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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 of 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 quà 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 ucknowledged 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 subject. matter, 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, oppres. sive 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, it 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 nó 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, 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 it 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 consequence, the recognition of a civil war even in a Portuguese colony. You will not understand me as speaking in the name of the government 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 any such declaration. I speak only of the inference of fact which may or not
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 var does exist between Artigas and Portugal: does it follow that the citizens of the United States may participate in that war? The Supreme Court hare 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
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 stound that he is a prince, and his government that of a state, (under the decision in Palmier'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 sie under the act of 1794; if they 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
previously excused the piracy on the ground of our recognition and decided as placing the belligerents on the same footing, for the pur.
poses of war, as if they had been both regularly recognised sovereignsan effect which would certainly bring the act of 1794 to bear directly on the case.
Thirdly: I would indict them under the act of 1817. As to the facts under this act, you have, I understand, only a single witness; but that 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 continnance until 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, upon
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 of documents was lodged in this office, accompanied by the following order of the House of Representatives:
“ Ordered, That all the accounts and papers in the possession of the Clerk of this House, in relation to the accounts of James Thomas, quartermaster general in the army during the late war, be referred to the 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 that bears any relation to this order of the House of Representatives, or can help me to an understanding of the service which is expected at my hands. The act of 1789, which creates the office of Attorney General
, enumerates the duties of that officer in the following terms: “whose 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 advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any one of the departments.” A subsequent act makes the Attorney General ex officio a commissioner of the sinking fund; and these two acts comprise the whole catalogue of his duties as they are designated by law. Neither the order nor the laws, therefore, afford any explanation of the object with which this reference has been made; and my predecessors having left no trace of any official practice in aid of the law which could furnish a clew to that object, I hope I shall be excused if I err in considering the reference
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,
a 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 Representatires 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 bire communicated with a neighboring warehouse, in which there was valuable property desing in that port, burnt her, to prevent her from falling into the hands of the enemy; the Sto yed, 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. Ste
: 1 regret that my official duties have not permitted me to attend sooner to the claim of Messrs. Caze & Richaud, on which you have Bestel my opinion. The
case I understand to be this: When the British invaled 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 com municated from the ship to a neighboring warehouse, in which the petz tioners had valuable property stored, which was thus destroyed; and fo the value of this property the present claim is advanced. The question you ask is this: “Suppose the burning to have been necessary to effect a legitimate national object; can the liability for consequential damages to an individual be avoided at law?''
It is extremely difficult to bring a question like this to any known lega standard. All the cases of consequential damages furnished by the books, have been cases involving none but individual interests on the one hand or the other, and never complicated with any great considerations of public war or national defence. Were it possible to regard this as a question purely individual, there would be no difficulty in deciding it; for among individuals it has long since been settled —
1. That though a man do a lawful thing, yet, if any damage thereby befal an er, he shall answer, if he could have avoided it; and that this 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 the damage, it must appear that the lawful act which produced it was not of a nature to have threatened the consequential damage so imminently, but 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, to 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. I, however, a violent and sudden tempest arise after the fire shall have been kindled, and, in spite of the husbandman's resistance, carry the fire into his neighbor's lands, this shall excuse 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 inevitable injury to that of his neighbor, it is not lawful in him to make that use 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 wellknown maxim of the law, sic utere tuo ut alienum non lædas. The ob struction of ancient lights, the diversion of ancient watercourses, &c., are 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 the particular circumstances of the case, which are not detailed by the petition. For example: 1. Could Captain Morris have avoided this damage by proper care on his part? 2d. Was the ship Adams fired when she was at a safe distance from the warehouse? and was she carried thither by a sudden and unexpected storm or wind, which could not have been resisted? 3. Or was the ship so near the warehouse, when fired, that the communication of the fire to the warehouse was an inevitable consequence of that measure? If the facts of the case would answer the first and last of these questions affirmatively, Captain Morris would be condemned to answer the damages, by the principles which have been stated. If, on the other hand, the facts would answer those questions negatively, or the second question affirmatively, he would be discharged.