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fined in the criminal court of this District, for an assault on the person of a member of the House of Representatives, after having been previously punished by that House for the same act, as a contempt and breach of privilege, I have the honor to state that, in my opinion, the proceedings of the House constituted no bar to the subsequent indictment and conviction. The fifth amendment to the constitution of the United States, which provides that no person “shall be subject, for the same offence, to be twice put in jeopardy of life or limb,” does not apply to cases of this sort. Courts, and other bodies which have the power of punishing for contempts, are invested with that power, and are supposed to employ it, for the purpose of protecting themselves in the due exercise of their appropriate functions, and not for the purpose of vindicating the general law of the land, which may also have been violated by the same act. Technically, therefore, General Houston has not been twice tried for the same ojence. The act committed by him was one and the same, and it constituted but one indictable offence; and he was, therefore, liable to only one conviction on indictment. But, if this act was also a breach of the privileges of the House of Representatives, and a contempt of the House, they had the right to punish him for the contenipt independently of the action of the criminal court; and so vice versa.

1
am, sir, &c., &c.,

B. F. BUTLER.
To the PRESIDENT OF THE UNITED STATES.

DISTRIBUTION OF PRIZE MONEY UNDER ACT OF JULY 14, 1832.

As the act for the relief of Captain Stevens and others, passed July 14, 1832, does not lay

down a rule of distribution, the act of 1800, “ for the better government of the navy," must be taken as a guide in the execution of the law.

ATTORNEY GENERAL'S OFFICE,

July 5, 1834. Sır: I have the honor to acknowledge the receipt of your communication of the 30th ultimo, and the letter therein referred to from the Fourth Auditor, in relation to the case of Captain Stevens and others, under the special act for their relief, passed the 14th of July, 1832.

This act does not, in terms, lay down a rule of distribution; and, as the case is not free from difficulty, it is to be regretted that Congress did not prescribe the rule by a supplementary law. As they have not thought proper to interfere, the President, if he proceeds to execute the law, will be obliged to settle such rule as he shall think discreet and equitable, unless the regulations of the general prize-law shall be deemed legally applicable to the case. After mature consideration, I am of opinion that the act of 1800, “ for the better government of the navy,” must be taken as a guide in the execution of this law. In order fully to explain the rea. «. sons of this opinion, it is necessary to recur to the laws for the suppression of piracy which were in force at the time of the capture made by Captain Stevens and his associates. By the 4th section of the act of March 3, 1819, “to protect the commerce of the United States, and to punish the crime of piracy," (continued by the act of the 15th of May, 1820, and made perpetual hy that of the 30th of January, 1823,) it is provided that, whenever any piratical vessel shall be captured and brought into any port of the United States, “the same shall and may be con.

demned to their use, and that of the captors, after due proof and trial;" and the court is authorized to order a sale and distribution thereof. This section does not expressly refer to the general prize regulations contained in the act of 1800; but in all cases arising under it, there can be no doubt that the respective rights of the United States and of the captors are to be settled, and the course of proceedings to be regulated by the statutes applicable to prizes captured in war. Under this provision, therefore, the captors of the piratical felucca in question would have been entiiled, provided the vessel had been regularly condemned, to one half of the pro. ceeds of her sale, and those proceeds would have been divided between them according to the law of 1800. The inequality now objected to (and, so far as the abstract equity of the case is concerned, properly objected to) would equally have existed in that case, but could not have been avoided. The felucca, however, instead of being condemned and sold, was taken into the service of the United States; and the captors had, therefore, an equitable claim on the government to indemnify them in some other way. The act of the 14th of July, 1832, appears to have been passed for this purpose; and, as it does not expressly authorize the President to depart from the general regulations on the subject of prize money, but, on the contrary, speaks of the moneys granted by it as “prize-money,” I am of opinion that, if the President cause the distribution to be made, the rules prescribed in the act of 1800 (which would have been applied if the ordi. nary course had been taken) must be followed by him. He is not positively required to make the distribution, and, in the exercise of a sound discretion, may undoubtedly decide not to do so; but, if he proceed to make it, it must be done according to the law of 1800, which, in this sense, furnishes, in my judgment, an authoritative rule legally applicable to the present case. I am, sir, &c., &c.,

B. F. BUTLER. To the SECRETARY OF THE Navy.

CLAIMS FOR LOSSES DURING THE INDIAN WAR.

The act to provide for the payment of claims for property lost, &c., during the late war with

the Indians on the frontiers of Illinois and Michigan Territory, does not authorize an allowance to any person (except minors provided for in the third section) who was not personally

engaged in the service of the United States in the campaigns referred 10. Yet it is not indispensable that claimants shall show absolute property in the horse or equipage

lost in the service. A possessory title of horses, &c., contracted to be paid for, and until which, the uitle was to remain in the furnisher, have such a qualified property as entitles

them, within the equity of the law, to be regarded as owners. Allowances for horses are authorized where it shall appear that they were lost, without any

fault or negligence on the part of their owner or owners, in battle; or hy dying of wounds received in battle, while yet in the public service; or by dying from being unavoidably alandoned or lost while in the public service, in consequence of the failure of the United Sutes to supply sufficient forage; or when lost, because the rider was dismounted and separated

from his horse and ordered to do military duty on foot, at a detached station. Allowances for equipage are authorized when it shall appear that it was actually lost in battle,

or in consequence of the loss of a horse to which it belonged. Whether harness shall be considered as equipage in a question of fact and military science, rather than of law; but the Attorney General supposes that it ought to be so considered.

ATTORNEY GENERAL'S OFFICE,

July 21, 1831. SIR: In answer to the several questions arising on the late act “to provide for the payment of claims for property lost, captured, or destroyed by

the enemy, while in the military service of the United States, during the late war with the Indians on the frontiers of Illinois and Michigan Ter. ritory,” as stated in the communication of the Third Auditor to yourself, under date of the 17th instant, and on which the opinion of the Attorney General is requested, I have the honor to subunit, as the result of my examination of the act, the views su bjoined to those questions in their order.

Question 1. “ Will the law justify an allowance to any person (except in the cases provided for by the third section) who was not himself engaged in the service of the United States in the campaign?”

In my opinion, the law does not authorize an allowance to any person who was not personally engaged in the service of the United States in the campaigns referred to in the act, except when such person was a minor, &c., as provided for in the third section. Looking, however, to the cases as stated by the Third Auditor, in respect to which the above question arises, I think it proper to add, that, in my opinion, it is not indispensable, to justify an allowance under this act, that the claimant should show that he had the absolute property in the horse or equipage lost in the ser. vice, and for which he claims compensation. Where horses, &c., were furnished to the troops by persons not engaged in the service, and who still retained the absolute ownership, the possessors acquired a qualified property, which, as between them and the government, entitles them to be regarded as the owners, and sufficiently brings them within the equity of the law—especially as they must in most cases, at least) have been liable to make good the loss to the absolute owner.

2. The second question is preceded by the following statement:

“As originally reported, the bill contained a section authorizing payment for horses, mules, oxen, wagons, harness, &c., lost, while in the military service of the United States, either by impressment or contract, but which, in the modifications the bill underwent, was struck out. To horses and oxen lost out of teams, as well as for the loss of wagons and harness, sundry claims have been already preferred; and horses, in va. rious instances, are understood to have been lost, which had been taken into service for the purpose of carrying expresses. On this statement the following question is proposed: “ Will the law justify an allowance for horses, in cases of this description, if the loss thereof happene l in any of the ways therein described, and their owners were engaged in the ser: vice of the United States, in the campaign, either as drivers of the teams, bearers of the expresses, or otherwise? and can the harness be considered as equipage ?"

The law, in my judgment, authorizes allowances for horses lost with. out any fault or negligence on the part of their owners, in whatever ser vice they may have been enaployed, during the campaign, in the following cases:

1. When lost in battle.

2. When wounded in battle, and afterwards dying of such wounds, while yet in the public service.

3. When dying, unavoidably abandoned, or lost, while in the public service, in consequence of the failure of the United States to supply sufficient forage.

4. When lost, because the rider was dismounted and separated from his horse, and ordered to do military duty on foot, at a station detached from his horse.

It authorizes an allowance for necessary equipage in the following

cases:

1. When actually lost in battle.

2. When lost in consequence of the loss of a horse, “as aforesaid," that is to say, when lost by reason of the loss of the horse to which it be. longed, in any one of the several ways above stated.

Whether harness can, or cannot, be considered as equipage, is a ques. tion of fact and military science, rather than a question of law; but I suppose it should be so considered.

The third question is embraced in my answer to the last.

The third proviso of the first section, which forms the subject of the fourth question, must, in my judgment, receive the like construction as that given by the Attorney General to the corresponding proviso annexed to the act of the 4th of May, 1822, from which act the three provisions annexed to the first section of the present law were evidently taken. No claim, therefore, can be allowed, until the requisite evidence shall have been produced, showing the number of horses lost, the time when lost, and the name of the owner.

I am, sir, &c., &c.,

B. F. BUTLER. To the SECRETARY OF WAR.

WHEN PUBLIC OFFICERS MAY BE TREATED AS GARNISHEES.

In the States where the garnishment or trustee process is in general use, it may be resorted to

10 compel the appearance of officers of the army and other agents before the civil tribunals, to account for money due from them where they have become personally liable, and where they hold funds for the particular purpose.

ATTORNEY GENERAL'S OFFICE,

August 5, 1834. Sir: I have the honor to acknowledge the receipt of your letter of the 31st ultimo, transmitting a communication from the Colonel of Ordnance, in which was enclosed a letter from Captain Hills, who requests the opinion of the Attorney General of the United States on the question: "Whether an officer of the army, or other agent of the United States, can be served with a garnishment or trustee process, to compel him to appear before the civil tribunals to account for wages or other moneys due from said officer, or agent, to any individual employed by such officer or agent, on works erecting by, or on the property of, the United States?"

The circumstances which have given rise to this question not being reported by Captain Hills, it will not be in niy power to give any other than a very general reply to it; and, indeed, as it does not distinctly appear that its solution “touches any matter that may concern the War Department,” it is doubttul whether any official opinion can, with propriety, be given by me.

The general rule of law, as understood in the State and Federal courts, and which, I presume, must also prevail in Florida, is, that a known public officer, or agent, who contracts on behalf of the government, in his official capacity, and without pledging his personal responsibihty, is

not personally bound for the fulfilment of the contract so made by him; and it therefore follows that he cannot, in such case, rightfully be sub. jected to suits of any description on account of such contracts.

But he may bind himself by express stipulation; and where he exceeds his authority, or assuines to act in cases where he had no power, or improperly interferes to prevent the party from obtaining satisfaction from the govern. ment, he will usually be held liable to damages. So, too, where moneys are placed by the government in the hands of an officer or agent, for the express purpose of enabling him to fulfil a particular contract, and he refuses to pay them over, he will be personally answerable; and in those States or Territories in which the trustee process is in general use, it may probably be resorted to in such cases.

I am, sir, &c., &c.,

B. F. BUTLER. To the SECRETARY OF STATE.

PENSIONS TO WIDOWS.

The widow of a sailingmaster who died in 1813, but not in consequence of disease contracted,

or of injury received, while in the service, is not entitled to be placed on the pension list-the laws respecting the navy fund not making any provision for such a case.

ATTORNEY GENERAL'S OFFICE,

October 17, 1834. Sır: I have the honor to acknowledge the receipt of your letter of yesterday, in relation to the case of Mrs. Anne Stevenson, who applies to be placed on the navy pension list.

It appears, from the papers accompanying your communication, that the applicant is the widow of Sailingmaster William Stevenson, who died in service in 1813, but not in consequence of disease contracted, or of injury received, while in the service; and the question arises whether, under the circumstances, the laws respecting the navy pension fund, now in force, entitle her to be placed on the pension list.

By the act of the 3d of March, 1817, (Laws of U. S., vol. 6, p. 212,) pensions were granted for five years to the widows and children of any officer, seaman, or marine, who shall die, or shall have died since the 18th day of June, 1812, "in consequence of disease contracted, or of casualties or injuries received, while in the line of his duty.” It is obvious that Mrs. Stevenson was not entitled to the benefit of this act, because her husband did not die in consequence of disease contracted, or of casualties or injuries received while in the line of his duty.” By the acts of the 3d of March, 1819, (vol. 6, p. 399,) the 22d of June, 1824, (vol. 7, p. 213,) and the 28th of June, 1832, (pamphlet ed., p. 32,) some supplementary provisions have been made; the effect of which, so far as the present question is concerned, was simply to continue the act of 1817, except that the second section of the act of 1832 extended to the widows of all those who may “have died by reason of wounds re. ceived during the war." This enlargement of the pension list did not, , however, include the case of Mrs. Stevenson, because her husband did not die by reason of any wound received during the war. The act of the 30th of June, 1834, (pamphlet ed., p. 90,) continues the benefits of abe aet of 1832, for another term of five years, to those who had there.

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