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by plausibility and by proof. How it should have gained credit in the mind of a person about to perform an important trust upon the faith of it, seems strange. Mr. Noah, in his own letter to the Secretary of State, of May 31, 1814, seems to give in to the captain of the British frigate, having been induced to land them, from finding them "unwilling to work," and being in other respects useless. In the light of troublesome and expensive incumbrances, it is also as probable that the British vice-consul handed them over so promptly to Mr. Keene. It is difficult to banish the suspicion of a design at imposition, when men under such circumstances were received and ransomed as citizens of the United States; and though Mr. Noah may not be implicated, it can never, I think, meet the sanction of Government. I am very clearly of opinion that no part of the charge for them should be allowed. It is enough that the public money has been expended upon the doubtful citizenship of Turner and Clark.
4. Upon the fourth 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 seeing 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 motive 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 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 Mr. 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 themselves were 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.
To Mr. JACOB BARKER.
WILLIAM WIRT, OF VIRGINIA.
APPOINTED DECEMBER 16, 1817.
ATTORNEY GENERAL'S OFFICE,
SIR: The Attorney General can never act as an arbitrator between the Government and an individual, and therefore can render no award in the sense in which this phrase is generally understood. The Attorney General is officially bound to give his opinion on any question of law which may be propounded to him by either of the departments; but his opinion is made up on the case as it comes from the department, stated in writing. Whatever you may wish, therefore, to present to my consideration, must be sent through the department from which the inquiry comes, and must be in writing, as it reaches me through that channel.
I am, sir, &c.,
ATTORNEY GENERAL'S OFFICE,
January 27, 1818.
SIR: I beg leave to enclose, for your perusal, a letter from a gentleman whom I understand to be the attorney of the United States for the State of Pennsylvania, (or perhaps the attorney general for the State,) from which I infer that the question as to the power of remitting the fines assessed on the militia of Pennsylvania, which you have submitted for my opinion, may be incidentally involved in a question now depending before the Supreme Court of the United States, in the discussion of which it seems to be expected that the United States will take a part. The suit of Houston vs. Moore, mentioned in the letter, is one of a very great number of actions for damages, brought by delinquent militiamen of that State against the marshal of the United States, for having levied the fines imposed by the courts-martial called under the authority of the laws of Pennsylvania. These actions are predicated on the ground that the sentences of the courts assessing these fines were void at law, and therefore furnished not justification to the marshal; and the Supreme Court, on the appeal now before them, may be called upon to decide whether those sentences are void or not. If they shall be of opinion that they are void, there will be nothing to remit. Would not the exercise of the remitting power at this time, therefore, be an interference, of at least questionable propriety, with the judicial decision of this question, since the act of remitting implies that the fine has been regularly assessed?
I beg leave to make another suggession: If the persons in whose behalf an appeal is now made to the remitting power shall be among those who are prosecuting the deputy marshals of Pennsylvania for a conscientious discharge of what they conceived at least to be their duty, would not a remission of the fines, in the present posture of things, give an unfair vantage ground to these petitioners in their suits against the marshals? And if the United States shall conceive it to be their duty to indemnify the marshals in these cases, would it be prudent in them to furnish this advantage against themselves?
If it shall be the opinion of the President that the United States are interested in the defence of the marshals before the Supreme Court, it will, I presume, become my official duty to defend them; and, on this supposition, I should feel myself much more at ease in the defence before that court, than if I stood in the predicament of having myself offi cially decided the case, even by implication.
I have thought it my duty to bring these facts to your notice, and to await your further instructions as to giving the opinion; which, however, I will cheerfully and promptly do, if, after this statement, you shall deem it expedient.
I have the honor to be, &c.,
To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
SIR: I have availed myself of the first moment I could command, to examine the documents developing certain fraudulent transactions in the State of New York, which you have done me the honor to submit for my opinion on the following questions:
1. "Whether, according to the existing laws, any prosecution can be sustained in the courts against the persons implicated?" and
2. "Whether the moneys fraudulently obtained from Government can be recovered from the persons who have obtained them?"
1. I understand the prosecution mentioned in the first question to mean a criminal prosecution; and the existing laws to mean the laws of the United States. There is no law of the United States which makes this kind of fraud a crime punishable by criminal prosecution. By the com mon and statute law of England, as well as by the statutes of several of the United States, this kind of cheat is indictable. But neither the common law nor statutes of England, nor the statutes of the States, can confer any jurisdiction on the courts of the United States, nor can they create an offence against the United States. No act can be made an offence against the United States, except by act of Congress; and there is no such act in regard to this offence.
The whole offence (the fraud) seems to have been composed of several distinct offences-forgery, perjury, subornation of perjury, the corruption of one justice of the peace at least, and, finally, the imposition on the officers of the Government here, by means of these fabricated materials. The offence of forgery, under the laws of the United States, is confined to certain specific subjects; such as certificates, indents or other public
securities, bank notes and checks on the Bank of the United States, treasury notes, and gold and silver coin; and does not extend to the forgery of such papers as are here in question.
The offences of wilful and corrupt perjury, and subornation of perjury, extend, by the laws of the United States, to " any deposition taken pursuant to the laws of the United States." The several acts of Congress under which these claims were presented and paid, allow of depositions in support of the claims, and prescribe the mode in which they shall be taken. I am therefore of the opinion that all perjuries and subornations of perjury committed in depositions taken under these acts, are punishable by the laws of the United States.
The offence of bribery and corruption of a State magistrate is not punishable by the laws of the United States; and I have already said that no provision has been made by the laws of the United States for the punishment of the imposition on the officers of Government by means of these false papers.
2. This question is one entirely new to me, and, so far as I am informed, has never been tried; yet I think an action in the name of the United States, to recover back the money, may be sustained in the courts of the United States.
I have the honor to be, &c.,
To the CHAIRMAN of the Committee of Claims,
ATTORNEY GENERAL'S OFFICE,
SIR: I have, at your request, reconsidered the claim of Messrs. Bowie & Kurtz, with as much deliberation as the other and multifarious public duties which are now pressing on my office will permit; and I see no ground for altering the opinion which I have already had the honor to express to you. That opinion was founded on the strict law of the case, as if the transaction had arisen between individuals; and, notwithstanding the very ingenious and very copious argument of the learned and eminent counsel for the petitioners, my opinion remains fixed against the legality of the claim.
If it is expected of me to answer at length the volume of argument which accompanies the papers, the fulfilment of this expectation must be deferred until the pressure of official duties shall relax. I will at this time merely observe, that, according to my view of the subject, the legal claim of the petitioners must depend on the question whether the voyage from Algiers to Gibraltar was an employment of the ship beyond the terms of her original engagement, and also against or without the consent of her
ners; both these circumstances must concur to form a legal ground for this claim. For, if this voyage to Gibraltar was authorized by the charter-party, then the case is very clear-that the loss, happening in the regular course of the voyage for which the ship was engaged, cannot be thrown on the freighter; for it is admitted that the freighter is not the
If, on the other hand, the voyage to Gibraltar was not authorized by