quartermaster General, for and on behalf of the United States, doth stipulate and agree, on condition of the delivery of the sạid barge at the time and place, and in the condition aforesaid, to pay to the said John Rogers, his heirs, &c., the sum of eight thousand dollars.” Nothing can be clearer than that the delivery at the time and place is an express condition precedent to the obligation to pay the $8,000; and that, if the United States were suable, Mr. Rogers could not have maintained an action for the price on the contract, without averring in his declaration and proving his performance of this precedent condition.
But there were subsequent proceedings in this case, which present it in a new aspect, and demand a further opinion. Although the United States were not bound, according to the foregoing opinion, to have received the barge, because she was not delivered according to the agree. ment; yet it seems that, on the 6th of May following, General Jackson issued a division order, whereby Col. Gibson was directed to purchase the barge for the United States, if to be had at cost here. Col. Gibson states, that, as Mr. Rogers had no authorized agent present, he could not make the purchase as directed; but that, nevertheless, under this order, he took possession of the barge, loaded her, and sent her up the river with supplies for the army. This act was not authorized by the terms of the order under which Col. Gibson acted; and is to find its justification, I presume, in the emergency of the case and the pressing necessities of the army. The contract, however, being at an end by the failure on the part of Mr. Rogers to deliver the bárge according to his stipulation, the property in the barge was his, and not the property of the United States.
n. Jackson, in his order, contemplates the property as Mr. Rogers's, d, therefore, as being the subject of a new contract; such new contract, wever, could not be made without the assent of both parties. I do t think that the possession thus taken was a waiver of the failure to liver, and therefore restored the original contract; but it was the seizure the property of another for public purposes, and this act entitled the ner to the value of the property thus seized; not to its first cost, but its value; and not to its value at New Orleans, but its cost and value the owner, and its value to the United States, at the place at which it as seized. Its cost and value to the owner was the price which it ould have brought at New Orleans, with the expense and hazard superIded of bringing it from New Orleans to the mouth of the Apalachicola; nd its value to the United States was the price which they would have had
pay for such a barge so equipped, delivered at the mouth of the Apalachivla. This, I think, would be taken by a jury as the fair criterion of the alue in an action between individuals, founded on a quantum valebat; nd they would directly look to the stipulation between the parties as nishing the measure of the damages. The certificate of Lieut. Col. rimble, annexed to the contract, proves that that contract was made on e best terms on which such a barge could be procured to be sent from ew Orleans to Apalachicola; and Col. Gibson, the contracting agent of e United States, declares that the price was $1,000 cheaper than he uld have procured such a barge to be delivered at the same point. I am, therefore, of the opinion, that, if the United States were suable, le verdict of a jury •would rightfully be for $8,000; and such, in my pinion, is the sentence of the law.
[WM. WIRT.] To the SECRETARY OF WAR.
THE CASE OF THE FOURTH-OF-JULY PRIVATEER.
istructions to the district attorney for the United States, at Baltimore, concerning the Fourthof-July privateer from La Plata, whose separate existence has not been acknowledged by the executive branch of the government, advising indictments against the captain and crew as pirates; also under the act of 1794; and also under the act of 1817.
ATTORNEY GENERAL'S OFFICE,
November 6, 1818. Dear Sir: I have been deliberating, as well as I could, on the course prosecution which should be adopted against the owners, captain, and ew of the Fourth-of-July privateer; and, according to the request con. ined in your first letter, will now give you my opinion on that course. First: I would indict the captain and crew as pirates, under the original et of Congress, which defines piracy. The prisoners will defend them. elves under the commission of Artigas. I would object to that commislon going before the jury as evidence, on the ground that it is not the onmission of a sovereign recognised by our government. In the case f the Romp, in Richmond, the chief justice decided that a maritime comdission, signed by the sovereign authority of the province of La Plata, urnished no justification to the crew of that vessel, because the court ould not take notice of La Plata as a sovereignty until recognised by our government, and, consequently, could not take notice of a commission purporting to be issued under the separate authority of that province that, in the view of the court, La Plata must be considered as a depend ence of the Spanish crown, until its separate existence as a nation had been acknowledged by the executive branch of the government. In reply to this, they will quote the decision of the Supreme Court in the case ol Palmer, (2 Wheaton, 634, 635;) and they will insist upon the correspond ence of Mr. Monroe, when Secretary of State, with Don Onis, as well as the President's message at the opening of the last session of Congress, to prove the admission of the government that the South American colonies are to be considered as in a state of civil war. On this limited recogni. tion they will claim for Artigas the rights laid down in Palmer's case qui supra—that is, all the rights which war authorizes; and they will insist, under that opinion, “that persons and vessels employed in the service of the self-created government must be permitted to prove the fact of their being actually employed in such service by the same testimony which would be sufficient to prove that such vessel or person was employed in the service of an acknowledged state;" that although, under that opinion, “the seal of such unacknowledged government cannot be admitted to prove itself, yet that “ it may be proved by such testimony as the nature of the case admits;" and that “the fact that such vessel or person is so employed may be proved without producing the seal.” To this there are two answers:
1. That the correspondence with De Onis, and the message, are not pointed at Artigas. They are to be considered in reference to the subjectmatter, which alluded to a complaint of the Spanish minister touching the admission of Buenos Ayrean privateers into our ports, The section of country which Artigas holds is claimed by Portugal. This war is with the King of Portugal. The system of colonial government adopted by the two monarchies is alleged to be very different: that of Spain, oppressive to the colonists in an extreme degree; that of Portugal, comparatively liberal. According to the writers on the laws of nations, the course which a neutral holds in such wars is often directed by its sense of the justice of one side of the cause or the other; and, according to this sense, i relaxes at pleasure the rigor of its neutrality--still, however, keeping within the neutral pale. According to those writers, a recognition of the independence of a revolted colony by a neutral is no cause of war to the parent nation, provided the revolted colony be in actual and exclusive possession of its territory and government. According to these principles our government might recognise the government of Buenos Ayres, with out giving just cause of war to Spain; but if the Banda Orientale, as Por tugal contends, is a separate territory, belonging to a distinct sovereign such recognition of Buenos Ayres would not extend to that, because the American government may perceive a justice in the one conflict which i does not in the other.
On the same principle, the recognition of a civil war in Buenos Ayres a Spanish colony, would not by any means carry along with it, as a con sequence, the recognition of a civil war even in a Portuguese colony You will not understand me as speaking in the name of the governmen of the United States, as to its seeing any difference in fact between the cases of Peurrydon and Artigas. I have no authority for making an such declaration. I speak only of the inference of fact which may or no