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It does not occur to me that the allowance of the claims of Mr. Mecklin the agent of the Government, for the disbursements which he was compelled to make in consequence of the abandonnent of the contract by the owners of the Washington Barge, can in any degree impair the right of the United States to recover against them.
JN. MACPHERSON BERRIEN To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE,
June 2, 1830 Sir: I have considered the question arising on the papers referred from your department, and I am of opinion that the case stated is not within the provisions of the act of the 3d March, 1819, or of that of the 24th May, 1828, extending the former act to cases where patents have issued or shal issue; or of the act of 18th May, 1824, authorizing the correction of errors in the entry of lands.
The provisions of these acts do not seem to me to be applicable to the case of Mr. Hendricks. If the objection to the exercise of this power were derived merely from the use of the term “purchasers” in the several acts, it might be said, and perhaps with truth, that, in a large sense of that terit, but one which is recognised by law-writers, the Canadian volunteer or his assignee is a purchaser. The difficulty is more pervading. The provisions of these laws seem to contemplate, exclusively, entries made by purchasers
, (using that term in its limited sense) by directing the application of the money paid on the entry. Thus the act of 1819 declares that the purchaser shall be at liberty to withdraw the entry so erroneously made; and that the moneys which had been paid shall be applied in the purchase of other lands," &c. So the act of 1824 relates to the cases of purchasers at private sale ; to those where payments have been made ; where such payments have not been forfeited ; where the purchasers have not taken the benefit of the act of 1821
. for the relief of purchasers—which was confined to money purchasers.
I had supposed, for a moment, that the provisions in the act of 1824 which authcrizes the correction of the error," in all cases of an entry hereafter made of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered,” &c., might have been ex. tended to the case under consideration ; but, on examining the patent, ! appears to be dated in 1822. And, pursuing this provision to its close, it is found that it also looks to the correction of the error by a " transfer of the payment from the tract erroneously entered to that intended to be," &c. Thus showing that, in this provision, as well as those which precede it
, Congress had in view the correction of errors in entries made on purchases of which money was the consideration.
It is very probable that, if such a case as that we are considering had been in the view of Congress, the provisions of these acts might have been extended to them; but, under the existing laws, I do not think you are authorized to niake the correction.
JN. MACPHERSON BERRIEN To the SECRETARY OF THE TREASURY.
ATTORNEY GENERAL'S OFFICE,
June 2, 1830. Sir: I have, in conformity to the instructions of the President, examined he case of Joseph Shaw, and find that he was placed on the revolutionary pension list on the 11th day of October, 1827; and that, by an act approved in the 28th May, 1930, you are directed to cause him to be paid at the ate of eight dollars per month, from the 10th April, 1818, to the day of the date on which his pension was allowed to commence, under the regulations of the Department of War; but that this act contains no special appropriation of money to meet its requisitions.
The question which this state of facts presents is, whether this amount of arrearages is payable out of the general appropriation for revolutionary pensions for the current year? and I am of opinion that it is so payable. The sum appropriated is generally for “revolutionary pensioners," of which class Joseph Shaw is one. No transfer of appropriation is therefore requir2d. It is true that this appropriation, having been made on an estimate in which the arrearages of Joseph Shaw were not included, may be inadequate o meet all the claims for which it was intended to provide ; but, if this should happen, it will result from the omission of Congress to provide specially for the additional charge which they have thus imposed on this particular fund, and the deficiency must be supplied hereafter. In the mean time, it is scarcely probable that such deficiency will occur before Congress will have time to provide for it.
JN. MACPHERSON BERRIEN. To the SECRETARY OF WAR.
ATTORNEY GENERAL'S OFFICE,
June 4, 1830. SIR: In answer to your inquiry, whether it would be competent for an officer of the navy under arrest, and the department, to dispense with the ttendance of witnesses, and, by common consent, to take depositions to be ised on the trial, when objected to by the officer preferring the charges :" I lave to state that, in my opinion, such depositions would not be competent vidence.
The 37th article of the rules and articles for the better government of he navy, and the 74th article of the rules and articles for the government of the army, seem to contemplate exclusively the examination of witnesses before the court. The 74th article of the latter code, by providing, under ertain restrictions, and in cases not capital, that depositions may be taken, legatives their allowance in other cases; and the existence of the provision ufficiently proves that, without it, such testimony would not be competent, ven in those minor cases. English writers on this subject insist upon the ropriety, in trials before naval and military courts martial, of adhering to he rules of evidence established in the common law courts of criminal ju. isdiction; and these would not authorize the course proposed in the case inder consideration.
JN. MACPHERSON BERRIEN. To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE,
June 4, 1830 Sır: The act for the relief of the widows and orphans of the officers seamen, and marines of the sloop-of-war Hornet, fixes the 10th day of September last as the day up to which their arrears of pay should be calculated Any moneys, therefore, which were advanced for pay, supposed to bare accrued after that period, have been paid by mistake, and may be recovered back. The same act gives to the widows, children, parents, or brothers and sisters, (as the case may be,) of those officers, &c., a sum equal to si months' pay of their respective deceased relatives. In cases, therefore, where moneys have been advanced in the manner above stated to the same persons who are entitled to this bounty, such persons are both debtors and creditors to the United States : debtors for the money paid them by mistake, and creditors for the amount of the bounty given by the act. In such cases the right of retainer, by deducting the amount advanced, would seem to be allowable. But where the money advanced by the order of the officer, seaman, or marine, was advanced to a person other than the one entitled under the provisions of the act to the bounty which it allows, such deduction can not, I apprehend, be permitted. It is only tolerated in the first case, on the ground that the person claiming the bounty is liable to the United States by force of his own receipt of money, which, as has subsequently appeared he was not entitled to receive, and for which, therefore, he is liable to ac count. Even against the right of retainer, in the first case, it may, I am aware, be urged that Congress has provided expressly for the exercise ol this right in certain cases, not including that under consideration; but it seems to me that these provisions may be considered as directory, and for the enforcement of a principle of the law of retainer which exists indepen dently of them.
JN. MACPHERSON BERRIEN To the SECRETARY OF THE Navy.
ATTORNEY General's Office,
June 8, 1830 Sir: I have received the papers which the Second Auditor of the Treas ury has, in conformity to your direction, transmitted to me; and have com sidered the question proposed, viz:
" Whether Generals Coffee and Hinds, late commissioners to hold treatie with the Chickasaw and Choctaw Indians, are bound, under the circum stances of the case, to account to the Government for the depreciation o the money deposited by them in bank to the credit of the Treasurer of the United States."
The circumstances of the case, as detailed in the report of Mr. Stew art, of the Second Auditor's office, are as follows:
“Upon the adjustment of the accounts of Generals Thomas Hinds and John Coffee, commissioners to treat with the Choctaw and Chickasaw na tions, on the 30th July, 1827, a balance of $3,646 03 was reported du from them 10 the United States. Subsequent thereto, 81,269 29 have been passed to their credit; leaving a balance to their debit at this time $2,376 74. Against which they claim an offset of $2.375, deposited by them to the credit of the Treasurer of the United States in the Bank of the
State of Mississippi, on the 4th of December, 1826, which has been susended in consequence of the Treasurer declining to recognise this deposite; ind the following statement of facts is given in reference thereto: 5* On the 24th May, 1826, the commissioners were advised, as per letter f instructions herewith, (A,) from the Secretary of War, that $20,000 were ubject to their order for the purposes contemplated by their trust. They rew but $15,000; for which they received, in negotiating their drafts, the aper deposited by them in bank, at the time as available for all their purposes as specie. After having executed their trust, they transmitted to this office a statement of their disbursements; upon the adjustment of which, the foresaid balance of $3,646 03 was found against them. On the 4th of January, 1828, the certificate of deposite herewith, (B) for $3,628 79, was handed over to this office from the Department of War, to be passed to the credit of the commissioners, by order of the Secretary of War, as per paper ierewith, (C;) but, upon communicating to the Treasurer this deposite to uis credit, only $1,253 79 would be admitted by him, as per paper hererith, (D,) declining to allow that part of the deposite termed special deosile, of $2,375.
"• The certificate of deposite was returned to General Hinds on the 7th anuary, 1828, advising him of this determination of the Treasurer, as per etter from the Office of Indian Affairs, Department of War, herewith, (E) lirecting liim to convert the special deposite' into funds that would meet he views of the Treasurer, and to forward a proper voucher for any exense attending the negotiation.
" General Hinds, upon receipt of this certificate, withdrew the special eposite' of $2,375, leaving the deposite of $1,253 79 to the credit of the Treasurer of the United States, for which a credit has been allowed the ommissioners. They now hold the $2,375, as per letter herewith, (F) abject to the order of the Government; not being able to convert it into vailable funds, upon the plea that it is the same paper as received by them of their drasts, and that they are not bound for any deterioration in value;
being, at the time it was received, as available for all the purposes of their rust as specie, and that they have received no benefit from the transaction." " An appeal has been made to the Treasurer, as per his letter herewith, 4,) referring it to the Secretary of the Treasury, (who, it is understood, has een consulted, but declines interfering ;) all of which is now respectfully abmitted for your decision, with the remark, that the commissioners were ppointed by the President of the United States, to be regulated in the disharge of their trust by instructions from the Secretary of War; that they lere empowered to draw for $20,000, and drew but $15,000; that, imbediately after the termination of their labors, they made out a statement f their disbursements, and deposited in bank the same funds they had reeived, to an amount sufficient, by their statement, to cover the balance gainst them; that the deposite, thus made, was approved, as per letter of d January, 1828, herewith, (H,) by the Secretary of War, to whom alone ley were accountable; and that if, instead of a loss resulting from their egotiations, a premium bad accrued upon their drafts, they could not ave benefited thereby, as it would have been placed to their debit, in onformity with the established and uniform practice of the department."
On this state of facts I am of opinion, that Generals Coffee and Hinds are Lot bound to account to the Government for the depreciation of the money leposited by them in bank to the credit of the Treasurer of the United States.
These gentlemen were officers of the United States, who received in compensation for their services a per diem, which was fixed, and an allowance for travelling expenses. They had no interest whatever in the exchange or disbursement of the money. Both these acts were performed in the discharge of their official duties as the agents of the Government, on its account and for its benefit. The money was to be expended under the direction of the President, given through the Secretary of War. That direction was given. The commissioners entered upon the discharge of their duties, drew for $15,000 of the sum appropriated, and realized the proceeds of their bill in the only practicable mode at the time and place where the transactions occurred. The money so raised was applied to the purposes for which it was intended; and the balance remaining after these purposes had been fulfilled, was deposited to the credit of the United States : since which, it has depreciated. I confess myself unable to discover any ground on which the commissioners can be made responsible for this depreciation. The mone? in their hands was still the money of the United States, and not theirs
. If it had been received at a discount, and had appreciated while in their hands, the benefit would have accrued to the Government. A very obrious principle of justice exempts them from responsibility for loss, when no possible change of circumstances could have inured to their benefit.
I have considered whether there was any negligence in this transaction or want of proper skill, on the part of the commissioners, which could subject them to responsibility ; but I can find none.
They were advised of their appointment in May, 1826, and authorized to draw for the amount of the appropriation. They limited their drafts to $15,000, and negotiated them for such funds as were available at the scene of their official duties. When these were accomplished, they deposited the balance in their hands to the credit of the Treasurer of the United States and transmitted the certificate to the Secretary of War; who, replying through the superintendent of the Office of Indian Affairs, informed then that the certificate would be allowed and their accounts settled. Here
, i would seem, the transaction was closed. The Secretary (under the direc tion of the President, it is to be presumed) had approved their conduct and ratified the deposite. They were accountable to him only, and they had accounted to his satisfaction. He had adopted their acts, which were there after to be considered as the acts of the department-or rather of the Presi dent, acting through the department. If, in his management of the appro priation, a portion of it had been converted (as it appears to have beer anavoidable) into funds which were not receivable at the Treasury of the United States, it would seem to me unquestionable that the duty of ra exchanging it for available funds would devolve upon him; and that all loss which might attend the transaction must be borne by the Government to whom, in its various mutations, this money had constantly belonged.
JN. MACPHERSON BERRIEN To the PRESIDENT OF THE UNITED STATES.
ATTORNEY GENERAL'S OFFICE,
June 10, 1830 Sir: I have received your communication of yesterday's date, in which you inform me that, under the act entitled “ An act for the relief of certain