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neral McNeil will be entitled to be placed on the pension roll. But, in it event, it will still be for the President to determine upon the rate of pay be allowed to him as a pensioner.
R. B. TANEY. To the SECRETARY OF WAR.
ATTORNEY GENERAL's Office,
May 31, 1832. Sir: The claim of Mrs. Coxe and her son, upon which you have called
my opinion, presents, in one respect, a new casc. Mr. Coxe, it appears, the first of our consuls to the Barbary States who has died while in office, d his widow and family have been obliged to return home at their own pense; and Mrs. Coxe presents a claim against the Government for these penses. Under the act of May 1, 1810, there can be no outfit allowed to a consul, r is there any authority given to pay his expenses home; but, by the ctice of the Government, it has been usual to consider him in office, and refore entitled to his salary, after leaving his station, for a time sufficient enable him to return home. And as it was desirable that some certain riod of time should be fixed on, in order to avoid the necessity of a paralar examination in every case, three months appear to have been adoptas a reasonable time in such cases, and accounts have, I understand, o settled accordingly. f, therefore, Mr. Coxe had lived to return with his family, he would have n entitled to three months' pay after leaving his station. This interpre. on of the law of May 1, 1810, appears to me to be a reasonable and just · His salary goes on while the consul is performing his outward voy. , and there seems to be no ground for denying it to him on his return. is, however, during that period of time, rendering no service; and the wance of the salary for three months after leaving his station is evitly made to enable him to return to his own country; and, as his term ffice is construed to endure for that purpose, although he is not discharany of its functions, it would seem that the same principle may with al propriety be applied to the case of his widow; and three months salary, n the time of his death, may be paid to her, in order to enable her to re
with her family. This, I think, is not only an equitable construction he law, but one which, from the nature of the public service in which plomatic agent is engaged, is called for by the principles of justice; and ould be a severe and harsh construction of it to deny, after his death, to widow and family, those means of coming again to their home which ld have been offered to them by the public if he had lived. But I do think more can be allowed for their expenses than the usual salary for e months. he funeral expenses appear to me to be a fair item of charge on the
for the contingent expenses of foreign intercourse. The act of May 310, gives the consul at Tripoli two thousand dollars per annum, as a pensation " for his personal expenses and services,” but does not forbid allowance of expenses other than personal. And, indeed, the language
in the law necessarily implies that other expenses are contemplated, are to be allowed. And as the consuls to the Barbary States are di
plomatic agents of this Government, they are entitled to be repaid, out of the appropriation to defray the contingent expenses of foreign intercourse, such incidental expenses as are usually allowed in the case of other diplomatic agents; and, as the suneral expenses of such officers, when they have died abroad, have been borne by the public, I see no reason why it should us. be done in the case of Mr. Coxe. Indeed, the honor and dignity of the Government require that the funeral of its representative in a foreign cout try should be decently and properly attended to.
The incidental and contingent expenses of the consulate which occurred after the death of Mr. Coxe, if properly vouched, ought, I think, also to be paid by the Government, as it is a part of the expenses of foreign intercours and, although the money was not paid by a consul regularly
appointed, 5s if it were paid by one who was acting in that character and dischargin its duties, and if the expenses were proper to be incurred, and were incurra for the public service, they ought to be repaid, and appear to me to be lawful charge on the contingent fund above mentioned.
The salary claimed by Charles J. Coxe, during the time he acted as em sul, may, I think, be legally paid to him as salary. The law of May 1 1810, gives the salary to the consul for his personal services and expense If, after the death of Mr. Coxe, his son performed the services and incura the expenses of a residence there, and his acts have been recognised by the Government, I do not perceive why he should not receive the compensa tion fixed by law for such services. He was de facto consul for the time and the public received the benefit. What services he performed, or hat to perform, I have not the means of knowing; and the opinion I expressi founded on the presumption that he rendered faithfully whatever service a consul duly appointed would have rendered for the time, and that the Government have adopted his acts in that character. The practice of the Government sanctions this opinion, as appears by the papers before me ; an in several instances similar to this, since the law of 1810, the salary ba been paid. I refer to the cases of Mr. Folsom, in 1818 and 1819: M Heap, in 1823 and 1824 ; Mr. Simpson, in 1820 and 1821; and Mr. Hogy son, in 1819.
The public interest requires that the duties of the office should be dis charged by some one; and where, upon the death of the consul, a perso who is in possession of the papers of the consulate, enters on the discharg of its duties, and fulfils them to the satisfaction of the Government, I do it perceive why he should not be recognised as consul for the time he acte as such, and performed the services to the public; and, if he is so recag nised, the law of Congress entitles him to his salary.
R. B. TANEY. To the PRESIDENT OF THE UNITED STATES.
ATTORNEY GENERAL'S OFFICE,
June 9, 1832 Sır: In answer to your letter of the 18th May last, I have the honor state, that, under the act of 20 March, 1831, where lands have been acquin by the United States according to the provisions of that law, no person a right to cut or remove tirnber from such lands, upon the ground of a pre emption claim set up by him, until his title to the land claimed is eitis
cknowledged by the Government, or maintained by the judgment of the ourt. The person, therefore, who cut and removed the timber for the purose of building the vessel mentioned in your letter, may be prosecuted uner the first section of the act above mentioned. But the vessel built of be timber improperly cut and carried away, cannot be libelled under the econd section, unless she takes on board timber contrary to the provisions I that section. In other words, the vessel built of timber unlawfully taken om the lands of the United States would be liable to be proceeded against, nder the second section of the law, in those cases only where the libel ould be sustained against any other vessel if employed in the like manner. I am, sir, very respectfully, your obedient servant,
R. B. TANEY. To the U.S. DISTRICT ATTORNEY,
Key West, Florida.
ANKAPOLIS, June 18, 1832. 81R: I am sorry that any delay or embarrassment should occur in carring on the works at Norfolk. But as the appropriation now stands in Je law, I do not see how the difficulty can be overcome, uuless the Drawridge Company will accept the proposition you have made to them. The act of Congress requires me to express an opinion whether the comby can give a good title to the United States. I think that an agreement
remove the bridge and stop the road would be inconsistent with the purises for which the charter was granted; and that such a control is not ithin the legitimate power of the corporation, under the charter as it inds. Entertaining this opinion, it is of course my duty to express it. he Virginia Legislature would, I have no doubt, grant the necessary power the corporation ; but, until the Drawbridge Company are possessed of this wer, I do not perceive how the money can be paid, under the very strict id specific terms used in the law making the appropriation.
R. B. TANEY. To the SECRETARY OF THE Navy.
ANNAPOLIS, July 2, 1832. 81R: I proceed to express my opinion on the questions you have referred me, by ihe direction of the President, in the case of Mr. John S. Stiles. 1. The contract was for the delivery of navy bread in Baltimore, to be ade of fine flour and cross middlings” in equal proportions. It appears om the evidence, that at the time the contract was made no particular ality of flour was legally designated as "cross middlings," either in the istrict of Columbia br at Baltimore. Under such circumstances, as the ntract was to be performed in Baltimore, I think that the flour which s generally understood in the trade in that city to be “cross middlings” ust be regarded as the flour called for by the contract; and bread made equal proportions of the flour known in the Baltimore inspection as ine," and that generally known in the trade as “cross middlings,” would a compliance with the contract. 2. The contract does not require that the precise quantity of each of
these descriptions of flour must necessarily and invariably be used. 17 portion of superfine flour was employed in the place of fine, a larger pe portion of middlings might be added, provided the compound produced such bread as would be made from the mixture specified in the contract The object of the agreement was to obtain bread of a particular quality. and the contract must be expounded accordingly. The materials of whid the bread was to be formed were pointed out, in order to describe with -more certainty the quality of the bread required.
3. If the Navy Commissioners have refused to take the bread from N. Stiles, according to their contract, when he had prepared it of the quality called for by the agreement, it is not in the power of the executive branch of the Government to liquidate and pay the damages he may have su tained. If he has been damnified by ihe officers of the Government, Cor gress alone can redress the injury.
The other points which arise in this case are questions of fact, to which i no certain legal principle can be applied; and they depend for their dession upon evidence, experience, and usage, and are proper, therefore, in your own consideratiou. Taking any standard as "cross middlings," them will invariably be some difference in the quality of bread made of different parcels of flour, or at different times. Bread made of flour branded a # fine," or as “first” or “second middlings,” by different inspectors in the same city, or even by the same inspector, would not always be precisely the same in quality, in every respect. There must, I suppose, be shades of dif ference between that made of “fine” and “cross middlings" of the very best qualities, and that made of the very worst of each, although in both instances the inspector had designated one-half as “fine," and the trader in the article would pronounce the other to be "cross middlings." I pre sume that bread made of the worst and lowest qualities of each work hardly be deemed in your department a compliance with the contra though both kinds of the flour were fresh.
But how wide a difference may be tolerated, and the bread yet be sidered as coming within the description contracted to be delivered, a how far the sample may be varied from, must depend, not only on the evidence, but requires experience in the comparison and inspection of sa ples, and a knowledge of the usage of trade and of the Navy Departme in this particular. From the nature of the controversy, therefore, it cans ibe decided at this office; the knowledge, experience, and means of inform tion which are necessary to a right decision, belong to the Navy Depar ment. And it is for you, as the head of that department, to say whethe the bread prepared by Mr. Stiles was such navy bread as ought to har been received according to the contract-expounding that contract apo the legal principles hereinbefore stated; and also whether any of it hem now have is fit for the use of the navy.
R. B. TANEY To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE
July 16, 1832 SIR: The articles purchased by order of the late Secretary of the Nar and placed on board of the sloop Concord, for the accommodation of
Randolph, when he went out as minister to Russia, do not appear to me to De properly chargeable to his account. They were purchased without his mnowledge or approbation, and were a part of the furniture of the sloop, ind remained on board when he left her, and have been sent back to the United States. The purchase having been made by order of the Secretary f the Navy, they are chargeable to the expenditure of that department, and lot the Department of State. And, in my opinion, the articles returned hould be sold on account of the Government; and the difference between he cost of the purchase and the proceeds of the sale be paid out of the coningent fund of the Navy Department.
R. B. TANEY To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE,
July 17, 1832. Sir: In reply to your note of yesterday, I have the honor to state that, s the appointment of Mr. Vail as chargé des affaires to England was made y the direction of the President, and has been confirmed by the Senate, I hink he is entitled, under the act of May 1, 1810, to the salary attached to he office, from the date of his presentation to the British Government.
R. B. TANEY. To the SECRETARY OF STATE.
ATTORNEY GENERAL'S OFFICE,
July 19, 1832. Sir: In obedience to your direction, I proceed to state my opinion in reition to the appointment of a register of the land office for the Mount Salas istrict, in the State of Mississippi.
The facts in the case I understand to be these : After the adjournment of ongress, on the 3d of March, 1831, and before their meeting in December the same year, a vacancy occurred in the abovementioned office of regisT, and Samuel Gwinn was appointed to fill it. During the late session of Congress he was regularly nominated to the Senate, and rejected by them. The President having afterwards received strong testimonials in his favor om the State of Mississippi, and being requested by one of the Senators om that State to renominate him, his name was again sent to the Senate, rith the additional recommendations which had been forwarded to the "resident.
The second nomination was made on the 11th of June last. It ras considered on the 10th of July, and laid on the table. And on the 16th f July, the last day of the session, the following resolution was moved and onsidered : "Resolved, That the President of the United States be informed that it is Dt the intention of the Senate to take any proceeding on the renominaon of Samuel Gwinn to be register of the land office at Mount Salus, in lississippi, during the present session.” This resolution was ordered to lie on the table; and the Senate adjourned ithout taking any further order in the matter. In this state of things, can the President, during the recess, appoint Mr. winn, or any one else, to the otfice before mentioned ?