Gambar halaman
PDF
ePub

the coast survey in the same way, because there is no law authorizing it, as there is in the case of the revenue cutters.

Unless there be something in the acts of Congress authorizing and di. recting the coast survey, which will change the foregoing view of the sub. ject, the expense of repairing and supplying the vessels referred to must fall upon the appropriation made by Congress for the survey of the coast, as there is no other appropriation from which it can be taken.

The act of the 10th of February, 1807, entitled “ An act to provide for surveying the coasts of the United States," authorizes no such diversion of the funds appropriated for the naval service, or any other service. The 3d section of that act, which is the only part of it which has any relation to the subject, only authorizes the President “to employ such of the pub. lie vessels in actual service as he may judge expedient in forwarding the survey of the coast.” This authority necessarily carries with it the further power to keep those vessels in such a condition, both as to repairs and supplies, as will render them useful in accomplishing the object which Congress had in view in regard to the coast survey; but this must be done out of the funds provided by Congress for that branch of the public service to which such vessels properly belong. In fact, Congress had at that very session, and has at every session since, provided for the repairs and supplies of all the vessels belonging to the navy in actual service, whatever their particular employment might be. But I cannot discover in the act any authority to apply any portion of the navy appropria. tion for the repairs and supplies of vessels not belonging to the navy, nor under the control of the head of that department.

The act of the 10th of July, 1832, entitled “ An act to carry into effect the act to provide for a survey of the coast of the United States,” only revives the act of the 10th of February, 1807, and can have no effect upon its construction. My opinion upon the whole subject is, that the cost of repairs and supplies of the vessels specially provided for the coast survey cannot be taken from the navy appropriation for the coast survey. I am aware that apprehensions are entertained that the progress of the coast survey may be impeded, unless means to carry it on can be supplied from some other fund than the coast survey appropriation. This evil, if likely to occur, would not change the law; and Congress can prevent it by its early action on the subject. I am, sir, &c., &c.,

FELIX GRUNDY. To the SECRETARY OF THE TREASURY.

CONTINGENT EXPENSES OF PENSION AGENTS.

Agents for paying pensions are entitled to have their necessary contingent expenses allowed, notwithstanding the act of April 20, 1836; as the prohibitions of that act may be well satisfied by stopping payment of the two per centum commissions which had been theretofore allowed for disbursing pension moneys.

ATTORNEY GENERAL'S OFFICE,

, s39. SIR: I have the honor to acknowledge the receipt of yours of the 9th instant, enclosing a letter from the Commissioner of Pensions, stating twe cases upon which my opinion is asked.

1. Robert King, pension agent at Knoxville, Tennessee, charges for stationery, printing blanks, &c., for the use of the agency, the sum of $333 75, from June, 1834, to May, 1838, inclusive; in support of which, he has produced the necessary vouchers.

2. B. M. Lowe, pension agent at Huntsville, Alabama, charges for the transportation of $9,000 in specie from Pontotoc, in Mississippi, to Huntsville, Alabama, the sum of $75; and $37, the amount of discount on a Treasury warrant on Pontotoc for $3,137. These accounts (except the last item in Mr. Lowe's account, which requires some explanation) the Commissioner of Pensions, in his letter, says are no doubt correct; and according to the former practice in such cases, would be paid. The question arising upon these facts, and presented for my opinion, is, whether the act of Congress approved the 20th of April, 1836, entitled “ An act to prescribe the mode of paying pensions heretofore granted by the United States,” forbids the payment of these claims?

The act upon which this question arises is in the following words: That all laws and parts of laws authorizing or requiring the Bank of the United States or its branches to pay any pensions granted under the authority of the United States, shall be, and the same are hereby, repealed; and such payments shall be hereafter made at such times and places, by such persons or corporations, and under such regulations, as the Secretary of War may direct; but no compensation or allowance shall be made o such persons or corporations for making such payments, without authority of law."

In order to determine the proper construction of this act, it will be necessary to recur to those circumstances in which it had its origin.

It appears that, prior to the establishment of the Bank of the United States in 1817, the pensioners were paid by the commissioners of loans. who received two per centum on all sums disbursed by them. After the establishment of the Bank of the United States, the pensioners were paid, without charge to the United States, by that bank and its brauches, except in places where no branches had been established; and in those places the agents were allowed two per centum on all sums disbursed; and their accounts were paid for contingent expenses, such as stationery, printing, transportation of specie, &c.

Such was the usage warranted by law, when Congress passed the of April 20, 1836. This act dispenses with the agency of the Bank of the United States, and provides that the Secretary of War shall thereafter make the payments by such persons or corporations, and under such regulations, as he may direct; but no compensation or allowance shall be made to such persons or corporations for making such payments, without authority of law.”

It should be here remarked, that the commissioners of loans had received two per centum on the sums paid out by them to pensioners prior to the year 1817; and all other agents after that time, except the United States Bank and its branches, received the same compensation. And, in addition, their accounts for stationery, printing, &c., were paid.

These terms, “no compensation or allowance," may well be satisfied by making them operate upon the two per cenium which had been previously allowed to the pension agents. To make this provision extend to a prohibition of the reimbursement of moneys actually expended for the use of the government, would be, as it seems to me, doing violence to the language employed in the act, and by construction enlarging its prohibi. tions, so as to do injustice to individuals engaged in the discharge of a meritorious public service. It is not to be believed that Congress intended that such should be the effect of any act passed by that body; on the contrary, a fair construction of that act, deduced from its history and its language, is, that no compensation or allowance shall be made for the personal services of a pension agent. But the payment of necessary contingent expenses is not prohibited.

It will be perceived that I have not taken into view the last item of Mr. Lowe's account, because the Commissioner of Pensions expressed the opinion that some further explanation relative to that item ought to be given by Mr. Lowe.

Agreeably to the foregoing opinion, the account of Mr. King should be paid, and also the first (of $75) in the account of Mr. Lowe.

I am, sir, &c., &c.,

FELIX GRUNDY. To the SECRETARY OF WAR.

CASE OF THE AMISTAD-SURRENDER UNDER TREATY WITH SPAIN.

The schooner Amistad, a Spanish vessel, having cleared from one Spanish port bound to

another, with regular papers and a cargo of merchandise and slaves; and whilst at sea, being subjected to the control of the negroes on board, by their rising upon the whites and killing the captain, his servant, and two of his seamen, and assuming command with a view to carry the vessel to the coast of Africa, but failing in that object through the contrivance of two white Spaniards who run her near to the coast of the United States, where she was taken by a vessel of the United States and sent into New London for examination and such proceedings as the law of nations warranted and required; and being demanded, with the negroes, by the Spanish minister, under the ninth article of the treaty of October 27, 1795, between Spain and the United States-DECIDED, that the case is within said ninth article of the said treaty, and that the vessel and cargo be restored to the owners, as far as practicable,

entire. The President is advised to issue his order to the marshal, in whose custody the vessel and

cargo are, to deliver the same to such persons as may be designated by the Spanish minister to receive them.

ATTORNEY GENERAL'S OFFICE,

November, 1839. Sir: I have the honor to acknowledge the receipt of yours of the 24th of September, in which, by direction of the President, you refer to this office the letter of the Spanish minister of the 6th September, addressed to you; also, the letter of Seth P. Staples and Theodore Sedgwick, jr., esqrs., who have been engaged as counsel for the negroes taken on board the schooner Amistad, addressed to the President of the United States, and asking my opinion upon the different legal questions presented by these papers.

I have given to the subject all the consideration which its importance demands; and now present to you, and through you to the President, the result of my reflections upon the whole subject.

The following is the statement of facts contained in your communication: “ That the Amistad is a Spanish vessel; was regularly cleared from Havana, a Spanish port, to Guanaja, in the neighborhood of Puerto Prin. cipe, another Spanish port; that her papers were regular; that the cargo consisted of merchandise and slaves, and was duly manifested as belonging to Don Jose Ruiz and Don Pedro Montes; that the negroes, after being at sea a few days, rose upon the white persons on board; that the captain, his slave, and two seamen, were killed, and the vessel taken pog. session of by the negroes; that the two white Spaniards, after being wounded, were compelled to assist in navigating the vessel, the negroes intending to carry her to the coast of Africa; that the Spaniards contrived, by altering the course of steering at night, to keep her on the coast of the United States; that, on seeing land off New York, they came to the coast, and some of the negroes landed to procure water and provisions; that, being on the point of leaving the coast, the Amistad was visited by a boat from Captain Gedney's vessel; and that, one of the Spaniards claiming protection from the officer commanding the boat, the vessel and cargo, and all the persons on board, were sent into New London for examination, and such proceedings as the law of nations and of the United States warranted and required.”

In the intercourse and transactions between nations, it has been found indispensable that due faith and credit should be given by each to the official acts of the public functionaries of others. Hence the sentences of prize courts under the law of nations, or admiralty and exchequer or other revenue courts under the municipal law, are considered as conclusive, as to the proprietary interest in, and title to, the thing in question; nor can the same be examined into in the judicial tribunals of another country. Nor is this confined to judicial proceedings. The acts of other officers of a foreign nation, in the discharge of their ordinary duties, are entitled to the like respect. And the principle seems to be universally admitted, that whenever power or jurisdiction is delegated to any public officer or tribunal, and its exercise is confided to his or their discretion, the acts done in the exercise of that discretion, and within the authority conferred, are binding as to the subject-matter. And this is true, whether the officer or tribunal be legislative, executive, judicial, or special. (Wheaton's Elements of International Law, 121; 6 Peters, 729.)

Were this otherwise, all confidence and comity would cease to exist among nations; and that code of international law which now contributes so much 10 the peace, prosperity, and harmony of the world, would no longer regulate and control the conduct of nations. Besides, in this case, were the government of the United States to permit itself to go behind the papers of the schooner Amistad, it would place itself in the embarrassing condition of judging upon the Spanish laws, their force, their effect, and their application to the case under consideration.

This embarrassment and inconvenience ought not to be incurred; nor is it believed a foreign nation would look with composure upon such a proceeding, where the interests of its own subjects or citizens were deeply concerned. In addition to this, the United States would necessarily place itself in the position of judging and deciding upon the meaning and effect of a treaty between Spain and Great Britain, to which the United States is not a party. It is true, by the treaty between Great Britain and Spain, the slave trade is prohibited to the subjects of each; but the parties to this treaty or agreement are the proper judges of any infraction of it, and they have created special tribunals to decide questions arising under the treaty; nor does it belong to any other nation to adjudicale upon it, or to enforce it. As, then, this vessel cleared out from one Spanish port to another Spanish port, with papers regularly authenticated by the proper officers at

[ocr errors][ocr errors]

Havana, evidencing that these negroes were slaves, and that the destination of the vessel was to another Spanish port, I cannot see any legal principle upon which the government of the United States would be authorized to go into an investigation for the purpose of ascertaining whether the facts stated in those papers by the Spanish officers are true or not. Suppose, however, that the evidence contained in these papers should not be entitled to all the effect I have given it: would that change or alter the course which should be pursued by the government? I think it would not; and a reference to the principles of international law, as approved and sanctioned by our own judicial tribunals, will clearly show it.

In the case of the Antelope, (10 Wheaton; 66,) this subject was fully examined, and the opinion of the Supreme Court of the United States establishes the following points:

“1. That, however unjust and unnatural the slave-trade may be, it is not contrary to the laws of nations.

“2. That, having been sanctioned by the usage and consent of almost all civilized nations, it could not be pronounced illegal, except so far as each nation may have made it so by its own acts or laws; and these could only operate upon itself, its own subjects, or citizens. And, of course, the trade would remain lawful to those whose government had not forbidden it.

«3. That the right of bringing in and adjudicating upon the case of a vessel charged with being engaged in the slave trade, even where the vessel belongs to a nation which has prohibited the trade, cannot exist. The courts of no country execute the penal laws of another, and the course of the American government on the subject of visitation and search would decide any case in which that right had been exercised by an American cruiser on the vessel of a foreign nation not violating our municipal laws, against the captors.

“It follows, that a foreign vessel engaged in the African slave trade, cap. tured on the high seas in time of peace by an American cruiser, and brought in for adjudication, would be restored."

The opinions here expressed go far beyond the present case; they em. brace cases where the negroes have never been within the territorial limits of the nation of which the claimant is a citizen. In this case, the negroes were in the island of Cuba, a portion of the diminions of Spain; they were there recognised and treated as property by the Spanish authorities of the island; and, after this, in their transmission from the port of Havana to another Spanish port, the occurrence took place which has given rise to this in vestigation. This vessel was not engaged in the siave-trade; she was employed lawfully in removing these negroes, as slaves, from one port of the Spanish dominions to another, precisely in the same way that slaves are removed by sea from one slave State to another in our own country. I consider the facts as stated (so far as this government is concerned) as establishing a right of ownership to the negroes in question in the persons in whose behalt the minister of Spain has made a demand upon the government of the United States.

Under the statement of facts, another inquiry which presents itself is, What power does the government of the United States possess, or what jurisdiction has it, for the purpose of trial and punishment, over the persons of these men of color, who are charged with having risen upon the captain

« SebelumnyaLanjutkan »