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traffic which may not as well be sold on that coast as in any other foreign place or kingdom. Nor is there anything in said laws to forbid the sale of American vessels, deliverable on the coast of Africa. If such sales be bona fide made, and without a design to aid in the prosecution of the slave. trade, the parties making them are not in the slightest degree implicated, even if such vessels be afterwards so improperly employed. It is the intent which in all cases of this description gives character to the act, and an intent personal to the party connected with the act. If the vessel, therefore, be seized upon the coast of Africa, charged with being connected with the slave trade, her fate and that of her owners must in any case depend upon the ascertainment of the fact of the intent with which she may be there. If that inteut be lawsul, she and they will be protected; if for the purpose of being employed in the transportation of slaves, she will be condemned, and they will be subjected to the penalties denounced by the laws. This intent may be demonstrated by the character of the cargo, as it may by other circumstances, the fact being a matter to be found by the tribunal having jurisdiction over the subject, as in all other cases. I do not, therefore, concur in the opinion expressed by the consul of the United States at Rio Janeiro," that any citizen of the United States who may sell an American vessel in that port to a slave dealer, deliverable on the coast of Africa, thereby aids and abets the slave-trade.” He has no right to lend his assistance to such slave-dealer by navigating the vessel to the coast of Africa, upon an outward slave-trade voyage; it he does, he is a participant in the trade, and as such subject to punishment. But if he make a bona fide sale of his property, deliverable upon the coast of Africa or elsewhere, he does not thereby incur any responsibility. The fact that the person to whom he makes the sale may be a slave-dealer, with. out other proof of his participating in the traffic, will in nowise implicate him.
That a citizen of the United States who may charter an American vessel to a slave dealer to deliver at his factory or to his agents on the coast of Africa, articles which may be exchanged for slaves, or food which may be used to supply them, is thereby necessarily implicated as aiding and abetting the slave-trade, cannot, I think, be affirmed as universally true. A trade in articles of necessity to the coast of Africa is not interdicted by our laws, nor in the sale of such articles npon the coast of Africa to one engaged in the prosecution of the slave trade thereby prohibited. Nor does the chartering of a vessel for such an object per se involve any violation of the provisions of our statutes. In this, as in all other cases, the character of the act must be reflected from the purpose with which it is done. If an American citizen charter his vessel for the prosecution of a slaving voyage, he will be guilty of a violation of the slave-trade acts; but if he charter his vessel for the prosecution of a voyage which is prima facie innocent, the fact that it may be converted to an inhibited ulterior purpose will not expose him to penalty, or his vessel to forfeiture. As I have said before, each case under these laws must be governed by its own circumstances, and be disposed of according to the evidence showing the existence or non-existence of an intent to be engaged in the prosecution of the prohibited traffic. I have the honor to be, very respectfully, sir, your obedient servant,
JOHN NELSON. Hon. A. P. UPSHUR,
Secretary of State.
CLAIM OF INFORMERS AGAINST TRESPASSERS ON LIVE-OAK TIMBER
Live-ork timber cut in violation of law for the purpose of transportation is not subject to
forfeiture, so as to give informers a right to a distributive portion of it-such timber being all the while, in law, the property of the United States.
ATTORNEY GENERAL'S OFFICE,
September 2, 1843. Sir: It is quite clear that the claim of Mr. Walker, to which your com. munication of yesterday relates, cannot be supported. The 3d section of the act of the 2d of March, 1831, declares that all penalties and forfeitures incurred under the provisions of this act shall be sued for, recovered and distributed, and accounted for, under the direction of the Secretary of the Navy, and shall be paid over, one-half to the informer, or informers, if any, or captors where seized, and the other half to the commissioners of the mavy pension fund, for the use of the said fund. The penalties and forfeitures thus incurred are defined in the first and second sections of the act; the first imposing upon the offenders therein described a fine not less than triple the value of the tree or trees or timber unlawfully cut; the second rendering liable to forfeiture the ship or vessel on board of which the timber so cut shall be found, with her tackle, apparel and furniture; and the captain or master of such ship, when such timber shall have been exported to any foreign country, to a penalty of not exceeding one thousand dollars. The act makes no provision for the forfeiture of the timber, and it would have been extraordinary if it had; because, the property therein being in the United States, no judg. ment of condemnation could be necessary to give title to the government. The interposition of a judicial tribunal niay be necessary to identify the timber, and to show it to be the property of the public; but this ascera tained, the right of the government to hold it is complete. The idea of the government providing for the forfeiture and condemnation of its own property, for its own benefit, strikes me as a novelty. However that may be, it is quite certain that timber or trees cut in violation of the act of Congress are not within the penalties and forfeitures to one-half of which an informer can lay claim. I have the honor to be, very respectfully, sir, your obedient servant,
JOHN NELSON. Hon. DAVID HENSHAW,
Secretary of the Navy.
EXECUTIVE POWER OF APPOINTMENT.
The executive department, being charged with the duty of seeing that the laws are faithfully
executed, has authority to appoint commissioners and agents to make investigations required by acts or resolutions of Congress; but it cannot pay them, except from an appropriation for that purpose.
ATTORNEY GENERAL'S OFFICE,
September 21, 1843. SIR: I have had the honor to receive your communication of the 19th instant, and have duly considered the questions therein propounded; upon which I am of opinion, 1st, that you have the power to appoint an agent or commissioner to make the investigations proposed; and, 2d, that such agent or commissioner cannot be paid for his services under the act of the 17th of July, 1842, or the act of the 3d of March, 1843, but must await the action of Congress, and the specific appropriation of means for his payment, agreeably to the provisions of the act of 26th of August, 1842. The power of appointment results from the obligation of the executive department of the government “to take care that the laws be faithfully executed;" an obligation imposed by the constirution, and from the authority of which no mere act of legislation can operate a dispensation. Congress may, however, indirectly limit the exercise of this power by refusing appropriations to sustain it, and thus paralyze a function which it is not competent to destroy. This would seem to be the purpose of the act of the 26th August, 1842, which may be regarded as an exposition of the legislative will, and to which, except in cases of commanding exigency, I think the executive actiou should be conformed; for, whilst it is quite clear that the power of appointment is unimpaired by the acts of Congress referred to, it is equally obvious that the intention of those by whom they were passed was to discountenance its ordinary execution.
The terms of the act of August, 1842, are free from all ambiguity. They unqualifiedly prohibit any payments to agents or commissioners, thereafter to be appointed, except out of specific appropriations to be made
In all cases, however, even in those of the most pressing urgency, in which the executive departments of the government might feel that the best interests of the country called for the exercise of the appointing power, a resort to Congress for the nieans of compensating the appointees would be indispensable. The authority to requite the services of officers so appointed cannot be safely inplied from the general terms of an appropriation law, which should always be interpreted in subordi. nation to the limitations imposed by existing and qnalifying enactments. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON Hon. JAMES M. PORTER,
Secretary of War.
COMPENSATION OF SUPERINTENDENTS OF LIGHT-HOUSES.
Collectors of customs, acting as superintendents of light-houses, are entitled to commissions
upon disbursements made by them in that capacity, subject to the limitation imposed by the 18th section of the act of May 7, 1822.
ATTORNEY GENERAL'S OFFICE,
September 22, 1843. Sir: I have examined the acts of Congress referred to in your commu. nication of the 19th instant, and considered their bearing upon the ques. tion therein propounded, and am of opinion that they do not preclude the allowance to collectors of commissions upon disbursements made by then in their capacity of superintendent of light-houses, subject to the limitation imposed by the 18th section of the act of May 7, 1822. The annual appropriation bills (for example, those of May 18, 1842, and March 3, 1843) make special provision for the payment of 2) per cent. for superintendents' commissions. To that extent, therefore, there can be no doubt that those who are properly superintendents may claim compensation. The inquiry, then, is, are collectors capable of acting as such superintendents, so as to be entitled to commissions ? A part from the provisions of the act of 1839, this question would be free of all difficulty. From 1789, down to the passage of that act, collectors had been charged with the disbursements upon the light-house service, and had received commissious. There was nothing in the pre-existing law to forbid their employment as superintendents, or to deny to them a just compensation for their services. The only limitation to be found on the statute-book was that contained in the 18th section of the act of May 7, 1822, which in terms recognised the ability of this class of officers to render service in other offices or capacities, but restrained their allowance therefor, ex. clusive of their compensation as collectors, to four hundred dollars per annum. Does the act of 1839 operate any change in regard to these officers? The terms of that law are: “ That no officer in any branch of the public service, or any other person, whose salaries or whose pay and emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disburse. ment of public money, or for the performance of any other service, unless the said extra allowance or compensation be allowed by law.”
That collectors are ~ officers,” or “ persons whose salaries or whose pay or einoluments are fixed by law and regulations,” I have no doubt; and that the provisions of the act of 1839, in cases embraced by it, apply to them, I am equally clear. But it by no means follows, in my appre. hension, that upon the true interpretation of that act, they are precluded froin employment as superintendents of light houses, or from the allowance of commissions provided by the appropriation law. On the contrary, it strikes me that the terins of the act are precise to justify such employment, and a proper allowance.
The purpose of Congress in the enactment was not absolutely, and in all cases, to prohibit the employment of any class of officers in the discharge of extra services, or the disbursement of public money, or to deny them a just compensation when so employed, but only to apply the prohibition to cases in which no extra allowance or compensation had been authorized by law. The object in view was to guard against the exercise of executive discretion on the one hand, and the claims arising by implication, and thus asserted by public officers, on the other. It was not 80 much to prescribe disabilities as against public agents, as to guard and protect the treasury against unforeseen demands; the necessity of the provision having been suggested by the doctrines maintained by the Supreme Court in the cases of McDaniel, Fillebrowne, Nourse, and others, against the United States. Hence the act does not forbid extra allowances to the otiicers to whom it applies in proper cases—in those in which provision is made by law for extra compensation—but only in those in which Do such provision is made. Now, in the case of the disbursements of public money on the light house service, Congress has appropriated for comunissions. The payment of 2} per cent. upon such disbursements is authorized by law, and may be made in entire consistency with the terms of the act of 1839. It is very true that the appropriations thus made are not to the collectors eo nomine, but they are to superintendents of lighthouses; and if those superintendents be collectors, they are to collectors
substantially. The terms of the appropriations do not exclude collectors, and are as strictly applicable to them as to any other description of persons who may in fact be superintendents.
If the appropriation bills had not prescribed the commissions to be allowed, but had merely provided a fund for contingencies, under the act of 1839 no allowance could be made to collectors discharging the duties of superintendents, because, being public officers whose pay and emolu. ments are fixed by law, they would, by the terms of the act, be excluded from compensation for the disbursement of the public money; but where the extra allowance is ascertained and authorized by law, the very case in which allowances are to be made under the act of 1839 is presented.
And, indeed, had the act of Congress in terins named collectors as officers entitled to receive the commissions, to cover which appropriations have from year to year been made, it would have recognised them as cI officio superintendents by virrue of their appointments as collectors; and then the allowances to be made would have ceased to be extra, but would have become the necessary and incidental perquisites of the collectorships.
My impression is, that the prohibition contained in the act of 1839 is limited in its application to cases in which the extra service or compensation is not authorized by law; and that where such allowance or compensation is authorized by law, no class of officers, whether collectors or others, who may be charged with the duty intended to be compensated, are precluded from receiving the allowance. And this view of the law is fortified by the consideration, that in none of the appropriation bills passed since the act of 1839 has Congress particularized the superintendents, to whom the commissions allowed are to be paid, although presumed to be aware that the uniform practice was, to employ the collectors in the discharge of the duty of disbursing this portion of the public inoney.
The 5th section of the act of the 3d of March, 1841, amongst other things, declared that no collector “shall, on any pretence whatsoever, hereafter receive, hold, or retain for himself, in the aggregate, more than six thousand dollars per year, including all commissions for duties and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed or limited by law.” This would seem to recognise the existence, as legal, of other commissions than those necessarily pertaining to the office of collector, and may cover the subject now under consideration. However that may be, I am of opinion that by the true construction of the several acts of Congress referred to, collectors may be employed as superintendents of light-houses, and may receive the commissions appropriated as a compensation for their disbursements of a public money made in that branch of the public service, subject to the limitation already indicated as imposed by the act of 1822. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. John C. SPENCER,
Secretary of the Treasury.