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DISTRIBUTION OF SALVAGE FOR RECAPTURES FROM PIRATES.

The 4th section of the act of 3d March, 1800, refers to the prize law for the proportion of

the salvage which the officers and crew shall take in a given case, as well as for the mode in

which the share, so taken by them, shall be distributed. The rules for the distribution of prize-money are: That the whole of the prize belongs to the

captors, when the vessel captured is of equal or superior force to the vessel making the capture; and when of inferior force, the prize is directed to be divided equally between th United States and the officers and men making the capture. (See 5th and 6th sections of the act of 230 April, 1800.)

OFFICE OF THE ATTORNEY GENERAL,

February 20, 1823. Sır: I have, according to your desire, perused the opinion you

have enclosed me, with regard to the distribution of salvage for property recaptured from pirates. The Supreme Court is now in session, and my duties in that court allow me no time for extended discussion on sabjects on which I have heretofore expressed an official opinion. I shall therefore only here repeat, that there is no act of Congress known to me which applies directly and expressly to this subject of property recaptured from pirates. I did consider the act of the 3u March, 1800, as applying analogically; and I did consider the 4th section of that act as having adopted the same rules of distribution for salvage which had been, or 'might be, provided by law for the distribution of prize money. These rules of distribution are found in the 5th and 6th sections of the act of the 230 April, 1800, by which the whole of the prize is given to the captors when the vessel captured is of equal or superior force to the vessel making the capture; and when of inferior force, the prize is directed to be divided equally between the United States and the officers and men making the capture; the moiety, which in this case is to go to the United States, being by the 9th section of the act devoted still 10 the service of the navy-to wit, to the navy pension fund. All the general considerations which would tend to prohibit the United States from claiming a portion of the salvage for the use of the navy pension fund, tend equally to forbid them from touching any portion of the prizes won by the gallantry of her sailors. Incentives to gallantry are as much necessary to urge our mariners to make prizes as to earn salvage. The former is generally rather the more hazardous enterprise of the two; and therefore requires, one would suppose, rather the stronger stimulus of the two. I presume that the ground on which the United States withdraw from the captors one half of the prize where the captured vessel is of inferior force, is, that the capturing vessel, with her armament, is the property of the United States; and so far as pecuniary means are concerned, that the capture has been made at the sole expense of the United States. The saine consideration precisely applies to the case of salvage; and if there be a want of magnanimity in making the claim in one case, there is the same want in the other; with this dit. ference, that where an armed vessel prize has been carried by the bravery of our mariners, there would seem to be a greater want of magnanimity in depriving them of any portion of their prize, than where an unarmed merchantman has been cheaply retaken, to claim a portion of the salvage. But, in truth, there is no want of magnanimity in either case; since, in both, the portion claimed by the United States does not go into her treasury for the general purposes of the government, but is exclusively devoted

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to the navy pension fund that is to support the separate establishment to which the captors belong.

This, so far as I am informed, is a new question. If there has been any practice to settle it the one way or the other, I would abide by that practice; for the question is not only new, but difficult. It is one of those questions in which opposite opinions may be held, and probably would be held, by enlightened judges on the bench. It seems to me that the 4th section of the act of 3d March, 1800, may be fairly expounded as referring to the prize law for the proportion of the salvage which the officers and crew shall take in a given case, as well as for the mode in which the share so taken by them shall be distributed. On the other hand, the opinion submitted for my perusal interprets that section as giving the whole of the salvage to the officers and crew in every case, and as referring to the prize law only for the distribution. There is great plausibility in this construction. Looking, however, to the reason and policy of the law, as well as to its language, I cannot change the opinion I have already expressed. The opposite opinion is, I admit, the more generous of the two; and the arguments which support it are of such a nature that you might adopt it without censure. It is one of those cases in which a judgment either way cannot be pronounced absolutely wrong. But I beg leave to sub. mit it to you, as Congress is now in session, whether it would not be better to clear the subject of all difficulty by an explanatory act: a very short one would do it, and might, I should presuine, be easily carried through both houses. I remain, sir, &c.,

WM. WIRT. To the SECRETARY OF THE Navy.

DUTIES OF ACCOUNTING OFFICERS.

an account

The accounting officers have the right to adopt the report of a committee of Congress upon

which a given law was reported and passed, for the principles which are to govern in the settlement of accounts under the law. The passage of a bíll, accompanying a written report, may be considered the adoption of that report. The accounting officers may also receive depositions taken on notice, as proof of the items of The accounts of the Vice President should be settled on principles of equity and good con

science, subject to the revision and final decision of the President. The accounting officers must act upon the accounts in the first instance. They must pass upon

them, so that there shall be decisions to be approved or disapproved by the President, whose power is only appellate in its nature, to be exercised after the accounting officers shall have

exercised their prerogatives in the matter. The report of a committee accompanying a bill which has passed into a law, may be referred

to as well by the President whilsi exercising his revising power, as by the accounting oficers in their examination of the accounts submitted, for the principles to govern settlements under such law. Office of THE ATTORNEY GENERAL,

March 7, 1823. Sır: On the questions which you have just done me the honor to submit for my opinion, on the case of the Vice President, accompanied by the report of the select committee in that case, and the law which accompanied that report in the form of a bill, (and which passed into a law, I understand, without any amendment to the bill as reported by the committee,) I am respectfully of the opinion

1. That the accounting officers, in settling the accounts and claims of the Vice President, have a right to adopt the report of the committee, as establishing the principles which are to govern them in the examination and settlement thereof; for I consider the bill which accompanied the report as port of that report, and the passage of the bill into a law as a virtual adoption of the report, of which it was a mere conseqırence.

2. I perceive no objection to the accounting officers receiving deposi. tions in evidence of the several items of the account; the depositions being taken on notice, and with some skilful agent attending on the part of the United States; and, consequently, I perceive no objection to their making previous arrangements with the Vice President to this effect.

3. The law authorizes the proper accounting officer of the treasury to adjust and settle these accounts on principles of eqnity and good conscience, subject to the revision and final decision of the President. My opinion, therefore, is, that the accounting officers must aet on the subject in the first instance; the power of the President being merely in the nature of appellate power; and that, consequently, he cannot, in the regular execution of the law, put those officers aside, and take the whole subject at once into his own hands.

4. I do not think that it would be proper, on the part of the President, in the exercise of his revising power, to reject the principles established by the report of the committee, and to adopt others in conflict with them. Considering the repori, as I do, in the light of a preamble to the law, I think that its principles ought to be respected so far as they go; where they stop short of decision on any question that may arise, the President, I conceive, is entirely at liberty to adopt his own principles of decision. I have the honor to remain, &c., &c.,

WM. WIRT. To the PRESIDENT OF THE UNITED STATES.

DUTY OF ACCOUNTING OFFICERS.

Accounting officers may re-examine any case where judgment has been rendered by a court

and jury before the passage of the act of Ist March, 1822, where the defendant, agrunst whom the judgment has been rendered, has any solid ground on which to ask a court of

law for a new trial. Where it shall appear to an accounting officer that there be newly-discovered evidence, of

which the defendant was wholly and innocently ignorant at the time of the trial, and which, if he had had the benefit of it, would probably have produced a different result, and that it is such as may be given in courts of justice, he may open the matter and give the party the

benefit of it. But accounting officers are to re-examine and admit no elaims under said act where suits have

been commenced, unless where new evidence is adduced other than that of the party inter

ested.

OFFICE OF THE ATTORNEY GENERAL,

March 20, 1823. Sır: The questions propounded for my opinion on the act of the 1st March last, in addition to the act, &c., for the prompt settlement of public accounts, are these:

1. “Whether the accounting officers of the Treasury Department are to re examine any case where judgment has been rendered by a court and jury before the passage of said act?

2. “Whether they are to re-examine and admit any claims under said act, where suits have been commenced, unless where new evidence is adduced other than that of the party interested?

The act which we are to consirue having been made to remove some inconvenience in the existing state of things, it is important to ascertain what this inconvenience was, in order to a correct understanding of the law which is intended to remove it; and, on inquiry, I find that, under the 9th section of the act of May 8, 1792, “making alterations in the Treasury and War Departments," which enacts that the forms of keeping and rendering all public accounts whatsoever shall be prescribed by the Bepartment of the Treasury," regulations so strict and rigid had been prescribed, and had grown into settled practice, that the accounting othcers did not feel themselves authorized to admit secondary proof, even in those cases in which courts of law, from the loss of the primary proof, would admit it: and hence it was no unusual thing for a person found a debtor by the rules of evidence which governed the accounting officers, to request that he might be sued for the supposed balance, in order that he might have the benefit of the inore liberal rules of evidence which prevail in courts of law. It was to avoid the delay, trouble, expense, and anxiety arising from suits instituted for this cause, that this law was passed; and its purpose was, simply, to give the individual the benefit of the same rules of evidence before the accounting officers, which he would have if a suit was instituted against him in a court of law for the recovery of the alleged balance: hence the provision in the 1st section, that where the impracticability of producing regular vouchers shall be proved to the satisfaction of the accounting officers, those officers shall receive, in lieu thereof, the best evidence of which the nature of the several cases shall admit, provided the evidence so offered be such as would be received in courts of justice. Hence, also, the words which close the 2d section of the law, relative to the annual report to be made to Congress by the Sec. retary of War, of accounts settled under this law, in which credits have been allowed upon evidence other than such as had been prescribed by the laws and regulations existing before the passage of this act.

With this leading fact in view, that the act was intended to remedy the mischief of a resort to a court of justice, by establishing for the accounting officers the same rules of evidence which govern those courts, there is no difficulty in answering your questions.

Ist. Where the party has already had the benefit of those rules of evi. dence which prevail in courts of justice, and a verdict has been found, and a judgment rendered against him under those rules of evidence, the act is not applicable to his case. The verdict and judgment are as conclusive on the accounting officers, as on the court in which they were rendered; but not more conelusive: that is to say, that if the defendant has any solid ground on which to ask the court of law for a new trial, the verdict and judgment ought not to be held conclusive upon him. For example: if there be newly-discovered evidence, of which the defendant was wholly and innocently ignorant at the time of the trial, and which, if he had had the benefit of it, would probably have produced a different result, I think that the accounting officers, being satisfied of these farts, and that the evidence is such as would be received in a court of justice, may allow the party the benefit of it, notwithstanding the verdict and judgment; and that it would not be necessary to send the party back

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either to a court of law or to a court of equity to ask for a new trial. I.. reference, however, to the particular case out of which the question grows, (as I discover by the documents accompanying the questions,) neither a court of law nor a court of equity would ever grant a new trial for the purpose of letting in the oath of this defendant himself as evidence in his own cause, because that oath is not such evidence as would be received in a court of justice.

It had been supposed, I understand, that this act makes the accounting officers chancellors, with all the power of relief which belongs to a court of equity. The history of the act, as I have received it, and given it above, would suffice to refute this construction. The express words of the act, too, enlarge the power of the accounting officers in no particular except in the adınission of secondary evidence—and this, too, under the restriction that the proof so admitted shall be such as would be received in a court of justice.

It is alleged that the oath of the party is admissible in his own favor, in matters of account, both in courts of law and in courts of equity; in the former, in the action to account, before the auditors; in the latter, as I understand the argument, both as to facts swom to in the defendant's answer, and in the support of items on an account directed before a master commissioner.

But, in the first place, if the purpose of the act was, in truth, merely to avoid the necessity of resorting to an action to recover balances due or alleged to be due to the United States, and to give the defendant the benefit of all the evidence which would be admissible on the trial of such action, then he can ask the accountants for nothing more than to admit such evidence as would be admitted by the courts on the trial of such action; and as his own oath would not be admitted on the trial of such action, the accountants have no authority to admit it under this act.

In the next place, even if it were necessary for the United States to go into a court of equity, charging the defendant with the sums advanced to him, and calling upon him to account, (for which there is no necessity,) the defendant could not discharge himself of the claim by his answer, on oath, alleging that he had disbursed it; but, being matter in avoidance, would be compelled to prove the disbursement by other evidence.

With regard to the party's right to discharge himself by his own oath, either in the old action to account at conmon law, or on a settlement before a commissioner in chancery, the rule to which the argument is supposed to allude is a very narrow one, and the affidavits offered by Captain Staniford are totally inapplicable to it. 'The rule is this: that an accountant shall be allowed all sums under forty shillings on his oath; but then he must mention in his affidavit to whoin puid, and for what, and when: and, in chancery, at least, it is said that the whole sum so allowed is not to exceed L100. But, in this case, Captain Staniford proposes to discharge himself of an aggregate sum of upwards of seven thousand dollars, by his own oath alone, without any detail of particulars, much less of any such specifications as the rule requires, even as to the small sums it suffers to pass on such oathto wit, the specifications as to whom paid, and for what, and when. I believe that no court of justice, whether of law or equity, has ever allowed such a sum to be discharged by such evidence; and if the public debtors of the United States have a

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