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TENURE OF THE OFFICE OF A JUDGE IN MICHIGAN.

The act of 3d March, 1823, was a permanent and general amendment of the pre-existing judiciary system, affecting not only the judges then in office, but all who should thereafter come into office in the Territory of Michigan.

It may be expedient to send the subject to Congress for their consideration and sanction of the acts of the judge whose case is considered in this opinion, should they require it.

OFFICE OF THE ATTORNEY GENeral,
September 21, 1824.

SIR: Judge Doty's letter of the 12th July, 1824, which you have submitted for my consideration, presents difficulties which I think can be removed in no other way than that which he suggests: that is, by an act of Congress I think that the Executive has done right in considering the law of the 3d March, 1823, as a permanent and general amendment of the pre-existing system, affecting not only the judges then in office, but all who should thereafter come into office in the Territory of Michigan. And although, by the act of the 30th January, 1823, under which Judge Doty was appointed, he is called an additional judge, and his jurisdiction is limited to three counties, yet is he, by the same act, in its title as well as its enacting clause, called "a judge for the Michigan Territory;" and, notwithstanding the limitation of his jurisdiction to three counties, he is still a judge for the Michigan Territory; and is, I think, therefore, within the terms of the act of the 3d March, 1823. It is highly probable that when Congress was passing this last act they had for the time lost sight of that of the 30th January preceding, under which Judge Doty was appointed, or they would have taken care to remove all doubt of their intention to include the additional judge in this new limitation upon the tenure of his office, as well as the judges antecedently appointed. No satisfactory reason is perceived for the distinction which is supposed by Judge Doty to exist between them; and the language of the act of the 3d March seems to me to be quite broad enough to cover the case. If it was the intention of Congress to include the additional judge under the provisions of the act of the 3d March, 1823, Judge Doty must be considered as one of the judges of the Michigan Territory, and as one whose commission would expire on the 1st January, 1824. The consequences would be those which he has himself indicated, to wit: that, not having taken the oath of office before the governor of the Territory, according to the ordnance, he was never duly qualified under his first commission; and that having held a court at Prairie du Chien, after the expiration of his first commission, and before his qualification under his second commission, (to wit: in May, 1824,) that court was held without authority, and all its acts are void.

If, on the contrary, Judge Doty is right in the opinion that the act of the 3d March, 1823, does not affect his appointment, and he is not to be considered as a judge within the intendment of the ordnance for the government of the Northwestern Territory, but as a judge created by a special act of Congress in the exercise of their power to erect inferior courts, then the first commission is still in force, and all that has been done under it is valid; the second commission being absolutely void.

But, entertaining the opinion of the case which I do, I submit it, whether it be not expedient to send the subject to Congress, for their consideration

and sanction of the acts done by Judge Doty under his first commission, if they shall be of the opinion that they require such sanction.

I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT.

The PRESIDENT of the United States.

ORGANIZATION OF GENERAL COURTS-MARTIAL.

Where a general court-martial has been ordered and the names of the officers and supernume raries to compose it are set forth in the warrant, and, by reason of the non-attendance of one of the officers on the first day, a supernumerary takes his place, and the court, thus or ganized, proceeds to business, the absent member cannot properly, thereafter, be added to the court upon his arrival, until the case on trial has been disposed of, if at all. There is nothing in the acts of Congress on this subject, nor in any of the analogies of the law in relation to civil tribunals, which authorizes a newly arrived member to be superadded at all to a court which has been once legally organized.

OFFICE OF THE ATTORNEY GENERAL,

November 18, 1824.

SIR: I am of the opinion that the organization of the general court'martial, as constituted on the 15th instant at Brooklyn under the order of your department, cannot be changed. Your order was for a general court-martial to consist of seven members, who are detailed by name, and three supernumeraries, who are also detailed by name, or any five or more of them; and the court was authorized and ordered to assemble on board the United States ship Washington, 74, at the navy-yard at Brooklyn, in the State of New York, on Monday, the 15th instant, for the trial of Wm. A. Weaver, lieutenant, and others, for the offences with which they severally stood charged; which charges, (the warrant proceeds to state,) together with the testimony in support of them, will be laid before the court. One of the members detailed failed to attend, and one of the supernumeraries was put in his place; and the court, thus constituted, was qualified, and proceeded, on the day appointed by the warrant, and at the place appointed, to the discharge of the duties so committed to them. While they were engaged in the first case, the member who had been absent arrived. The question is, whether he can be placed on the court after the trial of that case is over, and before another commences? I think not. The court is a general court-martial. It is already regularly con stituted and fully organized according to the warrant; and by the warrant, the court so organized is charged with all the cases. The authority of the department, so far as the constitution of the court and the subjects committed to them are concerned, was expended by the warrant; and there seems to me to be no authority to change the modification of the court, which is regularly formed according to the warrant. The 39th article of the rules and regulations for the government of the navy seems to me to contemplate the unity and immutability of a general court-martial, which shall have been once constituted and shall have commenced its session. The members whose absence is therein spoken of, are the mem bers who shall have qualified as members of the court; not those who shall merely have been named in the warrant as members. I can discover nothing in any of the acts of Congress on the subject, nor in any of the analogies of the law in relation to civil tribunals, which au

horizes the newly arrived member to be superadded to the court. Yet, the practice has been otherwise, and has been acquiesced in, it may, Í ink, be safely followed.

I have the honor to remain, sir, most respectfully, your obedient servant, WM. WIRT.

To the SECRETARY OF THE NAVY.

I

PATENTS FOR LANDS.

and patents may and ought to be withheld where the confirmation has been obtained by fraud. If actually issued, the courts will cancel them.

OFFICE OF THE ATTORNEY GENERAL,
November 25, 1824.

SIR: On the question, "Whether patents can be withheld by governlent for lands where their confirmation has been obtained by fraud?" I ntertain no doubt that they can and ought to be withheld. Nor have I ny doubt that, if patents had been actually issued under such circumtances, the courts of the country might and would cancel and avoid

lem.

I have the honor to remain, very respectfully, your obedient servant, WM. WIRT.

To the SECRETARY OF THE TREASURY.

PAYMENT UNDER ACT OF MAY 24, 1824.

The government cannot legally retain out of the moneys directed by the act of Congress of May 24, 1824, to be paid to certain assignees and representatives, a bill against the creditor assigned to the Treasurer under protest.

OFFICE OF THE ATTORNEY GENERAL,
December 15, 1824.

SIR: On the statement of facts submitted to me yesterday from your department, I am of the opinion that the government cannot legally retain out of the moneys directed by the act of Congress of May 24, 1824, to be paid to the assignees and representatives of John H. Piatt, the amount of the bill of John H. Piatt & Co., which had been assigned to the Treasurer under protest. The documents are returned.

I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT.

To the SECRETARY OF THE TREASURY.

LAW OF SET-OFF.

The law of set-off is limited to mutual debts between the same parties. If it be departed from at the treasury, there will be no other definite rules for the regulation of its practice

The accounting officers cannot set off against A's trustees a debt owing by A, to the assig of B, who was a debtor to the United States.

Office of the ATTORNEY GENERAL,
January 6, 182

SIR: On the case stated by you, I do not discover that there is thing due from S. Smith & Buchanan to the United States, which be set off against the claim which the trustees of S. S. & B. have on United States under the award of the commissioners under the Flo treaty. If S. Smith & Buchanan were indebted to the United Sta such debt might be set off against this claim. The statement, howe shows only that S. S. & B. are indebted to the assignees of George Stephenson, who was indebted to the United States. Can the Un States set off against S. S. & B.'s trustees the debt which S. S. & owed to the assignees of George P. Stephenson, who was a debtor to United States? This would be carrying the doctrine of set-off fur than it has ever been carried. The priority which the United St have, is only as to the estate of George P. Stephenson: but this does impart to George P. Stephenson's estate a prior right to be paid out of effects of S. S. & B. If it had this effect, it might go further, and part to the estate of S. S. & B. a prior right to be paid out of the eff of their debtors, and so on, ad infinitum.

I cannot discover any legal ground on which the United States retain from the trustees of S. S. & B. the amount due by S. S. & B the assignees of George P. Stephenson; if they could, the effect wo be to give to the assignees of G. P. S. a preference over the other c itors of S. S. & B., to which they are not entitled. If we once leave limits within which the law of set-off acts, (to wit: mutual debts betw the same parties,) there will be no drawing any other line; and the Uni States might retain against S. S. & B. the amount of a debt due by th to G. P. Š., because he was indebted to somebody else, who was indeb to somebody else; and so on, until, in the chain of debtors, we come one who is indebted to the United States, and as to whose effects United States are entitled to prior payment. I am of the opinion t there is no rule of law by which the retainer in question can be made. I am, sir, very respectfully, your obedient servant,

To the SECRETARY OF THE TREASURY.

WM. WIRT

PENSIONS.

By the term "until the end thereof," (i. e. the war of the Revolution,) contained in the pen
act of the 18th March, 1818, is meant "until the treaty of peace was ratified."
The preliminary articles provided that there should be a peace when the terms of a p
should be agreed on between Great Britain and France, and his Britannic Majesty she
be ready to conclude it; but as they were only preparatory to a peace, there was no pe
in contemplation of the law, until the war of the Revolution terminated, by the ratifica
of the treaty in 1783.

OFFICE OF THE ATTORNEY GENERAL,
February 12, 1825

SIR: By the act of the 18th March, 1818, it is declared that every co missioned officer, private, &c., who served in the war of the Revolut

ntil the end thereof, or for the term of nine months or longer, at any riod of the war, shall receive a pension during life. The question hich you propound for my opinion is, when the war of the Revolution rminated within the contemplation of this act-" whether at the period the actual cessation of hostilities in November, 1782, when the pre-, ninaries of peace were agreed on; or whether at the period of the ratcation of the treaty of peace, in April, 1783?"

I apprehend that there must be an error in the statement of the first estion: that is, in assuming the date of the preliminary articles as the riod of the actual cessation of hostilities. Those articles themselves, in eir title, provide that the treaty, into which they are to be introduced, not to take effect until terms of peace shall be agreed on between Great ritain and France, and his Britannic Majesty shall be ready to conude such treaty accordingly. The 7th provisional article stipulates that there shall be a firm and perpetual peace between his Britannic ajesty and the States, and between the subjects of the one and the citi ens of the other; wherefore all hostilities, both by sea and land, shall en immediately cease.' When? When the terms of a peace shall be greed on between Great Britain and France, and his Britannic Majesty all be ready to conclude such treaty accordingly. On the 20th Januy, 1783, the preliminary articles of peace between France and Great ritain were signed; by the first article of which it is provided, that as on as the preliminaries are signed and ratified, sincere friendship shall e re-established between his Most Christian Majesty and his Britannic lajesty, their kingdoms, &c. The 2d article provides what prizes taken what parts of the world, respectively, within given times after the exhange of ratifications, shall be restored.

On the same day (20th January, 1783) an armistice, declaring a cessaon of hostilities between the United States and Great Britain, was signed t Versailles. There had been no cessation thereof previously; and this nstrument places the cessation on the same footing as the preliminary rticles between Great Britain and France: that is to say, provides that he United States shall be included in the stipulation between the two Crowns and Great Britain and Spain; and that they shall enjoy the benefit of the cessation of hostilities at the same epoch and in the same Again: the articles signed on the 30th November do not, apon their face, import present peace-they are provisional merely, prebaratory to a peace. These articles, too, were yet to be submitted to Congress for ratification; and they were not ratified until April, 1783.

of

Upon the whole, I am of the opinion that war existed until the treaty peace was ratified; or, in other words, that the war of the Revolution did not terminate till April, 1783.

I remain, sir, very respectfully, your obedient servant,

To the SECRETARY OF WAR.

W. WIRT.

INTRUDERS ON THE PUBLIC LANDS.

Where individuals are in possession of lands under a Spanish title, which has been reported by the register of the proper land office to the Secretary of the Treasury, and are contest

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