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their several provisions upon the questions propounded to me; and there. upon am of opinion, first, that since the passage of the act of the 3d of March, 1843, the Secretary of the Navy is not competent to renew a contract which has expired, without advertising, as is required by the first section of that act; and, secondly, that it is not competent to the department to pay to the contractors upon forfeited contracts the ten per cent. reserved as collateral security, whether the same has been reserved on original or renewed contracts.
T'he truth of the proposition first stated is too apparent to require argy. ment to make it manifest. A contract forfeited for non-compliance with its terms within the period limited for its execution, is no longer such; and to stipulate for its renewal, is substantially but to make a second upon the terms of the first; and if within the power of the department, the end proposed to be accomplished by the enactment of 1843 might be most readily evaded and defeated. The authority to refund the ten per cent. reserved in pursuance of the terms of the contract, is not given by the joint resolution of 1832, nor by any other law to which I have been referred. The terms of that resolution apply to contracts then existing, and do not embrace such as might be afterwards entered into; and the fact of its adoption by the two branches of Congress is evidence of its necessity, in the view of the national legislature, to justify the action of the Navy Department; for if competent to refund in virtue of its own inherent power, the interposition of the legislative authority could not have been required to legalize its exertion. The ten per cent. reserved I regard as being in the nature of liquidated damages, which having once accrued upon the forfeiture of the contract, becomes a part of the money of the government, which can be withdrawn from its uses only by law. Nor can it make any difference whether the forfeiture is incurred under an original or an extended contract, since the extension of an expired contract is in effect a new one; and there is no more reason why a power of remission should exist in the one than in the other case. It is very true, that upon principle the extension of the time of a forfeited contract may be construed into a waiver of the original forfeiture, and that if a contractor upon a contract so extended should fulfil its obligations within the period of the extension, he would not be liable to the payment of the stipulated damages; but if he fail to perform his engagements under the reserved as well as the original contract, I cannot perceive how he is aided in regard to the forfeiture. The nature of the renewed stipulation is: “You have failed to execute your contract within the time limited by its terms: by that failure you have incurred the forfeiture of the ten per cent. reserved upon the payments made to you. The department will nevertheless waive the enforcement of this forfeiture, and will agree that you shall be at liberty within another year to complete your contract upon the same terms as are prescribed by the original covenant. One of those terms is, that the ten per cent. upon the payments made to you shall be reserved, and which will be forfeited to the United States if you are again in default.” How can it be pretended that, failing a second time to fulfil his engagements, the responsibility incurred by a contractor upon the first can be avoided by a new delinquency? The extension of the contract, as far as the question of forfeiture is concerned, is for the benefit of the contractor, to enable him to do that, the omission of which has exposed him to sacrifice, and is nothing more than a condivonal waiver, to which effect can be given only by the full compliance by the contractor with his renewed engage. ments within the period of the extension.
The contract transmitted to me is herewith returned.
JNO. NELSON. Hon. DAVID HENSHAW,
Secretary of the Navy.
VIOLATION OF SOVEREIGNTY-SEIZURE IN A FOREIGN JURISDICTION.
The seizure of an American vessel by another, also American, within the jurisdiction of a
foreign government, for an infringement of our revenue or navigation laws, is a violation of the territorial authority of the foreign government. To whatever extent a ship-of-war of the United States may be justified in seizing upon the
high seas a vessel of the United States sailing in violation of the laws thereof, and bringing her into our ports for trial and condemnation, no such authority to seize for such an offence can be rightfully exerted within the jurisdictional limits of a foreign power.
ATTORNEY GENERAL's Office,
November 29, 1843. Sir: It is quite clear that a seizure by an American ship of-war of the United States of any vessel within the jurisdiction of a foreign government for any infringement of its revenue or navigation laws, would be a violation of the territorial authority of such foreign government, and therefore indefensible. And it is equally clear, that to whatever extent a ship of war of the United States may be justified in seizing upon the high seas a vessel of the United States sailing in violation of the laws of the United States, and bringing her into our ports for trial and condemna. tion, no such authority to seize for such an offence can be rightfully ex. erted within the jurisdictional limits of a foreign power. The case of the schooner Ariel is not so distinctly stated as to enable me to give an opinion upon the question, whether, being within the jurisdiction of the courts of the United States, she would or would not be liable to condemnation. But I am very clear that force should not be resorted to, to bring her within the sphere of that jurisdiction. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. David HENSHAW,
Secretary of the Navy.
POWER OF SECRETARY OF TREASURY RESPECTING CERTAIN FLORIDA
The Secretary of the Treasury has power to review decisions of the judge of the superior
court in Florida upon claims presented under the treaty with Spain and the acts of 1823 and 1834, and to pay the amount that he may adjudge to be due, the awards of the judge not being in law conclusive thereon. The acts of 3d March, 1823, and 26th June, 1834, were both designed for the single purpose
of carrying out the ninth article of the treaty of 1819 with Spain, and should be read as in
pari maler a And the second section of the act of 1834 is to be read as intervening between the first and
second sections of that of 1823, in order to introduce in that connexion a class of cases which had been ruled out by Mr. Rush.
The act of 1834 does not touch the authority of the Secretary, unde the act of 1823, to judge
of the justice and equity of the claims presented. The only authority vested in the Secretary to pay these claims is contained in the act of
and can be exercised only under the restrictive proviso that he is satisfied that th
and equitable. The Secretary is not authorized to allow interest on these claims, it not having
of the government to do so; vor di es its duty to the claimanis under the circu quire it. (See opinion of Mr. Crittenden in the case of Pierson Cogswell.)
ATTORNEY GENERAL'S OFFICE,
Décember 9, 1843. Sir: The case of Zephaniah Kingsley, a claimant under the 9th article of the treaty with Spain, of the 22d February, 1819, which was referred to me for my opinion, by your communication of the 11th of November, has been deliberately examined, and the views presented by Mr. Tall. malge, in his elaborate argument, having been arefully weighed and considered, I now proceed to submit to you very unlefly the conc usions to which, upon the several questions proposed by you, I have cor and some of the reasons upon which those conclusions are founded.
The first of these questions involves the inquiry whether the ury of the Treasury, under the act of the 3d of March, 1823, entit · An act to carry into effect the 9th article of the treaty concluded be seen the United States and Spain, on the 22d of February, 1819," and the act of the 26th of June, 1834, “ for the relief of certain inhabitants of East Florida,” is authorized to disallow any part of the awards made by the judge of the superior court in Florida, on claims for losses or injuries sustained in East Florida in the years 1812 and 1813, such awards hav. ing been made on claims presented under the provisions of the said act of the 26th of June, 1834, or whether the awards of the said judge are to be considered final and conclusive in regard to such claims, and arises under the following circumstances: The last clause of the 9th article of the treaty referred to, provides that “the United States will cause satisfaction to be made for the injuries, if any, which, by the process of law, shall be established to have been suffered by the Spanish officers, and individual Spanish inhabitants, by the late operations of the American army in Florida."
To carry into effect this stipulation of the treaty, the interposition of Congress was necessary; and accordingly, on the 3d of March, 1823, an act was passed consisting of two sections, the first of which authorized and directed the judges of the superior courts established at St. Augustine and Pensacola, in the Territory of Florida, respectively, to receive and adjust all claims, arising within their respective jurisdictions, of the in. habitants of said Territory, or their representatives, agreeably to the provisions of the 9th article of the treaty with Spain, by which the said Territory was ceded to the United States; and the second required the decisions made by the said judges, with the evidence on which they were founded, to be reported to the Secretary of the Treasury, who, on being satisfied that the same were just and equitable, within the provisions of the said treaty, was required to pay the amount thereof, to the person or personis in whose favor the same were adjudged, out of any money in the treasury not otherwise appropriated.
The Secretary of the Treasury, who was called on to carry into effect the provisions of this law, (Mr. Rush,) looking to the terms of the treaty within which, by the act of Congress, claimants were required, before they could be paid, to satisfy him that their demands were just and equi. table; and interpreting the expression, “the late operations of the American army in Florida," as meaning those subsequent to the commencement of the campaign of 1818, rejected, as unprovided for, all claims for injuries sustained in 1812 and 1813; and such continued to be the action of the department till the passage of the act of the 26th of June, 1834, when, with a view to extend the provisions of the act of 1823, so as to embrace claims for injuries suffered in 1812 and 1813, Congress declared1st, that the Secretary should pay, out of any money in the treasury not otherwise appropriated, the amount awarded by the judge of the superior court at St. Augustine, in the Territory of Florida, under the authority of the act of the 3d of March, 1823, before referred to, for losses occa. sioned in East Florida by the troops in the service of the United States, in the years 1812 and 1813, in all cases where the decisions of the said judge should be deemed by the Secretary to be just; and, 2d, that the judge of the superior court of St. Augustine should be authorized to receive, examine, and adjudge, all cases of claims for losses occasioned by the American troops in 1812 and 1813, not theretofore presented to the said judge, or in which the evidence was withheld in consequence of the decision of the Secretary of the Treasury that such claims were not pro. vided for by the treaty of the 22d of February, 1819, between the United States and Spain.
Those enactments, in my opinion, are to be regarded as constituting but one law. They relate to one and the same subject, and were obviously designed to consummate a single object-the execution of the last clause of the 9th article of the treaty of 1819. They are in pari materia, and should be read together; and the only just interpretation which can be placed upon their several provisions is to look at them as incorporated into a single statute. Any other rule of construction applied to them, it strikes me, would utterly defeat the liberal purposes of Congress in enacting them, and deny to claimants the relief contemplated to be ex: tended to them. The original law, apart from the decision of the Secretary of the Treasury as to the class of cases covered by it, is too plain and unambiguous in its terms to admit of misconstruction. It distinctly requires, to authorize a payment out of the treasury in gratification of any claims preferred, not only that the judge shall decide in favor of the claimants, but that the decisions, with the evidence on which they are founded, shall be reported to the Secretary of the Treasury, and that he shall be satisfied that the same are just and equitable.
If, in interpreting this law, the Secretary of the Treasury has considered that injuries inflicted upon the persons complaining in 1912 and 1813 were embraced, no one can doubt that, in applying its provisions to such claims, he must have reviewed the decisions of the judge as he was required to do in other cases; and, if the purpose of the act of 1834 was to correct this supposed misconstruction, by giving to the act of 1823 scope enough to cover the claims made, but rejected under it by the Secretary, can it be supposed that it was the design of Cougress, by the new enactment, to carry the mode of proceeding designed for the protection of the United States, and to commit their interests to the exclusive and unrestrained control of the Florida tribunals? That such was not the design of Congress, apart from general considerations, is, I think, apparent upon the face of the act of 1834, by the first section of which it has explicitly recognised the principle of the act of 1823, in requiring, in regard to such of the claims for injuries sustained in 1812 and 1813 as had been antecedently reported to the Treasury Department, that, be. fore paying them, the Secretary should be satisfied that the decisions of the judge were just. And it would be difficult, I think, sucessfully to maintain that, by the act referred to, it was the intention of Congress to place other claims of the same class upon a different footing with reference either to the mode or the extent of the remedy provided. It is true that the 2d section of the act of 1834 does not reiterate the provisions contained in the act of 1823, by which a revisory control over the decisions of the judge is given to the Secretary of the Treasury; but it is equally true that said section does not require or authorize the judge to report his decision thereunder to the Secretary; and what is much more important, it contains no authority to the Secretary, under its provisions, to pay one dollar out of the treasury; and if, therefore, an interpretation is to be given to the act of 1834, independently of its connexion with the act of 1823, the transcript of the proceedings before the judge in Florida is not properly in place in the department of the treasury, the head of which is without authority in any way to deal with them, much less to pay the claims certified by them. T'he only authority to make payments, possessed by the Secretary of the Treasury, under the act of 1834, is to be found in the first section, and applies to a specified class of cases, of which the claim under consideration is not one; and that authority is coupled with a duty to review the decisions of the judge, and the evidence on which they are founded, and to pay what he may deem just. If, therefore, the authority to pay this demand is vested in the Secretary of the Treasury at all, not falling within the particular terms of the act of 1534, it must be under the act of 1823; and the authority under that act is not unqualified, but conditional "on his being satisfied that the same is just and equitable within the provisions of the treaty of 1819."
Of the authority of the Secretary, however, to make these payments, I have no doubts, since it would defeat the liberal purposes of the act of 1834 to deny its existence-satisfied, as I entirely am, that the 20 section of the act of 1834 is to be read as intervening between the 1st and 2d sections of the act of 1823, the object of the act of 1834 being merely to introduce within the operation of that of 1823 a class of cases excluded from it by the overruled decision of Secretary Rush. To this conclusion Mr. Tallmadge, in his able argument, has offered a very ingenious sug. gestion, founded on the last proviso to the 2d section of the act of 1834. It is substantially this: The first section authorizes the payment by the Secretary of the 'l'reasury of the awards reported to the department under the act of 1823, and rejected, for the reason before stated, in all cases wherein he hall deem the decisions of the judge to be just,“ provided that no award be paid except in the case of those who, at the time of suffering the loss, were actually subjects of the Spanish government; and provided, also, that no award be paid for depredations committed in East Florida previous to the entrance into that province of the agent or troops of the United States." And the authority conferred by the second section upon the judge of the superior court at St. Augustine is restrained by the same limitation: “ provided that the authority therein given shall be subject to the restrictions created by the provisions of the preceding section.”
Now, Congress having imposed upon the authority of the judge those