more than indemnity. It is full as strong as the old leading one of Jones vs. Morgan, reported in Keble, 569, and Lev. III, of an agreement to pay for a horse, a barley corn, a nail-doubling on each successive nail, so that, there being thirty-two, it came, in all, to five hundred quarters. The court directed the jury to give as damages the value of the horse: they did so, and it was held good, and has been received as law ever since, in the assessment of damages by juries in cases recommended to their favor by peculiar circumstances. This, too, was not a mere executory contract. As to the idea referred to by the Comptroller, that the claimants are to be paid for all the beef and corn they might have furnished, under their pretended contract with Captain Page, without being charged with the value of them, it is of course too extravagant to be entertained. Were the government, after having settled this account, to institute an action for these objects, it might well be reminded by the courts that it had made a voluntary payment of what was not due, with the remedy in its own hands, and would have no right to count on their aid in relieving itself from the effects of its own negligence by circuity of action. After looking into the facts of this case, as far as I could gather them from a statement of the Comptroller and the two papers addressed to him by the Second Auditor, I have no doubt-1st. That Captain Page had no authority whatever to bind the government beyond the amount necessary for furnishing 6,000 Indians with provisions during the probable period of the journey, and that there can be no obligations upon it, in justice or equity, to indemnify the claimant for any amount of provisions, &c., beyond what might be necessary for that purpose. 2d. That, consequently, there is no ground to pretend that government is estopped, by the deposition of Captain Page, to show what the contract really was, but may resort to any other evidence; especially, as the number of Indians to emigrate being left altogether indefinite in the contract itself, it was a case of latent ambiguity; and parol evidence would have been admissible between individuals a fortiori in a case which, for various reasons, does not fall within the scope of a rule of evidence founded on motives of general policy-being that of a government not subject to jurisdiction, consenting ex gratia to pay a claim if established on equitable principles. As to the pretended ratification of the superintendent, it would be liable, if it had exceeded his instructions, to the same radical objection of want of authority; but, in truth, it cannot, by any fair interpretation, be extended beyond the limits which he had himself so positively fixed, and to which, of course, he must be intended to have referred. It would be a captious and injurious construction of a mere general approval to stretch it further. 3d. That the contractors are, for the breach or recision of that contract, entitled, in strict law, to the difference between the contract price of the provisions they were bound to furnish to 6,000 Indians, and the actual value or market price of them in the country where they were to be supplied at the time they were to be supplied. But it is, as I have said, a rule universally applicable to all actions sounding in damages, that juries are allowed great discretion in mitigating these, even when they spring out of a breach of contract, so as to restrict them in amount to a fair indemnity; and I think, under the words of the act of 3d March last, the accounting officers would be bound to call for proof that the provisions were actually procured to be furnished, and loss on them actually su tained, before they could make any allowance whatever for them. Supposing them, however, satisfied that damages were incurred by the claimants, these must be repaired, so far as they were the necessary or direct and natural consequences of the breach of contract, but no distant or collateral ones merely. At least, this would be the conclusion of law, were it not for, 4th, the act of 3d March, which is a positive enactment, specially applicable to the case, and, so far as it alters the common rule upon the subject of damages for breach of an executory contract, supersedes that rule, and must govern the department. Then the question is, how far does it modify the rule, or does it modify it at all? The Comptroller applies the statute literally; but if the literal construction be unreasonable, and, above all, if it work injustice, the words must be taken with equity, or rather with a particular reference to the true subject-matter. Congress evidently meant that the second contract should, so far as it was identical with the first, stand in the place of the first; and if the damages sustained under the first were compensated by the gains under the second, there should be no allowance made on account of the breach of the first. Congress evidently intended, also, to grant some relief, if any were found due in equity and justice. If the contracts were for identically the same amount of provisions, &c., they would, excepting, perhaps, some trifling damage sustained during the interval, cancel each other. If the first were for a greater amount than the second, the latter would operate as satisfaction pro tanto. But, from the statement of the Second Auditor, it should seem that the supplies furnished under the second contract were double those admitted as necessary under the first for the support of 6,000 Indians during the journey. And then the question is, are the accounting officers to set off the profits made on the whole of the last contract, against the damages alleged to have been sustained by breach of the first? Let us state it more strongly: Suppose the first contract had been for furnishing 100,000 pounds of butchers' meat, at 10 cents, and, in consequence of the breach, this butchers' meat having been actually prepared, had been sold for 5 cents. The measure of damages, in strict law, and, indeed, in such a case in equity, too, would be just the difference of $100,000 multiplied by 10, and the same sum multiplied by 5-i. e., $5,000. Congress orders this difference to be adjusted on principles of equity, and in such a case it would be bound to pay $5,000. But the government having made a new contract a few days after the recision of the first, and agreed itself to become the purchaser, at a profit to the contractor, of the very same provisions, to the same amount, orders the difference supposed above to be adjusted, not in reference to the market price, but to the price it has itself actually paid; and if that price be equal, or nearly equal, to the contract price, of course the difference, and the damage with it, disappears, or is diminished pro tanto. In the case of equality between the amounts contracted for in the two transactions, there is no difficulty. But suppose the fact to be, (as it seems it is,) that the second contract is more extensive than the first. Put the case, that, instead of 100,000, it was for 1,000,000 pounds butchers' meat, at the same, 10 cents a pound, (equal to $100,000,) and the difference between the contract price and the market price is again 5— $50,000. If the accounting officers were, under this statement, to de. duct all the profits on the last, by way of making amends for the breach of the first, it is plain that the claimants, instead of being relieved to the extent of their damages, ($5,000,) would lose that sum, and $45,000 besides that is, all their profits under the second contract. But this is absurd. Yet, I admit, the words are very strong and express in favor of it. The construction I put upon the act makes it sensible and just, and reconciles it with the view which the Comptroller takes, (and which I fully concur in,) with regard to the limits of the responsibility incurred by the government under the first contract. Should it, however, not be satisfactory to you, there is no remedy but in a declaratory act of Congress. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, H. S. LEGARE. Secretary of War. FURTHER EXPLANATION OF THE MAISON ROUGE GRANT. Congress has given to the Land Office authority, and has prescribed to it as a duty, to treat OFFICE OF THE ATTORNEY GENERAL, SIR: In reply to the inquiry of the Commissioner of the General Land Office, as to the true construction of my opinion of the 27th ultimo, I have the honor to restate it more at length, and more explicitly. I conceive that Congress did not mean to confirm the claims in class B, under the acts of 1807 and 1816, absolutely. The legislature, for reasons satisfactory to itself, and according to principles which I had the honor to develope more fully in a recent communication to you on the subject of the Missouri land titles, chose to acknowledge those claims only sub modo, and to a limited extent. ITS WILL IS OUR LAW. It has given the Land Office authority, and has prescribed to it as a duty, to treat each and every claim recommended for confirmation in class B as valid up to the extent of a league square, but not beyond. The claim to all beyond a league square is unconfirmed, and stands, in every respect, as if the act had not been passed, except that the fact, that Congress has refused to acknowledge it further, has these two effects: 1st, to raise a presumption that Congress, by a partial confirmation, did not mean to admit the justice of the claim, but only to buy its peace; 2d, that, at any rate, the executive department must regard the claim, whatever may be its extent, as satisfied by the acceptance of a league square. Mr. Coxe has a title to a vast extent of country, it appears; to the whole of which, he says, it is as just and valid as to any one league of it. This may or may not be so; but it is certain that to the Land Office the whole of that title, whether designated by metes and bounds, by quantity, or as black acre or white acre, is good only for a league; and that league ought not, I think, to be granted without it distinctly appearing of record that the claimant representing such or such a claim for so many acres, or of such a description, has received satisfaction under the law of 1816, which the Land Office, in granting him a league square, is carrying into effect-I mean, that his claim as a claim, as the law now stands, and so far as the executive department is concerned, will be at an end, and that he, or his assignees, will have no further right or demand to make under the act of 1816. That must be understood, and must be recorded for the information of all concerned. Of course I do not undertake to bind Mr. Coxe not to seek the satisfaction of the rest of his demand, whatever it may be, either in law or equity, from Congress, or in the courts, should they, as he seems to imagine they will, think themselves authorized to give the redress he seeks. But the executive department can recognise his whole claim as only for a league; and, having given him that, must treat it to all intents and purposes as satisfied and settled. I have the honor to be, sir, your obedient servant, Hon. W. FORWARD, Secretary of the Treasury. H. S. LEGARE. VIOLATION OF NEUTRALITY AND ACT OF CONGRESS OF 1818. The building of two schooners of war in New York for the Mexican government, and being about to be furnished with guns and the usual military equipment, is clearly within the 3d section of the act of 1818. These vessels having been built expressly for the service of Mexico, which is waging war against Texas, the persons are liable to the penalties of the act, and the vessels to forfeiture. The policy of this country is, and ever has been, perfect neutrality and non-interference in the quarrels of other nations. OFFICE OF THE ATTORNEY GENERAL, SIR: I have had the honor to receive your note of yesterday enclosing a letter from Mr. Curtis, collector of New York, on the subject of two vessels of war built and fitted out in New York for the Mexican service. Assuming the facts to be (as they are stated by Mr. Curtis) that the vessels in question are two schooners of war; that they have been built for the Mexican government, and that they are about to be furnished with guns and the usual military equipment, I have no hesitation in saying that it presents a case clearly within the act of 1818, not only within the tenth section referred to by that gentleman, but within the third section. By the eleventh section, the collector is authorized to take a bond, &c., where he sees probable cause to suspect that a vessel, manifestly built for warlike purposes, is intended to be employed by the owner to cruise or commit hostilities upon the subjects, citizens, or property of any nation, or of any colony, district, or people, with which the United States are at peace. In this case, it is not probable merely, but certain, that the vessels-of war in question are destined to be so employed. They have been built, it seems, expressly for the service of Mexico, a power actually waging war against Texas, which is a country not only falling within the very comprehensive words of the enactment, but recognised as an independent State by the government of the United States. The third section of the act is express: "That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince, or State, &c., to cruise, &c., (as above,) he shall be deemed guilty of a high misdemeanor, and shall be fined not more than $10,000 and imprisoned not more than three years; and every such ship, with her tackle, &c., together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited." If there had never been a judicial exposition of this statute, I should think it too clear for argument that, on the state of facts assumed here, the case falls within the section just recited. But the Supreme Court has repeatedly, and in one instance with particular reference to the act of 1818, laid down principles that preclude the possibility of a question in regard to its meaning. I refer you to 9 Cranch, 364, the Alerta; and 4 Wheaton, 309, the Estrella. The reasoning on this subject is shortly this: The policy of this country is, and ever has been, perfect neutrality and non-interference in the quarrels of others; but, by the law of nations that neutrality may, in the matter of furnishing military supplies, be preserved by two opposite systems, viz:-either by furnishing both parties with perfect impartiality or by furnishing neither. For the former branch of the alternative, it is superfluous to cite the language of publicists, which is express, and is doubtless familiar to you. If you sell a ship of war to one belligerant, the other has no right to complain so long as you offer him the same facility. The law of nations allows him, it is true, to confiscate the vessel as contraband of war if he take her on the high seas; but he has no ground of quarrel with you for furnishing, or attempting to furnish it. But, with a full knowledge of this undoubted right of neutrals, this country has seen fit, with regard to ships of war, to adopt the other branch of the alternauve-less profitable with a view to commerce, but more favorable to the preservation of a state of really pacific feeling within her borders-shehas forbidden all furnishing of them under severe penalties. The memo. rable act of 1794 consecrated this policy at an early period of our federal history; and that act was only repealed in 1818 to give place to an equally decided expression of the legislative will to the same effect. Whatever may be thought of the spirit and policy of the law, its scope and objects are too clear to be misunderstood; and I am of opinion that the case stated by Mr. Curtis falls fully within the purview of the third section. But, I repeat it, this opinion is hypothetical. I assume that the parties built and equipped these vessels expressly for the service of Mexico, knowing her to be a belligerant; and I presume the intent from the fact. I have the honor to be, sir, your obedient servant, Hon. WALTER FORWARD, H. S. LEGARE. Secretary of the Treasury. |