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

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

The second question is this:

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

By the 5th article of the contract, which has been already quoted, I understand the contractor to be liable for such purchases on no other contingency than on the absolute failure or deficiency of the provisions furnished by himself; but, that contingency having occurred, he is liable for the substituted supplies; and it is, in my judgment, perfectly immaterial 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 against 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 contract 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

or'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 a copy of this requisition was sent to the contractor or any other of his agents. The question arises, whether the contractor, under these 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? This requisition is distinguished from others, inasmuch as it was made only on the contractor's agent at New Orleans.

"Two contracts were made: the one, for South Carolina and Georgia, stipulated the price of the ration at 27 cents; the other, for Louisiana and the Mississippi Territory, at 14 cents. The difference in the price 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 provisions, and for the protecting of the cattle against an enemy, shall be furnished whenever, in the opinion of the commanding officer of the army, 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 heirs, executors, or administrators, shall not be answerable for any deficiency 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 answerable for any deficiency 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." 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 deficiency arose from this cause, he is clearly exonerated from charge. 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 savage 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 Apalachicola. Through what route were they to pass from New Orleans to the head of the Apalachicola river? 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

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 it 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 enemy, 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 contract? 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 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. § 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 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 refused, and a failure ensue from this cause, the contractor, I think, is legally entitled to the protection of the 7th article of his contract.

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

the case.

I have the honor to be, &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

INTEREST ON CLAIMS.

Interest is in the nature of damages for withholding money which the party ought to pay, and would not or could not; but where the holder of a claim omits for a long space of time to 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 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.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

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