Government Drafts. situated, being still considered as outstanding obligations of the Government. The drawer, it is clear, may dispense with notice, either specially or generally. The United States may do this in a defined class, either by regulation of the Treasury Department, or by uniform and long-continued practice, which, in such a matter, is evidence of, or equivalent to, a regulation. Of course, assuming the statement made of the practice in the Treasurer's office to be correct, it must be taken that the drafts of the Treasurer are one class of exceptions to the rule that the law merchant applies to the bills of the Government. Do the drafts on the local draft post offices, which the Postmaster General issues to contractors, for the double object of paying such contractors and of absorbing the collections in such post offices, and which drafts it is, by the tenor of their contract, the duty of mail contractors to collect and account for to the Department,-do these drafts, which it is a part of the contractor's contract duty to collect,-constitute another class of exceptions to the general rule? That is a question of fact, to be determined by proper testimony from the Post Office or Treasury Department. No evidence of the practice of the Post Office Department in this respect appears in the case stated by you; and without such evidence it is impossible for me to express any definite opinion upon the particular subject, that is of the applicability or non-applicability of the general rule of law concerning notice to this class of the drafts of the Govern ment. II. The second question is whether the general rule of law as to notice applies to the single case of George Whitman? In order to answer this question, it needs to be determined, in the outset, whether the class of drafts, of which the present is one, has been excepted as a class from the general law. Or rather, it needs first to determine how that was at the time the draft was drawn. Regulations of the executive departments enter, in many respects, into the general law, and essentially modify it. Established practice may be received as evidence of regulation, even if no written regulation be shown to exist. And such regula Government Drafts. tion, in such practice, if proved, would apply to the class of drafts of which the present draft is one, and of course to the present draft. But that is a question of fact, as to which, as already suggested, no sufficient evidence, affirmative or negative, appears in the case stated. On the one hand, it appears that this particular claim has been rejected by successive Auditors of the Post Office Department on the precise ground of laches of the holder in respect of notice which implies that notice of dishonor had not been dispensed with by regulation or practice of the Department. On the other hand, there is a regulation of the Post Office Department of the year 1839, (subsequent to the present transaction), which prescribes that, unless such drafts, if dishonored, be returned within the next ensuing quarter, they will not be renewed; and another regulation of the Department, (or letter of the Postmaster General of the same effect), dispensing with formal protest of dishonored drafts. These two facts are certainly of great force, and strongly tend to raise the implication at least, that legal notice of dishonor was not previously required, in drafts of this class, by any regulation or practice of the Department. It is inconvenient, however, to pronounce upon the existence or non-existence of an alleged or supposed practice, without more explicit and exhaustive proofs than the case affords. The evidence of any alleged usage requires to be direct because it is in derogation of the general law, and may be founded on mistake, (Donnell v. Columbian Insurance Company, i Sum. 366, 377.) It also requires to be complete, because otherwise it fails to constitute the supposed proof, (Parrott v. Thacher, ix Pick. 426.) But that such a practice, if proved to exist, will be entitled to consideration, cannot be denied. "Of necessity," say the court, in the case of the United States v. MacDaniel, "usages have been established in every department of the Government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. And no change of such usages can have a retrospective effect, but must be limited to the future. Usage cannot alter the Responsibility of Sureties. law, but it is evidence of the construction given to it, and must be considered binding on past transactions." (vii Peters 1, 14.) If then, the decision of this case depends, as it possibly may, on the mere legal question of the necessity of notice, and the latter depends on the question of fact of executive practice, it seems to me that this precise point needs to be more thoroughly investigated in that executive department where the transaction arose, namely, the General Post Office. What is the practice of that Department in regard to collection drafts issued to mail contractors? Is it the usage, or not, in that branch of the public service, to make the question of the renewal of a dishonored draft turn upon the diligence or the laches of the mail contractor holding it? If there be loss by reason of what would be laches in the law, on whom does the usage devolve the loss? I cannot pronounce, for the case, an exceptional rule of law founded on assumed executive practice, without having direct attestation in this respect as to what is the practice of the Department. I am, very respectfully, Messrs. J. M. BRODHEAD, and C. CUSHING. H. J. ANDERson. RESPONSIBILITY OF SURETIES. The sureties of a public officer are not liable to the United States for moneys improvidently advanced to such party by the Government after he shall have ceased to hold office. ATTORNEY GENERAL'S OFFICE, July 10, 1856. SIR: I have received your communication of the 3d instant, inquiring whether, in my opinion, the sureties of a Sub-Indian Agent may be held responsible in law for public money advanced to him, which he has failed to account for, but which was advanced after his removal from office. I am not aware of any ground of law in which they can be held so liable, assuming the bond in question to be in the usual Insurrection in a State. form; in which case, it would cover acts performed by the party as an officer but no more, and of course would not apply to any advances improperly made to him when he had ceased to be a public officer, and could have received the money only in a private capacity. I do not affirm that a bond could not be so drawn as to cover any advances thus irregularly and improvidently made to an Agent of the Government. It appears, however, in the present case, by new evidence filed, that the Agent was in fact in office when he received the money in question. Measures had been initiated for his removal, but were not then persisted in, and he continued in office for nearly a year subsequent to that time. I advise that you furnish the proper District Attorney with such evidence on the subject as may be found in the Department; and cause to be obtained, if necessary, testimony of persons cognisant of the facts, more especially of the Commissioner of Indian Affairs at the time, the Hon. William Medill, of Ohio. I am, very respectfully, F. B. STREETER, Esq., Solicitor of the Treasury. C. CUSHING. INSURRECTION IN A STATE. Consideration of the circumstances in which the President may employ the military and naval force of the Union to suppress insurrection in one of the States. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to lay before you, herewith, conclusions of law on the questions presented by the application of the Governor of the State of California, concerning which you have required my official opinion. It appears by the representation of the Governor, and by other documents communicated on the subject, that, on the 26th Insurrection in a State. of May last, there was formed, in the city of San Francisco, a voluntary association, composed of persons whose names are not disclosed, styling themselves a "Vigilance Committee," who proceeded to organize a numerous military force of all arms, to establish a strongly fortified post in the heart of the city, and by these means to overawe and supersede the city and county officers, and to usurp the local authority of the State. It further appears that the professed inducement of this combination and organization was the commission, in the city of San Francisco, of an act of individual homicide; that the so called committee overpowered the sheriff, abstracted from the prison by force the alleged murderer, and also another person. under commitment on the charge of murder, and took the lives of said persons by hanging them publicly, without law, in front of the head-quarters of the association in San Francisco. It further appears that the committee thereafter continued to assume and exercise a summary police jurisdiction in the city and county of San Francisco, making domiciliary visits, arresting by force numerous individuals, subjecting the same to imprisonment or deportation without law, and, at the date of the Governor's representation, the 19th of June last, still holding the military possession of the city, with daily augmentation of armed force, and with no definite indication of any purpose to desist from the usurped exercise of the public authority of the State. It further appears that most of the organized companies of militia in the city of San Francisco uphold the proceedings of the committee, and yield obedience to its orders, in preference to, and in open disregard of, those of the constituted military authorities of the State. It does not appear distinctly how far this outward submission of the inhabitants of San Francisco to the assumed authority of the committee is attributable to approbation of its acts, and how far to want of preparation and means to withstand it; nor is that material to the questions of law involved; since, whatever may be the local opinion regarding the committee, its organization and its acts do not the less constitute a lawless usurpation of the powers of the State. |