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CLAIM OF COLONEL THOMAS AND ACCOUNTING OFFICERS.

The claim of Colonel Thomas does not come within any fair interpretation of the sixth article

of his contract with the government. Indians at peace with the United States are in no received sense of the word “an enemy,"

and cannot be judicially considered as embraced within it. The district court, in this case, having passed upon the claim, it is doubtful whether the Execu

tive can go beyond what was thus decided.

OFFICE OF THE ATTORNEY GENERAL,

August 13, 1842. SIR: In your letter of the 9th instant, touching the claim of Colonel J. Thomas, you proposed two questions:

1st. Is the claim a valid one, under the 6th article of the contract ?

2d. Is it an equitable one, which, under the circamstances of the case, the accounting officers are authorized or required to allow by the act of July 2, 1836, for his relief?

1st. If you are to consider this an open question, after a decision made under a former administration, it can only be because the same officers who disposed of it then are called to revise their own judgment. Whether, without new evidence or mistake alleged, this can be done, is rather a question of practice than of law. But considering the qnestion as an open one, and taking for granted the state of facts presented in the Comptroller's report, I concur fully with that officer in the opinion that the case does not come within any fair legal interpretation of the 6th article of the contract. Indians at peace with the United States are in no received sense of the word “ an enemy,” and cannot be judicially con. sidered as embraced within it.

2d. I am of opinion that Congress did not sanction and adopt the opinions of the Indian bureau and of General Porter; but, on the contrary, explicitly required the accounting officers to recognise the judicial de. cision of the district court of the United States for the southern district of New York, as settling the true construction of the contract, and the relative rights of the parties under it. What that decision was, I am not precisely informed; the Comptroller affirms that it did not touch the claim in question. Assuming the fact to be so, I have very great doubts whether the true interpretation of the act of 1836 gives the Executive any discretion to go beyond what the court decided. The general words “equity and justice" ought, I incline to think, to be limited, by the partic. ular reference that follows, to the judgment of the court which is allowed under the statute of 1797, to admit an equitable set off in such cases. As at present advised, I should decide against the claim on this ground, though not without hesitation. Admitting, however, that you may go beyond the decision of the court, then what equity is shown by the claim. ant? I see none, nor the shadow of any, except there be evidence to support what is said to have been the opinion of General Porter, viz: that the claim came fairly within the purview of the act of 1802. General Porter's decision was the other way, and you clearly have no authority to open it, unless this statute of 1836 be one.

If that statute is to be considered as extending to other equities than those embraced in the judicial decision in question, then you may be free to consider this matter as it was presented to General Porter, and to decide it according to the equity of the act of 1902. But I conceive you must, in that event, be governed by your own sense of equity and justice, and not by his; and that, of course, you must call for evidence to show that this case does fall within a fair interpretation of the act of 1802. On the subject of that act and its true object and import, I refer you to my opinion in the case of Jesse Cleveland. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. John C. SPENCER,

Secretary of War.

CLAIM OF THOMAS S. CLARKE & CO.-CHARTER-PARTY,

The owners of a steamboat chartered to take troops and stores from Pittsburg to Fort Smith,

on the Arkansas river, at 3230 per day, until discharged, and which, after having been discharged, was detained at Cincinnati on its way back, on account of low water, are not en

titled to pay for that detention. The United States had nothing to do with the steamboat after the charter-party was satisfied

with the landing of the passengers, or the discharge thereof by the assistant quartermaster! This case is res judicela.

OFFICE OF THE ATTORNEY GENERAL,

July 17, 1842. Sur: I have to acknowledge the receipt of your letter of the 4th instant, enclosing the report of the Second Comptroller, and other papers, relating to a claim of Messrs. Thomas S. Clarke & Co. for the detention of the Steamboat Dayton, chartered from thein by Assistant Quartermaster Thomas, to proceed with troops and stores from Pittsburg to Fort Smith, on Arkansas river, at the rate of $230 per day. The agreement reserves to Mr. Thomas the privilege of discharging the said boat at any point on the river Arkansas, except that he shall not discharge her from the ser. vice of the United States when she may be aground. It is also agreed that the cominander of the steamboat niay claim to be discharged after meeting such low water as renders his further progress diffi- ult, if he shall be of opinion that a further continuance of the voyage would prevent his Teturn. If the voyage be continued after such claim, and the return of the boat be thereby prevented or delayed, the United States shall be answer. able for the detention or delay. Should any delay occur from accident, or from the want of water, by which the boat may be delayed in ascending the river, an abalement of $60 for each day so lost by the said boat shall be made from the daily pay of $230.

The captain claimed to be discharged at Little Rock; but, by orders of Mr. Thomas, proceeded seventy-five miles higher up the river, where he was finally discharged. The boat, as is alleged, was detained at Cincin. nati on her return, on account of the lowness of the water in the Ohio, and the claim is for this detention. You request my opinion as to the true and proper construction of the above clause in the charter-party, providing for compensation if low water should delay or prevent the return of the boat; and whether it be exclusively applicable, as supposed by the Second Comptroller, to the Arkansas river.

I have no doubt the provision in question must be construed as confined to the Arkansas river: first, because the contract has reference only

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to an outward voyage from Pittsburg at so much a day outwards; and there is no reference whatever to a return cargo or compensation. The United States had nothing to do with the boat after the charter party should have been satisfied by landing the passengers at Fort Smith, or by discharge of the boat.' Secondly, because the generality of the word “return” is confined by the subject matter—“low water on the Arkansas river.” Thirdly, because the right of the captain to demand his discharge was strictly subordinate to his duty under the charter party. The duty required him to carry the men to Fort Smith, if possible. This is a necessary consequence, in law, of the nature of the contract itself; but it is made too clear, I think, for controversy, by the language of the very clause under which he claims. He is to have a right to claim his discharge, not when he shall think, either from information or conjecture, that the Ohio river will be too low when he shall return thither, but when his further progress up the Arkansas shall actually become difficult; and not only difficult, but so difficult as to make it likely his return will be impossible. Now, it is impossible this condition should be faithfully fulfilled by him, and yet his return to Pittsburg be secured, if, as the argument maintains, the Ohio rises and falls pari passu with the Arkan

If he was not allowed to stop until the navigation of the latter be. came actually difficult, how should he get back to the Ohio in time to meet with no difficulties there? If, on the other hand, the Arkansas and the Ohio rise and fall from different causes, (as they certainly do,) why should the contract to be performed on the one be construed to have any reference to the other? Besides, if the parties meant that the return to Pittsburg should at all events be secured, the captain ought to have had a right to demand his discharge at Little Rock, or on the Mississippi, so as to be back in time. But he is confined to difficulties on the Arkansas. Why? Clearly because the Arkansas was the single object of the contract, which would produce no misunderstanding when confined to its object; but must be liable to great difficulties, and hazardous to the extreme to the government, if it was meant to be construed not only as a charter-party for a voyage outward, but an insurance for a voyage homeward. This double aspect is not to be given to an agreement on the strength of one general word, which is explained by the context. Sup. pose the owners, not being able to get back to Pittsburg, had employed their vessel on the Mississippi, and earned full freights; what would have been their claim to damages?

I give this opinion without reference to any previously given to others; but, in truth, according to what I understand to be the constant, and what I have no doubt is the necessary and proper, course of the executive department. This case is res judicata.

This case is res judicata. Take it either way, the claimants have no ground to stand upon. I have the honor to be, sir, your obedient servant,

H. S. LEGARE.

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ASSIGNMENTS OF CREEK INDIAN RESERVATIONS.

The names of assignors need not be written in full in assignments of Creek Indian contracts;

and the fact that they do not import a consideration does not render them insufficient.-(See opinion of Attorney General Crittenden of 26th July, 1841.)

OFFICE OF THE ATTORNEY GENERAL,

August 17, 1842. Sır: Two questions were propounded in your letter of the 10th of March last, covering one from the late Commissioner of the Land Office, touching the validity of the assignment of certain Creek Indian contracts. They are as follows: “Under the opinion of the Attorney General of the 26th July last, and certain proof filed in this office, it appears that Eli S. Shorter was authorized to assign the interest of John S. Scott in lands of this description. Assuming it to be susceptible of proof, as it is believed to be, that these transfers from Shorter and Scott were thus signed by Eli S. Shorter, the following questions have been considered: 1. Are these assiguments duly executed as to the manner of signature, the names of the assignors not being written in full? 2. Does the fact of their not importing any consideration render them insufficient?"

I consider this whole subject as implicitly disposed of by the reasonings of my predecessor (Mr. Crittenden) in his opinion of 26th July, 1841, in which I concur, so far as it is applicable to the point involved in your in. quiry. Of the Commissioner's two questions, assuming his statement of the facts, I answer the first affirmatively, and the second in the negative. This case turns on the act of 1836, and not on general principles of law. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. W. FORWARD,

Secretary of the Treasury.

CLAIM OF COLONEL THOMAS AND ACCOUNTING OFFICERS..

The Attorney General reconsiders, on a further statement of the facts, his opinion delivered

on the 13th instant. The judgment of the circuit court of New York does not preclude the accounting officers from

going beyond the items actually proven by way of offset in the case. The Secretary of War is at liberiy to take up the case on the footing of equity and justice

the basis of chancery jurisdiction. If the evidence brings the case within the act of 1802, there is an equitable obligation on the

part of the United States to indemnify against loss; for by that aci the United States agree to guaranty eventually all persons against depredations committed by Indians residing in

the Indian country. But in that case it must be proved, or at least rendered probable, that the robbers in question

were Indians residing in ihe Indian country. If this cannot be made out, then it must be shown that the United States were guilty of some

other delictum, or some laches or delay exposing the claimant to a loss he would not oth wise have encountered. OFFICE OF THE ATTORNEY GENERAL,

August 18, 1842. Sir: I have to acknowledge the receipt of your letter of this morning, requesting me to reconsider the case of Colonel Thomas, on a fuller state of facts, and accompanied with a copy of the judgment of the circuit court of New York, on a motion for a new trial in the case of the United States vs. Thomas. On a mature consideration of that record, I am now of opinion that the judgment of the court does not preclude the accounting officers from going beyond the items actually proved by way of setoff in the case. It decides nothing as to the point now before me. This obstacle being removed,

you are free to take up the subject on the footing of equity and justice. These are words that have a settled legal mean ing. They are well known as the basis of the chancery jurisdiction, and they do not extend to matters of mere humanity and benevolence. They imply a valuable consideration either of contract or delictum.

In the case before me it is settled that the United States did not promise to indemnify the claimant for his loss—their agreement was to pay for what he should deliver. Neither were they in any way benefited by the loss of the cattle; nor was it merely to benefit them that they were put in the way of being lost, but to benefit the contractor himself by executing a lucrative engagement. Therefore if the United States are bound in equity and justice to bear a loss which they did not promise either expressly or impliedly to repair, it must be because by some delinquency of theirs they occasioned that loss. If the evidence bring the case within the act of 1802, there is such an equity, because by that act the United States agree to guaranty eventually all persons against depredations committed by Indians residing in the Indian country. They undertake to control these Indians. But in that case it must be proved, or at least rendered probable, that the robbers in question were of that category: Ist, Indians; 2d, Indians residing in the Indian country; as to which, see my opinion in Jesse Cleveland's case. If this cannot be made out to the satisfaction of the accounting officers, then it must be shown that the United States were guilty of some other delictum or some laches, delay, &c., exposing the claimant to a loss he would not otherwise have encountered.

If he fail to establish any such, the Comptroller's judgment must stand. All these questions of fact are for the accounting officers, and not for me. I can only lay down principles that apply to the whole class of such

The authority given them in the premises, by the act for the relief of Colonel Thomas, must be judicially construed by its own words, "equity and justice.” The case of Morrison shows what Congress may choose to do by way of special favor; but it is an exception, and cannot be turned into a rule without fearful consequences. If Congress mean to establish such a rule, they must do it by a general law. It would be to make the government an insurer for all its contractors. Jf the meat or corn provided by them be spoiled by heat or moisture-if their draughthorses founder, or their vessels be wrecked, their claim for indemnity would lie as good, for aught I can see. In short, the executive is not anithorized by the words of the act to relieve, if they think the bargain turned out by any accident a losing one to the contractor, or if they think his case a hard one. He must make out an "equity,” properly so called. Should these principles lead to the rejection of the claim, against the sense of Congress-though, according to the words of its act, a declaratory resolution will set all right—there would be no remedy and no limit to the mischiefs I should apprehend from a loose interpretation by the accounting officers. s have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. JOHN C. SPENCER,

Secretary of War.

cases.

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