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But to whose benefit is the judgment to inure, when satisfied by that government? This you at once perceive is quite a different matter, and falls within the usual sphere of the judicial power of the country receiving the indemnity. That either A, or B, or C, is entitled to be paid, on a specified claim against a foreign government, such a sum, is an interna. tional or political matter. By the very fact, therefore, that it is so, it is to be adjusted by treaty-in some way to be pointed out by treaty, or it must become the object of war or reprisals. No nation can be held responsible in any other way. As soon, however, as the claim is admitted as a debt, and paid by one country to the other in trust for its subjects, it ceases to be a political subject, and becomes a judicial one. The execu. tion of this trust is as much within the competency of the ordinary tribunals as that of any other. The government is a mere stakeholder for the use of those who are really entitled to the proceeds paid over under the treaty. The question, who of a number of citizens laying claim to the whole or part of those proceeds are so entitled, is one to be adjudged by the courts of their common country. Not only are those courts more competent in every respect to settle such disputes, but I see no power under our constitution that can oust them of their jurisdiction in such matters, or vest it in commissioners appointed for the occasion, instead of judges holding during good behavior. It is true, the government even as a stakeholder cannot be compelled to answer in its owu courts without its consent.
But this does not release it in foro conscientia from its duties, as a trustee, to see justice done according to the constitution. Neither does it, or can it, exempt from responsibility any individual who happens to be put into possession of the fund affected with such a trust. In the very last case publicly tried by Lord Eldon, he lays down this doctrine very distinctly as law in England, where it is competent for Parliament to vest complete jurisdiction, as between British subjects, in mere commis. sioners. A fortiori is it the law of this country, in which the judicial power is not at the disposal of Congress, but set apart by the constitution itself as an institution co-ordinate to the legislature. (Hill vs. Reardon, 2 Russ., 645.) Therefore, in all questions between assignor and assignee, or their privies and alienees, the jurisdiction of commissioners under treaties is (at any rate in the absence of an express provision) eo nomine in the treaty; and I incline to think, notwithstanding such provision, altogether incompetent. They are corum non judice.
But the case, as you propound it, does not involve any difficulty arising under a disputed assignment. The single point on which you require an opinion is, whether the claim of Rngers was, notwithstanding what was done by the former board, res integra for the last: and I am of opinion that it was not. The present commissioners object that the proceeding was irregular-Rogers having obtained leave to withdraw his papers; and
certainly concur with them, as at present advised in that view. But the case was clearly within the jurisdiction of the first board—was fairly presented, was fitly opened; and they, by what seemed to them satisfactory evidence---aken, however, it is alleged, without sufficient care, perhaps without cross-examination were convinced that the claim was an unfounded one. They reported upon it as such directly and positively, and their report was received and recorded as a judgment by one of your predecessors. By what authority did the present commissioners open that judgment? Because it was given in mistake; because there was irregadarity in the proceedings, say they. That, if shown in proper time, would be a very good reason for reversing it in a competent court of appeals. But there is none such provided here; or is a good ground ad. dressed to the discretion of the same court for a new trial; or, finally, may in re minime dubia justify an interference of the government party to the treaty to enforce the doing of justice under it; and in this last case it becomes a political question again, as it was at first. But where does a board of commissioners, authorized only to examine cases not passed upon by the former board, find authority to re-examine one that was?
The judgment, therefore, as a judgment, is simply void; and would be no justification to the Secretary of War for a requisition upon the treasury: And this leads me to another point strenuously pressed on behalf of all the claimants. The commissioners, it is said, have exclusive jurisdiction in the matter, and their award is binding on the government. And so it is on all subjects within their jurisdiction, but in none at all withont it; and above all, in the extent of their jurisdiction itself.
No rule of law is better settled than that every special, limited, and inferior authority, judicial or executive, must, before it takes a single step in any matter, allege and prove its jurisdiction. The onus probandi is upon it, and those claiming through it. The fact that their award is binding, right or wrong, must be established by evidence aliunde, not by the award itself; and it must be established before they proceed to their case, or before anybody proceeds to do any act under it. Had these gentlemen passed sentence of death upon an Indian, they, and all engaged in executing their judgment, would have been guilty of murder. Their opinion of their own jurisdiction would have been no plea in bar. And neither would it be, as I have said, any authority to the Secretary of War, or the accounting officers, in a case such as that submitted to me. These officers must, at their peril, take notice of the fact, and be satisfied, by evidence of the fact, that the commissioners did not exceed their juris. diction, before they proceed to draw money out of the treasury to pay the award.
And this disposes of Mr. Butler's opinion concerning the authority of the Attorney General in the premises. The question whether the commissioners ought to have decided so or so, within their jurisdiction, is for them to answer; though I will not say that even in such a case the gov. ernment have not a right to the opinion of their law officer; for if the de. cision be wrong in re minime dubia, and to the injury of a foreigner, his government would be justified in reprisals and war on that ground. But I omit that head for the present, as not necessary to my answer to the pretension on behalf of the ciaimants. Admit that the Attorney Gen. eral is not authorized to give an official opinion to prevent, it may be, any gross errors in the judgment of a board of commissioners within their undoubted jurisdiction; how does that prove that he is not bound to advise the accounting officers of the treasury when they exceed it? I am, on the whole, of opinion that the case of Rogers was before these commissioners coram non jurice, and that their judgment, as such, is not binding on the officers of the treasury.
Regarding it as a political question, whether the government ought to disturb the judgment of the first board on the ground of irregularity or error, it is properly within the province of the executive department, and has, as it appears, been repeatedly passed on by it. The proper remedy, if there be any wrong, will be in an appeal to Congress,
The next question is one rather of administration than of law. You state that the course of the department has hitherto uniformly been to pay over the whole sum to the father. Whether this was altogether prudent, considering the liability of these people to imposition, and their careless, unthrifty habits, is exceedingly questionable. But the father, besides being the natural guardian and protector of his offspring, is made absolute arbiter of their rights in these reservations. It is at his option whether any interest at all shall vest in his children; for, clearly, none does if he choose to go away at first. It depends upon him, also, whether the lands shall not be divested out of them and revert to the government, as they do when he goes away. The treaties, therefore, confide to him, in a most especial manner, the destiny of his family in regard to this property. The 13th article of the treaty of 1833 scarcely admits of any other construction. At any rate, it makes him their guardian quoad hoc. This view of the subject, which is unquestionably a strong one, having been originally taken and uniformly adhered to by the department, it is, in my opinion, too late to adopt a new one now. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. JAMES M. PORTER,
Secretary of War.
PAY OF CHIEF OF BUREAU OF CONSTRUCTION.
A captain of the navy, appointed as chief of the Bureau of Construction, can only receive the salary fixed by the act of 1842; and not the pay of a captain on duty under the act of 1035. OFFICE OF THE ATTORNEY GENERAL,
May 27, 1843. Str: In answer to the inquiry in the letter of the Fourth Auditor, “whether the chief of the Bureau of Construction, Equipment, and Repairs, in the Navy Department, whose compensation, in that capacity, is fixed by the act of 31st August, 1842, re-organizing the department, at three thousand dollars, being a captain in the navy, is entitled to receive, from the funds appropriated for the naval service, the difference between the salary just mentioned and the pay of a captain on duty,” I am of opinion that he is not.
The proper construction of the act of 31st August, 1842, seems to me to require the appointment of captains of the navy only to the bureaus of navy.yards and docks, and of ordnance and hydrography. As to the bureaus of Construction, Equipment and Repairs, and of Provisions and Clothing, the departinent is not restricted in the choice of persons to any particular class of citizens. It may seek skill and experience, wherever they are to be found, on the terms designated in the act—that is, a salary of three thousand dollars. But a naval officer has in fact been preferred. He is clothed with the trust, and so is on duty. Now the general act of 1835 provides that every captain, (other than the senior captain,) on any duty but the command of a squadron on a foreign station, shall receive three thousaud five hundred dollars.
True; but the other duty there contemplated is the usual naval service, and the presiding over a bureau here is rather administrative than military. This is the view of my predecessor (Mr. Taney) in the opinion referred to by the Auditor.
2d. But admit it to be a naval service, strictly so called; Congress might choose that the particular species of duty should be less highly paid than any other. They might think it less exposed to trouble or peril-attended with collateral advantages, as greater influence and consideration. They might have said, therefore, expressly, that this service should be less highly remunerated. And they have implicitly said so. In all statute law the particular provision, especially when subsequent, restrains and modifies the general. In this view, therefore, the construction of the act is, that this naval duty is specifically designated and compensated, and three thousand dollars is all that can be allowed for it.
Therefore, in every aspect of the case, it is impossible that a captain of the navy, acting as chief of one of the bureaus above mentioned, should be paid as if he were on other duty under the act of 1835. I have the honor to be, sir, your obedient servant,
H. S. J.EGARE. A. T. Smith, Esq.,
Acting Secretary of the Navy.
PENALTIES UNDER TARIFF ACT OF 1842, AND THEIR REMISSION.
The fifty per centum additional duty levied on imported goods, under the second proviso of
the 17th section of the act of 1042, is a penalty which the Secretary of the Treasury can remit under the act of 1797.
OFFICE OF THE ATTORNEY GENERAL,
June 7, 1843. Sir: In the case of L. Polmeiri, “an importation of certain goods from Genoa, by the Sardinian barque Orbita, having been made at the port of New York, by L. Polmeiri; and, on appraisement of the same, under the provisions of the 17th section of the act of 30th Angust, 1842, the actual value being found to exceed, by ten per centum or more, the in voice value of the same; there was levied, agreeably to the 2d proviso of the said 17th section, in addition to the duties imposed by law, fifiy per centum of the duty imposed on the same when fairly invoiced.
“Application having been made to the Department of State, throngh the Consul General of Sardinia, for relief, the subject was referred to this de. partment; aud, upon inquiries directed to the collector of New York, the letters herewith euclosed were received from that office, by which is appears that, viewing the additional sum levied as a penaliy, he has given notice to the importer, Polmeiri, that he must take his proceedings for relief under the act of 3d March, 1797."
I am very clear that the 50 per cent., in addition to the duty imposed by law on the description of goods mentioned in the last proviso of the 17th section of the act of 1812, is a penalty.
The question you propound is: “Is the Secretary of the Treasury em. powered, under the provisions of the act of 3d March, 17:7, continued in force by the act of 11th February, 1800, to mitigate or remit, as a penalty, fine, forfeiture, or disability, the sum additional to the duiy imposed by
law, levied under the 2d proviso of the 17th section of the tariff act of 30th August, 1842, in cases where the appraised value of goods shall exceed, by ten per centum or more, the invoice value of the same?” I answer in the affirmative. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. John C. Spencer,
Secretary of the Treasury.
Note. The foregoing was the last official opinion delivered by Mr. Legare. Whilst hold. ing and adorning the office of Attorney General, he died in the city of Boston, which he was visiting, on the 20th day of June, 1843.