I am of opinion, therefore, that Mr. Barrozo was, on the 30th ultimo, itled to the enjoyment of the inviolability which, by the law of nations, ches to the public character of diplomatic agents regularly accredited a foreign government.

am, with great respect, sir, your obedient servant,

To the SECRETARY OF STATE

JN MACPHERSON BERRIEN.

COURTS-MARTIAL.

re the warrant for the court is special, and where there shall be a specification of the perns to be tried and the changes made accompanying a general warrant, the court need not re-sworn after its organization.

issal from the United States squadron is a legitimate sentence for a naval court-martial to

onounce.

emptuous conduct to a superior officer, he being in the execution of his office, is punishle at the discretion of the court.

bedience of orders is punishable with death, or such other punishment as a court-martial all see proper to inflict; and any punishment that shall be according to the laws and cusns in such cases at sea, may be adjudged.

lains, surgeons, pursers, and all other non-combatant officers, are incompetent to officiate members of naval courts-martial.

OFFICE OF THE ATTORNEY GENERAL, November 6, 1829. IR: Your communication of the 4th instant, transmitting the proceed3 of a court-martial held for the trial of Lieutenant Freelon, is received. answer to your first inquiry, I have to state, that writers on martial disagree as to the necessity of administering the oath to the members general court-martial, on the trial of each successive case which is ight before them. Tytler, whose work has been revised and repubed by James, declares that it is "uunecessary and improper (for all ecessary oaths are improper) for the same court-martial to repeat the mony of taking these oaths for every new trial;" and he enters into xtended argument to prove that it is so.

IcArthur maintains the same opinion; and observes that "the members naval court-martial are but once sworn, (at the first assembling,) igh they may continue to sit, for several days, on the trial of different nders."

contrary doctrine is suggested by Hough, who says, on the authority ir C. Morgan, that "when the several prisoners to be tried are named he warrant under which the court martial is held, and the matter obed to each prisoner, respectively, is also specified, I conceive the presit and other members may be sworn, once for all, to try and detere the several matters before them; and the general practice counteees this. But when the warrant is general, not pointing out the oners or the charges, I hold it to be necessary that the court should be rn afresh to each trial.”

The distinction, here, is between a general and a special warrant; and case referred to by Hough, in support of this doctrine, is that of a trial ich occurred at Bombay in 1818, in which the commander in-chief, r approving and confirming the sentence, notes an irregularity in the ceedings; and then orders that, "when more prisoners than one shall

be tried by the same court martial, the court shall be re-sworn at the com mencement of each trial.'

In the case which you have referred to my consideration, the warrant was general; but it was accompanied with a specification of certain per sons who were to be tried, with a reference to the charges to be exhibited against them. Among the persons enumerated was Lieutenant Freelon. I apprehend, under these circumstances, that a renewed administration of the oath was not necessary, even according to the writer last referred to, in the enumerated cases; and that, in relation to the others, if (which I have no means of ascertaining) the course pursued in this case has conformed to the general practice in the navy, the proceedings may be con sidered legal, on the ground of such precedent, and of the authorities which I have before adverted to If this practice is disapproved by the department, it can be controlled prospectively, by an order enjoining the administration of the oath in each case.

Your second inquiry is, whether a dismission from a United States squadron is a legitimate punishment?

The prisoner was convicted on two charges: 1st. Of contemptuous, in subordinate, and disrespectful conduct towards his superior officers; and 2d. Of disobedience of orders.

Punishments in the navy are either specified in the act, or committed to the discretion of the court; or, in cases not specified, are required to be "according to the laws and customs in such cases at sea.

Contemptuous conduct to a superior officer, being in the execution of his office, is punishable at the discretion of the court.

Disobedience of orders is punishable with death, or such other punish ment as a court-martial shall inflict; leaving that offence, also, to be pun ished at their discretion. The punishment of dismission from a squadron must, therefore, I think, be considered as a legitimate punishment, in the exercise of the discretion thus committed to the court-martial by the law; since that discretion seems to be without any other control, except that which results from the supervisory power of the President, or com manding officer of the squadron. If that punishment be considered inexpedient, it may be corrected, as to the past, by a remission of the sen tence; and as to the future, the views of the President, communicated through the department, would, without doubt, be respectfully considered in cases which may hereafter occur. I ought, perhaps, to add, that an equivalent sentence is frequently to be found in the records of similar - proceedings in the British navy. In examining a list of sentences pro nounced there, through a series of more than forty years, I find many instances in which the sentence has been dismission from the ship.

Your last inquiry is in these words: "Whether chaplains, surgeons, or pursers, who are regarded on board our ships as non-combatants, are com petent to officiate as members of naval courts-martial?"

I understand, from your subsequent note, that these officers are com missioned, and have been so since the establishment of the Navy Depart ment. Until its receipt, I had been under the impression that, in the earlier stages of our naval establishment, some of these were warrant officers.

The 35th article of the rules and regulations for the government of the navy is sufficiently indefinite, in relation to the persons of whom courtsmartial shall be composed, to make it somewhat difficult to answer your

inquiry. If we look to the origin of courts-martial in England, (from whence we borrow them,) it would be difficult to believe that a tribunal, which has succeeded there to the ancient court of chivalry, could be composed of other than military men. And if we consider the nature of the subjects which are generally submitted to the decision of these tribunals, the knowledge of military discipline and usage, and frequently of tactics, (which is indispensable to those who preside there,) it would seem that non combatants, whose duties do not lead them to acquire this species of information, and who have no rank, either real or assimilated, could not be deemed competent to sit on courts-martial.

In the British navy, it is expressly provided that courts martial shall consist of flag officers, captains, or commanders; with a provision, in certain circumstances, for the admission of commanders below the rank and degree of post captains. There, consequently, pursers, chaplains, and surgeous, would be excluded. In that service, moreover, it is not believed that these officers are commissioned. I have, however, no certain inform ation on this point.

Our own law does not contain any express designation of the persons who shall constitute a court-martial. On courts of inquiry, indeed, it is required that they shall be "commissioned officers;" but the law, in relation to courts martial, describes the "members" who are to compose it merely as "officers." The requisition that they shall be commissioned officers, however uniform in practice, is, I apprehend, only deducible by implication from that part of the section which declares that "the senior officer shall always preside; the others ranking agreeably to the date of their commissions." This would seem to confine the selection to commis, sioned officers, and, I think, with equal force, to such commissioned officers as have rank, either real or assimilated, which they might take, when sitting on a court martial, agreeably to the date of their commissions. Although, therefore, it must be confessed that there is some indefiniteness in the legal provisions which belong to the subject of your inquiry, yet, on the whole, I think the several classes of officers whom you have designated are not competent to officiate as members of naval courtsmartial.

I have the honor to be, respectfully, sir, your obedient servant,
JŃ. MACPHERSON BERRIEN.

To the SECRETARY OF THE Navy. '

COSTS OF LEGAL PROCEEDINGS.

The costs denounced against the defendants by the concluding sentence of the first section of the act of 1795 were designed as a punishment for the failure on the part of such defendants to comply with the requisition accompanying the notification of the Comptroller. Defendants, who have the ultimate decision of the court in their favor, are not liable to costs by force of the said act, unless in suits which have been commenced against them in conformity with the provisions thereof.

The opinion of the Attorney General, furthermore, is that such defendants are not liable to costs by the act of 1795, or otherwise.

A decision of the Supreme Court commented upon and explained.

OFFICE OF THE ATTORNEY GENERAL, December 4, 1829. SIR: I have received your communication, enclosing to me a copy of an opinion given by my predecessor "as to the proper construction of the 1st section of the act of 3d March, 1795," &c., and asking me to say

1. Whether defendants in suits not commenced in conformity with the provisions of the act of 1795 are liable to costs?

2. If so, to what class of cases, officers, or persons, the law extends? and particularly whether a defendant in an action for damages on a protested bill of exchange would be so liable?

In answer to your first inquiry, I have to state, that the costs denounced against defendants by the concluding sentence of the 1st section of the act of 1795 seem to me to have been designed as a punishment for the failure on the part of such defendants to comply with the requisition ac companying the notification of the Comptroller. This punishment is in flicted for a non-compliance with the provisions of that act, in relation to certain proceedings which are authorized and required by it, and is consequently limited in its operation to cases arising under the said act, and prosecuted in conformity to its provisions. I am therefore of opinion that defendants, who have the ultimate decision of the court in their favor, are not liable to costs by force of the act of 1795, unless in suits which have been commenced against them in conformity with the pro visions of that act.

It seems to me, however, that I shall not meet your inquiry, but by pro ceeding to state my opinion that such defendants are not liable to costs by the act of 1795, or otherwise. The express declaration of this liability itself evinces the belief of Congress that it did not exist but by force of that provision. It certainly did not by the common law of England; for there no final costs were recoverable by plaintiff or defendant, and the statutes which gave them to these parties, respectively, always awarded them to the victor.

When it is said that the United States do not pay costs, I understand the proposition to be laid down as between the parties to the suit. I ap prehend it is meant that they do not pay adverse costs-costs to the ad verse prevailing party; that where a verdict has been rendered in favor of a defendant, in a suit brought by the United States, it is not competent to the court to enter up judgment in favor of such defendant, and against the United States, for the costs of such suit. But I do not believe that the opinion thus briefly expressed by the Supreme Court ought to be, was intended to be, applied to the claim of the officers of the court to be compensated by the United States for services rendered to them in a suit brought by the government, and in which the ultimate decision of the court has been in favor of the defendant.

The opinion formed on the first question which you have presented, renders it unnecessary for me to reply to your remaining inquiry. I am, respectfully, sir, your obedient servant,

JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE TREASURY.

DECISIONS OF ACCOUNTING OFFICERS-TO WHAT EXTENT FINAL.

Where the Third Auditor shall have examined, and certified, and transmitted, with vouchers, an account to the Second Comptroller, and the latter officer shall have certified the amount due to the Secretary of War, the matter as certified to said Secretary of War is final, so far as the accounting officers of the government are concerned; and can only be set aside by the Secretary, acting under the direction of the President.

ision by the Second Comptroller upon a claim properly before him cannot be questioned any other of the accounting officers. A demand after passing him ceases to be a matter ccount, and becomes a liquidated and adjusted demand.

e Secretary possesses the power to review the decision of the Comptroller before he es his requisition for the amount.

present case the matter is open to the revision of the Secretary of War.

OFFICE OF THE ATTORNEY GENERAL,
December 4, 1829.

R: I have examined the case of General Parker, which you have reto me, at the instance of the Second Comptroller. He presents wo following questions:

rst. Whether the decision of the late Second Comptroller, in this is final, or may be opened for reconsideration?

cond. If that decision may be reconsidered, then whether General er is entitled to the allowance for fuel and quarters which he claims? ferring to the act for the organization of the Treasury Department, it ars to have been the duty of the Third Auditor, in the case of General er, to receive and examine his account; to certify the balance; and to mit the account, with the vouchers and certificate, to the Second ptroller, for his decision thereon. It was the duty of the Second ptroller to certify the balance arising thereon to the Secretary of War, hose department the expenditure was incurred; and to return the unt, with the vouchers and certificate, to the Third Auditor. If this se was pursued in the case of General Parker, I apprehend that the sion of the Second Comptroller, so certified to the Secretary of War, final, so far as the accounting officers of the government were coned; and could only be set aside by the Secretary, acting (as, in matters lected with his department, he is presumed always to act) by the dion of the President. The decision of the Second Comptroller could be questioned by any other of the accounting officers; because, so far ey are concerned, in the order of proceeding prescribed by law, the act is to be performed by that officer. It ceases then to be matter of unt; and becomes a liquidated, an adjusted demand, when he has fied the balance to the Secretary.

hus far, I should believe that the decision of the Second Comptroller final; not liable to question by any other than the Secretary, acting er the authority of the President. But the Secretary must possess this er, or Congress would have placed him at the head of the Department Var to be subjected to the control of a subordinate officer of the Treas. When the account has been settled and certified to the Secretary, s then to issue his requisition for its amount; and, unless he is a mere chine, or liable to the control of his own, or the subordinates of another artment, he must be entitled, before he does so, to review, and, if need to reverse the decision of the Comptroller. If this were not so, in the e under consideration a subordinate officer of the Treasury Department ht regulate the military allowances of the army, contrary to the will he Secretary of War and of the President of the United States. If, then, the late Second Comptroller did certify to the Secretary of War balance due on this account, and did return the same, with the uchers and certificate, to the Third Auditor, I should believe that that cision was not open to reconsideration by the present incumbent in that ice. What is the real state of the fact, in this regard, does not appear.