ATTORNEY GENERAL'S OFFICE, SIR About the close of the last session of Congress, a large mass of documents was lodged in this office, accompanied by the following order of the House of Representatives: "Ordered, That all the accounts and papers in the possession of the Clerk of this House, in relation to the accounts of James Thomas, a quartermaster general in the army during the late war, be referred to the Attorney General of the United States." The purpose for which this reference was made not being specified by the order itself, it was natural to suppose that it pointed to the performance of some known duty attached to the office of Attorney General, which would be readily discovered by adverting to the laws that designate the duties of that office. But among those duties there is no one that bears any relation to this order of the House of Representatives, or can help me to an understanding of the service which is expected at my hands. The act of 1789, which creates the office of Attorney General, enumerates the duties of that officer in the following terms: "whose duty it 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 opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any one of the departments." A subsequent act makes the Attorney General er officio a commissioner of the sinking fund; and these two acts comprise the whole catalogue of his duties as they are designated by law. Neither the order nor the laws, therefore, afford any explanation of the object with which this reference has been made; and my predecessors having left no trace of any official practice in aid of the law which could furnish a clew to that object, I hope I shall be excused if I err in considering the reference as having been made to me as the law officer of the Government, and, consequently, that nothing more is expected of me than the expression of my opinion as to the law arising on the case. It is to be collected from the documents in this case, that James Thomas, a quartermaster general in the service of the United States, is charged with having drawn from the public Treasury divers large sums of money, by a fraudulent collusion between himself and a certain Michael T. Simpson, by means of which collusion he was enabled to impose on the accounting officers of the Government, and to obtain a false balance to be struck in his favor. To decide upon the truth of this allegation is out of my province; it belongs to a different department; but, assuming it to be true, it is, in my opinion, very clear that the United States may maintain an action against James Thomas before the courts of the United States, for the purpose of recovering back the money thus fraudulently obtained; and that, if they make out the fact to the satisfaction of a jury, they will unquestionably recover it back. There is no act of Congress which subjects the quartermaster to a criminal prosecution for such a fraud as this is alleged to have been. The act of the 28th March, 1812, "to establish a quartermaster's department, and for other purposes," by its sixth section, subjected the quartermaster to fine and imprisonment on conviction of taking, or applying to his own use, any emolument or gain, for negotiating or transacting any business in his department, other than such as should be allowed by law; but this section is expressly repealed by the act amendatory of the former, passed on the 22d May, 1812. (See the 4th vol. Laws United States, new edition, pages 397 and 347.) This remedy, therefore, if the facts be made out, is by an action at law against Thomas, and his sureties on his bond, as quartermaster, so far as the penalty of that bond will extend; and against Thomas singly, by an action on the case for the residue. The documents accompanying the order of the House of Representatives will be returned herewith to the Clerk of that House. I have the honor to be, &c., To the SPEAKER of the House of Representatives WM. WIRT. of the United States. ! ATTORNEY GENERAL'S OFFICE, SIR: I regret that my official duties have not permitted me to attend sooner to the claim of Messrs. Caze & Richaud, on which you have asked my opinion. The case I understand to be this: When the British invaded Castine in the autumn of 1814, Captain Morris, commander of the United States ship Adams, then lying in that port, burnt her, in order to prevent her from falling into the hands of the enemy; the fire was communicated from the ship to a neighboring warehouse, in which the petitioners had valuable property stored, which was thus destroyed; and for the value of this property the present claim is advanced. The question you ask is this: "Suppose the burning to have been necessary to effect a legitimate national object; can the liability for consequential damages to an individual be avoided at law?" It is extremely difficult to bring a question like this to any known legal standard. All the cases of consequential damages furnished by the books have been cases involving none but individual interests on the one hand or the other, and never complicated with any great considerations of public war or national defence. Were it possible to regard this as a question purely individual, there would be no difficulty in deciding it; for among individuals it has long since been settled 1. That though a man do a lawful thing, yet, if any damage thereby befal another, he shall answer, if he could have avoided it; and that this principle holds in all civil cases. (See Sir Thos. Raymond's Reports, 422-3, and 467-8.) 2. That to bring a man within the protection of inability to avoid the damage, it must appear that the lawful act which produced it was not of a nature to have threatened the consequential damage so imminently, but that it might have been avoided by proper care on the part of the defendant. Thus, it is a necessary part of husbandry, in some countries, to have fire in the grounds; and it is perfectly lawful to have it. But the husbandman must at his peril take care that the fire so made shall not, through his neglect, injure his neighbor; for if it do, he shall answer. If, however, a violent and sudden tempest arise after the fire shall have been kindled, and, in spite of the husbandman's resistance, carry the fire into his neighbor's lands, this shall excuse him. (1 Lord Raymond, 264; 1 Salk. 13 and 12; Mod. Rep. 151.) 3. If a man cannot use his property in any given way, without inevitable injury to that of his neighbor, it is not lawful in him to make that use of it; and if he do, he shall answer the damage: because, being the inevitable consequence of his act, he will be considered as having intended it, and therefore as being responsible for it. This proceeds on the wellknown maxim of the law, sic utere tuo ut alienum non lædas. The obstruction of ancient lights, the diversion of ancient watercourses, &c., are illustrations of this maxim. Whether these principles would, if suffered to apply, decide an action brought by the petitioners against Captain Morris, would depend on the particular circumstances of the case, which are not detailed by the peti tion. For example: 1. Could Captain Morris have avoided this damage by proper care on his part? 2. Was the ship Adams fired when she was at a safe distance from the warehouse? and was she carried thither by a sudden and unexpected storm or wind, which could not have been resisted? 3. Or was the ship so near the warehouse, when fired, that the communication of the fire to the warehouse was an inevitable consequence of that measure? If the facts of the case would answer the first and last of these questions affirmatively, Captain Morris would be condemned to answer the damages, by the principles which have been stated. If, on the other hand, the facts would answer those questions negatively, or the second question affirmatively, he would be discharged. These principles, however, are made for peace; in war, there is another maxim, which silences every other-salus populi suprema lex. If, therefore, the measure was one which the interests of the whole community called for, the officer who performed it could not, I think, be condemned to answer the individual damage, unless his neglect in performing it was gross indeed. in How far the people, for whose benefit the ship was fired, ought to feel themselves bound to answer for this consequential damage, is a question which our law books do not enable us to answer. It is, indeed, a fun- ́ damental principle of the social compact, that individual property shall not be taken for the public good, without compensation from the individual from whom it is taken; but this proceeds upon the consideration that the public have derived an advantage from the use of the property, which it ought to requite; or, in other words, that all the members of the community are bound only to contribute equally to the public good; and that he who has been compelled to contribute more than his fair proportion shall be restored to the footing of equality by reimbursement. This is the basis of the writ of ad quod damnum, where, in time of peace, dividual property is condemned for the public good: it is the basis, too, of those laws which, at the close of the late war, provided a compensation to individuals for property lost, captured, or destroyed by the enemy, while in the military service of the United States. The claim of Messrs. Caze & Richaud seems to go a step beyond these principles. Their property was not taken for the public service; the public derived no benefit from the use of it; they had no use of it. Its destruction seems to me to have been one of those casualties of war, which place them on no higher ground than the hundreds (perhaps thousands) of individuals along the shores of our bays and rivers, who (like the warehouse and sails in the present case) were ruined by the mere circumstance of their greater exposure to the calamities of war. I am, &c., WM. WIRT. To the CHAIRMAN of the Committee of Claims. Office of the Attorney General, SIR: I have examined the two questions which have been submitted to me by you, on Mr. Glenn's letter touching the suit of the United States against the Bank of Somerset; and have now the honor of presenting the answers. Your first question is—whether, according to the laws of the United States, judgment cannot be obtained against a debtor who refuses to appear, and cannot be made to appear? Against an individual debtor, such judgment can never be defeated by the refusal of the party to appear in reality. In relation to receivers of public moneys, there is an express act of Congress which authorizes judgment on the return of the process, with certain modifications. Your next question is-whether, if the debtor ordinarily can be proceeded against by default, corporations are special exceptions to the general rule? To which I answer, that the provisions in the act of Congress in relation to public debtors do not reach the case of corporate bodies; as will be obvious from their phraseology, which applies peculiarly to individuals. 1: There being, therefore, no act of Congress which directs the course of proceedings against corporate bodies, that course is left under the 24th section of the judiciary act, and the 2d section of the act for regulating processes, &c., to be regulated by the practice of the several States. In Maryland, where this question arises, the English practice prevails; according to which, there can be no final judgment against a corporation without appearance; and, in a common law court, there is no mode of enforcing an appearance but by distringas on their lands and goods; for a corporation, having only an ideal existence, cannot be arrested, nor outlawed. There can be no personal coercion on it, therefore, and no means of coercion but by the seizure of its lands and goods. Nor is this, in reality, so much a grievance as at first it may appear; for if there be neither lands nor goods of a corporation on which a distringas can act, of what avail would be a judgment by default? The execution on such judgment could be only against the lands or goods of the corporation; and the inefficacy of the distringas presupposes that there are none such. To the SECRETARY OF THE TREASURY. [WM WIRT.] Office of the Attorney General, January 15, 1819. SIR: I have considered the questions propounded by Mr. Ingersoll's letter of the 4th instant, which you have done me the honor to submit to me, and regret that I have not the full record of the case to which he refers. I collect from Mr. Ingersoll's letter, and from sundry additional documents which the Comptroller has been so good as to furnish me, that the Good Friends (a vessel armed either in part or in whole by Mr. Girard, of Philadelphia) was condemned in the district court of Delaware for an infraction of the laws of the United States during our late war with Great Britain, from which decree Mr. Girard appealed to the circuit court; that in this posture of things, he petitioned Congress for a remission of the forfeiture, on the ground that, although the letter of the law had been broken, the owner was innocent in point of intention; and that, on this ground, the act of the 29th July, 1813, was founded, which authorized the Secretary of the Treasury to make the remission on the terms of a former act; that, according to those terms, Mr. Girard could seek a remission from the Secretary of the Treasury only on an implied admission of the fact that a forfeiture had been incurred, and on the condition of his assenting to the payment of the additional duties prescribed by the law; that he, nevertheless, did present his petition to the Treasury Department for this object, and obtained the remission of the forfeiture which he sought. I understand from Mr. Ingersoll's letter that there is a difference of opin ion on the construction of the act of remission-Mr. Ingersoll (as district attorney of the United States) considering it as granted on the condition of the payment of double duties; and Mr. Girard, as granted on the condition merely of paying the costs and charges of the prosecution: that the circuit court, concurring with Mr. Ingersoll, has affirmed the sentence of condemnation of the district court, "to be released on the payment of ad ditional duties," &c.; from which decree of affirmance Mr. Girard has appealed to the Supreme Court. On this case, the questions propounded to me are 1. Whether the appeal is general, and admits of a claim for the whole forfeiture? 2. Whether it supersedes the right of execution? 3. Whether, at the next session of the circuit court, the United States may not appeal generally, if such a measure should be deemed expedient! On the first question, I apprehend that the appeal cannot be considered as general, so as to draw the forfeiture in question before the Supreme Court; for, on the one hand, Mr. Girard, by his petition, (the benefit of which he claimed in court,) admits the forfeiture, which he therefore can not be at liberty to controvert on the appeal; and, on the other hand, the United States can have no interest in insisting on a forfeiture which (on the admission of its existence) they have released. I cannot think Mr. Girard has forfeited the benefit of the remission by the appeal: 1. Because he had a right to appeal from what he conceived a misconstruction of the order of remission. 2. Because, by the order of remission, no time is lim ited within which he shall comply with its terms or lose its benefit. On the second question, I think the appeal does supersede the right of execution. On the third question, if I am right in my opinion on the first, the United States cannot, by an appeal, now draw the right of forfeiture into question. To the SECRETARY OF THE TREASURY. [WM. WIRT.] |