Abbildungen der Seite
PDF
EPUB

right to demand their discharge on such evidence, there can be no further use for accounting officers, much less for an agent and attorneys to collect alleged arrears due to the United States. The act, so construed, would amount to a virtual abolition of all such balances; for, though the character of Captain Staniford stands too high to admit the suspicion that he would make any statement, either with or without an oath, which he did not conscientiously believe to be true, yet the rule, if adopted at all, must be a general one; and there is no reason to doubt that, between innocent mistakes and intentional mistatements, every balance standing on the books of the United States against individuals would be sworn away. This, it is believed, could never have been the intention of Congress; and it is equally clear that it is not their language.

20. I answer the second question in the negative. I do not think, however, that the fact of suits having been commenced is any bar to the resettlement of accounts on evidence admissible under this act; for such settlement may ascertain that there is no balance due to the United States, and, consequently, render the farther prosecution of such suit unnecessary: I have the honor to remain, sir, very respectfully, your obedient servant,

WM. WIRT. To the SECRETARY OF WAR.

COLORED TROOPS ENTITLED TO BOUNTY LANDS.

Since the acts of Congress under which troops were raised in the late war were construed so as

to permit of the enlistment of colored men; and since recruiting officers recruited them on a contract for the pay and bounty stipulated by law; and as the officers of government recognised them as a part of the army, (receiving pay and rations with other troops,) a practical construction has been given to those acts which entitles the colored soldiers to the promised lands.

OFFICE OF THE ATTORNEY GENERAL,

March 27, 1823. Sır: Had I been called on, a priori, to give a construction to the several acts of Congress which are the subject of Mr. Cutting's letters of the 21st May, 1821, and 30th January, 1823; of Major Charles J. Nourse's of the 20th of January, 1823, and Mr. J. W. Murray's of 220 Decem. ber, 1822, I should have had no hesitation in expressing the opinion that it was not the intention of Congress to incorporate negroes and people of color with the army any more than with the niilitia of the United States. But the acts of Congress under which this body of people of color are understood to have been raised during the late war, use no other terms of description, as to the recruits, than that they shall be able bodied, effective” men, (act of 24th December, 1811, for completing the existing military establishment; and act of 11th January, 1812, to raise an ad. ditional military force;) or “free, effective, able-bodied men,” (act December 10, 1814, making further provision for filling the ranks of the army of the United States.) As either of these descriptions was satisfied by the persons of color in question-as the recruiting officers, who are quoad hoc the agents of the United States, recruited these persons on a contract for the pay and bounty stipulated by law-as the officers of government recognised them as a part of the army, by their regular returns

of this corps, who received, till the close of the war, the same pay and
rations with other troops, were subject to the same military law, and per-
formed the same military services- it seems to me that a practical con-
struction has been given to the law in this particular, from which it is
not in the power of the government justly to depart. I think, therefore,
that they ought to receive the promised land bounty. But, without some
further and more explicit declaration of the purpose of Congress, I would
not recommend a repetition of such contracts on any future occasion, or
laws worded like those under consideration; by which I mean, not merely
the three laws which I have cited, but the whole inilitary system of the
United States, militia included.

The papers are returned.
And I remain, sir, very respectfully, your obedient servant,

WM. WIRT.
To the SECRETARY OF WAR.

BREVETS_WHEN TO TAKE EFFECT.

Brevet rank takes effect whenever, by special assignment, the brevet officer is invested with a

separate command, comprising troops of different corps, at a particular post.

[ocr errors]

OFFICE OF THE ATTORNEY GENERAL,

March 27, 1823. Sir: By the 9th section of the act of April 24, 1816, for organizing the general staff and making further provisions for the army of the United States, it is enacted “that the regulations in force before the reduction of the army be recognised, so far as the same shall be found applicable to the service; subject, however, to such alterations as the Secretary of War may adopt with the approbation of the President." It is understood that the Secretary of War, with the approbation of the President. has adopted the “General Regulations for the Army," published in 1821. These general regulations provide that brevet rank shall take effect when, by special assignment, a brevet officer is invested with a separate command, comprising troops of different corps. And a separate command is therein defined to mean, among other things, a particular post. Colonel Fenwick has been assigned, I understand, to the separate command of the post of Pensacola; and was placed in command there, under his brevet, by virtue of these general regulations. The command, it seems to me, was properly conferred on him; and as the same regulations which gave him that command are still in full force, to all the purposes of rank, at Jeast,) I can see no good reason why his command should not suill continue.

The papers are returned.
And I have the honor to remain, sir, your obedient servant,

WM. WIRT,
To the SECRETARY OF WAR.

U. S. TREASURER AS GARNISHEE NOT SUBJECT TO EXECUTION.

The Treasurer of the United States is not subject to execution against his person, goods, nor

chattels, nor to any other process, as against a garnishee, under the laws of Maryland. Where such process shall have issued, the district attorney may be instructed to move to dismiss it. OFFICE OF THE ATTORNEY GENERAL,

April 4, 1823. SIR: I understand from the marshal that the attachment which has been served on the Treasurer of the United States was taken out under the law of Maryland, still in force in this District, which gives the plaintiff in a judgment the option either of an execution against the defendant or his goods, in the usual form, or an attachment against his goods, chattels, and credits, in the plaintiff's own hands, or in the hands of any other person; and, with regard to the latter proceeding, provides, that, unless the garnishee shall appear at the return of the attachment and show cause to the contrary, the court shall condemn the goods, chattels, and credits in his hands, and award execution, either by capias ad satisfaciendum against the garnishee's person, or fieri facias against his own goods and chattels, or any other process which the plaintiff might have had against the defendant himself on the original judgment.

I am of the opinion that the Treasurer is not subject to this process. It would be proper to put the district attorney in full possession of the whole case, that he may move to quash or dismiss the attachment. I remain, sir, very respectfully, your obedient servant,

WM. WIRT. To the SECRETARY OF THE TREASURY.

INTEREST ON ALLOWANCES.

The Secretary of the Treasury has no authority to increase an allowance made by the Secretary of the Navy to certain citizens under the act of 26th April, 1822; and it would be an increase of it to give interest on the amount, or to assume it as a debt due at a day antece

dent to the allowance. The allowance becomes a debt due from the United States only from the time it is made.

OFFICE OF THE ATTORNEY GENERAL,

April 7, 1823. Sır: I am of the opinion that the Secretary of the Treasury has no authority to increase the allowance made by the Secretary of the Navy to certain citizens of Baltimore under the act of 26th April, 1822. And it would be an increase of that allowance, either to give interest on the sum so allowed, or (what would be, in effect, the same thing) to assume it as a sum due in 1815, and give it the operation of stopping interest from that time on any debt due from those individuals to the government. The whole adjustment of these claims being confided exclusively to the Sec. retary of the Navy, the amount allowed by him becomes a debt due from the United States at the time of the allowance, which no other officer of the government has a right either to augment or to diminish by any process whatever.

I have the honor to remain, sir, very respectfully, your obedient servant,

WM. WIRT. To the SECRETARY OF THE TREASURY.

[merged small][ocr errors]

The number of guns at which a ship-of-war is rated is the standard for the regulation of the

pay of her officers under the acts of Congress. The number of guns a ship may actually mount is variable, and increases or diminishes with the particular service in which she may be employed. The act of the 25th February, 1799, does not contemplate the case of a master commandant

commanding a vessel of twenty guns; such being required to be under the command of captains.

OFFICE OF THE ATTORNEY GENERAL,

April 10, 1823. Sir: The act of the 25th February, 1799, does not contemplate the case of a master commandant commanding a vessel of twenty guns. The first section explicitly directs that all the vessels in the service of the United States, mounting twenty guns and upwards, be commanded by captains; those not exceeding eighteen guns, by masters or lieutenants, according to the size of the vessel, to be regulated by the President. The second sec. tion, therefore, which fixes the pay of a master commandant at sixty dollars per month and five rations per day, must be taken in connexion with the first section, and must be construed as giving him that pay while in the command of a vessel not exceeding eighteen guns. If the death of a supe. rior officer, or the orders of the President, should place him in the command of a twenty-gun ship, he would, in my opinion, be entitled to the pay affixed by the act to the command of such a ship, and must be considered as a captain pro hâc vice.

But this question must, I apprehend, have been long since settled by practice, as to the command of the Hornet. That vessel has been in the service of the United States for many years, and the pay of her command. ing officer during this period onght to be regarded as a practical exposition of the act of 1799. I find in the Naval Register for 1820, that the Hornet is called a ship of eighteen guns; and as such, I understand, she has been considered and paid for during the last eighteen years.

Captain Read, I find, has anticipated this objection: he says that she does rate as an eighteen-gun ship only; but that she mounis, in fact, twenty guns; that the rate of a ship is an arbitrary standard; and that, as the act of Congress used the word mounting, the question should be as to the number of guns she mounts-not what she rates. As this is a technical question, I have thought proper to refer to the Commissioners of the Navy Board for information on it; and I learn from them, that the pay under the act of 1799, not only in regard to the Hornet, but all other vessels, has been uniformly regulated by the rate; that, in estimating the force of a ship, carronades are not counted as guns; that it is only the number of long guns she carries that fixes her denomination; that, as the Hornet carries only two long-guns, she is in strictness only a two-gun vessel. I learn from them, also, that the number of guns a ship may actually mount is ex. tremely variable; her number of guns may be increased for a particular service; but whether increased or reduced, her rate has always given the standard of pay. The rate, then, seems to be the most fixed standard of the two.

The register of the navy being reported to Congress, their appropriations can look only to the description given in that register; and it would be a practical imposition on them to exhibit one standard for appropriation, and io assume another for pay. It is further to be considered, that if Captain

Read is now to be paid by the number of guns actually mounted in the Hor. net, in the popular sense of the word mounted, those who have previously had the command of her, and have been paid for her as an eighteen-gun sloop, as well as all others in all our other vessels similarly circumstanced, will have a fair claim on the government for the arrears which will be due to them by this new standard.

Upon the whole, I am of opinion that this word mounting, in the act of Congress, must be considered as having been settled, by practical construction, to reter to the fixed rate of the vessel as the standard of pay and rations; and that Captain Read, in the command of the Hornet, must be considered as a master commandant in the command of an eighteen.gun vessel, (the regular command contemplated for a master by the act of 1799,) and be paid accordingly. I have the honor to remain, sir, respectfully, your obedient servant,

WM. WIRT. To the SECRETARY OF THE Navy.

ATTORNEY GENERAL AND DISTRICT ATTORNEYS.

It is not the duty of the Attorney General to instruct district attorneys in the discharge of

their duties; nor can the Secretary of the Treasury, under his privilege of consulting that officer, properly require him to draw pleas, or to indicate the course to be pursued in par

ticular suits depending in the district and circuit courts. The Attorney General will give his advice and opinion on questions of law, when requested

by the heads of any of the departments, touching any matters that may officially concern their departments, but not on matters that do not. The averment that the particular suits, in which opinions are desired, may come before the

Supreme Court, affords no excuse for expressions of opinion by the Attorney General anterior to their coming before it. If it did, it would apply with equal force to every case depending in district and circuit courts throughout the United States.

ATTORNEY GENERAL'S Office,

April 11, 1823. Sir: I have the honor to acknowledge your letter of this date, submitting for my opinion the papers therein enclosed, and requesting my early attention to the subject.

The papers therein enclosed are-1st. A letter from Mr. Pleasonton, agent of the Treasury, addressed to you, of date the 20th ultimo, concerning certain pleas filed in the district court of the United States for the western district of Virginia, in the case of the United States vs. Salathiel Curtis and sureties, transmitted to him by the district attorney there, who is stated to be desirous of receiving the suggestions of the Attorney General as to the issues he shall take upon them; “particularly as these cases will, in all probability, be carried to the Supreme Court, where it will be his (the Attorney General's) duty, to assert and defend ihe rights of the United States involved in them.”

20. A copy of the record of the United States vs. Curtis and his sureties, setting out twenty pleas and demurrers, which stand for answer.

3d. A copy of the record in another case vs. Curtis and sureties, on another bond, setting out thirty pleas and demurrers, which stand for

answer.

4th. A copy of a record in chancery in the first case, comprising a bill for injunction against the United States, answers, and documents.

« ZurückWeiter »