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As, then, it would seem that the indictment at common law is likely to fall through under the Virginia system, there is nothing left but to turn the man over to a court-martial for trial; and I have ventured to say to Mr. Wirt that I would accordingly advise the department to direct that course to be taken.
DECEMBER 3, 1816.
The Attorney General presents his compliments to the acting Secretary of War, and, in answer to his note of the 22d instant, begs leave to transmit the enclosed opinion:
WASHINGTON, December 24, 1816.
Under the 2d section of the act of Congress of the 16th of April, 1816, entitled "An act making further provision for military services during the late war, and for other purposes," I am of opinion that the epoch of the death of the non-commissioned officer, musician, or private, of the regular army, marks the point of time at which the child or children must have been under sixteen years of age, in order to invest the guardian with the. right of commuting the bounty land for the half-pay proposed as its substitute. It may be scarcely necessary to add, that, at the period of the relinquishment, the legal rights of the guardian over the estate of the minor must be in full existence.
To the SECRETARY OF WAR.
Extract from the opinion of the Attorney General.*
WASHINGTON, December 30, 1816.
"4. Upon the 4th and last question, although coupling itself with the general case, I have felt more hesitation than upon any of the points preceding.
"The conclusion to which I have come, is, that the pledge to Mr. Butler to pay the bills cannot, under all the circumstances, operate to the benefit of Mr. Lewis. The refusal by the department to accept them, in the first instance, was, as I suppose, completely justified. The subsequent acceptance was not from viewing the instructions, or the conduct under them, in any different or more advantageous lights, but for reasons extrinsic and new. It was from the provident and paramount manner of keeping the credit of the nation in the Mediterranean firm. Before payment, this object was met by Mr. Noah, who had agreed to appropriate, in discharge of the bills, certain funds lodged in his hands. This removed the only ground which had impelled the United States to make the assumption. The motive being at an end, the assumption becomes so too. It was not made to Mr. Lewis, but to Mr. Butler. Between the United States and Mr. Lewis, there was no privity. That the assumption passed to him on the mere footing of his money having been unwarrantably used, I do not feel prepared to say. It had been deposited with Mr. Noah as the
* See below p. 142.
prize agent of Mr. Lewis. This appears from the official letter of Commodore Decatur to the Secretary of the Navy, dated July 31, 1815, from the bay of Tunis. It is true that, by an act of Congress, our consuls on the Barbary coast are not to engage in trade with those States; but I do not say that the restriction operated to prevent Mr. Noah's acceptance of the prize agency. He did accept it, being at the same time consul, and in the former capacity received Lewis's funds. He paid them away without authority; and of his responsibility I presume that there can be no doubt. This, then, is the true legal remedy open to Mr. Lewis.
"But Mr. Lewis stands in the attitude of an individual to whom an injury has been done. If, therefore, his recourse to Mr. Noah should not prove efficacious, and the United States, in consideration of his money having been applied to meet a public object, which they were themselves about to meet, should think fit to recognise a creditor so meritorious, it may be done through the medium of Congress. I feel unwilling to give an opinion under which his reimbursement might take place by any power short of this.
"RICHARD RUSH, Attorney General."
I certify that the above is a true extract of an opinion given by the Attorney General of the United States in the case of Winslow Lewis, claiming the payment of certain bills drawn by Mr. Noah.
DEPARTMENT OF STATE, January 7, 1817.
WASHINGTON, May 14, 1817.
The case of John H. Carr is evidently one of hardship. It is, however, only one of many cases that comes home to my knowledge of individuals being subjected to penalties under laws of the United States, where, from their limited and insufficient promulgation, it has been impossible, or next to impossible, that a knowledge of their operation could be obtained. I can see no favorable ground of distinction on which to rest the case of Mr. Carr. The latter clause of the 2d section of the act of the 1st of March, 1817, plainly shows that the words "district service," are meant to designate a service beyond the limits of the United States. I am, therefore, of opinion, that, if he has not entered into such a bond as is prescribed by the act, before or on the 1st day of May, 1817, he can no longer, without a new appointment, act in the character of purser. RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.
WASHINGTON, August 17, 1817.
A court-martial, composed of officers of the navy, having been ordered, under the authority of the Secretary of the Navy, to convene at this city for the purpose of trying the lieutenant colonel of the corps of marines on certain charges exhibited against him, I am desired to give my opinion upon the validity of a court thus constituted; it being suggested that perhaps it should be composed of officers of the army. I am also desired to state at
what point of time, and in what manner, an objection to the competency of such a court should be taken, admitting that one well lies.
I understand that the objection to the validity of the court is supposed to rest upon the 4th section of the act of Congress of the 11th of July, 1798. That section provides, in effect, that the officers of the marine corps shall be governed by the rules and articles of war, and by the rules for the regulation of the navy, according to the nature of the service in which they shall be employed.
Upon the first point, I am not prepared to give an opinion. It will depend upon whether the alleged misconduct in the accused took place while he was employed in the land service, according to the true spirit and objects of the act. Under first views, the marine corps is to be taken as an adjunct to the navy; nor can it be supposed that the mere fact of bodily presence upon the land would be sufficient to divest the service which may have been there performed of the substantial characteristics of naval service. How long soever such bodily presence may have been continued, it may still well be conceived to have brought with it constructively, but essentially, nothing but the fulfilment of naval duty. But I have not seen the charges in the present case, and can venture upon no opinion under which head of the service they may seem most properly to fall.
It appears to me, however, not necessary to give an opinion upon this point now, as I think that the proper time for taking an objection to the validity of the court will be when the court itself assembles. The precept for it to do so has issued. Prima facie, it must be taken to have issued duly. There seems (to say the least) a semblance of legal authority as its foundation; it comes with the usual sanctions of the executive power. I do not see that it is to be otherwise satisfied, in the first instance, than by obedience from those upon whom it lays its mandate; and I can imagine that mischiefs might result from any opposite course. When the court convenes, the objection can be officially and solemnly presented, and in like manner decided. I should suppose that it would fitly be presented in the shape of an objection from the accused to its jurisdiction. It is his right to be tried according to the true directions of the law. It will be the resulting duty of the court to weigh all that he may have to urge on a point so important. I presume that it will have power to disaffirm its own jurisdiction. I speak without the advantage of books on courts-martial at hand; but such a power conforms to the whole analogy of jurisprudence, and seems inherent in the nature of every court. The objection may become effectual in another form. The right of individual challenge holds as well propter defectum, as a suspicion of bias or partiality. Hence, I take it, the accused may challenge, successively, as many members of the court as he imagines to be disqualified under the law from sitting as his judges. If the members of the court necessarily pass upon the validity of exceptions taken to themselves on all other grounds, I am aware of no reason for a distinction as to this.
The question, brought up in this manner, will be regularly disposed of, and may stand as an authoritative and useful guide for other occasions. I am, indeed, given to understand that the time of the precept is now run out, accident having prevented the members from forming a court as yet; but this does not change the above opinion, as I further learn that some of the members are already here under the first summons, and that the arrival of others is daily expected, so that the precept may be renewed
without inconvenience. The first order of the Government to its officers will thus have been kept alive, as one of presumed legality, until the contrary appears judicially.
RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.
WASHINGTON, August 27, 1817.
I am of opinion that, under the 4th clause of the resolutions of Congress of the 6th of January, 1814, the boatswain, gunner, carpenter, and sailmaker, were meant to be included, and that they are entitled to the benefit which it holds out. But for this construction, they would receive nothing, as the term "warrant officer" does not occur in any part of the resolutions. It is impossible to conceive any good reason why they should be left out altogether, seeing that even the seamen are provided for. If they do not technically come under the term "petty officers," we are bound to suppose, in order to a just interpretation of the clause, that Congress nevertheless intended by it to include them.
RICHARD RUSH, Attorney General.
To the SECRETARY OF THE NAVY.
WASHINGTON, December 30, 1816.
On the case of Mr. Noah, stated to me by the Secretary of State in his letter of the 22d of this month, the following questions arise, and are submitted for consideration:
1. Whether the power given to Mr. Noah for the ransom of our prisoners at Algiers, under his instructions from the Department of State of the 13th of April, 1813, justified the employment of an agent under him; or, if any, such an agent as he employed, and in the manner stated?
2. If such a power were given, could it be considered as justifying Mr. Noah in the payment of the full limit of three thousand dollars for each man, without any experiment being made to obtain their release for a less sum?
3. Whether the sum charged for the two men belonging to the crew of the brig Edwin can be considered a fair charge? and, if it be, whether that for the four men not of the Edwin's crew can be so considered?
4. Whether the pledge to Mr. Butler, for the payment of certain bills of exchange, can inure to Mr. Lewis, under the whole circumstances of the case?
For the better understanding of the above questions, it will be proper to bring into view the material facts of the case, whether presented to me in the letter of the Secretary of State, or collected from the papers and exhibits, written and printed, transmitted in further explanation of that letter.
When Mr. Noah was about to leave the United States as consul for Tunis, he received, among other instructions, the following from the Department of State:
"On your way to Tunis, (perhaps at Malaga or Marseilles,) you may
probably devise means for the liberation of our unfortunate captives at Algiers, whose situation has justly excited much sympathy in the people. of this country. Should you find a suitable channel, therefore, through which you can negotiate their immediate release, you are authorized to go as far as three thousand dollars a man; but a less sum may probably effect the object. Whatever may be the result of the attempt, you will, for obvious reasons, not let it be understood as proceeding from this Government, but rather from the friends of the parties themselves. As yet, we have information only of eleven persons, (the crew of the brig Edwin, of Salem,) being confined at Algiers; and it is to be hoped that no addition has since been made to the number. If success should attend your efforts, you will draw upon this department for the necessary funds for paying their ransom, and providing for their comfortable return to their country and friends."
On the arrival of Mr. Noah at Cadiz, in the autumn of 1813, he thought proper to select Richard R. Keene, a native of Maryland, but claiming at that time to be a Spanish subject, as an agent to negotiate the liberation of the captives in question. Before any final agreement, however, with him, Mr. Noah addressed a note to Mr. Hackley, consul of the United States at Cadiz, dated October 2, 1813. In this note he states that he is authorized by the United States to negotiate for the release of these prisoners. After touching upon other matters connected with the chief subject, he expresses a wish for Mr. Hackley's advice in the designation of a suitable agent, and on the compensation proper to be allowed him. Mr. Hackley states, that, having learned that Mr. Keene had proposed to undertake a voyage to Algiers to effect the contemplated release, he does not hesitate, after a tribute to his character and abilities, to recommend him as a person every way qualified for the attempt. In regard to compensation, Mr. Hackley also states the amount to which he thinks Mr. Keene would be entitled. On the receipt of this letter, Mr. Noah determines upon the employment of Mr. Keene, and, on the 13th of November, 1813, enters into a contract with him. It is stated in this contract that Mr. Noah is vested by his Government with competent authority for the step he is taking. The compensation to be paid Mr. Keene is one thousand dollars in advance, and nothing further if the enterprise failed; if it succeeded, he was to be allowed an additional sum of three thousand dollars, and a contingent remuneration to arise out of "any surplus that there might be above the prices to be paid for said captives, out of an allowance at the rate of three thousand dollars for each man.'
On the 5th of November preceding the date of the contract, Mr. Keene had furnished himself, in furtherance of the objects of the mission, with a despatch from the Spanish Government, addressed to the Spanish consul general at Algiers. This instrument, after reciting that the Government of Spain was desirous of giving new proofs to the United States of the protection dispensed to their commerce, as well as to the individuals. employed in it, enjoins it upon the consul general to make all possible exertions, without compromising their responsibility, to obtain the liberation of twelve American citizens who were captives at Algiers; and in case any present of unusual gratification was found necessary, he was directed to give advice of the same, for the ultimate determination of the regency, by whose order the despatch was stated to be communicated.
On the 12th of November he obtained, also, from the British ambassa