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The principle wbich governs this practice has been adopted in courts artial." (Houghs' Practice C. M., 666.) In the case there reported, the ommanding general says: “An irregularity having occurred in the course i this trial, I cannot confirm the proceedings of the court. One of the lembers, who was taken sick, appears to have absented himself, and af rwards to have resumed his seat, when the proceedings which had been corded in his absence were read over. This mode of proceeding is irreg. ar; as all the witnesses should be sworn, and give their evidence in the resence of the several members who compose the court. I therefore diect the prisoner to be released from his arrest, and to return to his duty."
The importance of preserving this principle is obvious. The rule that vitnesses should be examined in the presence of the judge, is one which annot be safely departed from. The judgment which we form upon tes. imony is greaily dependent upon the conduct of the witness during the xamination, and upon the manner in which that testimony is delivered. t is the right of an accused person that the evidence in his case should he iven in the presence of all his judges; and it seems to me to be much lore important to secure the correct administration of public justice in this gard, than to enforce punishment in any particular cases. I am, therefore, of opinion that the sentence in this case was illegal and oid, and that the order founded upon it ought to be rescinded. T'he acused is entitled to be restored to his rights, as if such sentence had not een pronounced or approved. As, however, he has under that order aproving the sentence been dismissed from the service, and as it was cometent so the President to perform this act independently of the sentence, it ill be necessary to nominate him to the Senate, with the condition that e shall take rank from the date of his former commission.
JN. MACPHERSON BERRIEN. To the PresidENT OF THE UNITED STATES.
ATTORNEY GENERAL'S OFFICE,
March 19, 1831. SIR : In answer to the inquiry which you have proposed to me, relative the nomination of Lieutenant Thomas M. Newell for promotion, I have 1 state to you that, in my opinion, Lieutenant Newell is entitled to take ank in the list of masters commandant next after Lieutenant McCauley. The nomination was to take rank next after John H. Bell.” As this ficer was not promoted, the person next in succession to him must, of ourse, take the position which he, if promoted, would have occupied. If ither of the persons nominated had died in the interval between the nomiation and confirmation, the same result would have followed. This must e considered to have been clearly the intent of the President, who nomi. ated, and of the Senate, in confirming the appointments. It seems to me also to be the strict legal effect of the nomination and conrmation. The President nominated certain persons for promotion in a zrtain specified order. In that nomination, Lieutenant Vallette immediely succeeded Lieutenant John H. Bell. When, subsequently, with refrence to that nomination, the President nominated Lieutenant Newell to ke rank next after Lieutenant John H. Bell, he of course nominated him
to take rank before Lieutenant Vallette, who immediately followed Lieutenant John H. Bell; and when the Senate confirmed this nomination, they did it with reference to the order prescribed in the previous nomination, 1 which Lieutenant Newell was placed after Lieutenant John H. Bell and before Lieutenant Vallette. It was the iutention both of the President and Senate that Lieutenant Newell should take rank in like manner as would have done if his name had been inserted in the original nominationimmediately after that of Lieutenant John H. Bell. The same difficulty would, therefore, exist in finding the place of Lieutenant Vallette, as in de termining that of Lieutenant Newell; for these officers were originally nominated for promotion in a prescribed order, by which Lieutenant Val lette was made to succeed Lieutenant John H. Bell. The new nomination did no more than give to Lieutenant Newell the place which had been pre viously occupied by Lieutenant Vallette, while he was, by force of this lat ter nomination, placed one step lower on the list.
JN. MACPHERSON BERRIEN To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE,
March 21, 1831. Sir: In answer to the first inquiry contained in your note of the 4th in stant, I have to state to you my opinion-that the bondsmen of a marshal whose official functions had ceased from whatever cause, would not be liai ble for any defalcation on his part to pay the several assistants in taking the census the amount due to each out of the funds to be transmitted to him by your department after his removal from office.
The duties imposed upon the marshal by the act to provide for taking the fifth census, are so imposed upon him in his official character, and, constituting a portion of his official functions, fall within the scope of the obli gation of his sureties for the faithful discharge of the duties of his office When he ceases to fill that office, his obligation, as well as his power 30 perform these duties, is at an end; and when the vacancy is filled, both an transferred to the new incumbent. The only powers retained by a marsha after his removal from office, or after the term for which he was appointe has expired, are to execute such precepts as may be in his hands, and te retain such prisoners as may be in his custody, at the time of such remora from office, or expiration of the term for which he was appointed. It would seem to follow, that money transmitted to him by your department, for what ever purpose, after that period, would come to his hands as an individual and not as an officer; and consequently that his suretics would not be liable for his misapplication of it.
I apprehend, in answer to your second inquiry, that the assistants have a perfect claim on the Government for the payment of the compensation ! which they are entitled under the law, so soon as they have complied with its requisitions. The mode of payment through the marshal, prescribed in the instructions, is for the convenience of the parties; but that officer is the agent of the Government, and his misapplication of the funds intrusted to him cannot impair the right of the assistants to receive the amounts to which they are entitled.
JN. MACPHERSON BERRIEN To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
March 21, 1831. Sir: I have considered the question you have proposed to me, which is
Whether, under the several acts of the 2d March, 1799, “ regulating the collection of duties on imports and tonnage;" and that of the 5th January, 1805, "concerning drawbacks on goods, wares, and merchandise;" goods may be exported for the benefit of drawback to any foreign port or place situated to the westward or southward of Louisiana, if such port or place be in the dominions of a foreign state immediately adjoining to the United Siates ?
I cannot doubt that this question must be answered affirmatively. The first-mentioned act provides for the allowance of drawback, on the conditions therein specified on goods "exported to any foreign place, other than the dominion of a foreign state immediately adjoining the United States." This provision results from a policy which is, without doubt, in general a cafe one, and which has for its object to prevent the clandestine reintroduc. ion of goods into the United States on which the benefit of drawback has een allowed. But, for reasons which must have seemed sufñcient to Conpress, they have, by the act last referred to, excepted from the operation of his rule
, ihe ports or places " situated to the westward or southward of Louisiana."
That act provides that any goods which shall be exported from the Tnited States, or the district of Mississippi, in the manner prescribed by law,
any foreign port or place situated to the westward or southward of ouisiana, shall be deemed and taken to be entitled to such drawback of uties as would be allowable therein when exported to any other foreign ort or place; any thing in the act entitled “ An act to regulate the collecon of duties on imports and tonnage,” to the contrary notwithstanding. I can scarcely conceive any language better calculated to express the eaning of the Legislature. The words “any foreign port or place situed to the westward or southward of Louisiana,” necessarily include those ich are adjoining to the United States in that quarter ; while the clause non obstante with which the section concludes, points directly to the -existing prohibition in the act of 1799, and repeals it.
JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY.
ATTORNEY GENERAL'S OFFICE,
March 22, 1831. R: I have considered the question proposed in relation to the right of consul of the district of Alicante and Carthagena to retain three hs' extra wages, in the case of the brig Pamela, under the circumes stated in the letter of the consul; and am of opinion that no such exists. e cases specified in the third section of the act of 1803, in which such er is authorized, are those where the ship or vessel is sold in a n country, and her company discharged; or when a seaman or ma
citizen of the United States, shall, with his own consent, be dised in a foreign country.”
The Pamela was wrecked on the coast of Spain ; whether after she had arrived at a port of delivery, does not appear. The captain, exercising the authority which was vested in him under those circumstances, sold her on account of the underwriters; and the company was discharged-not by an act of his, representing the owners, nor by any consent of their own, bot bị force of the casualty, which broke up the voyage. The case is not, then as it seems to me, within the intent and meaning of the act; the object of which, as I understand it, was to discourage the voluntary abandonmental American seamen in a foreign port, either on the sale of the vessel by the owners, and the consequent discharge of the company, or on the discharge even with their own assent, of individual seamen. It could not have intended to add to the misfortunes of the owners of a wrecked vessel, the fur: ther loss of three months' wages to the crew, when, in many cases, na freight could have been earned, and, consequently, no wages would have been due.
JN. MACPHERSON BERRIEN To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
March 22, 1831. Sir: I have received your letter of the 12th instant, accompanied by one from the Fourth Auditos, in which you ask my opinion upon the ques: tion stated in the letter of that officer, arising under ihe provisions of the act of the 25th January, 1828. Turning to that letter, I find it contains a request to you " to ask the opinion of the Attorney General as to the legal effect of " An act to prevent detalcations on the part of disbursing agents el the Government, and for other purposes," passed January 25, 1828.
The inquiry thus presented, of the “legal effect of the act in question is one of large and comprehensive range. I presume, however, looking to the subsequent parts of the letter to which you bave referred me, and expo cially to that which announces the opinion of the Second Comptroller a Fourth Auditor, that I shall meet your views in this reference by consider ing the inquiry as restricted to the question-whether public debtors in the naval service of the United States are entitled, under the provisions of the act referred to, to receive the rations allowed them by law, or the amount in money for which, either by law or regulation, those rations are commuted ?
The act we are considering has the following provision : "That no money hereafter appropriated shall be paid to any person for his compensation, who is in arrears to the United States, until," &c. The inbibition, then, is of the payment to a public debtor of money appropriated, for his compenst tion, and it follows that the inquiry must be-are the rations allowed by law to the naval officers of the United States to be considered as money appropriated for their compensation? It is not sufficient that the rations of snch officer should be adjudged to constitute a part of his compensation To meet the requirements of the law, it is moreover necessary to determine that they are money appropriated to that object.
We have first, then, to consider what are rations. In examining the several acts to provide a naval armament, I have to remark the absence of any provisions in relation to many of the details which are indispensable #
ustain that arm of the national force. Congress have, for the most part, ontented themselves with specifying the extent of the force to be employed, ind with investing the President with power to carry their enactments into effect, and, consequently, to prescribe the regulations which were necessary or that purpose. But, in the very first act which I find on this subjeci, that of the 27th March, 1794,) I observe a marked distinction between
and rations of the naval officer. The act declares “ that the pay ind subsistence of the respective commissioned and warrant officers be as ollows: a captain, seventy-five dollars per month, and siz rations per day, &c.”; thus contradistinguishing rations from pay, and, by the operation of the rule reddenda singula singulis, applying the “seventy-five dollars mouth” to pay, and the “six rations per day” to the subsistence. The same act also intorms us what a navy ration is, by specifying what its component parts shall be for each successive day in the week. And thus we learn that it is a provision in kind for the daily subsistence of the navy officer and seaman in the service of the United States.
The act of 1st July, 1797, preserves this distinction belween pay and subsistence, and in the 6th section distinctly negatives the idea that rations tre included under the term pay; for, after authorizing the President to ix the pay to be allowed to petty otficers, midshipmen, searnen, &c., it declares that the whole sum to be given to them, for the whole pay aforesaid, shall not exceed fifteen thousand dollars per month, and that each of the said persons shall be entitled to one ration per day;" thus authorizing an xpenditure for rations beyond the whole amount allowed for pay.
In the act of the 27th April, 1798, the terms pay and subsistence, advannges and compensation, are used, and, of course, as denoting separate ungs.
The word pay alone is found in that of the 25th February, 1799, to fix ne pay of the captains, &c., of ships, &c., of the United States; but, in an Et of the same date for the augmentation of the navy, the distinctive terms vefore adverted to are retained. In the act of the 3d March, 1801, providing for a naval peace establish sent, the component parts of the daily ration are modified, and it is provied that officers not kunder orders for actual service” shall receive only alf their monthly pay: excluding them, as I apprehend, according to the erms of the act, and as I am informed the practice is, from any claim to ations. The same act contains a provision that commissioned and warant officers, who shall be discharged, "shall receive four months' pay over nd above what may be due to them, respectively, at the time of their disharge :" that is, as I understand it, four months' pay proper, and not inluding rations.
The act of the 27th March, 1804, uses the terms pay, ralions, and emoluments, and that of the 16th April, 1814, those of pay and subsistence. The act of the 18th April, of the same year, fizes the pay and subsistence af so many dollars per month, and so many rations per day) of the com, missioned and warrant officers; and authorizes the President to determine he pay to be allowed to the petty officers and midshipmen, and the pay, bounty upon enlistment of the seamen, ordinary seamen, and marines. Then follows this proviso: “That the whole sum to be given for the whole pay aforesaid, and for the pay of the officers, and the amount of bounties upon enlistment of seamen and marines, shall not exceed,” &c.; which clearly excludes the rations, for various reasons :