USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 22
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This town has been mainly peopled from Philadel- phia, and you meet Philadelphia manners and Philadel- phia faces every where. It appeared to me, however, that this supprising establishment has, in four or five years, accomplished the growth of twenty; and that no considerable increase can be expected for some years to come. There is town enough for all the apparent feeders or wants of its position for many years. Its in- habitants ought to be satisfied, if this should be the case, and they can retain the strength they now enjoy. A new settlement runs up to the measure of its resour- ces very rapidly, and then, necessarily, grows more slowly, with the gradual development of its resources and means of increase,-and what first growth, in this country, has equalled this?
Here a day may be well afforded to the examination of the rail road constructing and nearly completed to Girardsville, by Moncure Robinson, Esq. This is, pro- bably, the most remarkable victory of Science and Art over the difficulties of Nature that has been achieved in our country,-the bed made for the road on the sides of lofty and precipitous hills, -the manner in which it is taken over some of them by inclined planes, and through one of them bya long tunnel,and the precision with which every part of this great work has been planned and ex- ecuted, excite our highest admiration of the genius; knowledge and skill of the distinguished gentleman un- der whose direction it has been formed.
We leave Pottsville to its smiling fortunes and san- guine inhabitants, and continue our route to Pine Grove, a pretty town which has been called up from the depth of the wilderness, by coal and canals. A branch of the Union canal terminates here, and from it a rail road runs into the hills, where coal is found of an excellent quality, and the work of excavation is already
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CHARGE OF JUDGE HOPKINSON.
[AUGUST
begun, with f.ir prospects of success. Speculation, as usual, ran ahead of reason and reality in this place, and has injured it for the present; but it can hardly fail to re- cover and thrive. In journeying from Pine Grove to Lebanon, you will pass the Blue mountain, presenting scenes of wild and unimproved nature, altogether new to the inhabitants of a city. As you will not be in a hurry, the long ascent and descent will not annoy you, nor its rough scenery be wearisome. The road is per- fectly safe, although not made for one of the trotters of a mile in three or four minutes. Arrived at Lebanon, you will have the refreshing comforts of a good inn at Mr. Oyler's, and find yourself in the very garden of the Agriculture of Pennsylvania. Whether you shall here take your course to Harrisburg, and return to the city by Lancaster; or go from Lebanon to Reading, and. thence to Philadelphia, the man must be insensible to the best feelings of humanity, as well as to the honest pride of patriotism, who is not excited to a high state of enjoyment in surveying this sp'endid valley. A rich and untiring soil, cultivated with unceasing industry, throws out abundance at every pore, in all the variety of agricultural production. Large and commodious houses of stone, placed in delightful situations, with or- namental trees and smiling gardens-stone barns of immense extent; pure water flowing from adjoining hills through verdant fields, or gushing from artificial fountains for convenient use, combine altogether the elements of substantial comfort and prosperous improve- ment that cannot be surpassed in any country.
By spending a few days at each of the places I have mentioned, or by extending the tour to the Susquehan- na, a month or six weeks of the summer might be de- lightfully and profitably disposed of ;- our citizens would return with a valuable and interesting addition 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 is but a part of a great state, in all respects worthy of her. She is the head of a body of surpassing beauty and strength. Nor should I omit to mention the uni- form and obliging civility of the people of the state, es- pecially the German population. Whether you accost them on the high road or in the streets of a town,-in a private or public house, you are answered and attend- ed to with a plain and simple politeness, which indicates a kind temper and the best dispositions. May I add a political to this moral reflection. You will every where find yourselves among a people devotedly, immovably, unanimously attached to the Constitution and institu- tions of our country, and who cannot be drawn from them by the arts of interested demagogues, or com- plaints of imaginary grievances. They cannot be per- suaded that they are ruined, with the evidences of prosperity all around them; nor that they are slaves, when they feel no restraint but from the laws of their own making. With a state they may be justly proud of, their state pride would not exalt itself on the ruins of our great republic, or weaken a tie that binds our glorious, happy, and envied Union together.
H.
CHARGE OF JUDGE HOPKINSON.
In the District Court of the United States of America, in and for the Eastern District of Pennsylvania.
Andrew Armstrong,
vs. May Sessions, 1833.
The United States.
Judge HOPKINSON delivered the following opinion:
On the 24th day of April, 1828, Andrew Armstrong the complainant, was appointed by the President, by and with the advice and consent of the Senate of the United State, Navy Agent for the Port of Lima, in Peru, in South America. The commission which testifies this appointment, bears the date above mentioned, and de- clares that it is " to continue in force during the term
of four years from the 24th of April, 1828. The letter of instructions given to Mr. Armstrong from the Navy Department, is dated on the 16th January, 1829. By the act of Congress passed on the 15th May, 1820, it was enacted that Navy Agents, with other officers mentioned in the act, " shall be appointed for the term of four years, but shall be removable from office at pleasure." In April, 1830, the President revoked the commission or appointment of the complainant, but the notice of the revocation contained in a letter from the Secretary of the Navy of that date, did not reach the complainant until the October following. He continued to reside at Lima until January, 1832, when he left it to return to the United States, going first to Valparaiso, from which port he sailed in March. On complainants settlement of his accounts with the government in July, 1832, a balance was struck against him of $12,948 63, which, by a subsequent small credit, was reduced in August to the sum of $12,875 44, now claimed by the United States. On the other hand, the complainant has presented an account, or claims for credits against the United States, which, if allowed him, will not only absorb the whole demand upon him, but will turn a ba- lance in his favor to the amount of $4681 74.
The United States to enforce the payment of the amount they allege to be due to them from the com. plainant, proceeding under the directions of an act of Congress passed on the 15th day of May, 1820, have is- sued a warrant of distressed against the alleged delin- quent officer and his sureties, directed to the marshal of this district, in which the said officer and his sureties reside, which warrant has been executed by the said marshal according to the provisions of the said act. By the fourth section of this act, "if any person should consider himself aggrieved by any warrant issued under
Judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the Judge aforesaid may, if he is of opi- nion the case requires it, grant an injunction to stay proceedings in such warrant altogether, or for so much thereof as the nature of the case requires." Under this provision the complainant filed his Bill of complaint, whereupon lie having complied with the requisitions of the act, an injunction was issued to stay proceedings on the warrant of distress. The District Attorney has filed a full answer to all the matters complained of in the bill; and the cause has been heard on this bill and answer, with the vouchers and other evidence produced by the parties respectively. The complainant complains of the rejection or refusal of certain credits in the set- tlement of his accounts with the government, to which he alleges he is entitled in law or equity; and the Dis- trict Attorney denies altogether his right in law or equi- ty, to any of the allowances he claims, and prays that the injunction may be dissolved, so that the marshal of this district may proceed under his warrant of distress to levy and collect the said sum of $12,875 44, remain- ing due from the complainant to the United States. It is now to be decided, so far as this court may decide it, whether the said injunction shall be continued altogeth- er. or dissolved altogether, or in part; and if the latter, for what amount it shall be dissolved, and the United States be permitted to pursue under their warrant of distress against the complainant and his sureties. To determine this question, it is necessary to examine eve- ry item of credit claimed by the Bill and denied by the answer.
The first credit claimed by the complainant, which has been refused to him by the accounting officers of the United States, is a charge of $5,755 86, being for commissions on his disbursements of monies as Navy Agent at Lima-on these disbursements an allowance has been made to him of one per cent, and the present claim is for an additional or further allowance of four per cent-making a commission of five per cent in the ¡ whole. On the part of the Government, it is contend-
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CHARGE OF JUDGE HOPKINSON.
1833.]
el 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 esta- one per cent on his disbursements of monies, by the ex- | blished by law, the office of Navy Agents, and the Pre- press enactment of the act of Congress of 3d March, 1809. On the other hand, the complainant avers, that he was not appointed under that act, and is not subject to its provisions, nor bound by its restrictions; but is entitled to a compensation for his services according to their nature and extent, and the usual mercantile com- missions for similar services, at the same place, which were five per cent. The real question on this part of the case is-whether the complainant was appointed a Navy Agent under, and subject to the act of Congress of March, 1809, or not-for if he were so, that act after declaring the manner in which Agents shall be ap- poined for the disbursements of monies for the use of the Navy of the United States, authorizes the President to fix the number and compensations of such agents, " provided that the compensation allowed to either, shall not exceed one per centum on the public monies disbursed by him." If then, the complainant was a Navy Agent described by the said act; if he received his appointment and authority under, and by virtue of it, he must be bound by all its provisions. The argu- ment on this item has therefore been directed to this question. The attorney for the United States has con- tended, that the complainant was an officer of the United States, not the agent of a department; that he was a Navy Agent of, and for the United States, ap. pointed as such, by the President and Senate, by virtue of the act of Congress referred to; that previous to that act, no appointments or commissions of such agents were ever given by the President, or by the President and Senate as then was done, and as this act directs. That previous thereto, persons had been, from time to time, appointed by the Secretary of the Navy at his pleasure, to perform certain prescribed duties for his department, under such contracts and arrangements as he may choose to make with them, but that the appointment of the complainant was clearly not of this description; but was made, or could have been made, only under the act of 1809. The counsel for the complainant deny that he was an officer of the United States at all; they deny that he was appointed to the service he performed un- der the authority of the act in question; but that his services were performed for the Navy Department, in the same manner, by the same authority, and with the same rights of compensation with the agents which had been appointed by the Secretary of the Navy, at other places. The cases of, and allowances made to Messrs Hogan, M'Call, and others, have been much insisted on, as form- ing precedents for this-and the distinction relied upon between such agencies as are, and such as are not, with- in the regulations of the law of 1809, is that they are to be applied only to those Navy Agents whose duties are to be performed in the United States, and not to those who must reside in a foreign port.
sident with the Senate, has appointed the officer. Prior to this law, the purchase of supplies and the disburse- ments of monies for the use of the Navy were made di- rectly or indirectly, by the Secretary or by his agents. The state of the Navy did not require a distinct office and officers for these purposes. 'Those duties or ser- vices were performed by persons named for the oc. casion by the Secretary, and as I have said, were his agents-his arms and not officers of government. They were neither appointed or removable by the President, any more than a clerk in the department. Their agency beganand ended with the pleasure of the Secretary, or with the particular service for which they were employ- ed. As our naval establishment was extended, and these services became numerous and important; as the ope- rations of these agents became of great magnitude, involving the expenditure of vast sums of money, it was wisely thought they should no I nger be entrusted to the agents of a department, irresponsible in some de- gree directly to the government, and without any se- curity beyond their own responsibility, for the faithful performance of their trust. The patronage, too, may well have been thought to be of a too high character and value to be allotted to a department. The law of 1809, was intended to put the concerns under a better regulation. The third section enacts " That exclusively of the purveyor of public supplies, paymasters of the army, pursers of the navy, military agents and other officers already authorized by law, no other permanent agents shall be appointed either for the purpose of mak- ing contracts, or for the purchase of supplies, or for the disbursement in any other manner of monies for the use of the military establishment, or of the Navy of the United States, but such as shall be appointed by the President of the United States, with the advice and consent of the Senate." It is then enacted, that the President may fix the number and compensation of such agents-but with a limitation as to the latter- " provided that the compensation allowed to either shall not exceed one per centum on the public mo- nies disbursed by him." The fourth section requires a bond from the agent, with one or more sufficient sureties for the faithful discharge of the trust reposed in him." All this appears to me to be very intelligible -- we see no intimation of the distinction, essentially and necessarially relied upon by the counsel and the com- plainant, between foreign and domestic agents, in the mode of appointment, the tenure and permanency of their offices, or the terms on which they may receive them. The construction contended for, taking the foreign agents altogether out of the act, would not only deprive the President and Senate of the appointment, but dispense in their case with the security to be given for the faithful discharge of the trust reposed in them, as well as of the limitation of their compensation to one per centum on their disbursements. As regards the bond of security it would seem to me, to be infinitely more necessary in the case of a foreign than a home agent, who is always under the eye and control of go- vernment, whereas the other carries on his operations in a distant country, and might be guilty of the grossest irregularities and frauds for a long time before they would be known: and when known the delinquent would be out of the reach of the guvernment, with all his spoil. It has not been pretended that domestic agents are not subject to the provisions of this law, for this would be to repeal it wholly as to all Navy Agents; and I think it has not, and cannot be shown, that any dis- tinction is made by the law, or by the reason and design of the law, between the agents appointed for foreign or home stations. They are equally within or without the law: they are both clearly within it in their appoint- ment, their responsibilities, and their compensation.
After giving a close and careful attention to the ar- guments and illustrations of the counsel for the com- plainants, I cannot follow them to their conclusion. It appears to me to be entirely clear that the appointment of the complainant as a Navy Agent at Lima, was an offi- cer of the United States, and not a mere limb of the Navy Department; that he was an officer of the United States, deriving his authority from the constitutional appointing power, the President and the Senate; that their power to appoint Navy Agents, was derived from the act of Congress which created or established the office. Previous to the passage of the law in 1809, there were no such officers, either at home or abroad, properly so called, under the constitution of the United States. The constitution gives the power to the Presi- dent to nominate, and by and with the advice and con- sent of the Senate, to appoint ambassadors, other pub- lic ministers and consuls, Judges of the Supreme Court, and all other officers of the United States, whose ap- pointments are not herein otherwise provided for, and | It has been argued with great earnestnes, that this act
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CHARGE OF JUDGE HOPKINSON.
[AUGUST
relates only to permanent agents, and that a Navy Agent abroad is not a permanent agent, for it is remov- able at the pleasure of the executive. And in fact, in this case, a removal was made in fifteen months, where- as the foreign agents appointed before the passage of this law, continued undisturbed for many years. The first difficulty this argument has to encounter is, that it applies with the same force to the agents at home, who hold their offices in the same way, and may be removed by the same power that acts upon the agent abroad; and thus the distinction so carefully set up between foreign and domestic agent, is overthrown. What is the meaning ofa permanent agent as understood in the law? Certainly it does not designate the place of residence as affecting the description. Can we say that the complainant was not a permanent agent, because he was removable, or because he was actually removed by the President? does the legal character or description of the appoint- ment depend upon the exercise of the right of the Pre- sident over the officer. This is clearly not the mean- ing of the law, as is apparent from the act of 15th May, 1820, which enacts that "Navy Agents" with other enumerated officers, " shall be appointed for the term of four years, but shall be removable from office at pleasure." The Navy Agents herc referred are cer tainly those which are appointed under the law of 1809, by the description of " permanent agents"-the phrase then, "permanent agents," are those agents which shall be appointed by the President, with the advice and consent of the Senate, in contradistinction to those per- sons who had been, or should be appointed by the Sec- retary of the Navy, on some special occasion or service, in his discretion and on such terms as he, on his official responsibility, should chose to arrange and make with the person so appointed by him. The officer who takes his appointment from the President and Senate, under the constitution and laws of the United States, testified by his commission, which makes him independent of the Secretary, and removable only in the manner and by the power given by the constitution and the law, may well be considered, legally, to be a permanent officer or agent of the United States. When the law declares that no permanent agent shall be appointed but by the President and Senate, it in effect declares that the agent who is so appointed, is within the meaning of the law, a permanent agent. The district attorney is a permanent officer of the government, although remova- ble at pleasure and commissioned just as a Navy Agent, in contradistinction to a special or temporary attorney who may be employed for a particular case or service.
The cases of Messrs. Hogan and M'Call, have been frequently urged upon the court in the argument. It might be enough to answer that they clearly were not appointed under the law of 1809, but made their contracts with the Secretary of the Navy, for the services they undertook to perform. They were not officers of the United States; they were not appointed as such offi cers must be, they did not derive their agencies, such as they were, from the President and Senate, nor were they appointed under the authority of the act of Con- gress. Contracts were made with them by the Secreta- ry of the Navy, under a discretionary power exercised by him. It is true that abuses may be practised in this way, but they are not to be presumed. It is true that under the pretence of making a special agent, under special contract, a Navy Agent may be placed in a fo- reign port by the Secretary, with any rate of compensa- tion he may agree to, and without the securities requir- ed by the law from the Navy Agents, for the faithful discharge of their trust, and such an agency may be continued for many years, as they have been, perform- ing all the duties of a permanent Navy Agent, and no more. Such cases might be an evasion of the provi- sions of the law by the Secretary; but they are always under the control ot the President, who by appointing a permanent agent, would supersede the special agency. The complainant in this case went abroad, not with such
special contract in his pocket, but with his commission as the only evidence of his appointment; the only source of his authority. The commission was given to him under the law of 1809-it could have been given to him under no other legal authority; and he took it as an ap- pointment under the law, and subject to all its provi- sions. I am of opinion that he is entitled to no more than one per centum on the monies disbursed by him for the use of the Navy of the United States; and of course, that he cannot be allowed the credit which he now claims of an additional four per cent. amounting to the sum of $5,755 86. The one per cent he has already received a credit for.
I have said nothing of the alleged conversation be- tween the complainant and Mr. Hay, a clerk of the na- vy department. Our knowledge of it, and of the time occurred, is by no means satisfactory; but no such con- versation, nor any opinion nor representation of Mr. Hay, or any other officer of the government, could have any effect on the provisions of the act of Congress. If the complainant can show that he accepted his commission in consequence of the representations of Mr. Hay, he may have a case for the equity of Congress, but we are bound to obey the law.
The next credit claimed by the defendant, and which has been rejected by the accounting officer of the Trea- sury, is a charge of commissions on the destribution of stores, amounting to § 616 23. There is another claim on same account of $427 76. They will be considered together. The act of 1809, which creates the office of Navy Agent, has also fixed bis compensation wholly or in part. We must recur to it for the decision of the ques- tion on the distribution of stores; obeying the direc- tions of the law where they are clear and explicit, and giving it a fair and reasonable construction where it is not so. It enacts that the president may fix the number and compensation for such agents, provided, that the compensation to either shall not exceed one per centum on the public monies disbursed by him. There is in my mind something equivocal in this form of expression. Does it mean that the whole compensation of the agent for all his services shall not exceed one per cent. on the monies he shall disburse, or that the compensation for, or on account of his disbursements of monies, shall not exceed that rate? Perhaps the more strict and the more obvious construction of the words, as they stand in the law, would be that the whole compensation for all the services of the agent shall be one per cent. on the mo- nies disbursed by him. But it is not explicitly so said, and if we are permitted to resort to construction, as in a doubtful clause it does not appear to be the most li- beral interpretation of it. What is the difference in labour or responsibility between the distributing stores and disbursing money for the use of the navy, unless we should say that first is the more laborious and trou- blesome of the two. They are distinct services in eve- ry respect, and why should they be confounded in their compensation? If we look to the practice under contracts made by the secretary with his agents, these subjects of service here have been kept separate, and a commis- sion charged and allowed for each. I must be under- stood to comprehend in this view, only such stores as were sent out by the Government to the Agent to be distributed by him to the Navy, and not those which have been purchased by him, and for which he bas al- ready received his compensation in a charge of commis- sion on the monies disbursed for the payment. The charge now made by the complainant is understood to be only for the stores furnished by the Government. If we adopt the more rigorous construction of the law, and allow to the Agent nothing but his commissions on the disbursement of money for all his services, a case of manifest injustice might occur. The location of agent might be such that it would be more convenient or eco- nomical for government to send him every thing, or nearly so. that could be there wanted for the use of the navy; and he would have little or no money to disburse,
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