Page images
[ocr errors]

grass indeed.

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

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 indi. viduals for property lost, captured, or destroyed by the enemy, while in the scilitary service of the United States. 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.,



[ocr errors]

UNITED STATES vs. THE BANK OF SOMERSET. A judgment may be obtained against an individual debtor by default, and against receivers of publie 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. Sir: I have examined the two questions which have been submitted sa 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 States, judgment cannot be obtained against a debtor who refuses to Your first question is—whether, according to the laws of the United appear

, and cannot be made to appear? the refusal of the party to appear in reality. an individual debtor, such judgment can never be defeated by

In relation to receivers és



[ocr errors]


[ocr errors]

public moneys, there is an express act of Congress which authorizes judgment on the return of the process, with certain modifications.

Your next question is-whether, if the debtor ordinarily can be proceeded against by default, corporations are special exceptions to the general rule?

To which I answer, that the provisions in the act of Congress in rela. tion to public debtors do not reach the case of corporate bodies; as will be obvious from their phraseology, which applies peculiarly to individuals

. There being, therefore, no act of Congress which directs the course of proceedings against corporate bodies, that course is left under the 24th section of the judiciary act, and the 2d section of the act for regulating processes, &c., to be regulated by the practice of the several States. In Maryland, where this question arises, the English practice prevails; according to which, there can be no final judgment against a corporation without appearance; and, in a common law court, there is no mode of enforcing an appearance but by distringas on their lands and goods; for a corporation, having only an ideal existence, cannot be arrested, nor outlawed. There can be no personal coercion on it, therefore, and no means of coercion but by the seizure of its lands and goods. Nor is this, in reality, so much a grievance as at first it may appear; for if there be neither lands nor goods of a corporation on which a distringas can act, of what avail would be a judgment by default?

The execution on such judgment could be only against the lands or goods of the corporation; and the inefficacy of the distringas presupposes that there are none such.



Where double duties are the fruits of a compromise, in a case of forfeiture, the collector prize

cuting is as much entitled to his moiety of them as he would have been to his moiety of the forfeiture which they represent. OFFICE OF THE ATTORNEY GENERAL,

March 6, 1819. SIR: I have, according to your desire of this morning, examined the claim of Colonel Allen McLane, as stated by Mr. Ingersoll, and am very clear in the opinion, that the double duties being the fruits of a compromise in the case of forfeiture, the collector from whose prosecution those fruits arose is as much entitled to his moiety of them as he would have been to his moiety of the forfeiture which they represent.



Where contracts for supplies for the army contain the clause providing for a supply, in case

of deficiency, by the commanding general or person appointed by him at each post or place, the person appointed by the commanding general to take command at the post or place is the person authorized to supply the deficiency.

Where the commandant at a post anticipates a failure in supplies contracted to be furnished,
" he may inake provision for them before the failure absolutely occurs; yet, the contractor is
not hable for them until the failure takes place; then he is liable whether they were pur-
chased previously or subsequently; for it is the failure and time upon which the responsi-

bility arises.
If a general had a right to draw supplies from a place out of his military department, through

the temy's country, he was bound to furnish an escort from that place through that
country. If the case were one of real and imminent danger, the contractor had a right to
an escort; and, if it were not furnished, he is exonerated from the consequences of the

[ocr errors][ocr errors][ocr errors]


March 26, 1819. Str

: In compliance with your request, I have considered the questions of law propounded in the letter of the Second Comptroller of the Treasury, as arising on the contract between Benjamin G. Orr and the acting Secretary of War, and have now the honor to give you my answer.

The first question is as follows: "1. Under the 5th article of the contract, whether the officer commanding at each post or place is not the person meant, by the terms of the contract, to order or make purchases of supplies, in the event of a failure of the contractor, unless some other person should be designated by the commanding general ?” The article of the contract referred to is in the following words : “ 5th. The commanding general, or person appointed by him at each post or place, in case of absolute failure or deficiency in the quantity of provisions contracted to be delivered and issued, shall have power to supply the deficiency by purchase, at the risk and on the account of the said Benjamin G. Or, his heirs, executors, or administrators.” I conceive that the officer appointed loy the commanding general to take the command at any post or place, is, during the continuance of such command, the person who, by the 5th article, is authorized to supply the deficiencies and failures of the contractor at such post or place ; for he is the person to whom the trust is confided to see that the men under his command are properly supplied with food : in truth, he is emphatically the person within the express words of the contract, being the person appointed by the commanding general at the post or place. To suppose that, besides the person appointed to take the command at each post or place, there is to be a separate character appointed at the same time at each post or place, in anticipation of failures or deficiencies by the contractor, and with authority to supply such possible failures or deficiencies whenever they should occur, would be so superfluous, so entirely without an object, and so inconsistent with military usage, that it cannot be supposed to have entered into the minds of the contracting parties at the time; and not having been intended, it is not their contract. On the other hand, to suppose that the commanding general is to wait, in every instance, until after the occurrence of the failure or deficiency at every post or place within a military district, covering perhaps many hundreds of miles, and, efter such occurrence, to issue in every instance a separate order to supply the several deficiencies, would be to give the contract a construction not only inconsistent with that purpose of prompt and abundant supplies which the contract itself was intended to produce, but a construction utatly impracticable in many cases ; and this, too, without any conceivable advantage to the contractor, since it can be of no importance to him whether his failures or deficiencies are supplied by the officer placed by

[ocr errors]
[ocr errors]

the general in the command of a post or place, or by an officer depute for the particular purpose.

I see no other construction, therefore, which can be fairly adopted, tha that which I have given, and which I consider as the construction mo obvious on the face of the article.

The second question is this:

“2. Whether an officer apprehending a failure is not justified i making purchases, even before an absolute failure; which purchases be come chargeable to the contractor when an absolute failure shall hav been established, or remain the property of the government if no failur takes place?"

By the 5th article of the contract, which has been already quoted, understand the contractor to be liable for such purchases on no other con tingency than on the absolute failure or deficiency of the provisions fur nished by himself; but, that contingency having occurred, he is liable foi the substituted supplies; and it is, in my judgment, perfectly immateria to the liability of the contractor whether those substituted supplies result from a contract previous or subsequent to the contingency of his absolute failure or deficiency. If a previous contract, he is saved from its consequences by a compliance with his own contract; if he fails to comply, his liability attaches; and he cannot, I think, be admitted to defend himself againsi his liability for the provisions which take the place of those he was bound to furnish, by saying that they were the proceeds of a con. tract which anticipated his failure. Without entering into the particular facts of this case, (which, from the pressure for my opinion, I have neither time nor inclination to do; nor is it my duty on the questions of mere law submitted to me, it is easy to conceive cases in which such anticipating contract on the part of the commander of a post or place may become an imperious duty. In the case, for example, of a contractor who may have subjected a post or an army to previous and repeated disappointments ; or who may have no agent within convenient distance of the post or place; or whose only known agent may have declared himself without funds, and, under that declaration, may have left the country-can it be conceived that a commander of a post would, under such circumstances, be in the faithful discharge of his duty by waiting for the absolute failure, whose anticipation was so obvious ? more especially, since, by using the precaution of a previous contract, he could not subject the contractor to its consequences, except on the precise conditions on which he had agreed to be so subjected, to wit: his own failure, or the deficiency of his own supplies. I consider it, therefore, no departure from the contract, but a decision strictly within it, when I say that, in my opinion, the contractor, on his absolute failure, becomes liable for the provisions substituted for those which he was bound to furnish, whether the substituted supplies proceed from a contract made previous or subsequent to his failure-the time of the contract being perfectly immaterial; the point of time and the fact of the failure being the circumstances on which alone the responsibility arises.

The third question is,

“3. Whether the contractor, under the 7th article of the contract, to acquit himself of the consequences of a failure, has the 'right to set up the plea that he could not obtain an escort or guard ?”

The facts are, that General Gaines made a requisition on the contract


tedor's agent at New Orleans, on the 11th July, 1817, for 80,000 rations,

which was sent by Captain Bee to New Orleans. It does not appear that haza copy of this requisition was sent to the contractor or any other of his zostagents. The question arises, whether the contractor, under these cir

cumstances, had the right to demand an escort or guard, from a place

without the limits of his contract and the military department of the is commanding, general, through a neutral country?' This requisition is s distinguished from others, inasmuch as it was made only on the conar tractor's agent at New Orleans. IR “Two contracts were made: the one, for South Carolina and Georgia,

stipulated the price of the ration at 271 cents; the other, for Louisiana I and the Mississippi Territory, at 14} cents. The difference in the price 5 of the ration seems to warrant the opinion that it was the understanding

of the contracting parties that the supplies for the Georgia contract should be furnished from that State, and not from a distant market.”

The 7th article of the contract, to which this question refers, is in the

following words: “7th. That escorts and guards for the safety of the Fel provisions, and for the protecting of the cattle against an enemy, shall

be furnished whenever, in the opinion of the commanding officer of the amy, or of any post to whom application may be made, the same can be done without prejudice to the service; and the said Benjamin G. Orr, his beirs

, executors, or administrators, shall not be answerable for any de- ficiency of supplies at any of the said posts or places, if it shall appear,

upon satisfactory proof, that such deficiency was occasioned by the want of

proper escorts or guards.”'

Thus this article expressly stipulates that the contractor shall not be 3 answerable for any deficiency of supplies at any of the said posts or 2

places, “ if it shall appear, upon satisfactory proof, that such deficiency

was occasioned by the want of proper escorts or guards." I answer the ; question, therefore, by saying, that, according to the legal construction

of the contract, the contractor has a right to set up the plea that he could # not obtain an escort or guard; and if it shall appear in proof that the

arose from this cause, he is clearly exonerated from charge 5, in that particular instance: but the deficiency can never arise from this

cause, if the route by which the supplies were to be carried did not require an escort or guard. In order to make the plea of the want of escort complete, it is not merely necessary to prove that the contractor called for an escort

, but that, from the danger of the route, he had a right to call. As, for example, if the route lay through the country of a Sarage enemy, so as to expose not merely the provisions, but the lives of the carriers, to danger: in such a case, I believe that a court of law would hold the plea a complete defence to the contractor.

From the facts annexed by the Second Comptroller to this question, it appears that the requisition in this instance was made known only to the contractor's agent at New Orleans. The supply, therefore, was obviously expected from that place. By the requisition itself, enclosed among the papers you were pleased to hand me, the rations were to be delivered at Fort Scott

, near the head of the A palachicola. Through what route where they to pass from New Orleans to the head of the Apalachicola Tiver? From a glance at the map, as well as from the actual course of these operations when under General Jackson, it would seem that these Supplies were expected and intended to reach Fort Scott by water-de

* deficiency

2 je

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
« PreviousContinue »