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begun, with fir prospects of success. Speculation, as of four years from the 24th of April, 1828. The letter usual, ran ahead of reason and reality in this place, and of instructions given to Mr. Armstrong from the Navy has injured it for the present; but it can hardly fail to re- Department, is dated on the 16th January, 1829. By cover and thrive, In journeying from Pine Grove to the act of Congress passed on the 15th May, 1820, it Lebanon, you will pass the Blue mountain, presenting was enacted that Navy Agents, with other officers scenes of wild and unimproved nature, altoge her new mentioned in the act, “shall be appointed for the term to the inhabitants of a city. As you will not be in a of four years, but shall be removable from office at hurry, the long ascent and descent will not annoy you, pleasure.” In April, 1830, the President revoked the nor its rough scenery be wearisome. The road is per- commission or appointment of the complainant, but the fectly safe, although not made for one of the trotters of notice of the revocation contained in a letter from the a mile in three or four minutes. Arrived at Lebanon, Secretary of the Navy of that date, did not reach the you will have the refreshing comforts of a good inn at complainant until the October following. He continued Mr. Oyler's, and find yourself in the very garden of the to reside at Lima until January, 1832, when he left it Agriculture of Pennsylvania. Whether you shall here to return to the United States, going first to Valparaiso, take your course to Harrisburg, and return to the city from which port he sailed in March. On complainants by Lancaster; or go from Lebanon to Reading, and settlement of his accounts with the government in July, thence to Philadelphia, the man must be insensible to 1832, a balance was struck against him of $12,948 63, the best feelings of humanity, as well as to the honest which, by a subsequent small credit, was reduced in pride of patriotism, who is not excited to a high state of August to the sum of $12,875 44, now claimed by the enjoyment in surveying this spiendid valley. A rich United States. On the other hand, the complainant and untiring soil, cultivated with unceasing industry, has presented an account, or claims for credits against throws out abundance at every pore, in all the variety the United States, which, if allowed him, will not only of agricultural production Large and commudious absorb the whole demand upon him, but will turn a bahouses of stone, placed in delightful situations, with or- lance in his favor to the amouot of $4681 74. namental trees and smiling gardens-stone barns of The United States to enforce the payment of the immense exfent; pure water fowing from adjoining amount they allege to be due to them from the com. hills through verdant fields, or gushing from artificial | plainant, proceeding under the directions of an act of fountains for convenient use, combine altogether the Congress passed on the 15th day of May, 1820, have iselements of substantial comfort and prosperous improve- sued a warrant of distressed against the alleged delin. ment that cannot be surpassed in any country.

quent officer and his sureties, directed to the marshal By spending a few days at each of the places I have of this district, in which the said officer and his sureties mentioned, or by extending the tour to the Susquehan. reside, which warrant has been executed by the said na, a month or six weeks of the summer might be de- marshal according to the provisions of the said act. By lightfully and profitably disposed of;-our citizens the fourth section of this act, “if any person should would return with a valuable and interesting addition consider himself aggrieved by any warrant issued under to their stock of information, and with the full and cer- this act, he may prefer a bill of complaint to any District tain knowledge, that if Philadelphia is a great city, she Judge of the United States, setting forth therein the is but a part of a great state, in all respects worthy of nature and extent of the injury of which he complains; her. She is the head of a body of surpassing beauty and thereupon the Judge aforesaid may, if he is of opi. and strength. Nor should I omit to mention the uni- nion the case requires it, grant an injunction to stay form and obliging civility of the people of the state, es proceedings in such warrant altogether, or for so much pecially the German population. Whether you accost thereof as the nature of the case requires." Under this them on the high road or in the streets of a town,-in provision the complainant filed his Bill of complaint, a private or public house, you are answered and attend. whereupon he having complied with the requisitions of ed to with a plain and simple politeness, which indicates the act, an injunction was issued to stay proceedings on a kind temper and the best dispositions. May I add a the warrant of distress. The District Attorney has political to this moral reflection. You will every where filed a full answer to all the matters complained of in find yourselves among a people devotedly, immovably. the bill; and the cause has been heard on this bill and unanimously attached to the Constitution and institu- answer, with the vouchers and other evidence produced tions of our country, and who cannot be drawn from by the parties respectively. The complainant complains them by the arts of interested demagogues, or com- of the rejection or refusal of certain credits in the setplaints of imaginary grievances. They cannot be per. tlement of his accounts with the government, to which suaded that they are ruined, with the evidences of he alleges he is entitled in law or equity; and the Disprosperity all around them; nor that they are slaves, trict Attorney denies altogether his right in law or equi. when they feel no restraint but from the laws of their ty, to any of the allowances he claims, and prays that own making. With a state they may be justly proud the injunction may be dissolved, so that the marshal of of, their state pride would not exalt itself on the ruins this district may proceed under his warrant of distress of our great republic, or weaken a tie that binds our to levy and collect the said sum of $12,875 44, remainglorious, happy, and envied Union together,

ing due from the complainant to the United States, It H. is now to be decided, so far as this court may decide it,

whether the said injunction shall be continued altogethCHARGE OF JUDGE HOPKINSON. er, or dissolved altogether, or in part; and if the latter, In the District Court of the United States of America, States be permitted to pursue under their warrant of

for what amount it shall be dissolved, and the United in and for the Eastern District of Pennsylvania.

distress against the complainant and his sureties. To Andrew Armstrong,

determine this question, it is necessary to examine eveMay Sessions, 1833, ry item of credit claimed by the Bill and denied by the The United States.

answer.

The first credit claimed by the complainant, which Judge Hopkinson delivered the following opinion:

has been refused to him by the accounting officers of On the 24th day of April, 1828, Andrew Armstrong the United States, is a charge of $5,755 86, being for the complainant, was appointed by the President, by commissions on his disbursements of monies as Navy and with the advice and consent of the Senate of the Agent at Lima--on these disbursements an allowance United State, Navy Agent for the Port of Lima, in Peru, / has been made to him of one per cent, and the present in South America, The commission which testifies this claim is for an additional or further allowance of four appointment, bears the date above mentioned, and de- per cent-making a commission of five per cent in the clares that it is “ to continue in force during the term whole. On the part of the Government, it is contend.

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1833.]

CUARGE OF JUDGE HOPKINSON.

75

ed that a Navy Agent of the United States, whether he which shall be established by law. In conformity with reside abroad or at home, is entitled to no more than this provision of the constitution, Congress have estaone per cent on his disbursements of monies, by the ex-blished by law, the office of Navy Agents, and the Prepress enactment of the act of Congress of 3d March, sident with the Senate, has appointed the officer Prior 1809. On the other hand, the complainant avers, that to this law, the purchase of supplies and the disbursehe was not appointed under that act, and is not subject ments of monies for the use of the Navy were made di. to its provisions, nor bound by its restrictions; but is rectly or indirectly, by the Secretary or by his agents. entitled to a compensation for his services according to The state of the Navy did not require a distinct office their nature and extent, and the usual mercantile com- and officers for these purposes. Those duties or sermissions for similar services, at the same place, which vices were performed by persons named for the oc: were five per cent. The real question on this part of casion by the Secretary, and as I have said, were his the case iswhether the complainant was appointed agents—his arms and not officers of government. They a Navy Agent under, and subject to the act of Congress were neither appointed or removable by the President, of March, 1809, or not-for if he were so, that act after any more than a clerk in the department. The'r agency declaring the manner in which Agents shall be ap. began and ended with the pleasure of the Secretary, or poined for the disbursements of monies for the use of with the particular service for which they were employthe Navy of the United States, authorizes the President ed. As our naval establishment was extended, and these to fix the number and compensations of such agents, services became numerous and important; as the ope" provided that the compensation allowed to either, rations of these agents became of great magnitude, shall not exceed one per centum on the public monies involving the expenditure of vast sums of money, it was disbursed by him.” If then, the complainant was a wisely thought they should no lnger be entrusted to Navy Agent described by the said act; if he received the agents of a department, irresponsible in some dehis appointment and authority under, and by virtue of gree directly to the government, and without any seit, he must be bound by all its provisions. The argu. curity beyond their own responsibility, for the faithful ment on this item has therefore been directed to this performance of their trust. The patronage, too, may question. The attorney for the United States has con-well have been thought to be of a too high character tended, that the complainant was an officer of the and value to be allotted 10 a department. The law of United States, not the agent of a department; that he 1809, was intended to put the concerns under a better was a Navy Agent of, and for the United States, ap- regulation. The third section enacts “ That exclusively pointed as such, by the President and Senate, by virtue of ihe purveyor of public supplies, paymasters of the of the act of Congress referred to; that previous to that army, pursers of the navy, military agents and other act, no appointments or commissions of such agents were officers already anthorized by law, no other permanent ever given by the President, or by the President and agents shall be appointed either for the purpose of mak. Senale as then was done, and as this act directs. That ing contracts, or for the purchase of supplies, or for previous thereto, persons had been, from time to time, the disbursement in any other manner of monies for the appointed by the Secretary of the Navy at his pleasure, use of the military establishment, or of the Navy of the to perform certain prescribed duties for his department, United States, but such as shall be appointed by the under such contracts and arrangements as he may choose President of the United States, with the advice and to make with them, but that the appointment of the consent of the Senate.” It is then enacted, that the complainant was clearly not of this description; but President may fix the number and compensation of was made, or could have been made,only under the act such agents—but with a limitation as to the latterof 1809. The counsel for the complainant deny that he provided that the compensation allowed to either was a: officer of the United States at all; they deny shall not exceed one per centum on the pablic mothat he was appointed to the service he performed un- nies disbursed by him." The fourth section requires der the authority of the act in question; but that his a bond from the agent, with one or more sufficient services were performed for the Navy Department in the sureties for the faithful discharge of the trust reposed same manner, by the same authority, and with the same in him." All this appears to me to be very intelligible-rights of compensation with the agents which had been we see no intimation of the distinction, essentially and appointed by the Secretary of the Navy, at other places. necessarially relied upon by the counsel and the comThe cases of, and allowances made to Messrs Hogan, plainant, between foreign and domestic agents, in the M'Call, and others, have been much insisted on,as form- mode of appointment, the tenure and permanency of ing precedents for this—and the distinction relied upon their offices, or the terms on which they may receive between such agencies as are, and such as are not, with them. The construction contended for, taking the in the regulations of the law of 1809, is that they are to foreign agents altogether out of the act, would not only be applied only to those Navy Agents whose duties are deprive the President and Senate of the appointment, to be performed in the United States, and not to those but dispense in their case with the security to be given who must reside in a foreign port.

for the faithful discharge of the trust reposed in them, After giving a close and careful attention to the ar- as well as of the limitation of their compensation to one guments and illustrations of the counsel for the com- per centum on their disbursements. As regards the plainants, I cannot follow them to their conclusion. It bond of security it would seem to me, to be infinitely appears to me to be entirely clear that the appointment of more necessary in the case of a foreign than a home the complainant as a Navy Agent at Lima, was an offi- agent, who is always under the eye and control of gocer of the United States, and not a mere limb of the vernment, whereas the other carries on his operations in Navy Department; Ibat he was an officer of the United a distant country, and might be guilty of the grossest States, deriving his authority from the constitutional irregularities and frauds for a long time before they appointing power, the President and the Senate; that would be known: and when known the delinquent their power to appoint Navy Agents, was derived from would be out of the reach of the government, with all the act of Congress which created or established the his spoil. It has not been pretended that domestic office. Previous to the passage of the law in 1809, agents are not subject to the provisions of this law, for there were no such officers, either at home or abroad, this would be to repeal it wholly as to all Navy Agents; properly so called, under the constitution of the United and I think it has not, and cannot be shown, that any

disStates. The constitution gives the power to the Presi- tinction is made by the law, or by the reason and design dent to nominate, and by and with the advice and con- of the law, between the agents appointed for foreign sent of the Senate, to appoint ambassadors, other pub- or home stations. They are equally within or without lic ministers and consuls, Judges of the Supreme Court, the law: they are both clearly within it in their appoint. and all other officers of the United States, whose ap- ment, their responsibilities, and their compensation. pointments are not herein otherwise provided for, and It has been argued with great earnestnes, that this act

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relates only to permanent agents, and that a Navy special contract in his pocket, but with his commission
Agent abroad is not a permanent agent, for it is remov. as the only evidence of his appointment; the only source
able at the pleasure of the executive. And in fact, in of his authority. The commission was given to him
this case, a removal was made in fifteen months, where under the law of 1809—it could have been given to him
as the foreign agents appointed before the passage of under no other legal authority; and he took it as an ap-
this law, continued undisturbed for many years. The pointment under the law, and subject to all its provi.
first difficulty this argument has to encounter is, that it sions. I am of opinion that he is entitled to no more
applies with the same force to the agents at home, who than one per centum on the monies disbursed by him
hold their offices in the same way, and may be removed for the use of the Navy of the United States; and of
by the same power that acts upon the agent abroad; and course, that he cannot be allowed the credit which he
thus the distinction so carefully set up between foreign now claims of an additional four per cent. amounting to
and domestic agent, is overthrown. What is the meaning the sum of $5,755 86. The one per cent he has already
of a permanent agent as understood in the law? Certainly received a credit for.
it does not designate the place of residence as affecting I bave said nothing of the alleged conversation be-
the description. Can we say that the complainant was tween the complainant and Mr. Hay, a clerk of the na:
not a permanent agent, because he was removable, or vy department. Our knowledge of it, and of the time
because he was actually resroved by the President occurred, is by no means satisfactory; but no such con-
does the legal character or description of the appoint- versation, nor any opinion nor representation of Mr.
ment depend upon the exercise of the right of the Pre- Hay, or any other officer of the government, could have
sident over the officer. This is clearly not the mean. any effect on the provisions of the act of Congress. If the
ing of the law, as is apparent from the act of 15th May, complainant can show that he accepted his commission.
1820, which enacts that “Navy Agents” with other in consequence of the representations of Mr. Hay, he
enumerated officers, “ shall be appointed for the term may have a case for the equity of Congress, but we are
of four years, but shall be removable from office at bound to obey the law.
pleasure.” The Navy Agents here referred are cer The next credit claimed by the defendant, and which
tainly those which are appointed under the law of 1869, has been rejected by the accounting officer of the Trea.
by the description of “ permanent agents”—the phrase sury, is a charge of commissions on the destribution of
then, “permanent agents,” are those agents which shall stores, amounting to 4 616 23. There is another claim
be appointed by the President, with the advice and on same account of $427 76. They will be considered
consent of the Senate, in contradistinction to those per. together. The act of 1809, which creates the office of
sons who had been, or should be appointed by the Sec. Navy Agent, bas also fixed his compensation wholly or in
- retary of the Navy, on some special occasion or service, part. We must recur to it for the decision of the ques
in his discretion and on such terms as he, on his official tion on the distribution of stores; obeying the direc-
responsibility, should chose to arrange and make with tions of the law where they are clear and explicit, and
the person so appointed by him. I he officer who takes giving it a fair and reasonable construction where it is
his appointment from the President and Senate, under not so. It enacts that the president may fix the number
the constitution and laws of the United States, testified and compensation for such agents, provided, that the
by his commission, which makes him independent of compensation to either shall not exceed one per centum
the Secretary, and removable only in the manner and on the public monies disbursed by him. There is in my
by the power given by the constitution and the law, mind something equivocal in this form of expression.
may well be considered, legally, to be a permanent officer Does it mean that the whole compensation of the agent
or agent of the United States. When the law declares for all his services shall not exceed one per cent. on the
that no permanent agent shall be appointed but by the monies he shall disburse, or that the compensation for,
President and Senate, it in effect declares that the or on account of his disbursements of monies, shall not
agent who is so appointed, is within the meaning of the exceed that rate? Perhaps the more strict and the more
law, a permanent agent. The district attorney is a obvious construction of the words, as they stand in the
permanent officer of the government, although remova- law, would be that the whole compensation for all the
ble at pleasure and commissioned just as a Navy Agent, services of the agent shall be one per cent. on the mo:
in contradistinction to a special or temporary attorney nies disbursed by him. But it is not explicitly so said,
who may be employed for a particular case or service. and if we are permitted to resort to construction, as in

The cases of Messrs. Hogan and M'Call, have been a doubtful clause it does not appear to be the most lifrequently urged upon the court in the argument. beral interpretation of it. What is the difference in It might be enough to answer that they clearly were labour or responsibility between the distributing stores not appointed under the law of 1809, but made their and disbursing money for the use of the navy, unless contracts with the Secretary of the Navy,for the services we should say that first is the more laborious and trou. they undertook to perform. They were not officers of blesome of the two. They are distinct services in evethe United States; they were not appointeil as such off ry respect, and why should they be confounded in their cers must be, they did not derive their agencies, such compensation? If we look to the practice under contracts as they were, from the President and Senate, nor were made by the secretary with his agents, these subjects of they appointed under the authority of the act of Con- service here have been kept separate, and a commis. gress. Contracts were made with them by the Secreta- sion charged and allowed for each. I must be under. ry of the Navy, under a discretionary power exercised stood to comprehend in this view, only such stores as by him. It is true that abuses may be practised in this were sent out by the Government to the Agent to be way, but they are not to be presumed. It is true that distributed by him to the Navy, and not those which under the pretence of making a special agent, under have been purchased by him, and for which he has alspecial contract, a Navy Agent may be placed in a fo- ready received his compensation in a charge of commisreign port by the Secretary, with any rate of compensa- sion on the monies disbursed for the payment. The tion he may agree to, and without the securities requir- charge now made by the complainant is understood to ed by the law from the Navy Agents, for the faithful be only for the stores furnished by the Government. If discharge of their trust, and such an agency may be we adopt the more rigorous construction of the law, continued for many years, as they have been, perform and allow to the Agent nothing but his commissions on ing all the duties of a permanent Navy Agent, and no the disbursement of money for all his services, a case of more. Such cases might be an evasion of the provi- manifest injustice might occur. The location of agent sions of the law by the Secretary; but they are always might be such that it would be more convenient or ecounder the control of the President, who by appointing nomical for government to send him every thing, or a permanent agent, would supersede the special agency. nearly so that could be there wanted for the use of the The complainant in this case went abroad, not with such navy; and he would have little or no money to disburse,

1833.]

CHARGE OF JUDGE HOPKINSON.

77

while his labour in taking care of the stores and distri- and paid. The only reason for refusing this, was a suspi. buting them, would be very great and unrewarded. cion or belief that it had been drawn after the complainant By turning to the 3d section of the act, which creates had notice of the revocation of his appointment, and, of this office, the duties of the officer in the view of the course, after bis right to draw had ceased. This was legislature, and to which the stipulated compensation altogether a mistake. The letter of revocation was may be supposed to refer, is as follows the “making dated April, 1830, and did not come to the knowledge of contracts, the purchase of supplies, and the disburse of the complainant, until the October following, several ment of monies for the use of the navy.” No stores or weeks after the date of the bill, which was therefore supplies seem to have been contemplated by this law, rightfully drawn. When the truth of the transaction but such as were purchased by the agent, and for which, was known, the bill was paid, but the damages which in course, he has received his commission on the dis. were paid by the complainant in consequence of the bursements in making the purchase. But the distribu- protest, by the mistake of the government, and for no tion of stores, or suppljes not purchased by him, and fault of the complainant, have been withheld, and the for which service he has, in no shape, received any loss thrown upon him. I cannot see on what principle compensation, seems not to have been considered, or of law this has been done. In such a case, between a distinctly provided for, in the description of duties to be factor and his principal, can it be doubted, the factor performed by the agent, or in fixing his compensation would be entitled to a full reimbursement of such payfor his services. Is the credit now claimed be such a ment. This credit must be given to the complainant. one as the head of the department was authorized to The two next items will be considered together. allow, in the exercise of his equitable discretion, in the They are so manifestly unsupported by the facts and settlement of the accounts of a public officer? or is it so reason of the case, that it is a subject of regret as well clearly prohibited by the act of 1809, that to allow it as surprise, that the complainant should have introduced would be a violotion of the law? In the latter case, them in his account. The first is a charge of $1609 87 neither the Secretary nor the Court, have any power over for his board during his detention in Lima, owing to the it. In the former, the Court may do whatever the Se. protest of his bills, say from the day he ceased to be an cretary might have done. We may give the credit, if agent, the 1st of October, 1830, to the 20th of January, we are justified in considering the service for which it 1832, at $3 37 per diem. The second is a charge of is claimed, to be a casus omissus in the law, not provid- $3,229 15 for his compensation for the above time, at ed for by it, and not within the restriction of compensa- the rate of 2500 per annum. tion there imposed. In such a case we may consider As to the detention at Lima, owing to the protest of the equity of the claim arising from the performance of his bills, if we could agree that the protest of these bills, a service, for which no remuneration has been made, drawn by him as an officer of the United States, and and its allowance or disallowance would be subject to for the payment of which he was not responsible, could the discretion of the court, under all circumstances of afford a reason for remaining at Lima, at the charge of the case. It is not a credit of positive right, for it is the United States, it is not to be doubted, on the clear not promised by the act of Congress, or by any contract evidence of the case, that he did not remain there for with the government; and its allowance as an equitable any such reason, but for his own purpose, or at least, at charge will always depend upon the fact upon which his own pleasure. He remained at Lima, after the nothe equity is founded.' Such an equity may be founded tice of his removal from office, eight months before he in one case and not in another, and each will be govern. knew of the protest of his bill, and during which time ed by its own circumstances. In this item, I have con- he had not any suspicion that it would be protested, cluded, not without much doubting, to allow a commis yet these eight months are a part of the period during sion of one per cent. on the value of stores or supplies which he alleges that he was detained at Lima, "owing distributed by the complainant, and not purchased by to the protest of his bills." Again he was informed of him, but furnished by the United States. The credit the payment of his bills in October, 1831, but his charge claimed in his account is 5 per cent. or $1043 99, the al- for detention runs to the 20th of January, 1832, and lowance will be one fifth of that sum, or $208 80. As did not actually sail for the United States until March, connected with this part of the case, I will dispose of 1832, either because he was attending to business of his the charge of $183 24, commissions on stores and pro. own, or it may be he was waiting for a suitable conveyvisions delivered over by the complainant to his succes- ance. In the face of such facts I cannot admit that the sor, Philo White. This charge is wholly inadmissible. protest of these bill had any thing to do with his reIt has none of the considerations in its fayour that maining at Lima, and if they had, I do not see that have influenced my decision on the two last items. Its their protest made such a necessity for his detention as whole service was probably the delivery of a key to to raise a claim against the United States for it. Mr. White. It was his duty to put his successor in pos- The claim for compensation amounting to $3229 15 session of the public stores, and can afford no ground for services as Navy Agent, after the revocation of his for a commission, on any principle of the most liberal appointment, and during the alleged detention at Lima equity. A charge for clerk bire is deemed at the is still more unreasonable. The claim is made for the treasury to be a proper credit to the complainant, and time between the 1st of October, 1830, and the 20th one thousand dollars have been allowed for that ob- of January, 1832. Now it is not questioned that Philo ject. The balance of $268 75 was rejected as an ex. White, the official successor of the complainant arrived cess of what was thought to be a necessary or reasona- at Lima, and took possession of the stores, and assumed ble expenditure on that account. The complainant has the duties of the appointment in May, 1831. And yet exhibited receipts showing that the whole amount in the face of this fact, the complainant has made a claimed by him has been actually paid to his clerks. He charge as an acting Navy Agent, until Jan., 1832, full asks only for reimbursements

. It must be allowed as eight months after he had ceased to have any connecthere is no evidence of any bad faith or wanton extrava- tion with the office, its duties or services. It is true gance in the expenditure.

that when in October, 1830, the revocation of the comThe sum of $863 33 is claimed for damages and in- plainants appointment came to Lima, he was requested terests paid to Alsop & Co., on a bill drawn by the by Commodore Thompson to continue to act as agent, complainant on the Secretary of the Treasury, on the as his substitute had not arrived, in procuring supplies 16th August 1830, which was protested for non accep- for the squadron, and taking charge of such stores as tance and non payment. The protest of this bill was might be sent out for its use. we may presume that permitted by the government under a mistake of the he did so. But what were the services he performed fact concerning it. The complainant while legally act. under the appointment or request of Commodore ing as Navy Agent, had unquestionably a right to draw Thompson? Merely to procure supplies and to receive bills on the government; and many had been drawn land distribute stores. For these he has been paid by

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his commission on the monies disbursed for the purchases he alleges, for the United States; a part of this tobacco and on the stores distributed by him. I cannot but ob- was distributed or delivered by the complainant, before serve that in the same account in which he has charged his removal from office, to certain ships of the United a commission of 5 per cent. for these services, he has States, and the residue remaining in the stores of the also claimed a compensation for them in the shape of a United States, was handed over with the other stores, to salary, at the rate of $2500.

Mr. White, the successor of the complainant, having I have felt a strong disposition to allow the credit of been first surv red by order of Commodore Thompson. three hundred and fifty dollars paid by the complainant From that day to this, not a pound of it has been in the for his passage home. He left his country and his busi. possession, or under the control of the complainant, but ness and prospects here, whatever they were, under that which has not been consumed in the ships of the an appointment by the government, which purported United States, has continued in the possession of their by the terms of his commission, to continue for four agent. Why need we enquire whether by the regulayears, and as much longer as the office and his services tions of the navy tobacco is to be furnished to our crews might be thought useful and acceptable. It is true he by a Navy Agent or Pursor? If such be the regulation had no legal right to this period of enjoyment, but he undoubtedly it would have been a good and sufficient had a reasonable expectation of it, provided he gave no reason for refusing to receive this tobacco, either on cause for a disappointment by his own conduct. No i board the ships or as part of the stores of the United complaint seems to have been made of his ability or States, and for leaving it in hands of the complainant, fidelity, but he had been but about fifteen months in for profit or loss, as might happen but it can never afthe enjoyment of the place, when his appointment was ford a justification for receiving the article, for actually revoked. Under such circumstances we can see and consuming a part of it, and for retaining the residue, feel that a strong moral equity arises to bring him and refusing to pay for it. As for that part which has back to the place he was taken from. Between in- been delivered to the ships, a credit has been allowed, dividuals, a just and conscientious man, would, I think and thus far at least a purchase and sale have been rehave done so. But no instance bas been shown, under cognized and adopted by the department, notwithstandany such circumstances, of the recognition of a right ing the alleged navy regulation. In what respect, on what legal, or legally equitable, in an officer who has been principle of justice or equity, does the part of the toremoved, or whose office has been vacated, to charge bacco for which the complainant has been allowed a crethe government with his return home. I am afraid to set a dit differ from that for which he has been refused. precedent contrary to all usage and must disallow this The first was delivered to the pursers of their ships, and credit or charge. So with the complainants travelling has been consumed by their crews; the other has been expenses in going to Washington to settle his accounts. delivered to their agent authorized to procure supplies

The only remaining item or charge in the complain- for the navy, and has been by him distributed to the ants account is for the purchase of tobacco sold or fur- ships, or is still retained by him as the property nished by him to the United States, amounting to $4277 of the United States. If he was not authorized to 68. I can have no hesitation in allowing it. In the let- receive it, let him answer for it. It is enough for the ter of the Secretary of the Navy, to the fourth Auditor complainant that he did receive it, and has receipted of the 25th June, 1832, he says: the tobacco must de- for it, as the agent of the United States, and on their pend on whether the authority to purchase was revoked behalf. Suppose we should consider that the comgenerally; and whether the revocation reached the pa. plainant was not warranted as a Navy Agent to make cific station before the purchase was made. If not, it the purchase from Mr. McCulloch, for the United should be allowed. Otherwise, it should not. This is States. The consequence is that it was his own provery partial and imperfect view of the question, and it is perty, and by him, sold and delivered to Mr. White, probable that all the facts of the case were not known who was the agent of the government. Is it any an. to the Secretary-we have them now in evidence. The swer to the seller of an article to such an agent, to tell answer of the United States to the bill of the complain. him that by the navy regulations, the pursers and not ant does not deny or admit, that a report of the tobacco the Navy Agents are to furnish tobacco to our ships. was made by the complainant in his account to the De- And therefore the United States may keep and use the partment, nor that it was surveyed by order of Captain article, and are not bound to pay for it. This cannot Thompson, as part of the public stores of the United , be. If the tobacco was received from complainant as States, and, as such delivered over by the complainant public stores, then he has a right to charge for it at the to bis successor in office, and regularly receipted for by price he gave for it; if it was a sale by him to the public him, on behalf of the United States. But it is insisted, agent, then he has a right to receive its fair price or that if all these things are true, they do not authorize value for it; and we have no better way of ascertaining the charge. And why? because it is denied that tobac. it, than by taking the actual cost of it to him. I cannot co was purchased on public account, or by the authority deny that a suspicion hangs upon my mind, that the sale or instructions of any officer of the government; and it to Mr. McCulloch was not a real transaction, but a conis avered that tobacco is not an article which a Navy trivance to enable Mr. Armstrong, to sell bis tobacco to Agent is authorized to purchase on public account, and the United States, at an advance or profit on its cost, that it is to be furnished to our ships by the Pursors, as which as a public agent he was not authorized to do. If a part of their stores. That the tobacco in question this were clearly shown, it could have no other effect was the private property of the complainant* has ne. on the case, other than to deprive him of the profit, a ver been accepted or legally transferred to the United few cents a pound, and compel him to pass it to the UniStates. That the Navy Department has never received ted States, at its first cost in Virginia, and the charges any part of it, or interfered with it, or done any thing of taking it to Lima. to recognize the validity of any transfer or purchase The evidence is not sufficiently explicit on this point to thereof; that no officer of the department or the navy enable me to take this ground, and the objection has not had any authority to du so. In answer to all these de- been made at the Treasury, from which, I presume they nials and averments, what are the plain and uncontra- were satisfied in relation to it. I have therefore allow. dicted facts of the transaction. This tobacco was ori. ed the sum claimed in the complainants accounts. ginally purchased in Virginia, as the United States al. The complainant then has been allowed one lege, as the private property of the complainant. After per cent. commission on stores distribut. its arrival at Lima, it was sold by him to a Mr. McCulloch, ed,

$ 208 80 and was afterwards repurchased by the complainant, as Clerk hire,

268 75 Damages on protested bills,

863 33 * Shipped to him from Norfolk on his own account Tobacco delivered to Navy of United States, 4,279 68 and still remains his private property.

5,620 56

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