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the charter-party, still, if it was sanctioned by the consent of the owners, it stands upon the same ground as if authorized by a new charter-party; and the freighter can be no more liable for the loss which happened on this voyage, so sanctioned by the owners' consent, than he could upon the first supposition; both hypotheses presenting the same question, whether the freighter is the insurer.

Did the owners, then, consent to the voyage from Algiers to Gibraltar? According to the facts of the case, it seems to me very clear that they did not in person indeed, but by their captain, who, as to the employment of the ship, (especially in a foreign port,) was their agent, and, in contemplation of law, so completely identified with them that his act is their act; a principle of law which, it is presumed, will not be denied. It is, then, a voyage to which, in law, they yielded their consent; and hence it is, to my judgment, very clear that the United States cannot, by any possi bility, be held liable for this loss on any other legal principle than that the freighter is the insurer, which it is admitted he is not.

The case put by the counsel for the petitioners, of a horse hired by A to go to B, and he goes beyond B to C; and the principle which he applies to it, that the hirer becomes answerable for all losses which happen in the latter journey—is a very good illustration, and, so far as he pursues the analogy, is very just. But, suppose the owner of the horse, either by himself or his lawfully authorized agent, shall consent at B that the horse may be ridden to C: is it not very clear, that, by force of this consent, this latter journey rests upon the same principles precisely with the first, and that the hirer is no more liable for losses in the latter journey than in the former?


I do not perceive very distinctly whether the counsel for the petitioners means to take the ground that the voyage under the charter party did or did not terminate at Algiers; for, under the head of the 3d objection, when it was necessary to the interests of his clients to combat the position of "an implied, voluntary, parol contract of affreightment between Col. Lear and the captain, as agent of the owners, for a new voyage Algiers to Gibraltar," I understand him as denying that the voyage had ended at Algiers, even when the ship had left that port, by reason that the lay-days stipulated by the charter-party had not expired; and, under the head of the 4th objection, where he is commenting on the principle that "the freighter is not the insurer," he is understood as taking the ground that the voyage had ended at Algiers, and that the ship was there after put upon a new and unauthorized employment, which converted her employers into insurers.

You will perceive, sir, that, in my view of the subject, it is perfectly immaterial whether the voyage to Gibraltar is to be considered as a continuation of the original voyage to Algiers, or as a new, distinct, and substantive voyage, undertaken with the consent of the owners, acting by their agent, the captain; in neither case, in my opinion, can the United States be considered as liable, in strict law, for the loss.

There is another point of view, which is touched merely incidentally in my former opinion; and that is, the authority given by the owners to Col. Lear to control the future destination of the ship, in relation to their own part of the cargo, after leaving Algiers. If, in directing her course to Gibraltar, he is to be considered as having acted under his authority from the owners, it would be very clear that the petitioners could have no

shadow of legal ground for throwing the loss upon the Government. This position, however, was not pressed, because I was willing to consider the case in the strongest light for the petitioners; and that, in directing the course of the ship to Gibraltar, Col. Lear acted for the United States, and the captain, who concurred in that movement, acted for his owners. The counsel for the petitioners has been pleased to comment on what he terms the inconsistency of these views: in one moment considering Col. Lear as the agent of the owners, and in the next as the agent of the United States. But these different views of the same subject were not intended nor presented as consistent views; they were presented as alternative views, for the purpose of showing that, in no aspect of Col. Lear's deputed character, (whether he is to be considered as the agent of the owners or the agent of the Government,) could the United States be responsible, in law, for the loss which has occurred.

The papers in this case are voluminous; and the consideration of them, both on the former and present occasion, has occurred at a time when I am exceedingly pressed by a variety of official duties, which are as yet new to me. I may have misconceived the facts; and, from the very respectable opinions which are said to have been opposed to that which I have formed, (in concurrence with the two gentlemen who have preceded me in office,) it is very possible that the claim of the petitioners may be well founded in law. I am pretty confident, however, that I cannot be mistaken in the material facts of the case; and as to the legal conclu- . sion, it is the only one which my judgment will permit me to draw.

The case is certainly a hard one, both on the petitioners and the United States. The despotic order which drove the vessel from Algiers was not attributable to either of the parties, shippers or owners. This order was certainly the cause of all the misfortunes which followed. That the ship was in a situation to be affected by this order, (that is to say, that she was at Algiers when it issued,) proceeded from the consent of the owners regularly expressed in the charter-party of affreightment; and, therefore, this circumstance cannot strengthen the claim of the petitioners. If her subsequent voyage to Gibraltar had been a matter of coercion on the part of the consul, I should have had no doubt of the legal liability of the Government. But there was no such coercion in the case. Neither the captain nor the consul could have anticipated any evil consequence from this voyage; and, although it be admitted that this voyage was proposed by the consul-and proposed, too, for the exclusive benefit of the United States-yet, inasmuch as the captain consented to this employment of the ship, and inasmuch as I presume it cannot be denied that his consent is, quoad hoc, the consent of the owners, I cannot conceive the possibility of reaching the conclusion that an employer, under these circumstances, can be legally answerable for the loss of the ship-a loss of which he is just as innocent as the owners, and by which he may have suffered as much, perhaps more than they have done.

Whether the placing this claim on the strict rules of law be not too cold and rigorous a mode of considering the case; whether, in such a transaction, the Government can be fairly considered as occupying the equal ground of an individual; whether, on the contrary, the perplexing nature of the emergency, and the official weight of Col. Lear's character, ought not to be considered as withdrawing this case from the operation of those principles of law which would be decisive in a case between

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individuals; whether the promptitude and the public spirit with which this ship was devoted to the public good do not entitle her owners to the public favor; whether it would not be more liberal in the United States (who are better able to bear it) to pay this loss, than to suffer it to remain on the petitioners; whether it would not be more politic in them, too, to encourage by rewarding the fidelity and devotion of the citizen in emer. gencies so trying as this;-are all considerations very proper, indeed, for Congress, but foreign to the question which I understand to be propounded to me-which is confined to the strict law of the case. Of the law I can only judge as it has been pronounced between suitors who stand on equal ground in relation to each other. A sovereign State not being suable, no case can have occurred to show what variance of estab lished principles would arise from the ascendency of her character in such a transaction. In matters of contract generally, the United States have been considered as entitled to all the rights, privileges, and immunities of an individual. From these considerations, I have necessarily taken up the legal question as one arising between individuals, and have given you what I suppose would be the opinion of a court of law upon such a case. Upon this case, however, the opinions, so far as they have been taken, have been almost equally divided: three Attorneys General in succession concurring in the opinion that the United States are not liable, in law, for the loss; and four most respectable gentlemen of the profession, have been consulted by the petitioners, having come (no doubt with equal disinterestedness) to the opposite conclusion. To affirm, in such a science as that of the law, that either of us is certainly right, would be a degree of presumption of which none of us can be capable. I can only say that the opinion which I have given as Attorney General, is the opin ion which I should express were I upon the bench. I beg leave to sug gest to you, however, sir, that there are in Congress many distinguished gentlemen of the profession of the law; and, in the division of opinion which has occurred in this case, it is consolatory to me to reflect that the petitioners cannot suffer from an error of law on my part, if I have committed an error.


I have the honor to be, &c.,


To the CHAIRMAN of the Committee of Claims,
House of Representatives of the U. S.

June 12, 1818.

SIR: I beg you to be assured that the failure to give an earlier answer to your letter of the 7th ultimo has proceeded from no want of respect, personal or official, for you; but has been forced on me by a current of duties which I could not turn aside. I am sorry now to be obliged to decline an answer to your question, which I do simply on the ground that I have no legal authority to answer it officially.

The commission of Attorney General authorizes and empowers him to execute the duties of that office according to law; and the law which cre sates this office prescribes its duties in the following terms: "Whose duty t shall be to prosecute and conduct all suits in the Supreme Court, in which

the United States shall be concerned, and to give his advice and opinions. upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." Under this law, which is the only one upon the subject, I do not think myself authorized to give an official opinion in any case, except on the call of the President, or some one of the heads of departments; and I should consider myself as transcending the limits of my commission in a very unjustifiable manner, in attempting to attach the weight of my office to any opinion not authorized by the law which prescribes my duties. You will, I trust, excuse me, therefore, in declining to give the official opinion which you request; and which I assure you I do not from any want of respect to you, but purely from a sense of official duty, and my respect for the law which prescribes that duty.

If you think the matter of sufficient consequence to make an official opinion from me desirable, you will, perhaps, have it in your power to give your application such a direction, through the Navy Department, or that of War, as to justify me in expressing the opinion officially, which I have every personal disposition to give.

I am, sir, &c.,


Headquarters of Marines, Washington.



June 15, 1818.

SIR: I have considered the subject which you have submitted to me, by the desire of the President of the United States, for my official opinion, which I have now the honor to give you.

The gentleman who now fills the office of register of wills for the county of Washington, holds that office, you state, by a commission from the President, which authorizes him to hold the office during the pleasure of the President. If the President had no right to issue such a commission, the commission is void, the office vacant, and the President has now a right to commission another person anew; if, on the contrary, the President had the right to issue such a commission, he has, on the face of that commission, the power of removal and the authority to reappoint.

But as the act of Congress gives the President the power to appoint this officer, without defining the tenure by which it shall be held, I perceive nothing irregular in the commission which has been issued. Whenever Congress intend a more permanent tenure, (during good behavior, for example,) they take care to express that intention clearly and explicitly; and in every instance, I believe, in which they give a naked power to appoint, (saying nothing of the tenure,) the practice has been to fill up the commissions in the manner in which you represent this to have been done: and this, without complaint, so far as I have heard; and without any just ground to complain, that I can discern.

I have the honor to be, sir, &c.,


For the President of the United States.


June 23, 1818.

SIR: I have, according to your request, examined the petition and memorial of Samuel Pease, together with the certificates which accompany it. This man is under prosecution for a cheat effected on the accounting officers of the United States by the means of forged papers, supporting fictitious claims for losses alleged to have happened during the late war. His prayer is, that the President will direct him to be bailed, or discharged without bail, on his own bond, to take his trial at the next term. The power which the President is thus called upon to exercise does not, in my opinion, belong to him by the constitution and laws of the United States. The question of bail is a judicial, not an executive one. Under this view of the subject, it has become unnecessary to examine the merits of the case on which the petitioner insists; but if it had been necessary, instead of relying on his statement, it would have been necessary to have called upon the United States attorney for the district, together with the documentary and parol proof on which it is understood a bill has been found by the grand jury. But let the merits of the petitioner's case be what they may, they would be unavailing, because the President does not possess the power which he is called upon to exercise.



June 29, 1818.

SIR: I have considered, very deliberately, the question submitted a fev days since for my opinion, and have now the honor to give you the resul

The question is, Whether the stockholders of the Saline Bank of Vi ginia be not individually liable for the notes issued by that bank, the ban not having been an incorporated one?

As a general question, and in the absence of any municipal prohibitio against the operations of such a company, I should have no doubt of the competency to bind the stockholders, individually, by their notes; for should consider them as a mercantile association, trading under the fir of "the president, directors, and company," &c., and the stockholders a the partners constituting that firm. In the few remarks I exchanged wi you on Friday evening on this subject, I looked to the question merely a general one, unaffected by any legislative prohibition; for at that time had read only your question, in which the particular bank is not name and, therefore, expressed the opinion which I should again express we the case such a one as I supposed it to be. On reading the letter, ho ever, covered by your envelope, I find it to be the case of the Saline Bar which I had occasion to consider very elaborately previous to my appoin ment to this office; and on examining now the opinion which I then e pressed, I see no reason to alter it. A copy of this opinion is now enclose and that you may understand it the more readily, I send you, also, t statement of the case, and the interrogatories, by which that opinion w drawn from me. This may be useful in another point of view; for I d cover, by the letter from your correspondent, that you are asking inform tion, generally, as to the affairs of the Saline Bank; and the letter of

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