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scending the Mississippi into the gulf, and thence up the Apalachicola Was this the route contemplated? or is there any other route, not through the Seminole country? These are questions of fact. If there was no route from New Orleans to Fort Scott, but such a one as would make i necessary for the provisions, and consequently for their carriers, to pass through the country of the Indian enemy, it is in my opinion a case in which the contractor was authorized to call for an escort; and authorized, also, to claim an exemption from responsibility if the escort was not furnished: for against whom can an escort ever be necessary, if not against the very eneiny, to sustain the war with whom the supplies are furnished ?
“The question arises," says the Second Comptroller, “whether the contractor, under those circumstances, had the right to demand an escort or guard, from a place without the limits of his contract and the military department of the commanding general, through a neutral country?”!
Here are these objections to the demand of an escort thrown together: let us separate them. Had the contractor a right to demand an escort or guard from a place without the limits of his contract? Had the general a right to make a requisition from a place without the limits of the con. tract? If he had not, there has been no regular requisition, and, consequently, there is no liability on the part of the contractor. If, on the contrary, he had a right to make the requisition on the agent at New Orleans, that agent had the correspondent right to demand an escort. The right of requisition and the right of escort (where necessary) are co-existent and co-extensive. If the requisition is regularly made, it must be obeyed; and if obedience to it will carry the contractor and his supplies through the enemy's country, he has, in my opinion, a clear right to demand an escort.
Had the contractor a right to demand an escort from a place out of the military department of the commanding general? To which I answer, that, if the general had a right to draw supplies from a place out of his military department, through the enemy's country, he was bound to furnish an escort from that place through that country. There is nothing in the contract which requires the contractor to hazard his life or those of his agents in furnishing the supplies: it was to protect him from this hazard, as well as to insure safety to the transportation of the supplies, that the escort is provided by the terms of the contract.
Had the contractor a right to call for a military escort through a neutral country? Yes; if that country was also the country of the enemy, and the commanding general had the right to call upon the contractor to bring his supplies through that country, the duty of procuring a free and safe passage for the contractor was, in my opinion, on the commanding general, or the government to which he belonged. From the circumstances and character of this particular war, Spain could not, with any show of reason, or of right, refuse a peaceable passage through her territory for the purpose of chastising an enemy whom she herself was bound by treaty to have restrained from committing hostilities on the United States. Vattel
says that “an innocent passage is due to all nations with whom a state is at peace, and this duty comprehends troops equally with individ. uals.”—(Vat. b. 3, chap. vii, $ 119.) And by the same author, (ib. S 127,) “the granting such passage gives no room for complaint to the nation against whom it is granted.' If such a passage be due among na.
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 supplis, eren through the enemy's country; because he could but have lost the provisions; and by the 7th article he would not, under those circum. stances, 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 inminent 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 refused, and a failure ensue 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 dength at which I have thought it my duty to examine the last question,
the previous proceedings which I understand to have taken place in I have the honor to be, &c.,
WM. WIRT. 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, afi
would not or could not; but where the holder of a claim omits for a long space of time u make application for the payment, and the act of Congress directing payment is silent as to 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, in this instance, to depart from the usual practice of the Treasury Depart: ment. The act of Congress does not direct the payment of interest; nor does it, as in the case of Mrs. Hamilton, refer to any principles of settlement 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 pay. ment; 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.
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. Sır: 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 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 obvious, 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. Str: 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, or person appointed by him, at the post or place where the rations were stipulated to be furnished.
ATTORNEY GENERAL'S OFFICE, May 3, 1819. Sır: 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 b tween the forts being the Indian country. Had Colonel Brearly, ther foré, (thus situated, and thus to remain situated, too, until after the tim appointed for the delivery of the rations,) been instructed in the most ez press terms to supply the failures or deficiencies at Fort Scott, he coul not, in my opinion, have fitted the description of the person authorize 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 a pointed by the commanding general at the post of Fort Scott. Nor is th a mere verbal interpretation of the contract: there is very good reason fo the construction, and that reason is most strikingly illustrated by the ver 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 arose 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. If 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) com. pared 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 authority. 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