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ATTORNEY GENERAL'S OFFICE,
February 11, 1831 SIR: I have considered the case of Messrs. Ward & Taylor, army Com tractors, who claim an allowance of $1,795 937, for provisions lost in te public storehouse at Fort St. Philip, on the 19th August, 1812. This case has been referred to me, at the request of the Second Comptroller ; and its upon his statement of facts, now before me, that this opinion is given.
The claim is founded on the 8th article of the contract between the Colted States and the claimants, which stipulates that at all stationary post proper storehouses shall be provided, on behalf of the public, for the recep tion and safekeeping of the provisions deposited from time to time ; and the contractors shall suffer no loss for want of such storehouses ;" and upon the alleged insufficiency of the buildings in which these provisions were depos ited.
No question is made as to the fact of the loss, nor as to the manner of is occurrence ; since it is stated to liave been proved that “The storehouse and the whole of its contents were swept away by the storm and current of the river, and destroyed; by which the provisions were lost."
Nor is there any deficiency of proof as to the description of the storhouse. From the statement, it appears to have been a temporary building
, and is clearly proved to have been erected outside of the fort, on the na gin of the river, greatly exposed to storms and to the overflowings of that stream.
I confess I think this claim is very clearly within the provisions of the 8th article of the contract, on which the claimant relies for its support
. The fact and manner of the loss being ascertained, the only renaning inquiry is, Was this a “ proper storehouse”-such a one as ihe Gorerkment contracted to furnish ; and for the want of which, they stipulated tha the contractors should sustain no loss? I think all must agree that it wa not. A temporary wooden building, erected outside of the fort, on the mer gin of a river habitually overflowing its banks, cannot be cousidered a safe place for the permanent deposite of the provisions of an army. It was po culiarly exposed to various injuries, from which a more judicious location and a more substantial structure would, in a great degree, have exemple it—from the description of the building, and from being outside of the fort to the torch of an incendiary, and to the pilfering of the thief; from its si uation on the margin of the river, to the tury of storms, and to the over flowing of the stream.
It is no answer to this to say, that if a “proper storehouse” had been pro vided, the loss might still have occurred, because even such a building, the best structure and in the most secure location, might not have withsto the fury of the hurricane and the violence of the current. The reply instant and obvions. Such an argument overlooks the positive riolase of the contract by the Government, to speculate upon what might have hat pened if that contract had been fulfilled. We know certainly that th Government did not fulfil its contract, by providing a "proper storehouse It must always remain uncertain what would have been the result if the contract had been tulfilled ; and this uncertainty is the consequence of the Dery neglect on the part of the Government. The Government, then, ca not take advantage of its own wrong to subject the claimant to a loss free the uncertainty produced by its own violation of its own contract. “ proper storehouse” bad been provided, all uncertainty would have
moved. Since the Government failed to do so, every presumption is in ivor of the claimants, because it is the wrong of the Government which as occasioned the uncertainty.
A question entirely analogous to this occurs in cases of marine insurance; nd no court of justice would listen to such an objection as that which we re considering. There is an implied warranty on the part of the assured lat their vessel is seaworthy ; by which is meant, not only that the hull of le vessel is sound, and her sails and rigging in good order, but that she is roperly manned and equipped, and in all respects fitted for the voyage. f the vessel be lost, and it should be ascertained that, from a deficiency in ny of these particulars, she was unseaworthy, it is wholly immaterial vhether the loss was owing to that cause or not; the covenant of the owners ; broken, and they cannot recover on the policy. If the loss should be oc. asioned by a tempest, it would be no answer to say that ils violence was ach that any vessel, however seaworthy and stout, must have perished be. eath its fury. The reply is, the vessel which the underwriters contracted insure was a seaworthy vessel, and this is not so. The owners are referred their covenant, and to the breach of it; and are compelled to abide the 85. And so in this case. The claimants agreed to take the risk of their rovisions, upon being furnished with a “proper storehouse,” which the lovernment contracted to pravide. Until such a storehouse was provided, hey were wholly at the risk of the Government. I think the right of the claimant in this view is so exceedingly clear, at I deem it unnecessary to consider the other ground of the claim. Ined, some further explanation would be necessary to enable me to deterine the question which it presents. I do not ask it, however, because I a entirely satisfied with the view which I have taken of the claim on the
IN. MACPHERSON BERRIEN
To the SECRETARY OF War.
ATTORNEY GENERAL'S OFFICE,
February 17, 1831. Sir: I have considered your communication on the subject of sundry counts of marshals employed in taking the census of the inhabitants of United States. I do not perceive that the district or territorial judges have any authority der the act of the 23d March, 1830, besides that which belongs to every tice of the peace—that given by the fourth section, which provides for increased allowance, under their sanction, in the case specified in the sec0; and that contained in the tenth section, which makes a like provision the case designated in that section. As the cases upon which you desire
opinion do not fall within either of these special provisions, their cortness is to be tested by the provisions of the law. Your first question must be answered affirmatively. It'is made the duty the marshals "10 appoint one or more assistants in each city or county their respective districts and territories." It is thus rendered obligatory in them to appoint one assistant, and the discretionary power to appoint re is not limited by the act. It was perhaps intended to leave this to be ulated by the instructions to be issued from your department. Then the
fourth section declares that every assistant shall receive at the rate of nee dollar and twenty-five cents for every hundred persons of the first three thousand who reside in a city or town; and the same for every thre hundred persons over three thousand residing in such city or town. I follows that a different exercise of the discretion given to the marshals u the appointment of assistants in different cases of like population, will give a different result for the expense of the enumeration.
The second case mentioned in your communication cannot, I think, te allowed. It is a plain departure from the law, and derives no additional validity from the sanction of the judge. It ought, therefore, to be reduced to the scale of the fourth and last account, to which you have referred me which corresponds with the provisions of the fourth section of the act.
JN. MACPHERSON BERRIEN To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
February 18, 1831. SIR: The question which you propose,, in relation to the continuance in office of an inspector of the customs after the death, resignation of removal of the collector by whom he was appointed, has (as you are aware been the subject of judicial decision.
In the case of the United States vs. Wood, in the circuit court of Massachusetts, it has been held that these officers hold their offices during the pleasure of the collector, and cease to be such on his death, resignation, or removal. After giving to this subject as much reflection as my other etgagements have permitted, I find myself unable to acquiesce in this proposition; and, with all the respect which is due to so high an authority, I feel bound to communicate to you the opinion which I have formed.
The doctrine laid down in the case referred to proceeds upon the English common-law principle, that commissions granted by the King expire on his demise. But this was true there, not only of commissions during pleasure, but of those also which were held by the more permanent tenun of good behavior; and it is only by express statute that, even now, the judges of England are relieved from the operation of the common-law principle. There the King is the fountain of dignity and honor. It is his prerogative to issue all commissions which are warranted by the common law, or by statute. To what conseqnences would the application of these doctrines lead us here? The President, under the constitution, is the grea appointing power. Congress has the power to direct the manner in which certain subordinate offices may be filled. But each exercises a delegate trust. It is the people alone with whom sovereignty resides. They af here the source of dignity and honor. All delegated power originates witt them. If the common-law principle, even in its application to offices hek during pleasure, be enforced here, the death, resignation, or removal of the President, and, as certainly, the cessation of his otficial character by the expiration of his official term, would be productive of infinite embarrass ment. What is commonly called the four years' law might be construed to protect the officers falling under its provisions, though such would ne probably have been the case in England, in the application of this principle
jut the commissions of all the heads of departments, and of every officer of the army and navy, would necessarily be vacated on the occurrence of this event. Nay, if the power of the President does not extend, in he grant of a commission during pleasure, to the appointment of an officer vhose official functions shall continue after the death, resignation, removal, ir cessation of the official term of the President, the commissions actually ssued are invalid, for they are “ during the pleasure of the President for he time being.” This form of issuing the commission serves to show the practical interpretation of this doctrine, which has prevailed since the oundation of this Government; while, if the opinion which I am contesting be correct, it could not, in any degree, prevent the operation of the principle. Jf
, by law, an office held during the pleasure of the President terminates with his death, resignation, &c., the form which he may give to the commission cannot affect the question. He cannot, by an executive act, change the tenure of office which is defined by law.
Again : if this doctrine be true, the offices of all the clerks in the different xecutive departments became vacated on the 3d of March, 1829. These fficers held their offices at the pleasure of their respective chiefs; and ince the several incumbents resigned on that day, it will follow that there s not even now any legal clerk in either of these departments, except those who have been appointed by the present incumbents. My view of this subject is this: When an office is held during the »leasure of any designated officer, it is at the pleasure of the officer, and lot of the individual ; and to determine that office otherwise than by the ct of the immediate incumbent, there must be some official act indicative f the will of the officer at whose pleasure it is held. If he ceases his fficial functions, without having done any act indicative of his will, his ppointee must necessarily hold over until a successor is appointed, who 3 vested with a like discretion.
Such seems to me to be the manifest intention of the constitution and aws which relate to this question. With the exception to which I have eferred, such I believe to have been its practical and uniform interpretaon. I cannot conceive that this construction of the tenure can be prouctive of any embarrassment, since the new incumbent may immediately, n his entry into office, exercise his right of removal and substitution ; while he opposite interpretation seems to me to be full of difficulties, and to esult froin the application of a principle of the common law which does lot belong to our federal institutions, and is, in this instance at least, hosile to their spirit.
Nor do I think that the provision which is made by the revenue law, for he continuance of the functions of the deputy collector after the death or lisability of the collector, is sufficient to sustain the decision in the case of he United States vs. Wood. The argument is founded upon the maxim zpressio unius est exclusio' alterius. It asserts that the fact of provision laving been made for the continuance of the deputy collector in office, is roof that, withont such provision, his functions would have ceased ; and hat no such provision having been made in the case of the other suborinates of the custom-house, their offices must necessarily determine on be occurrence of the prescribed contingency. But to maintain this argusent, it is necessary to show that the analogy between these subordinate ficers is complete. And herein, as I respectfully conceive, the error lies. The deputy, (as his name imports, and as it is expressly laid down by law
writers,) exercises his office in right of another. He is, as they express it, the shadow of his principal—having no authority distinct from him; nor na act otherwise than in his naine ; nor to perforin any other duties, but such as the collector himself may perform. These things cannot be affirmed of the other subordinates. The duties of the inspector, for example, are prescribed by law, and to be performed by him alone. They are not the duties of another, which he performs in right of, and by deputation from, that other. But though he holds his office at the pleasure of the collector, so long as he continues in office, the duties wbich he performs are emphatically his own, specified by law, performed by him in his own right, under the authority of the law, and incapable of being performed by another. There is, then, an entire want of analogy between these offices
, for all the purposes of this inquiry; and they are not, therefore, necessarily liable to the application of the same rule.
It is, perhaps, however, my duty to suggest to you that questions of this kind will most generally occur in criminal cases, in which there is no provision for bringing the point before the Supreme Court, but on a division of opinion between the judges; and that the subject may, therefore, be for a long time embarrassed by the conflicting opinions of the circuit courts
. It might, for this reason, be advisable, at a convenient time, to obtain a legis. lative enactment, which would relieve the subject from controversy.
IN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY.
ATTORNEY GENERAL's Office,
March 2, 1831. SIR: I have examined the record of the trial of John H. Clark, and the accompanying papers, wbich you have done me the honor to refer to me.
In the opinion which I feel myself constrained to give, I confine my view to one only of the several objections which have been taken to the proceedings on this trial; because that seems to me to be decisive, and w furnish in itself a proper and sale ground for determination.
One of the officers who sat on this trial-one of the five officers by whom the sentence was pronounced—was absent from the court several days do. ring the trial, and during the exanination of witnesses. The record of the examination of those witnesses was read to him, and his judgment was consequently founded upon the testimony of witnesses who had not been examined in his presence. If that officer was disqualified to sit in judgment upon the accused, there was no competent tribunal to award sentence against him: for only five officers (of whom the officer in question was one) concurred in that sentence; and this is the smallest number which the law allows.
I am of opinion that this officer was disqualified to pronounce a judg. ment in this case. In the common-law couris, it is now well settled, that il a juror be taken ill during the trial, it is necessary to discharge the jury, 10 summon a new panel, (of whom the remaining eleven may constitute a part) and to recommence the whole trial, without regard to the former examination of witnesses. The object of this is to give to the new juror an oppor inity of hearing the whole testimony from the mouths of the witnesses.