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1. The whole pay aforesaid to be allowed to the petty officers, midstipmen, &c., necessarily related to pay proper, because it was that alre which the President was authorized to determine; the number of ration having been prescribed by the preceding part of the section.
2. Because the amount of pay was susceptible of being accurately deter mined in advance, and therefore might be limited; but it was indispensable to continue the daily subsistence, or the service was at an end.
3. Because, in the beginning of the section, the words pay and subsisi ence are used to denote the monthly compensation and the daily ration: and it cannot be believed that one of these words was afterwards employed in the same section to express both these ideas.
These are all the acts which appear to have any bearing upon the ques tion; and they seem to me, conclusively, to prove that rations are not in cluded in the term pay, but are expressly excluded from it, and appropriated to the word subsistence. We have seen that the provision which declares that officers not under orders for actual service shall receive only half their monthly pay, excludes them from rations altogether. I think it is also very clear that an allowance of four months' pay to a discharged officers confined to his pay proper, not including his rations, and so I believe t has been always understood in practice. Now, if pay does not include rations when the question concerns the right of the officer to receive ! know of no principle which will justify a different construction when it relates to the right of the Government to retain. The words are: “No money hereafter appropriated shall be paid to any person, for his compexsation, who is in arrears," &c. Is this term more comprehensive than pay? Does it include rations or subsistence, as well as pay proper ? The act of 25th January, 1828, itself furnishes the answer to this inquiry, and shows that the term "compensation” is used as synonymous with “pay'a "salary.” After inhibiting the payment, by the words just quoted, it pro vides that, “ in all cases where the pay or salary of any person is withheld in pursuance of this act, it shall be the duty of the accounting officers, &c. Thus, Congress have explained that what was intended to be withbeld was the pay or salary of a person alleged to be indebted to the United States; and, consequently, unless rations can be included within one or other of these terins, that it was not designed to apply this right of retainer to the I think it has been very clearly shown that Congress, in the various ach which have been referred to, have distinguished between pay and rationsusing the latter term as synonymous with subsistence; and, consequently
, that ihe power to retain money appropriated to the pay of an officer does not extend to money appropriated for the purchase of the rations to which he is entitled by law.
There is another view of this subject, which is calculated to strengthet this opinion : What the law authorizes to be retained from an officer who is in arrear to the United States, is the money which is appropriated for hi compensation. Can the rations, to which he is entitled by law, be so de nominated ? I say entitled by law; for since rations, of which the constit uent parts are specified, are stipulated to be given to him, his right to demand them in kind must exist, except so far as the regulations of the department, made under the sanction of the President, are competent to control that right. Upon inquiry at your department, I am informed that the commutation is understood io rest upon usage. A thorough examina tion of its files would, perhaps, ascertain the existence of some regulation
1 this subject; but, however this may be, cases, I apprehend, may exist, which that usage or regulation would not extend, in which, for the con. enience of the service, the specific rations would in fact be delivered. And this be so, it must be most obvious that these could not fall within the <scription of money appropriated for his compensation. In the corresponding laws which relate to the army, I find it provided at when the subsistence of the officers is not received in kind, the ration all be estimated at twenty cents. This shows, in relation to that branch military service, that the ration is not considered as pay, but subsistence; id that it may be received in kind, and not in money. It may have escaped le, but I have not found any similar provision in the laws which relate to je navy. As far as my research extends, the only legal right of the naval fficers is to the specific ration. This cannot surely be the subject of reliner under the act we are considering; and, if not, it is difficult to im. zine that an order of the department, or the usage established there, to pmmnte the ration of the officer, can deprive him of the right to receive e thing for which it is commuted. I remark, also, in looking at the acts which give this right of retainer, a ange in the phraseology which can scarcely have been unintentional. The first provision of this kind is to be found in the naval appropriation 1 of 1822, and it is in these words : " No money appropriated by this act iall be paid to any person for his compensation or perquisites, who is in rears," &c. In the subsequent appropriation laws, and in the general ovision made by the act of the 25th January, 1828, the term perquisites omitted. Can ihis have been unintentional ? The word is certainly not nonymous with compensation, but expressly contradistinguished from it, boting an extra allowance to an officer-an allowance beyond his orlary compensation. A rigorous construction of the act might have ide this term to include every thing beyond the mere pay proper, while at also would be embraced in the term compensation. Seeing, then, that is word perquisites is omitted in all the subsequent acts—nay, that it was ver introduced into the appropriation law for the military service,-is it fair to conclude that it was expunged er industria, and with a view to ply the same rule to these two branches of the public service ? I perceive from the statement of the Fourth Auditor, that, according to the astruction first put upon this provision, (I presume in the Navy Departint,) no person in default to the Government could receive any thing whater, directly or indirectly, from the public Treasury; that this construction 1$ afterwards so far modified as to allow the public debtor in the naval serje to receive a single ration; and that, more recently, the act has been con. ued so as only to require the stoppage of monthly pay. I think the alation in the law itself, to which I have just referred, may account for the st and last practice. The second, if it existed under the appropriation 1 of 1822, was probably resorted to under the plea of necessity; but, if right of retainer exists in relation to the rations at all, it seems to me At the obligation is imperative to extend it to the whole. For the reasons which I have stated, I ain of opinion, however, that the vision we are considering is confined to the compensation or pay of : officer, and cannot be extended to his rations. These are provided for subsistence while engaged in the public service ; and they are so proled eo nomine; and not as pay, but as contradistinguished from it. The igestion that it stops the entire salary of the salaried officer, on which
he may depend for his subsistence, is unquestionably true; but the answer is, that whatever may be the hardship in relation to that class of officers, such is the will of Congress; and they have expressed it in a manner at to be mistaken. Without doubt, they might also have extended the pris vision to the subsistence of the naval officer ; but they have not done sa They have used the term compensation in the first instance, which z will agree includes salary; and in the succeeding part of the section they have explained the sense in which they used that term, as equivalent to pay or salary. In the survey which we have taken of the laws relating to the navy, we have seen that the terms rations and subsistence ar considered as alternatives; and that pay is contradistinguished from, and therefore, does not include them. It may be that the rule prescribed by Congress will operate unequally upon different classes of officers. It may be that the same rigor which is applied to the civil officer, who is depend ent upon his salary for his subsistence, as well as his compensation, might with advantage to the public service, be extended to the naval officer whose moneyed compensation for his services is distinguished by the exis ing laws from the legal allowance in kind, which thesc laws provide his subsistence. I do not, however, enter into these considerations. My duty is limited to the ascertainment of the rule which has in fact been pre scribed; and in relation to this, I have given to you the opinion which entertain, after a careful consideration of the subject.
JN. MACPHERSON BERRIEN To the SECRETARY OF THE NAVY.
ATTORNEY GENERAL'S OFFICE,
March 23, 1831. SIR: I have considered your communication, and the documents accou panying it, relative to the claim of John Harris to certain lands lying withid the limits of the navy yard of the United States in Boston ; and proceed | reply.
It belongs to the Solicitor of the Treasury to direct the measures to pursued in the further prosecution of this suit, if that should be deeme necessary; but I will present to you the views which I entertain upon som of the questions that arise, which may aid in determining the propriety such a prosecution.
When I suggested to you, formerly, my impression that there was grous to contend that the town of Charlestown had acquired, under the act of th Legislature of Massachusetts passed on the 30th October, 1781, a complet title in fee to the lands in question, and recommended an amicable suit fo the purpose of ascertaining the right of the United States as derived from this source, I did it under the belief that whatever of mere fact belonged the inquiry could be distinctly proved. I supposed that the petition an other proceedings on which the act in question was founded would found among the legislative files; and that the subsequent proceedings the town could also be obtained from its registry. It is now, as I unde stand, ascertained that this is not so; and, consequently, the question mus be determined exclusively upon the words of the act.
It seems to me very certain that it was the intention and understanding of all the parties concerned that the right to the soil, and not merely tb easement, should pass to the town of Charlestown by the proceedings bad
under the act of 1781. The town manifested this by their grant to the United States. Mr. Harris did so by protesting, not as reversioner, but as an inhabitant; not because of his claim to the fee when the easement should be discontinued, but on account of his right to the advantages of the streets. It may be difficult, however, to maintain the claim of the United States, as derived from the grant of the town: in other words, to maintain the title of the town to the fee of the land over which these streets were laid out, under the act of 1781, from the naked provisions of the act. The com
inon-law principle certainly is, that the soil over which a street or other S highway is laid out remains vested in the original owner, subject to the * easement, and that his interest may be transferred. If it be, moreover, true,
as it is stated, that the construction always given in Massachusetts to the statutes which give power to the selectmen and other public functionaries
to lay out streets and highways, has been that it does not extend to the : right to take the freehold, but merely to create an easement, this difficulty
will be increased. The terms of the act of 1781 seem to me to be susceptible of a more enlarged interpretation; but, restricted as it would be by the principle which regulates the interpretation of statutes in derogation of private right, as well as by the course of decision in Massachusetts in relation to the general statutes of a like character; in the absence, too, of those proceedings which would show the grounds on which it was enacted, as well as of those which would prove what was, in point of fact, done in the execution of the power which it conferred, I incline to believe that the claim of the United States could not be sustained.
Before you decide finally upon this subject, however, it may be proper to. assure yourself that no further information upon the points adverted to in this letter can be ascertained; and, also, to ascertain informally the terms upon which the claim of Mr. Harris can be purchased.
IN. MACPHERSON BERRIEN. To the SECRETARY OF The Navy.
ATTORNEY GENERAL'S OFFICE,
March 25, 1831. Sir: I have read the communication, with its accompanying documents, which the right honorable Charles R. Vaughan, his Britannic Majesty's envoy extraordinary and minister plenipotentiary, addressed to the Department of State, and which you did me ihe honor to refer to me. I have examined the question thus presented to your consideration, with the anx. ious care which is due to the intrinsic importance of the subject, and to the solicitude of this Government to preserve and cherish the good understanding which happily subsists between the United States and Great Britain. I have not been unmindful of the previous communications between the two Governments in relation to this matter. Indeed, my chief embarrassment has arisen from the fact and nature of those communications, from the decisive and unqualified opinion of my own immediate predecessor, and from the acts and communications of those to whom the executive functions of this Government have been heretofore confided, in apparent harmony with it. Heretofore, the only question considered by this Gov. ernment seems to have been, whether a law of South Carolina, conflicting with the provisions of the convention with Great Britain, and with the
commercial laws of the United States, is constitutionally valid. The hit of such conflict has been assumed, as it appears to me, without a sufficies attention to the terms of the convention or the laws of the Union. W belief is, that no such conflict exists in fact ; that, on the contrary, there i perfect harmony between the legislation of South Carolina and the United States. Lest, however, I should err in this opinion, and because I cans acquiesce in the doctrines heretofore avowed, even upon the state of facts which was assumed in that discussion, I believe that I shall more certainly discharge my duty, and meet your expectations, by considering this ques tion in all its various aspects.
The communication of his Britannic Majesty's minister presents the fel lowing statement of facts:
Daniel Fraser, a free colored-man, born in the British West Indies, ca ried thence to Scotland at an early age, and undoubtedly a British subject arrived in the port of Charleston, in the capacity of a cook, on board the ship Atlantic from Liverpool, when he was seized and committed to prise under a warrant issued by the sheriff, acting under the authority of an of the Legislature of South Carolina. In consequence of directions to this effect given by his Britannic Majesty's minister, the British consol Charleston used his endeavors to procure the release of Fraser, by enter into communication with the proper authorities of that place; and, in pour of fact, he was eventually released and restored to his vessel on her remor to a position at such a distance from Charleston that the crew could na communicate with that city, and on the payment of the expenses incurre for his subsistence in jail,
His Britannic Majesty's minister informs the Secretary of State that re dress for the injury to the individual arrested is not so much the object his representation, as to obtain from the Government of the United Star an assurance that the acts of the Legislature of South Carolina would in future, counteract the stipulations contained in the treaties and conta tions which regulate the intercourse of British subjects with this coun It becomes necessary, then, to examine the provisions of these compacts
The commercial convention of 1815, first continued for ten years by convention of 1818, and afterwards indefinitely by that of 1827, in its fir article provides for a reciprocal liberty of commerce between the territor of the United States of America and his Britannic Majesty's territories Europe. It gives to the inhabitants of the two countries, respectively, erty freely and securely to come with their ships and cargoes to all the places, ports, and rivers, in their respective territories, to which other fe eigners are permitted to come; to enter, remain, and reside there ; to hi and occupy houses for the purposes of their commerce, and generally to joy complete protection and security for the same, subject to the laws statutes of the two countries, respectively.
It is to the rights secured to British subjects by the stipulations of article that his Britannic Majesty's minister appeals; and it will of com be indispensable to consider how far, giving full effect to these stipulati the act of the Legislature of South Carolina can be considered valid. a further view is rendered necessary. The statement or summary furnis by the Department of State shows that this question is not now for the time presented to this Government. A similar complaint was made 1823, by the minister of Great Britain, and renewed in 1824 ; and ou reference to the Attorney General of the United States, he expressed