TREATY WITH FRANCE OF 1800, (continued.)
on the United States for property thus recaptured from it, and which they are
obliged to restore to the original owners on payment of salvage....
On a reconsideration of the case referred to in the preceding opinion and examination
of the opinion delivered by the Supreme Court, giving a judicial interpretation of the
treaty of September 30, 1800, with France, the preceding opinion is substantially
reaffirmed..
Demands for freight, where individuals have transported articles for the French gov-
ernment, or for its citizens, as they are within no positive provision of the conven-
tion, are out of the question; the United States being in no event and on no prin-
ples bound to protect them...
TREATY WITH FRANCE OF 1803.....
66 1843..
...962, 1232, 1233, 1806, 1894
...1688
..13, 24, 25
Public officers should furnish authenticated documents in their custody when de-
manded, and should assist in bringing forward testimony according to the duties of
their several stations, and individuals should not refuse to give testimony..
Goods and merchandise carried from any place in the territory of his Britannic Ma-
jesty or the continent of America by the subjects of Great Britain into any of the
northern districts of the United States, are subject to the same duties which would
be payable by our citizens on the same goods imported from the same place, in
American ships, into the Atlantic ports of the United States......
The provision in the treaty relating to the duties on goods and merchandise does not
extend to tonnage duties...
The subject of trade with the Indians commented upon and explained..
See also pp. 47, 48, 50, 206, 338, 1603.
TREATY WITH GREAT BRITAIN of 1842......
TREATY WITH SPAIN, Oct. 27, 1795..
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The Spanish owners of certain negro slaves who were shipped from Havana for Pen-
sacola in an American vessel, which was captured under the guns of the fort at
Barrancas, then occupied by an American force under the command of Colonel
George M. Brooke, and whilst proceeding to adjudication were seized, with the
vessel, by a revenue vessel, and carried into the port of Mobile, where restitution
of the slaves was awarded, &c., and the vessel condemned, have not a claim em-
braced by the provisions of the treaty with Spain....
The Department of State was made the depository, by stipulation, of the records and
papers referred to in the eleventh article of the treaty of 1819 with Spain, and they
must not be delivered up to claimants; and any law of Congress that shall author-
ize or require their delivery will be a violation of that treaty.
The United States are bound to pay the Spanish inhabitants of Florida the value of
slaves carried away or killed by the troops of the United States shortly prior to
the treaty with Spain of the 22d of February, 1819.....
Remuneration should also be made for the services of such slaves as have been re-
stored to their owners, during the period of time their owners were deprived of
their services.
The Secretary of the Treasury may examine into all the facts and circumstances
which constitute the grounds upon which a judgment for losses under said treaty,
has been rendered, and determine, upon the whole case, whether the decision of
the judge is just..
The decision of the judge in such a case is not analogous to the award of an arbitra-
tor; and if it were, the United States have not agreed to be bound by it...
The law has conferred upon the Secretary of the Treasury in such cases a jurisdic-
tion as plenary to decide upon the whole case, as upon the judge himself.
The Secretary of the Treasury, however, has no legal power to re-commit a case to
a judge for a re-adjudication...
Interest on claims for losses occasioned by troops in the service of the United States
is not allowable, unless the same shall be expressly provided for in the act of Con-
gress under which the claim is authorized to be paid..
By the last clause of ninth article of the treaty of 1819, with Spain, and the acts of
23d March, 1823, and 26th June, 1834, the Secretary of the Treasury is required
to pay the claims for injuries caused by the military operations of 1812 and 1813,
on which a favorable report may have been made by the judge of the superior court
of St. Augustine, where, upon examination of the decision and the evidence on
which it is founded, he shall deem the same to be just.....
1420
In these cases the examination of the judge is to enlighten the mind of the Secreta-
ry, as the verdict of a jury in a feigned issue is to enlighten the conscience of the
chancellor; and his decision is simply arbitrium boni viri, and not conclusive, in
TREATY WITH SPAIN OF 1819, (continued.)
any degree, upon the Secretary. He must, nevertheless, look into the whole mat-
ter, and ascertain for himself whether the government is liable, and to what extent 1420
If the case be one of injury by the military operations referred to, in which no ordi-
nary care of the proprietor or his agents, and no ordinary goodness of the proper-
ty supposed to have been injured, would have guarantied it against the alleged in-
juries, it is within the treaty, and the claimant is entitled to his damages.... 1420
In respect to the damages, the Secretary ought to be satisfied that the consequences
which are alleged to have ensued upon the trespasses in question, were no more
than what, in the ordinary course of things, would be expected to be caused by
them; that is, that after they occurred, there was no laches on the part of the own-
er in his efforts to repair them, and that the evils, whatever they were, were not
aggravated by some defect peculiar to the character and condition of his property. 1420
The Secretary of the Treasury has power to review decisions of the judge of the su-
perior court in Florida upon claims presented under the treaty with Spain and the
acts of 1823 and 1834, and to pay the amount that he may adjudge to be due, the
awards of the judge not being in law conclusive thereon.
The acts of 3d March, 1823, and 26th June, 1834, were both designed for the single
purpose of carrying out the ninth article of the treaty of 1819 with Spain, and
should be read as in pari materiâ.....
And the second section of the act of 1834 is to be read as intervening between the first
and second sections of that of 1823, in order to introduce in that connexion a class
of cases which had been ruled out by Mr. Rush.
The act of 1834 does not touch the authority of the Secretary, under the act of 1823,
to judge of the justice and equity of the claims presented.
The only authority vested in the Secretary to pay these claims is contained in the
act of 1823, and can be exercised only under the restrictive proviso that he is sat-
isfied that they are just and equitable...
The Secretary is not authorized to allow interest on these claims, it not having been
the usage of the government to do so; nor does its duty to the claimants under the
circumstances require it. (See opinion of Mr. Crittenden in the case of Pierson
Cogswell.)....
The act of Congress to carry into effect certain provisions in the treaties between
the United States and China, and the Ottoman Porte, giving certain judicial pow-
ers to ministers and consuls of the United States in those countries, not having
designated any particular place for the confinement of prisoners arrested for crime,
the same is left for regulation under the 5th section, or, in the absence of any such
regulation, to the discretion of the acting functionary..
The expenses of arrest and support in prison, in such cases, must be paid from the
fund created by the execution of the act..
As the provisions of the act extend to Turkey only in respect to crimes, they
(crimes) are left to support their own expenses..
The provisions of the 18th section do not apply to Turkey.
Whether the act embraces Egypt and the Barbary States, which are under the do-
minion of the Ottoman Porte, is a political question, which cannot be solved with-
out the aid of the Department of State....
TRESPASS ON PUBLIC LANDS. (See Intruders, &c.).
TRIUMPH, Brig.
TUBBS, JOHN L....
TURKEY. (See Treaty with Turkey.)
TURNER, Captain Daniel.....
TYSON, J. WASHINGTON.
VIFVARENNE LAND CLAIM.......
VILLAVASA,
VINCENNES, Grant of Land to.
VINTON, Capt. D. H........
VIRGINIA HALF PAY CLAIMS.
By the act of 5th July, 1832, Congress have only authorized the half-pay to be given
where the officer had not indicated by soine act of his own that he had elected to
accept the substitute offered by the resolve of 22d March, 1783...
As the commutation has been received by the representatives of Lieutenant Vawters,
they are not entitled now to the half-pay.
Field-officers, captains and subalterns, who commanded in the battalions of Virginia
on the continental establishment, or who served in the battalions raised for the im-
mediate defence of the State, or of the United States, and all such officers as became
supernumerary on the reduction of any of said battalions, and who again entered
the service, when required, in the same or any higher rank, and continued therein
until the end of the war, were entitled to half-pay under the laws of that State, al-
though not residents of Virginia.
So, also, were the naval officers of the like rank.
Executors and administrators are the "legal representatives," in contemplation of
the act to provide for liquidating and paying certain claims of the State of Vir-
ginia...
Commutations for five years' full pay are not included in and provided for by the 3d
section of the act of 1832..
By that section, the Secretary of the Treasury is only required to adjust and settle
the claims of certain regiments and corps for half-pay for life which had not been
prosecuted to judgment against the State of Virginia, and for which the State is
bound, on the principles decided in the Supreme Court of that State in other cases. 1677
The question, moreover, is regarded as adjudicated, and therefore not properly open
for examination, except by Congress..
The claim made in behalf of Virginia by Thomas Green, esq., agent of that State, is
just, and falls within the provisions of the 2d section of the act of 1832; and the
balance of the appropriations made by that act would be applicable to the payment
of it, were it not that it has been carried to the surplus fund, from which it cannot
be withdrawn except by act of Congress..
The representatives of a lieutenant in a Virginia State regiment, afterwards transfer-
red to the continental establishment, who in his life time obtained a judgment
against said State for commutation of five years' full pay in lieu of half-pay for life,
and received payment thereof in 1792, are not entitled, under existing laws, to be
allowed a claim for further compensation for services rendered by their ancestor. 1859
This claim was considered and rejected by the department in 1833, on the ground
that it had been paid.....
It is not provided for in the 3d section of the act of 1832, and cannot be allowed ex-
cept under special authority from Congress..
Congress having resolved that the claim of the representatives of Churchill Gibbs was
provided for by the act of July 5, 1832, and the House of Representatives having
again resolved to that effect, after the executive department had decided otherwise,
it is now the duty of the executive department to liquidate it.
The acts of Congress of 3d March, 1835, and 12th August, 1848, are legislative in-
terpretations of the act of 5th July, 1832, and the expressions of opinions that it
was the purpose of the third section of the act of 1832, to provide for Virginia claims
for commutation of half-pay as well as for those for half-pay..
Those legislative interpretations and opinions are binding on the Executive, and re-
quire the allowance of the present claim..
Interest as well as the principal of the claim of the heirs of Thomas Ewal for commu-
tation for military services may be allowed as in the case of John M. Galt. (See
opinion of 27th March, 1849, in Galt's case)..
Although interest, as a general rule, will not be paid upon claims against the govern-
ment, there are instances in which the government, from considerations of policy,
allows it.
The claim of the administrators of Commodore James Barron, commander of the
State navy of Virginia during the war of the revolution, for commutation pay and
interest should be allowed..
This opinion is founded upon the judicial decisions of the courts in Virginia, that of-
ficers of the Navy of that State, during the revolutionary war, who served to its
close, were equally entitled with officers of their line to commutation pay under the
act of 1790, and upon reasons stated in other similar cases..
The representatives of Thomas Armstead, a captain who served in a Virginia regi-
VIRGINIA HALF-PAY CLAIMS, (continued.)
ment in the revolutionary war, prior to 21st May, 1782, when he became a super-
numerary to the 3d of April, 1783, and who died 1st September, 1809, to whom
the Virginia legislature allowed $2,400 in 1826, as commutation without interest,
and to whom Congress subsequently altowed half-pay from 3d September, 1783,
to the period of his death, and afterwards allowed half-pay from 21st May, 1782,
to said 3d April, 1783, are not now entitled to have the account re-opened and re-
stated, so as to allow interest on the said commutation....
The subject of claims for commutation and half-pay, and the obligations of the gov-
ernment in respect to the soldiers of the revolution, discussed..
VIRGINIA LAND SCRIP AND WARRANTS. (See Bounty Lands)
VIRGINIA. Claims for interest.
WALL, D. W......
WARE, JAMES..
WARNER, EBENEZER.
Congress having made an appropriation to pay the "balance" due Ebenezer Warner
for constructing a light-house at White Fish Point, on Lake Superior, after he had
been paid the price stipulated in his contract, and after he had petitioned that body
for a further allowance on account of his having been obliged to reconstruct some
portion of the tower, which had been riven by lightning during the progress of the
work, it must be inferred that the term "balance" was used, not with reference to
the contract price, but in connexion with the additional expenditure caused the
contractor by a calamity which he could not avert.
The appropriation is due to the claimant; Congress designed it to be paid him ; and
there is no discretion left the accounting officers of the treasury to disallow it, in
whole or in part.
The Secretary of the Treasury may give to the corporation of the city of Washington
the certificate described in the seventh section of the act vesting in that corporation
the rights of the said company and for other purposes, passed May 31, 1832, notwith-
standing the work was not completed by the 1st March, 1833; provided the work
had been finished in the manner prescribed and the time when it was completed be
actually stated..
So long as the law of Maryland, and the order of the commissioners under it, remain
unrepealed and unmodified, the wharves proposed to be built by the owners of wa-
ter-lots on the Potomac and Eastern Branch must follow the direction of the present
streets of the city, and cannot be projected at right-angles from Water street to the
channel...
The order of the commissioners, allowing the proprietors to erect buildings beyond
the line of Water street, is invalid; they having no power to make such an order. 142
It is the duty of the President to exercise a general supervision over the subject of the
appropriation of the public grounds in the city of Washington; and as the right to
occupy and improve any of these grounds depends upon whether the improvements
are for public purposes, so the power of the President to assent to improvements
depends upon whether they are for public purposes, and are useful..
The resolution of the corporation of the city of Washington, proposing to improve a
part of the Judiciary Square by erecting thereon a city hall, is to appropriate the
public grounds for both a public and a useful purpose, and may be approved by the
President; provided, that the quantity of ground required neither exceeds nor falls
short of the purpose.
WASHINGTON CITY, (continued.)
The assent of the President to acts of the corporation of Washington should be ex-
pressed in the same manner as his assent is expressed to acts of Congress....
The act of July 16, 1790, for establishing the seat of government of the United States,
authorized commissioners, who were to be appointed by the President, to purchase
or accept such quantity of land on the eastern side of the Potomac, within the Dis-
trict of Columbia, as the President should deem proper for the use of the United
States; and by a liberal construction of that provision, only, has it been claimed
that the President had power to establish a plan of the city; but the deeds of
the original proprietors require the trustees, appointed by them, to convey to the
commissioners such streets, squares, parcels, and lots, as the President should deem
proper. In pursuance of the power thus conferred, President Washington, in 1797,
executed an instrument of writing, in which he directed the trustees to convey to
the commissioners all the streets delineated in a plan intended to be, but not, an-
nexed. President Washington having previously ratified Ellicott's engraved plan
of the city, it must now be presumed that Ellicott's plan was what he intended to
annex; and that, as it indicated streets through the mall, it was originally intend-
ed that streets might be opened through it...
And although President Adams subsequently gave his sanction to another plan, said
by the commissioners to have been annexed, which did not indicate streets through
the mall, the promulgation, publication, and exhibition of Ellicott's plan on the day
of sale of lots, amount to a pledge of the public faith that the streets thus indicated
should be opened....
No authority has been given to the President to cause any of the public lots to be fill-
ed up, or the stagnant waters thereon to be removed...
The corporation of the city of Washington has power to establish a board of health,
to make regulations for the preservation of health, to open all necessary drains,
and to do every act which the health of the city may require, and to lay taxes, &c.
for the purpose of defraying the expenses..
Besides, the act of May 7, 1822, specially authorized the draining and filing of the low
grounds near Tiber creek and the canal, and appropriated funds for that purpose. 401
The deed from the mayor and commissioner of certain rooms in the City Hall con-
tains unauthorized provisions. The powers of the grantors should be enlarged and
a new deed given..
Although the corporation of Washington have the power, by their charter, with the
approbation of the President of the United States, to draw lotteries, the amount to
be thus raised cannot exceed ten thousand dollars in any one year...
If the corporation have not improved this provision during any former years, the
right to do so for those years has gone; for the President during those years only
had the right to judge of the expediency of a lottery or lotteries by the circumstan-
ces then existing..
The power is a special and limited one, and can be exercised in no other manner and
at no other times than those expressed in the charter.
The present surveyor having been appointed by the Commissioner of the Public Build-
ings, with the understanding that no salary was to be claimed, he is entitled to no
part of the fund appropriated for the District.
The President is advised, however, to make an unconditional appointment of survey-
or, leaving the necessity of the office to Congress, who will apply the remedy if it
be unnecessary, or the salary be too great.
The power to graduate the streets in the city of Washington resides in the corpora-
tion, not in the Commissioner of Public Buildings, and can be exercised only un-
der its authority..
Congress have not granted to the Baltimore and Ohio Railroad Company the right to
pass through the public reservations in the city of Washington; the same not
being included in the "other squares and lots," in the city..
Repairs in front of leased tenements in the city of Washington are, by act of the
corporation of the 1st of August, 1831, required to be made by the owners, who
are, in general, the lessors; and where the leases are silent upon the subject of
such repairs, the law regulating repairs in the District may properly be considered
and taken as a part of the contract...
The act of 1820 pledged the proceeds of sales of public lots in the city of Washing-
ton to the payment of certain expenses to be incurred by the corporation in the
making of certain improvements; wherefore, the funds in the treasury derived from
that source should be applied to reimburse certain advances made by the corpora-
tion, notwithstanding the act of May 17, 1848..
It cannot be reasonably supposed to have been the intention of Congress to have
made a different disposition of the fund, upon the faith of which improvements had
been made.....
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