Page images

The judgment of the court could in no other way be judicially directed to it. Their decision, therefore, was upon a point not before them. It was utterly extrajudicial, and, for this reason among others, erroneous.

Would it not be extraordinary that our laws should have provided so sedulously appeltate tribunals, clothed with the power of awarding new trials in questions of more property, and that there should exist no such tribunal-no such power—in the more important cases of life, liberty, and honor? That if a court, in a case where the whole question relates to a few dollars, improperly exclude evidence which ought to have been admitted on the trial, a superior tribunal should have the power, for this Teason alome, to award a new trial, and to direct that the evidence should be let in; while in a case involving that which is infinitely dearer to a soldier than all the possessions on earth, a similar mistake in judgment is irrevocable, irreversible, and is to fix upon his reputation a stigma for life;—that this ought not to be the state of things must, I think, be very evident; and that it is not, is to my judgment sufficiently clear from the considerations which have been already urged.

Cpon the whole, I am of the opinion that the President of the United States is vested by the laws with the power of ordering a new trial for the benefit of the prisoner; that the power, so far from being dangerous to the army, is a salutary power; that it is indispensably necessary to the well-being of the army; and that the only danger which can be rationally conceived in the case would arise, not from the existence, but from the non-existence of such a power.

One other topic of inquiry only remains: If the President possesses the power in question, has it been properly exercised in the present instance?

We have seen, by the authority of Tytler, (page 171,) that, in England, (where, by their mutiny act, an appeal is given from the sentence of the court-martial to the supreme civil courts of the kingdom,) these courts, in reviewing the sentence appealed from, are governed by the same considerations in reversing that sentence and ordering a new trial, which govern them in appeals from the inferior civil courts. He instances, among other causes,“ where the sentence shall have been manifestly without or contrary to evidence;" and we know that nothing is more familiar in practice in civil appeals, than reversing the judgment of the inferior courts on the ground that evidence was improperly excluded. This

precisely the ground taken by the President in the case before us. The evidence which he decides to have been improperly excluded on the first trial is— 1 st, evidence of the general character of Captain

Hall; and, 2dly, evidence of an existing quarrel between the prisoner i and the principal witness against him.

1. In the first position the President is clearly supported by authority. McArthur on Naval and Military Courts-martial, (2d vol., pages 90, 91,) expressly declares that the prisoner has the right to examine the character, not only in capital cases, but in all cases of misdemeanor; and he supports himself by the authority of McNally and of Lord Kenyon, both as to the admissibility and the force of such evidence in criminal trials. Major Macomb, in his compilation from Tytler, advances the same principle.

2. As little doubt can there be that the court erred in refusing to admit proof of an existing quarrel between the principal witness and the pris


[ocr errors]
[ocr errors]

oner. The existence of a hostile spirit on the part of the witness toward 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.,




Although there is no act of Congress authorizing a call by a governor for the surrender of i

midshipman charged with having broken the peace of a State, nor any law authorizing a 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 Navy Department be given.


October 20, 1818. Sir: I have considered the case of Midshipman Childs; the paper relative to which were handed me a few days back by Mr. Homans, o the Navy Department, by your desire.

I have not been able to find any act of Congress which authorizes the call now made by the governor of Georgia for the surrender of Mr. Childs for the purpose of taking his trial in Georgia for an alleged breach of the peace of that State; nor any law which authorizes an arrest of the person 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 authorities 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 are engaged gives them no authority to violate the civil laws of the States, and will afford them no protection against the consequences of such violation, make it desirable that Mr. Childs should surrender himself to the 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 alleged breach of the peace, that any persons belonging to the ship should accompany him as witnesses, it would be but an act of justice to him that they also should be ordered on.

But before an order should be issued either to bim or them, the convenience of the public service - requires that we should know at what time his trial will come on. An indictment for a breach of the be found against him in his absence. If this has been done, (as we may presume it has,) the governor of Georgia will be able to inform the Navy Department at what time Mr. Childs must go on to meet his trial; and


peace maj

le order should direct the attendance of himself, and any of the ship's ew whom he may allege to be material witnesses in his defence, in full ne not only to meet the trial, but, if he thinks it necessary, iu time also summon any witnesses in Georgia whom he may deem necessary.. The papers handed me by Mr. Homans are herewith returned.



Where the Quartermaster General had entered into an agreement with an individual to pay him $8.000 for a vessel upon condition that the latter should deliver her in good order at the mouth of the A palachicola 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 urder a division order from General Jackson, directing the Quartermaster General to purchase 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,

[ocr errors]


October 20, 1818. Sir: I have, in conformity with your request, considered the claim of Ir. John Rogers for the stipulated price of the barge Peacock, under arti. cles of agreement between that gentleman and Col. Gibson, Quartermaser 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 annered, on the part of Mr. Rogers, that he would deliver the barge, complete and in good order, at the mouth 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 stipulalon, undertook to become the insurer, and had expressly absolved the master from any kind of responsibility for a damage proceeding from that cause. 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

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.

done to the goods.

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 said 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 agreement; yet it seems that, on the 6th of May following, General Jackson issued a division order, whereby Col. Gibson was directed to 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, the army.' The contract

, however, being at an end by the failure on the I presume, in the emergency of the case and the pressing necessities of part of Mr. Rogers to deliver the barge according to his stipulation, the property in the

barge was his, and not the property of the United States.



[ocr errors]

en. Jackson, in his order, contemplates the property as Mr. Rogers's, nd, 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 ot 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 vner 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 ras seized. Its cost and value to the owner was the price which it vould have brought at New Orleans, with the expense and hazard superudded of bringing it from New Orleans to the mouth of the Apalachicola; ind its value to the United States was the price which they would have hud o pay for such a barge so equipped, delivered at the mouth of the Apalachi. cola. This, I think, would be taken by a jury as the fair criterion of the Falue in an action between individuals, founded on a quantum valebat ; and they would directly look to the stipulation between the parties as inishing the measure of the damages. The certificate of Lieut. Col. Trimble, annexed to the contract, proves that that contract was made on he best terms on which such a barge could be procured to be sent from New Orleans to Apalachicola; and Col. Gibson, the contracting agent of he United States, declares that the price was $1,000 cheaper than he ould 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, he verdict of a jury •would rightfully be for $8,000; and such, in my 'pinion, is the sentence of the law.


THE CASE OF THE FOURTH-OF-JULY PRIVATEER. Instructions to the district attorney for the United States, at Baltimore, concerning the Fourth

of-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.


November 6, 1818. Dear Sir: I have been deliberating, as well as I could, on the course i prosecution which should be adopted against the owners, captain, and tew of the Fourth-of-July privateer; and, according to the request con. ained in your first letter, will now give you my opinion on that course.

First: Í would indict the captain and crew as pirates, under the original ict of Congress, which defines piracy. The prisoners will defend them. selves under the commission of Artigas. I would object to that commission going before the jury as evidence, on the ground that it is not the conmission of a sovereign recognised by our government. In the case of the Romp, in Richmond, the chief justice decided that a maritime commission, signed by the sovereign authority of the province of La Plata, furnished no justification to the crew of that vessel, because the court could not take notice of La Plata as a sovereignty until recognised by our

« PreviousContinue »