My opinion is, that so soon as a voluntary abandonment and removal from the premises actually took place, from that time the right of the United States accrued, and was perfect and complete; and although the register and receiver could not act until they had a knowledge of such abandonment, still the rights of individuals might well and legally have their origin, to different portions of said land, according to the then existing laws, or laws which might thereafter be passed by Congress. In answer to your third inquiry, I think that the act of the 3d of March, 1817, has no application to the matter in question, but refers to an entirely different class of cases, I have the honor to be, &c., &c., To the SECRETARY OF THE TREASURY. FELIX GRUNDY. DAMAGES TO SPANISH SLAVE OWNERS OCCASIONED BY UNITED STATES TROOPS. The United States are bound to pay the Spanish inhabitants of Florida the value of slaves carried away or killed by the troops of the United States shortly prior to the treaty with Spain of the 22d of February, 1819. Remuneration should also be made for the services of such slaves as have been restored to their owners, during the period of time their owners were deprived of their services. ATTORNEY GENERAL'S OFFICE, December 18, 1838. SIR: I have had the honor to receive your communication of the 11th instant, relative to the liability of this government, under the 9th article of the treaty between the United States and Spain, ratified on the 22d of February, 1819, to make remuneration for slaves killed, carried off, or detained by the troops of the United States, shortly prior to that treaty, and such slaves being the property of Spanish inhabitants in Florida. In connexion with this subject, you ask my opinion on the two following points: 1. Are the United States bound to pay the claimants the value of slaves proved to have been carried away or killed by the United States troops, and thereby totally lost to their owners? 2. Whether remuneration is to be made for slaves carried off by the aforesaid troops, but subsequently restored, for the period their owners may have been by that reason deprived of their services? The purpose of the last clause of the 9th article of the treaty referred to was to obtain from the United States remuneration for the losses and injuries which had been sustained by the Spanish inhabitants in Florida, by the then recent operation of the troops of this government. The treaty makes no distinction between the different kinds of property destroyed, or injuriously detained from the owners for a greater or smaller period of time. It had in view the then existing laws of Florida; and whatever those laws recognised as property, if destroyed, or injuriously detained from the owners thereof, comes within the scope and purview of the treaty. Slaves destroyed, carried off, or detained from the service of their owners, are of this description. In my opinion, therefore, the faith of the United States is soleninly pledged to make satisfaction to the owners of slaves in these, as in all other cases of injury to the rights of property contemplated by the treaty. The laws of Congress of the 3d of March, 1823, and 26th of June, 1834, passed for the purpose of carrying this portion of the treaty into effect, confirm this view of the subject. I therefore answer both inquiries in the affirmative. I am, sir, &c., &c., To the SECRETARY OF THE TREASURY. FELIX GRUNDY. DUTY OF COLLECTORS OF CUSTOMS RESPECTING PAYMENTS INTO THE TREASURY It is the duty of collectors of customs to pay the duties collected by them into the treasury, although some of them may have been paid under protest, and importers shall have prosecuted to recover them back. Where judgments shall be obtained against the collectors for overcharges of duties, government ought to discharge them and relieve collectors of the consequences thereof. Collectors should adjust the duties with importers at the time of the importation, and not leave them unascertained for any considerable time, as the practice will be pernicious in its con sequences. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to acknowledge yours of the 7th instant, in which you state that "it frequently happens, especially at large ports of entry, on the importation of some particular description of goods, that the importer disputes the duty to which the collector, acting under the instructions of the Comptroller, decides the articles in question to be liable under the tariff laws. But with the view of getting possession of his goods, the importer pays under protest the amount of duty demanded by the collector; and, at the same time, gives that officer notice not to pay over the money to the government, and immediately institutes a suit against the collector to recover back the amount so paid." Under these circumstances, the following question arises, viz: "Can the collector legally retain in his hands, beyond the control of the department, and distinct from his other funds arising from duties, money's so received?" In answer to this question, I would say that, under the laws of Congress in relation to duties on imported articles, it is the duty of the collector to carry into execution the instructions of the Treasury Department, and to conform his acts to them. If, in doing this, he shall collect more money than the judiciary shall afterwards, in an action against the collector by the importer, adjudge to have been due to government, there can be no doubt that it is the duty of the government to save the collector from injury. But the question you present is of a very different character. It is, whether the collector has the legal right to retain the money so received in his own hands, beyond the control of the department, &c. My opinion is, that no such right exists; and that the collector should, notwithstanding such protest and suit by the importer, pay over to the treasury all moneys by him received under such circumstances, as though no protest had been made or suit commenced. I am aware that it may be said this course would expose the collector to inconvenience and loss. The force of this suggestion is not perceived. Now, the collector keeps the money in his possession until the controversy is decided by the judi ciary, and then pays over to the government what may be in his handsthat is, the whole collected by him, if the importer has failed in his action; or if the importer has succeeded, the balance which may be in his hands, after deducting the amount of the recovery against him. My impression is, that the law never intended that money collected for public purposes should be held by individuals to await the event of lawsuits. If the money be paid into the treasury, and a judgment be fairly obtained against a collector for an overcharge of duties, it would be the duty of the government promptly to discharge such judgment, and relieve the collector from its consequences. You say a similar point arises, under the following circumstances: "On an importation of goods liable to cash duties, some time unavoidably must elapse before the duties thereon can be calculated, and the exact amount payable ascertained. It appears to be the practice in such cases to receive from the importer a sum of money deemed sufficient to cover the amount when ascertained, and any deficiency is afterwards made up, or the surplus refunded by the collector, as the case may be. These funds the collector designates as money taken and held for unascertained duties. "The same question, therefore, as the foregoing is presented in this case." It seems to me that the intention of those who originally framed our revenue laws was, that the duties should be ascertained and paid, where cash duties are imposed, before the goods are delivered to the owner. But it is understood that, in some ports, this is wholly impracticable; and therefore a departure in practice from the idea which I have suggested is indispensable. This state of things could not have been foreseen by those who originally passed the acts of Congress under which the revenue is still collected. The vast increase of the commerce of the United States, and its concentration at particular ports, render that impracticable which, at an earlier period, could easily be effected. If the law cannot be executed according to its letter and probable intention, on account of the altered condition of the affairs of the country, Congress alone can supply the proper remedy. In the mean time, however, until Congress shall act, such treasury regulations should be adopted and enforced as will best secure the objects of the law. It could never have been the intention of Congress that a collector should receive money for duties, under a private arrangement with the importer, and keep the money in his hands until it was convenient for him to cause the amount of duties to be ascertained. If such a practice were tolerated, it might be the interest of the collector to postpone the ascertainment of the duties; as, in the mean time, he would have the uncontrolled use of the money. It would also increase the danger of faithlessness in the collector, by permitting large amounts of money to remain with him, and under his individual control, instead of being in the treasury of the United States. The tenor and spirit of all our revenue laws seem to inculcate the idea that the intention of Congress has at all times been, that money collected for revenue should be promptly placed in the treasury, and not be permitted to remain in the hands of the collectors; therefore, in any regulations you may make upon this subject, that object should be constantly kept in view. I am, sir, &c., &c., To the SECRETARY OF THE TREASURY. FELIX GRUNDY. CLAIM OF GENERAL SCOTT FOR SUPERINTENDING REMOVAL OF THE CHEROKEES. The claim of General Scott for a compensation of eight dollars per day over and above his regular pay as major general, for superintending the removal of the Cherokees under the direction of the Secretary of War, cannot be allowed without violating the proviso to the act of 3d March, 1835. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the claim of General W. Scott, accompanying yours of this day, and have the honor to report the following opinion thereon: General Scott is a military officer in the regular service and pay of the United States; and on the 6th of April, 1838, General Macomb, his superior officer, by his order, (which was strictly military, for no other could be issued by General Macomb,) directed him to repair to the Cherokee country, and there to discharge those duties which properly appertained to him as an officer of the army of the United States. On the 23d of May, 1838, the Secretary of War authorized General Scott to enter into arrange ments with the agent of the Indians for their removal. On the 25th of June, 1838, he was directed by the Secretary of War to superintend the removal of the Indians. It is understood that General Scott faithfully discharged all the duties enjoined on him. He now charges eight dollars per day for the services rendered under these orders, in addition to his pay and emoluments as a major general in the army of the United States; and the question you ask me to decide is, "whether he is lawfully entitled to the claim thus preferred by him?" Whatever difficulty formerly existed relative to extra allowances or compensation to officers of the army, seems to me to be obviated by the proviso to the act of the 3d of March, 1835; which, upon a proper construction, in my opinion, forbids the allowance of the claim now under consideration. That proviso declares "that no officer of the army shall receive any per cent., or additional pay, extra allowance, or compensation, in any form whatever, on account of the disbursing any public money appropriated by law during the present session, for fortifications, execution of surveys, works of internal improvement, building of arsenals, purchase of public supplies of any description" Had the proviso stopped here, it might have been insisted that its whole operation was confined to appropriations made at the then session of Congress; but the following general and comprehensive expression is added: "or for any other service or duty whatsoever, unless authorized by law." It appears to me that Congress intended by this expression to confine military officers to their regular pay and emoluments, and not to permit them to receive extra allowances or compensation for services which might not be considered by them in the strict line of military duties. I am, sir, &c., &c., To the SECRETARY OF WAR. FELIX GRUNDY. NAVY COURTS-MARTIAL-JUDGES ADVOCATE. Judges advocate of courts-martial are required to be sworn; and where the proceedings of such courts do not show that they were, it may be properly considered that the fact does not exist, and that they were not sworn, and that, therefore, the proceedings were irregular and void. The accused may be put upon another trial; but not before the same officers who constituted the first court. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the proceedings of the general court-martial in the case of Peter Clark, a seaman in the navy of the United States, and have the honor of now submitting my opinion upon the various points submitted to me in your communication of the 20th instant. The first inquiry is in relation to its not appearing in the proceedings of the court-martial that the judge advocate was sworn, agreeably to the act entitled "An act for the better government of the navy of the United States." My opinion is, that upon this branch of your inquiry the maxim well applies that that which does not appear, should be considered as not existing; and, therefore, this question must be decided upon the assump. tion that the judge advocate was not sworn. When the very important duties of this officer are considered-that he is to keep the record of the evidence given, and the proceedings of the court; and that upon this evidence and proceedings, as recorded by him, the fate of the accused is ultimately to be decided, every reflecting mind would concur in saying that the fidelity of this officer should be secured by at least the usual sanctions. Add to this that the Congress of the United States, in prescribing rules and regulations for the government of the navy, have given the form of the oath to be administered by the president of the court to the judge advocate, before proceeding to trial, and I think no doubt should exist in declaring the proceedings irregular and void. You will remark that the objection stated above goes to the construction and organization of the court. Had the court been regularly and legally organized, I should not think that its not appearing on the record that the prisoner had been furnished with a copy of the charges, or been asked if he had any objection to the members of the court, would be sufficient causes for setting aside the proceedings. If any injustice was done to the accused in these particulars, he should make the question before the court, and in that way make it appear on the face of the proceedings. In answer to your next inquiry, my opinion is, that the accused can be legally and constitutionally put upon another trial. He has not been tried by a tribunal legally competent to try and punish him. In our civil tribunals, if a party be convicted upon an insufficient indictment, and judgment be arrested, the accused may be again put upon his trial; and this is not considered as an infraction of that injunction of the constitution which forbids that any person be twice put in jeopardy for the same offence. In answer to your last inquiry-which is, whether the same officers who have acted upon the court martial, the proceedings of which are now under examination, would be competent to sit on a second trial of the accused; or whether it would be necessary to organize a new court for such trial?— I am decidedly of opinion that a new court, should you think the case requires further action, must be organized. The officers who sat on the former should all be excluded from the second trial. They have formed |