Page images
PDF
EPUB

be fairly deduced from the correspondence and message in question. Those who rely on them as establishing the admission that a civil war exists between Artigas and Portugal must show that admission on the face of those documents; and cannot, for the reasons I have given, infer argumentatively, by reasoning from the one case to the other. If the prisoners fail in showing that our government had admitted the existence of a civil war between Artigas and Portugal, then the principles laid down in Palmer's case, quá supra, can have no application to the case at bar; and this case will revert to the principles established by the chief justice in the case of the Romp.

2. But suppose it to be taken as admitted by the government that a civil war does exist between Artigas and Portugal: does it follow that the citizens of the United States may participate in that war? The Supreme Court have not said that Palmer was not expressly indicted as a citizen of the United States, nor is the vessel charged as being United States property; and the principles laid down by the court are to be taken secundum rem judicatam, and not to be extended to another case. If the Banda Orientale is to be considered as part of the province of La Plata, and, consequently, as belonging to Spain, the fourteenth article of our treaty with Spain makes the case at bar a case of piracy, (see that article;) and whatever rights of war Artigas may have, on the ground of his being engaged in a civil war, the citizens of the United States cannot mingle in that war, on this hypothesis, without being guilty of piracy. (See what Vattel says, book 3, chapter 2, section 15, as to enlisting troops in a foreign nation.)

As a branch of this opinion, the owners, &c., ought to be indicted as accessories to the piracy, under the ninth and tenth sections of the act of 1790_" An act for the punishment of certain crimes against the United States."

Secondly: I would indict them under the act of 1794—"An act in addition to the act for the punishment of certain crimes against the United States," laying a separate count under every section where the facts will Warrant it. The defence here will be, that Artigas is neither a foreign prince, nor his province a state, according to the decision in Gelston vs. Hoyt. But as the previous prosecution for piracy can fail only on the ground that he is a prince, and his government that of a state, (under the decision in Palmer's case, and by our government's recognition of a civil war,) the prisoners will have taken this ground from under themselves. Artigas and his province are either a foreign prince and state, or they are not: if they are, the indictment will lie under the act of 1794; if thcy are not, the indictment for piracy will lie under the act of 1790.

There seems to me no possibility of escaping this dilemma but by splitting the hair, and saying they are so far a foreign prince and state as to excuse the prisoners from piracy, but yet not so far as to subject them under the act of 1794. In the case of Gelston and Hoyt, the alleged princes and states were Petion and Christophe, and St. Domingo. Our government had never acknowledged these sovereignties, not even by the recognition of a civil war either between themselves or their parent countries; so that 'inference can be drawn from that case to this, if the court shall have previously excused the piracy on the ground of our recognition of a civil war. This simple recognition in Palmer's case was considered and decided as placing the belligerents on the same footing, for the pur

11

poses of war, as if they had been both regularly recognised sovereignsan effect which would certainly bring the act of 1794 to bear directly or the case.

Thirdly: I would indict them under the act of 1817. As to the fact under this act, you have, I understand, only a single witness; but tha there is in expectation a further proof. The grand jury, I presume would not hesitate to find a bill on the testimony of this single witness and if you think it unsafe to go into his trial on the evidence of this single witness, the court would, I presume, indulge you in a continuance unti the next term.

WM. WIRT. Elias GLENN, Esq.,

District Attorney for the United States, Baltimore.

DUTIES OF ATTORNEY GENERAL-FRAUDS ON THE TREASURY.

It is the duty of the Attorney General to give his advice on questions of law only when re

quired by the President and heads of departments; not to investigate the truth of any alle

gation of a fraudulent collusion to obtain money from the treasury, The United States may recover back money fraudulently obtained from the treasury, upoi

making out a case to the satisfaction of a jury.

ATTORNEY GENERAL'S OFFICE,

December 22, 1818. SIR: About the close of the last session of Congress, a large mass o documents was lodged in this office, accompanied by the following orde of the House of Representatives:

Ordered, That all the accounts and papers in the possession of th Clerk of this House, in relation to the accounts of James Thomas, quartermaster general in the army during the late war, be referred to th Attorney General of the United States."

The purpose for which this reference was made not being specified by the order itself, it was natural to suppose that it pointed to the perform ance of some known duty attached to the office of Attorney General which would be readily discovered by adverting to the laws that desig nate the duties of that office. But among those duties there is no one tha bears any relation to this order of the House of Representatives, or cal help me to an understanding of the service which is expected at m hands. The act of 1789, which creates the office of Attorney General enumerates the duties of that officer in the following terms: “whos duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advic and opinion upon questions of law, when required by the President of th United States, or when requested by the heads of any one of the depart ments.A subsequent act makes the Attorney General ex officio a com missioner of the sinking fund; and these two acts comprise the whol catalogue of his duties as they are designated by law. Neither the orde nor the laws, therefore, afford any explanation of the object with whic this reference has been made; and my predecessors having left no trac of any official practice in aid of the law which could furnish a clew i that object, I hope I shall be excused if I err in considering the referenc as having been made to me as the law officer of the government, and, consequently, that nothing more is expected of me than the expression of my opinion as to the law arising on the case.

It is to be collected from the documents in this case, that James Thomas, a quartermaster general in the service of the United States, is charged with having drawn from the public treasury divers large sums of money, by a fraudulent collusion between himself and a certain Michael T. Simpson, by means of which collusion he was enabled to impose on the accounting officers of the government, and to obtain a false balance to be struck in his favor. To decide upon the truth of this allegation is out of my province; it belongs to a different department; but, assuming it to be true, it is, in my opinion, very clear that the United States may maintain an action against James Thomas before the courts of the United States, for the purpose of recovering back the money thus fraudulently obtained; and that, if they make out the fact to the satisfaction of a jury, they will unquestionably recover it back.

There is no act of Congress which subjects the quartermaster to a criminal prosecution for such a fraud as this is alleged to have been. The act of the 28th March, 1812, "to establish a quartermaster's department, and for other purposes,” by its sixth section, subjected the quartermaster to fine and imprisonment on conviction of taking, or applying to his own use, any emolument or gain, for negotiating or transacting any business in his department, other than such as should be allowed by law; but this section is expressly repealed by the act amendatory of the former, passed on the 22d May, 1812. (See the 4th vol. Laws United States, new edition, pages 397 and 347.)

This remedy, therefore, if the facts be made out, is by an action at law against Thomas, and his sureties on his bond, as quartermaster, so far as the penalty of that bond will extend; and against Thomas singly, by an action on ihe case for the residue.

The documents accompanying the order of the House of Reptesentatives will be returned herewith to the Clerk of that House. I have the honor to be, &c.,

WM. WIRT. To the SPEAKER of the House of Representatives.

CLAIM FOR DAMAGE BY FIRE.

When the British invaded Castine, the commander of the United States ship Adams, then

lying in that port, burnt her, to prevent her from falling into the hands of the enemy; the fire communicated with a neighboring warehouse, in which there was valuable property destroyed, for which a claim is made against the government: decided that the destruction was one of those casualties of war resulting from exposure.—(See Raymond's Reports, 422, 467; 1 Salk., 12; Mod. Rep., 151.)

ATTORNEY GENERAL'S OFFICE,

January 8, 1819. Sir: I regret that my official duties have not permitted me to attend sooner to the claim of Messrs. Caze & Richaud, on which you have asked my opinion. The case I understand to be this: When the British invaded Castine in the autumn of 1814, Captain Morris, commander of the United States ship Adams, then lying in that port, burnt her, in order

to prevent her from falling into the hands of the enemy; the fire was con municated from the ship to a neighboring warehouse, in which the pe tioners had valuable property stored, which was thus destroyed; and fi the value of this property the present claim is advanced. The questio you ask is this: « Suppose the burning to have been necessary to effect legitimate national object; can the liability for consequential damages an individual be avoided at law?''

It is extremely difficult to bring a question like this to any known leg standard. All the cases of consequential damages furnished by th books, have been cases involving none but individual interests on the on hand or the other, and never complicated with any great consideration of public war or national defence. Were it possible to regard this as question purely individual, there would be no difficulty in deciding it; fe among individuals it has long since been settled

1. That though a man do a lawful thing, yet, if any damage thereb befal another, he shall answer, if he could have avoided it; and that thi principle holds in all civil cases. (See Sir Thos. Raymond's Reports 422–'3, and 467-'8.)

2. That to bring a man within the protection of inability to avoid th damage, it must appear that the lawful act which produced it was not a a nature to have threatened the consequential damage so imminently, bu that it might have been avoided by proper care on the part of the defend ant. Thus, it is a necessary part of husbandry, in some countries, ti have fire in the grounds; and it is perfectly lawful to have it. But the husbandman must at his peril take care that the fire so made shall not through his neglect, injure his neighbor; for if it do, he shall answer If, however, a violent and sudden tempest arise after the fire shall hav been kindled, and, in spite of the husbandman's resistance, carry the fir into his neighbor's lands, this shall eccuse him. (1 Lord Raymond, 264 1 Salk. 13 and 12; Mod. Rep. 151.)

3. If a man cannot use his property in any given way without inevita ble injury to that of his neighbor, it is not lawful in him to make that us of it; and if he do, he shall answer the damage; because, being the inevi table consequence of his act, he will be considered as having intended it and therefore as being responsible for it. This proceeds on the well known maxim of the law, sic utere tuo ut alienum non lædas. The ob struction of ancient lights, the diversion of ancient watercourses, &c., ar illustrations of this maxim.

Whether these principles would, if suffered to apply, decide an action brought by the petitioners against Captain Morris, would depend on th particular circumstances of the case, which are not detailed by the peti tion. For example: 1. Could Captain Morris have avoided this damag by proper care on his part? 2d. Was the ship Adams fired when she wa at a safe distance from the warehouse? and was she carried thither by : sudden and unexpected storm or wind, which could not have been re sisted? 3. Or was the ship so near the warehouse, when fired, that thi communication of the fire to the warehouse was an inevitable consequenc of that measure? If the facts of the case would answer the first and las of these questions affirmatively, Captain Morris would be condemned to answer the damages, by the principles which have been stated. If, o the other hand, the facts would answer those questions negatively, or th second question affirmatively, he would be discharged.

These principles, however, are made for peace; in war, there is another maxim, which silences every other-salus populi suprema lex. If, there. fore, the measure was one which the interests of the whole community called for, the officer who performed it could not, I think, be condemned to answer the individual damage, unless his neglect in performing it was

grass indeed.

How far the people, for whose benefit the ship was fired, ought to feel themselves bound to answer for this consequential damage, is a question which our law books do not enable us to answer. It is, indeed, a fundamental principle of the social compact, that individual property shall not be taken for the public good, without compensation from the individual from whom it is taken; but this proceeds upon the consideration that the public have derived an advantage from the use of the property, which it ought to requite; or, in other words, that all the members of the community are bound only to contribute equally to the public good; and that he who has been compelled to contribute more than his fair proportion shall be restored to the footing of equality by reimbursement. This is the basis of the writ of ad quod damnum, where, in time of peace, individual property is condemned for the public good: it is the basis, too, of those laws which, at the close of the late war, provided a compensation to individuals for property lost, captured, or destroyed by the enemy, while in the military service of the United Stales. The claim of Messrs. Caze & Richaud seems to go a step beyond these principles. Their property was not taken for the public service; the public derived no benefit from the use of it; they had no use of it. Its destruction seems to me to have been one of those casualties of war, which place them on no higher ground than the hundreds (perhaps thousands) of individuals along the shores of our bays and rivers, who (like the warehouse and sails in the present case) were ruined by the mere circumstance of their greater exposure to the calamities

of war.

I am, &c.,
To the CHAIRMAN OF THE COMMITTEE OF CLAIMS.

[merged small][ocr errors]

UNITED STATES vs. THE BANK OF SOMERSET.

A judgment may be obtained against an individual debtor by default, and against receivers of public moneys on return of process under an act of Congress; but as against corporate bodies the practice is regulated by the practice of the several States in such cases. OFFICE OF THE ATTORNEY GENERAL,

January 15, 1819. Sır: I have examined the two questions which have been submitted to me by you, on Mr. Glenn's letter touching the suit of the United States against the Bank of Somerset; and have now the honor of presenting the Your first question is—whether, according to the laws of the United States, judgment cannot be obtained against a debtor who refuses to appear, and cannot be made to appear?

Against an individual debtor, such judgment can never be defeated by the refusal of the party to appear in reality. In relation to receivers c.

answers.

« PreviousContinue »