salvage, but the rule of the jus postliminii itself; applying the rule of total divestment of property by a mere capture to those nations which hold that rule, or the rule of permutation; and twenty-four hours, or that of infra præsidia, or that of bringing in and condemnation, according to the practice of the nation on whose vessels she is adjudicating. There being, then, no fixed rule in Great Britain as to the proportion which could be required for the salvage of an American ship and cargo recaptured from an enemy, our act directs that, in this case, the same salvage shall be allowed as is provided by the first section of our act. But the first section makes a difference of salvage when the recapture is made by a national ship, and when made by a privateer; giving only one-eighth in the former case and one sixth in the latter. Why this distinction? Does it not turn on a reason which is inapplicable to a foreigner? i. e., the American citizen has contributed to the national fund from which the national ship is equipped; he is therefore to pay less for services performed by such a ship, than when rendered by a private armed ship, towards the equipment of which he has contributed nothing. Now, the last being the predicament of a British ship, whether rescued by a national or private armed ship of the United States, it would seem to me more correct, on this general reference to the first section, to take that standard of the two whose reason is applicable to the British ship-to wit, the one sixth. There have been regulations by treaty on this subject between the United States and some of the European powers; but these treaties looked distinctly to cases in which the contracting parties were at war with the same civilized enemy; and being no longer in force, it would be improper to act on the discrimination which they introduced. (See the references to those treaties at the end of the act of 3d March, 1800, before referred to.) On this review, it appears, that whether we look to the usage of nations with regard to rescue from pirates, or to recapture from a lawful enemy, the rate of salvage is different as allowed by different nations. Nor does it appear to me that our information with regard to their respective usages is sufficiently certain and precise to enable us to adjust our retaliatory instructions to our cruisers towards those nations respectively. If we could, through the ministers of the foreign nations resident among us, learn with accuracy and certainty what salvage would be demanded by them of an American vessel saved from pirates, we should be relieved from all embarrassment, because our act of Congress authorizes the adoption of the same standard towards them. If their usage be not known, we are authorized by the act to apply to them the same rule as is provided by its first section-that is, one-sixth of vessel and cargo; except where the vessel has been, since her capture, fitted out as a vessel of war, and is recaptured in this condition; in which, one-half of the vessel and her armament, and one-sixth of her cargo, is allowed for salvage. If our cruisers would be content with this allowance, they might safely claim it, and, on refusal, send in the vessel for adjudication. But I think that a court would allow more. The courts of Great Britain, in cases of derelict, have allowed one-half; and a vessel captured by pirates (in which case the original crew, if they could, would be very glad to make her derelict, so far as they are concerned) seems to me to be in quite as desperate a condition. How far our courts would go in the allowance of salvage in such a case, it is impossible to divine: perhaps no general rule would apply to every case; each case might depend on its own peculiar circumstances. If the origi nal crew had been entirely separated from their vessel by the pirates, so as to preclude the moral possibility of recapture, higher salvage might be allowed than if they were on board at the time of the recapture: so if they were on board, but in chains, higher salvage might be allowed than if they were at large on the deck of the vessel, in a condition to contribute, and perhaps actually contributing, to the recapture; or assisting in the subsequent defence, protection, or navigation of the vessel into a safe port. So if the captured vessel had been long in the hands of the pirates, and used as their own, a higher salvage might, and probably would, be allowed, than if she was recaptured in the moment of her capture, having just struck, and her crew still in a capacity to make resistance. It is not possible to devise any general rule applicable to this variety of cases, nor any set of rules, aimed at a discrimination among them, which we can be sure that our courts would confirm. The only general rule which I can suggest as safe under all circumstances, is that of the sixth, which I have before mentioned, and half of the vessel if she has been armed since her capture. I think that there cannot be a case of the piratical capture of a foreign vessel in which a court would not at least make this allowance on recapture. This, therefore, may be safely recommended, not only under the authority of our act, but because the sixth is the usual allowance of military salvage, under the general law of nations, as practised in our own and the British courts, where the case is marked with no extraordinary circumstances of difficulty or danger. Our courts, I presume, would therefore make at least this allowance in every case of recapture from pirates. I understand that there has been a case of salvage allowed by the court of the United States for the district of South Carolina, on a case of recapture from pirates. What that allowance was, I am not informed; if you can learn it, it will be, perhaps, safer to assume in your instructions that standard, than the one which I have recommended. Yours, respectfully, To the SECRETARY of the NAVY. WM. WIRT. OFFSETS AT THE TREASURY. The accounting officers will not be justified in admitting as an offset to an amount due from an individual on a contract with the Navy Department, an amount found due to such individual by a jury in Kentucky. The finding of the jury is not per se such an establishment of a claim against the United States as to justify accounting officers in admitting it as a set-off. To allow a set-off is in effect to make payment of the claim set up against a debt due the United States; and unless the accounting officers would be justified in paying it as a separate and independent claim, they cannot properly allow it as a set-off. OFFICE OF THE ATTORNEY GENERAL, SIR: In the cases of the United States against James Johnson, and against Ward & Johnson, in Kentucky, it is stated that verdicts have, in both cases, been found for the defendants; and in the former case, that the jury have found, specially, that there is a balance due the defendant of upwards of $13,000. This balance, thus found, Mr. Johnson offers as a set-off against a claim of about $17,000 due from him on a contract with the Navy Department; and the question which you propound for my opinion is, whether the accounting officers of the government would be justified in admitting this offset, on the ground of this finding merely. Before I answer the question, it is proper to state, that, on inquiry of the agent of the Treasury Department for the letter of Mr. Bibb, referred to in Colonel Johnson's statement, and for any other information which he might possess on the subject, I find that the agent is not disposed to acquiesce in the decisions in these cases, but has directed the district attorney to carry the cases up to the Supreme Court, if, in the instructions of the court to the jury, or any other part of the proceeding, there is ground for a writ of error. This letter was written in November, as you will see by the copy enclosed; and the answer has not yet been received. In this posture of things, it would be improper to interfere with the proceedings of the officer appointed by law to superintend the collection of debts due to the United States, even if the set-off were in other respects admissible. But I am of the opinion that it is not admissible, considering it merely as the finding of a jury in behalf of the defendant. The claims themselves, on which this finding rests, may be legal claims; and I might so pronounce, if the claims themselves were submitted for my opinion. But they are not submitted; and I am called on to say whether the finding of the jury, per se, establishes this claim against the United States in such a manner as to justify the accounting officers in admitting it as a set-off. Allowing a set-off is, in effect, making a payment; and if the accounting officers would he justified in allowing this claim as a set-off against the debt due from Mr. Johnson to the government, they would be equally justified in allowing and paying it as a separate and independent claim, if there were no debt against which it might be applied as a set-off. The question, then, is, whether this finding of the jury establishes the debt in such a manner as to constitute a legal claim on the government-since it is only legal claims that our officers would stand justified in admitting and paying; and my opinion is, that this finding of the jury for the defendant, so far as it affects to give him a claim on the United States, the plaintiffs in the cause, is, in legal contemplation, a mere nullity. I am not unapprized of the local law of Kentucky on this subject, passed (I think) in the year 1796; but I am very sure that it does not operate on this case: not only because the United States are the plaintiffs, but because that law itself has never been incorporated with the laws of the United States, and is not the law of the courts of the United States; and, under the general law, such a finding is a wild anomaly. It is alleged that it will be in vain to refuse this set of; because, if the government should suė Mr. Johnson on the contract with the Navy Department, he will be allowed this set-off on the trial of that cause. This, I think, is a mistake. No federal court acting under the laws of the United States would permit that mere finding of a jury to go to another jury as evidence of a debt; or if they should, the Supreme Court would certainly reverse the judgment for error. The defendant will have to prove his claims anew in the action founded on the navy contract, and could not rest on the former verdict in his favor. And what a court of law could not admit as evidence of a set-off, I apprehend that the officers of the government, as strictly controlled by the law as courts, could not admit. I have the honor, &c., &c., To the PRESIDENT OF THE UNITED STATES. WM. WIRT. FURLOUGHS TO NAVAL OFFICERS. A furlough granted to a sailing-master, on condition that he should relinquish from that date his pay and emoluments as a naval officer, until further orders, is absolute; the condition being void in law. OFFICE OF THE ATTORNEY General, January 22, 1823. SIR: The act of Congress of the 21st of April, 1806, "in addition to an act entitled 'An act supplementary to the act providing for a naval peaceestablishment,' &c.," contemplates only two conditions in which the officers of the navy can be placed-that is to say, under orders on full pay, and not under orders on half pay. It is not in the power of the Secretary of the Navy, in my opinion, to create a third state of things in re. lation to any officer who was not in delicto. I am, therefore, of opinion that the furlough granted by the Secretary of the Navy to John Drew, sailing-master in the navy of the United States, on the 18th of April, 1815, until further orders, "on condition that he should relinquish from that date his pay and emoluments as a naval officer, until further orders,' must be considered as an absolute furlough, the condition being void in law. If there has been any long-established usage in the department, reaching so far back, and having been so continued and uniform as to have created a kind of common law in support of such furlough, I would, notwithstanding my confidence in the construction which I have given the law, yield it to such usage. The furlough is returned. I have, &c., To the SECRETARY OF THE NAVY. WM. WIRT. SECURITY FOR A DEBT NOT A PAYMENT. The Fourth Auditor is not authorized to consider security offered for a debt, however ample it may be, a payment of a debt due the government. OFFICE OF THE ATTORNEY GENERAL, SIR: Security for debt is certainly not a payment of it; and therefore the Fourth Auditor would not be authorized to consider the security offered by General Swartwout, however ample you may deem it, as a payment of the balance due from him to the government, and on this ground to balance the accounts. As this is the single question which you present to me, it would be officious to suggest anything beyond it. I have, therefore, the honor to remain, sir, with great respect, yours, &c., WM. WIRT. To the SECRETARY OF THE NAVY. LEASES OF THE LEAD MINES, The President has unrestricted power to lease the lead mines, on such conditions as he may think proper, for any term not exceeding three years, provided the leases be not inconsistent with existing laws. OFFICE OF THE ATTORNEY GENERAL. SIR: I entertain no doubt that the President of the United States has power to make leases of lead mines, under the authority of the act of the 3d March, 1807, without restriction as to persons, for any term not exceeding three years, and on such conditions as he may think proper, provided they be not inconsistent with existing laws. This is, I think, the only tenable construction of the second section of that act. I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT. To the SECRETARY OF WAR. DUTY OF SHIP-MASTERS CONCERNING SEAMEN. Seamen left behind in a foreign country on account of inability, from sickness, to return in the vessel in which they went out, are within the provisions of the act of 28th February, 1803, supplementary to the act concerning consuls, and for them the master should deposite with the consul three months' pay over wages, &c., as in other cases of voluntary discharge. OFFICE OF THE ATTORNEY GENERAL, February 18, 1823. SIR: The 3d section of the act of the 28th February, 1803, "supplementary to the act concerning consuls,""&c., directs that when a seaman or mariner, a citizen of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master or commander of the vessel to produce to the consul the list of his ship's company, certified as before directed; and to pay to such consul, for every such seaman or mariner, three months' pay, over and above the wages which may then be due to such seaman or mariner. The doubt expressed by Mr. Maury, our consul at Liverpool, is, whether this provision applies to seamen left behind in a foreign country, as being too sick to return in the vessel in which they went out. But the act applies to all seamen discharged with their own consent in a foreign country, without distinction, and without any reference to the cause of the discharge. Seamen who are too sick to return in the vessel which carried them out, and are therefore left behind in a foreign country, are, I presume, discharged with their own consent in such foreign country; and as they are, therefore, within the description of the law, I see no satisfactory reason for excepting them from its provisions. Mr. Maury's letter is returned. I have the honor, &c., &c., To the SECRETARY OF STATE. W. W. |