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tions, as ordinarily circumstanced, how much more so was it due from Spain in the present instance! Situated as she was in relation to the United States in this war, to have refused a passage to our provisions would, in my opinion, have been of itself a just cause of war. But if the commanding general was forbidden by the neutral rights of Spain from escorting the provisions through the territories of that prince, was not the contractor equally forbidden by the same rights from marching an armed guard with provisions of war through those territories? For I presume it cannot be supposed that the contractor was bound, not only to have brought his supplies through the country occupied by the enemy, but to have brought them with an unarmed body of men, too; and thus, through respect to the neutral rights of Spain, to have exposed his own life, or those of his agents, to the ferocity of a savage enemy.
It may be supposed that the contractor, whether furnished with an escort or not, was bound to have made the attempt to furnish the supplies, even through the enemy's country; because he could but have lost the provisions; and by the 7th article he would not, under those circumstances, have been liable for the failure or deficiency. But, in my opinion, this is not the correct construction of the article, nor the purpose for which it was introduced. It is the 6th article which contemplates the case of an attempt to transport without convoy, and which provides expressly for the case of depredations by the enemy, exempting the contractor from the loss in that case, and throwing it on the United States. The 7th article looks to the case of an escort foreseen to be necessary, even to the attempt to transport; and of a failure on the part of the contractor, because the supply was not furnished. For in the case contemplated by the 7th article there is something more to be considered than the mere danger or loss of the provisions. There is the danger and loss of life, which, in my opinion, the contractor is not bound to expose, the escort being withheld.
Upon the whole, my opinion is, that, if the case be one of real and imminent danger, the contractor has a right to the escort; and if it be not furnished, and the failure proceed from this cause, he is by the 7th article exonerated from the consequences of such failure. So that the questions under this article must, I should presume, be always questions of fact, and not of law. Was the danger a real and imminent danger? Was the escort demanded, and refused? Did the failure proceed from this cause? Nor should I think the danger less real and imminent because it had been once or twice encountered without loss, any more than I should think the danger of a battle less real or imminent because men sometimes go through it unhurt. In a word, if the danger be real and imminent, the escort demanded and retused, and a failure cnsue from this cause, the contractor, I think, is legally entitled to the protection of the 7th article of
Those being the only three questions of law submitted by the letter of the Comptroller, and having given you the best opinion on them that I am capable of forming, I have nothing to add except my regret at the Length at which I have thought it my duty to examine the last question, from the previous proceedings which I understand to have taken place in
I have the honor to be, &c.,
To the SECRETARY OF THE TREASURY.
INTEREST ON CLAIMS.
Interest is in the nature of damages for with holding money which the party ought to pay, an
would not or could not; but where the holder of a claim omits for a long space of time t make application for the payment, and the act of Congress directing payment is silent as t interest, he does not come within the reason of the rule.
OFFICE OF THE ATTORNEY GENERAL,
April 3, 1819. Sir: I have examined the case of Aquila Giles, and see no reason, ir this instance, to depart from the usual practice of the Treasury Depart ment. The act of Congress does not direct the payment of interest; noi does it, as in the case of Mrs. Hamilton, refer to any principles of settle ment from which it can be inferred that interest was intended to be al lowed. The act merely refers to the warrant for $500, as the basis of settlement. The warrant thus referred to does not carry interest on its face; and I understand it to be the sole fault of Mr. Giles himself that it has not long since been presented and paid, or funded. Interest is in the nature of damages for withholding money which the party ought to pay, and would not or could not. But here it appears, on the face of Mr. Giles's own memorial, that he has never made an application for payment; and, therefore, there has been no withholding payment against his consent.
If Mr. Giles conceives himself to be aggrieved by the practice of the Treasury in similar cases, he has his remedy before Congress, who, if they think it equitable, can direct the payment of interest, as they did in the case of John Thompson. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF THE TREASURY.
UNITED STATES BANK BILLS RECEIVABLE AT THE TREASURY.
Under the 14th section of the act incorporating the Bank of the United States, the treasury
must receive its bills in payment of debts due to the United States.
RICHMOND, April 15, 1819. Sir: In answer to your letter of the 8th instant, I have the honor to state it as my opinion, that by the 14th section of the act incorporating the Bank of the United States, I do not consider the treasury at liberty to refuse the bills of the bank, or of its offices, in payment of debts due to the United States, wheresoever those bills may be payable. I am fully aware of the inconvenience of this opinion. We have to construe the law, however, and not to make it; and since the 14th section expressly declares that the bills or notes of the corporation (without any other designation, and without exception) shall be receivable in all payments to the United States, it seems to me that every paper which satisfies the description of being a bill or note of the corporation must be receivable. The corporation is one; all the paper which it issues (wheresoever made payable) fits the description precisely of being bills or notes of the corporation; nor are they less bills or notes of the corporation, whether they are
made payable in Boston or Savannah. To decide that such bills or notes shall be receivable only where they are payable, would be, it seems to me bhvious, to add a new provision to the 14th section, and thereby to exercise legislative, not executive or judicial power. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF THE TREASURY.
DUTIES ON GOODS DESTROYED BY AN ENEMY,
The destruction of goods by a public enemy does not release the owner from the payment of
duties on goods which had been secured according to law.
RICHMOND, April 15, 1819. Sir: I have received your communication of the 12th instant, requesting my opinion on the question whether the destruction of goods by a public enemy releases the owner from the payments of the duties on those goods which had been secured according to law; and I answer the question in the negative. The importation being complete, and the duties secured by bond, the subsequent destruction of the goods by the enemy can no more release the obligor from the payment of the duties than the same act would entitle him to have the duties refunded, if he had in fact paid them. On the contrary, he stands on the common footing of the many sufferers by the enemy during the war, who have no relief but such as Congress may choose to grant. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF THE TREASURY.
CONTRACTS FOR SUPPLIES.
The contractor is not liable to pay for rations furnished in case of his failure, except such as may be furnished by the commanding general,
post or place where the rations were stipulated to be furnished.
ATTORNEY GENERAL'S OFFICE, May 3, 1819. Sir: On the question submitted by you in relation to Mr. Orr, I am of the opinion that the contractor is not liable for the thirty thousand rations purchased by Colonel Brearly of J. S. Thomas, on the 15th of September, 1817:
1. Because, by the 5th article of the contract, (on which, if on any part of the contract, the liability of the contractor must rest,) the stipulation is, “ that the commanding general, or person appointed by him, at each post or place, in case of absolute failure, &c., shall have power to supply, &c., at the risk and on the account of the said Benjamin G. Orr, &c.;' by which I understand that either the commanding general himself must make the contract of supply, or that it must be made by some person appointed by him at each post or place. The alleged failure took place at Fort Scoit, and Colonel Brearly, I understand, was stationed at Fort
Hawkins, one hundred and fifty miles from Fort Scott-the interval be tween the forts being the Indian country. Had Colonel Brearly, there fore, (thus situated, and thus to remain situated, too, until after the tim appointed for the delivery of the rations,) been instructed in the most ex press terms to supply the failures or deficiencies at Fort Scott, he coul not, in my opinion, have fitted the description of the person authorized by the terms of the contract to supply such failures or deficiencies at th expense of the contractor, because he would not have been a person ap pointed by the commanding general at the post of Fort Scott. Nor is thi a mere verbal interpretation of the contract: there is very good reason fo the construction, and that reason is most strikingly illustrated by the very instance which has raised the question. Had Colonel Brearly been a Fort Scott, he would not have made the contract of the 15th September because he would have known that the fort had been previously supplied He made his contract in ignorance of this fact, and that ignorance aros from his being at the distance of one hundred and fifty miles from the point to be supplied; or, in other words, from his not fitting the descrip tion of the person by whose contract of substitution the contractor had agreed to be bound. But,
2. If the fact of his being stationed at another and a distant fort does not withdraw him from the description, there is another fact which does which is, that he was not appointed by the commanding general to supply the contractor's failures or deficiencies at Fort Scott. General Gaines's letter of the 20th July to Colonel Brearly (which is understood to be relied on as constituting such appointment) cannot, I think, by any fairness of interpretation, be so construed. It seems to be directed to other objects; the subject of rations is introduced merely incidentally, and towards the close of the letter, for the purpose of informing Colonel Brearly of the accommodations which might be expected at Fort Scott on his arrival. It any reliance can be placed on A. D. Stewart, (who is unknown to me, but whose affidavit has been furnished by the contractor,) it is very clear that General Gaines did not himself understand his letter as giving Colonel Brearly the authority which he exercised in making his contract of the 15th September; and, indeed, the date of that letter (the 20th July) compared with the latest date at which the thirty thousand rations were to be furnished, (the 31st July-only eleven days,) and the distance, and consequently the time necessary for communication between the forts, it is scarcely conceivable that the letter was intended to convey any such au. thority. Besides, if General Gaines intended to devolve on Colonel Brearly so important a duty, would he have done it in terms so vague and am. biguous? and this the more especially, when, in another part of the letter, he was on the subject of instructing Colonel Brearly what provisions he would be relied on to furnish, to wit: provisions for the troops on their march from Fort Hawkins to Fort Scott.
On my construction of the contract, the question of notice, and of the party who is bound to give it, mentioned in the remarks endorsed by you on the Comptroller's letter, can never arise: the officer who is substituted by the general for the contractor being at the post to be supplied, will of course have notice when the contractor's supplies come in, and conse. quently the giving notice at a distant post can never become necessary, Such a duty (that of giving notice) seems to be nowhere contemplated by the contract; for the very reason, I apprehend, that, according to a fair
construction of the language of the contract, the necessity for such notice Could not occur. But, if Colonel Brearly was appointed, and regularly appointed, to supply the contractor's failures or deficiencies, and notice were necessary to prevent any subsequent contract by the substitute, I should incline to the opinion that the reception of the contractor's supplies at Fort Scott, in the present instance, (though after the day of the requisition,) would absolve him from the consequences of any posterior contract by the general's appointee, and impose on the general the neces. sity of countermanding his order. Indeed, if the General had given an order to Colonel Brearly to supply a failure which had actually occurred, nothing could discharge Colonel Brearly from the performance of the duty enjoined by that order, short of a countermanding order from the general himself: a mere notice from the contractor, (then under an actual default,) without the sanction of the general, would have been disregarded by him; at least, I think it ought, under such circumstances, to be disregarded.
I will observe, finally, that it appears to have been the opinion of General Gaines himself, at one time, that the requisition in question had been substantially complied with, or at least that no culpable negligence was attributable to the contractor in this particular instance. I refer to his letter of instructions to Lieutenant Scott of the 5th of August, 1817, and more especially to his letter to the Secretary of War of the 7th May, 1818, in which (speaking of the requisition) he says: “) am under the impression that the delay in the receipt of the requisition was owing to the failure of the mails, and not chargeable to the neglect of the contractor.” It is admitted that the provisions which arose from Colonel Brearly's con. tract were never sent to Fort Scott, but were consumed at Forts Hawkins and Mitchell; they did not, therefore, supply any failure or deficiency at Fort Scott: they seem not to have been in fact required; because there was no interval in which Fort Scott was without provisions. Nevertheless, as there was an absolute failure on the part of the contractor to meet the requisition, in point of time, if Colonel Brearly had been appointed, and regularly appointed, within the terms of the contract, to supply that failure, I should have been of the opinion that the contractor was liable. My opinion, that he is in this instance not so liable, rests on the ground that, on the only evidence shown me, Colonel Brearly was not appointed at all to supply this failure; and, if so appointed, that he was not regularly appointed in regard to Fort Scott, within the terms of the fifth article, so as to bind the contractor.
I send, herewith, a letter which I received from the contractor, with its enclosures, on the subject referred to me; it reached me at Richmond at the same time with your communication on the subject. I'have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF THE TREASURY.
BOUNTY LANDS UNDER THE ACT OF 1816. A person who enlisted as a soldier in the war of 1812 and served as such until commissioned, but who resigned his commission before the close of the war, is entitled to bounty land, provided the enlistment was for five years, or during the war.
RICHMOND, July 29, 1819. Sir: I received at this place the letter from Jeremiah N. Sterling, on which you have requested my opinion. Mr. Sterling is an applicant