« AnteriorContinuar »
ister resident of the United States at Constantinople. They arise under the act of August 11, 1848, entitled “ An act to carry into effect certain provisions in the treaties between the United States and China, and the Ottoman Porte, giving certain judicial powers to ministers and consuls of the United States in those countries.” The questions proposed are the following:
“ Ist. Where is the American citizen who may be arrested, charged with a crime, to be confined until brought to trial, and where afterwards if convicted ?
“2d. If it be answered that he is to be confined in the Turkish prisons, from what fund are the expenses of his arrest and support in prison to be paid? for, in the beginning, there will be no funds such as contemplated by the 17th section of the act.
“30. Are the fees which may be collected under the tariff, authorized by the 17th section in civil cases, to be applied to the discharge of the expenses incurred in criminal cases?
* 4th. (If question 3d be answered in the affirmative.) Does not the 22d section limit the provisions of the act, so far as they relate to Turkey, to crimes, and thereby leave crimes to support their own expenses?
5th. Do the provisions of the 18th section apply to Turkey? "6th. Does the act embrace Egypt and the Barbary States, which are under the dominion of the Sultan of Turkey, or the Ottoman Porte ?"
To the 1st question, I would reply that the act of Congress, not having designated any particular place for the confinement of persons, it is left to the regulation under the 5th section, or, in the absence of any such regulation, to the discretion of the acting functionary.
To the 2d question, the answer appears equally clear that the expenses must be paid from the fund created by the execution of the act.
As to the 3d and 4th questions, I think it obvious, as the provisions of the act are extended to Turkey so far only as they relate to crimes, that there can be no fees collected in civil cases to be applied to the discharge of expenses incurred in criminal cases; and that crimes must, therefore, be left “to support their own expenses.”
As to the 5th question, the provisions of the 18th section, relating to salaries, are not extended to Turkey. There is not to be found in the act any expression of the will of Congress that that section shall be extended beyond China. It is not to be found in the 22d section. That is expressly restricted. In the absence of any enactment, no new salary can be created, nor an old one increased. Finally, whether "the act embraces Egypt and the Barbary States, which are under the dominion of the Sultan of Turkey, or the Ottoman Porte,” is a new political question. The political action of the government on this subject would control the courts of law, and furnish a rule for their guidance, which they would be obliged to follow. We have treaties with the Barbary States, without the intervention of the Sultan of Turkey. How far Egypt, or those States, may be regarded as "in the dominions of the Sublime Porte,” is a question which cannot be solved without the aid of the State Department. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. James BUCHANAN,
Secretary of State.
IMMUNITIES OF PUBLIC MINISTERS.
The persons and household goods of foreign ambassadors, and those attached to their respective
legations, are exempt from lawful arrest, seizure, or molestation, as well by the laws of dations
as the act of Congress approved 30th April, 1790. It is therefore unlawful for the keeper of a hotel in Washington, with whom the attaché of the
legation of France is a boarder, io oppose by force, in any manner, the removal therefrom of any of his personal effects. Yet it is not incumbent on the Secretary of State to interfere in such cases. The act of Congress, which denounces the act and prescribes the penalty, refers them to the judiciary.
ATTORNEY GENERAL'S OFFICE,
February 13, 1819. SIR: I had the honor to receive your letter of the 8th instant, containing the translation of a note of M. Poussin, envoy extraordinary and minister plenipotentiary of the republic of France, respecting what he considers as an infraction of his diplomatic privileges, and requesting my opinion,“ whether anything and what may be done for the relief” of his attaché.
His excellency the French minister, in this note, represents that “M. Jules Marie, attaché to the legation of France, desiring to quit the lodgings which he occupies in the house of Sieur Favier, a French hotel keeper in this city, has been prevented by the opposition, made by this person, to the removal of the effects of M. Marie and his family, with threats of violence, in case they should endeavor to do so," and appeal. ing “to the principles of international law, sanction by the law of the United States, which interdicts the seizure of the property as well as the person of any individual belonging to a foreign mission," he prays the Secretary of State “to take, without delay, such measures as may be necessary to assure to M. Marie the protection to which his position entitles him."
It is not in the power of the Secretary of State to interfere directly in this matter. The laws of the United States, while they strictly enforce the law of nations in this particular, and vindicate the principles of the extra-territoriality of the minister, his family, and other persons attached to the legation, securing to their persons and personal effects perfect immunity from arrest, seizure, or violence, yet are not administered by the Secretary of State, nor has he any legal authority to interfere with their administration. That belongs to the judicial tribunals.
Nor is any such interference necessary. The act of Congress of April 30, 1790, denounces the punishment of imprisonment not exceeding three years, and fine at the discretion of the court, upon any offender who shall assault, strike, wound, imprison, or in any other manner infract the law of nations by offering violence to the person of an ambassador or other public minister.” It is impossible to use the slightest force to take from a public minister his personal effects against his will, either with process or without process, having knowledge of his public character, and not incur the penalty of this law. He cannot be interrupted by the slightest personal violence in removing from place to place his household goods or other personal effects remaining in his lawful possession, without an infraction of this law. It has been held by our courts that an attaché is within its provisions.
I deem it unnecessary to inquire, therefore, whether the Sieur Favier is a licensed hotel keeper, or has by law a lien upon the goods of his
guests, or whether M. Marie is one of his guests in any legal sense. It is sufficient, in my judgment, that M. Marie has not delivered the goods to the hotel keeper, but retains them in his own possession. That possession cannot be changed in the presence of the minister or his attaché, by force, against his will, without a violation of the act of Congress and of the law of nations, subjecting the offender to the penitentiary and a fine, at the discretion of the court. Neither a landlord nor a taverner, under the color of a lien, can forcibly take from an ambassador his chest or trunk, whether it contain his wardrobe or other articles of mere personal convenience, or whether it contain the instructions of his government or the archives of his legation. Neither the law of nations nor the law of Congress knows any difference. While, therefore, the Secretary of State can take no legal measures, the law furnishes the attaché the most ample protection. I have the honor to be, very respectfully, sir, your obedient servant,
Hon. JAMES BUCHANAN,
Secretary of State.
INTEREST ON CLAIM OF REPRESENTATIVES OF GEORGE FISHER.
The interest on the claim of the representatives of George Fisher, deceased, for property taken
or destroyed by the troops of the United States, should be computed from the time of the
taking or destruction. The rate of interest 10 be allowed should be six per cent. for the period of the detention.
ATTORNEY GENERAL'S OFFICE,
February 16, 1849. Sır: In administering the relief provided by the act of Congress for the legal representatives of George Fisher, deceased, approved April 12th, 1848, it being held by the Second Auditor that the value of the property taken or destroyed, with interest upon it, is to be paid as “a fair and full indemnity,” it would seem to follow, of course, that the interest should be computed from the time when the property was taken or destroyed by the troops of the United States.
As to the rate of interest, it is not fixed by any contract, nor is interest to be paid in pursuance of any contract. It is referred to as a measure of what is deemed, under the laws and practice of this government, a fair indemnity for the detention of the value, and that is six per centum per annum during the period of the detention. I have the honor to be, very respectfully, sir, your obedient servant,
Hon. R. J. WALKER,
Secretary of the Treasury.
COMPENSATION OF CERTAIN LIEUTENANTS UNDER ACT OF 1847.
The act of 3d March, 1847, regulating the pay of lieutenants holding the appointment of adju
tant or regimental quartermaster, &c., is to be regarded as prospective in its operation. It does not unsettle accounts for antecedent service.
ATTORNEY GENERAL'S OFFICE,
February 16, 1849. Sir: I have the honor to reply to your letter of January 22, 1849, requesting my opinion of the effect of the 10th section of the act of the 3d March, 1817, giving an interpretation to the act of March 2, 1827. 4 Statutes at Large, 227.)
The latter act gives an additional ration to each captain and subaltern in the army, with a proviso "that no subaltern officer who shall be in the performance of any staff duty for which he receives an extra compensation shall be entitled to the additional ration herein provided for.”
The act of the 3d of March, 1847, declares, in its 10th section, that the aforesaid proviso “shall be so interpreted as not to include lieutenants who hold the appointments of adjutant and regimental quartermaster.”
The question is, whether this act is prospective only, or shall be deemed to relate back to the 2d of March, 1827, and to change the uniform interpretation which had prevailed for twenty years, rendering it necessary to re-open and adjust anew the accounts of all lieutenants who had held the appointments of adjutant and regimental quartermaster during that period, and received extra compensation in that capacity? Was that the intention of Congress? Is such intention expressed?
I think no such intention appears. It was undoubtedly competent for Congress to restrict the future application of the law without disturb. ing the past—to give a new operation to it without unsettling what had been settled. I think this intention clearly appears. The words are prospective. The language does not embrace those who had before held those appointments. It is restricted to those who “hold” them. It would be contrary to the well settled rule to change the words of the act, in order to give it a retrospective operation. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. Wm. L. MARCY,
Secretary of War.
PENSIONS TO DISABLED OFFICERS, SEAMEN, AND MARINES. The rule of the Pension Office that an application for a pension cannot be entertained after the
lapse of twenty-five years from the time when the disability was incurred, is unauthorized by
law, and therefore invalid. The power conferred upon the Secretary of the Navy to establish rules and regulations for the
examination and adjudication of claims for admission upon the roll, does not authorize the enactment of a statute of limitations.
ATTORNEY GENERAL'S OFFICE,
February 16, 1849. Sır: I have the honor to reply to your letter requesting my opinion “ whether the rule of the Pension Office, that an application for a pen
sion cannot be entertained after the lapse of twenty-five years from the time when the disability was incurred, is authorized by the act of the 26th March, 1804, empowering the commissioners of the navy pension fund to make such regulations as might to them appear expedient for the admission of persons on the roll of navy pensioners.”
This is a power to establish rules and regulations to be observed in the examination and adjudication of the legal claims of a class of persons to be admitted on the roll of navy pensioners; and does not extend to the enactment of a statute of limitations, or of any rule which would preclude any examination, and of course any adjudication. Such a rule would be in derogation of the act of Congress, not in execution of it. This being clearly the character of the rule of the Pension Office referred to, I am ot' opinion it is invalid. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. John Y. Mason,
Secretary of the Navy.
COMPENSATION OF EXECUTIVE OFFICERS.
An acting Secretary of State, or of any other department, is not entitled to the salary provided
for the incumbent whilst the office is filled and the salary received by an incumbent duly nomi
nated and appointed by the President, and confirmed by the Senate. If the duties of an office belong to an incumbent who receives the salary affixed to it, another
officer performing those duties is prohibited from receiving there for any compensation whacSince the act of 1812 no officer whose pay is fixed by law or regulation is lawfully entitled to any
additional pay, extra allowance, or compensation, in any form whatever, for any other duty or service, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for additional pay, or extra compensation.
ATTORNEY GENERAL'S OFFICE,
March 1, 1849. Sir: I have the honor to express my opinion, as required, upon the question growing out of the report made by the First Comptroller, upon sundry accounts recently allowed and paid at the Treasury, under one of the recent decisions.
The question is, whether an acting Secretary of State, or of any department, can receive the salary fixed by law, while the oflice is filled and the salary received by an incumbent duly nominated and appointed by the President, and confirmed by the Senate?
The act of March 3, 1839, (5 Slat. at Large, 319,) declares "that no officer of any branch of the public service, or any other person, whose salaries, or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless said extra allowance or compensation be authorized by law.” The “act making appropriations for the civil and diplomatic expenses of the government for the year 1842," approved 9th May, 1812, (5 Stat. at Large, 487,) declares "that no allowance shall be made, out of any money appropriated by this bill, to any clerk or other officer, for the discharge of duties the performance of which belongs to any other clerk or other officer in the same or any other depart