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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 ohrious, to add a new provision to the 14th section, and thereby to exercise l-gislative, 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, request. ing 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. 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 time appointed for the delivery of the rations,) been instructed in the most express terms to supply the failures or deficiencies at Fort Scott, he could 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 the expense of the contractor, because he would not have been a person appointed by the commanding general at the post of Fort Scott. Nor is this a mere verbal interpretation of the contract: there is very good reason for the construction, and that reason is most strikingly illustrated by the very instance which has raised the question. Had Colonel Brearly been at 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) 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 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 consequently 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 for land bounty under the third section of the act of the 16th of April, 1516, entitled “An act making further provisions for military services during the late war, and for other purposes.” He states that he enlisted as a soldier, and served during the late war, until he was promoted to the rank of a commissioned officer, which commission he resigned before the conclusion of the war. And the single question presented by his case is, whether that resignation cuts him off from the bounty provided by the section of the act in question; or, in other words, whether, to entitle him to the land bounty, he was not bound to have served under his commission until the end of the war?
In considering the just construction of this section, it is observable that it provides for those classes of persons for whom no previous provision had been made, to wit:
1. All soldiers above the age of forty-five, or under the age of eighteen, who had been enlisted to serve for five years or during the war, and who had faithfully served during the war and had been regularly discharged.
2. The representatives of such soldiers as had died whilst in the service of the United States.
All soldiers who had been enlisted and had faithfully served during the war until they had been promoted to the rank of commissioned officers, who, if they had served during the war under their enlistment and been regularly discharged, would have been entitled to a bounty in land. Under this third provision, the only questions in relation to Mr. Sterling are
1. Was his enlistment as a soldier of that character, that if he had served under it during the whole war, and been regularly discharged, he could have been entitled to the land bounty; i. c. was he enlisted for five years, or during the war?
2. Did he serve under that enlistment until he was promoted to the rank of a commissioned officer ?
If the facts of the case answer both these questions in the affirmative, he is, in my opinion, clearly entitled to the bounty under this act. To require that he should have served under his commission till the end of the war, in order to entitle him, is to require what the act of Congress does not require. If Congress intended the service so to continue, they have not said so.
Their words are,
" all soldiers who have been enlisted and have faithfully served during the late war until they have been pro. moted to the rank of commissioned officers.” The moment the soldier is so promoted, his right attaches, and he is from that moment placed ex: actly on the footing of the soldier who had served during the war, and until regularly discharged. Any other construction would render the words " until they have been promoted to the rank of commissioned offi. cers” utterly senseless; whereas they are obviously used, and used for the express purpose of marking the very epoch and the event on which the right to the bounty was intended to attach. The policy of the law, I presume, was to promote emulation in the ranks, and toʻreward the successful competitor. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF WAR.
RIGHT OF ALIENS TO HOLD PROPERTY.
An alien can inherit, carry away, and alienate personal property, without being liable to any
jus delractus; bat not real estate.
RICHMOND, July 30, 1819.
. Sir: I have received at this place your communication of the 230 in. stant, presenting for my opinion certain questions submitted to you by Mr. Gahn, the Swedish chargé d'affaires to the United States, to which I hasten to answer.
An alien can, in the United States, inherit, with the faculty of carrying away and alienating, every species of personal property, without being liable to any jus detractus.' But he cannot inherit real or fast property at all: nor is there any power in the general government, as I conceive, to alter, either by law or treaty, the provisions of the particular States in this respect. The 6th article of the old treaty of amity and commerce, between the United States and Sweden, is understood as applying to personal properly only. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF STATE.
CADETS AT WEST POINT.
Cadets are soldiers, receiving the pay of sergeants, and bound to perform military duty in such
places and on such service as the commander-in-chief shall order; and the corps to which
they are attached is a part of the military peace establishment. As a part of the corps of engineers, they form a part of the land forces of the United States,
and have been constitutionally subjected by Congress to the rules and articles of war, to trials by court-martial. (See act of 1802, Laws of U. S., vol. 3, pp. 456-'7, § 26, 27, 24; also acts of 1812, id. vol. 4, pp. 366-'7; also id. pp. 404, 433; also act of 29th January, 1813, vol. 4, p. 492; also act of 5th July, 1813, vol. 4, p. 511; also act of 23th January, 1814, vol. 4, p. 644; also act of 10th February, 1814, vol. 4, p. 645; also act of 37th January, 1815, vol. 4, p. 778; also act of 3d March, 1815, vol. 4, p. 825; also act of 24th April, 1816, Sess. Laws of 1816, p. 71.)
OFFICE OF THE ATTORNEY GENERAL,
August 21, 1819. Sir: I have examined, with careful attention, the question you have submitted to me, as to the subjection of the cadets at West Point to the niles and articles of war, and to trial by cuurts-martial; and now proceed to give you the result of that examination.
It is proper to observe, on the threshold of this inquiry, that the genius of our constitution and laws favors the trial by jury. Before the Revolution, we had learned from Great Britain to consider that form of trial as the great palladium of our most sacred rights; and on the adoption of the constitution, the privilege was deemed sufficiently important to be secured to the people by positive and repeated provisions in that instrument. Thus, by the 2d section of the 3d article of the constitution, it is provided that " the trial of all crimes, except in cases of impeachment, shall be by jury,” &c.; and by the 5th amendment to the same instrument, it is further pro. vided that
no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,