Weaver v. Whitney

1 Hopk. Ch. 11 | New York Court of Chancery | 1823

The Chancellor.

This contract is clear and explicit.

An officer of the navy of the United States, agrees with the owners of the ship America and a cargo, about to proceed from New York to Lima, that the Franklin, a ship of the navy of seventy four guns, also about to proceed to Lima, shall give special protection -to the America and her cargo ; and that he the officer, shall go in the America, and shall represent her as a store ship, bound to the Pacific ocean, with stores for the navy of the United States, and himself as an officer of the navy in charge of such stores. In return for this protection and this service, the owners of the America and her cargo, agree to pay to this officer one fifth part of the profits which may arise from the outward voyage of the America arid her cargo.

An officer of the navy can not bargain to disoblige a public duty, for a private rewatd, any more than to omit such duty.

The question before me, is, whether this contract is legal or not.

In support of this contract, it is urged, that the services here stipulated to be performed by officers of the navy, were acts of duty on their part, which they would have beeri bound to perform, if no contract had been made ; and that the compensation here promised for those services, was merely a private addition to their public emoluments, which could not divert them from their public duty, and would operate only as an additional incentive to its performance. For the sake of argument, let it be admitted, that every thing here stipulated by Weaver, was within the scope of public duty; and the question will then be, whether an officer of the navy may bargain for a private reward for the discharge of a public duty. If Weaver or other officers of the navy, were bound to do the acts in question, they were bound to perform them as portions of the public service, as acts of public duty pertaining to their official stations. The rewards of these officers, are established by law; their services are to be performed for those legal rewards; and other private rewards for acts which are required from them as public duties, by the laws of their country and the obligations of their stations, must be regarded as corrupt and illegal exactions. The idea that an officer employed by the public for the performance of a public trust, and paid by his country for his services, may take additional and private compensations for the discharge of his official duties, is wholly inadmissible. A distinction between bribes for doing a duty, and bribes for violating a duty, may exist in casuistry; and a bribe which has produced a violation of duty, may, when viewed in connexion with its effect, be more criminal, than a bribe not followed by such a result. But the idea now suggested, that bribes for doing a duty, are lawful, is a conception, which never yet found a place in any code of law, or in any system of morals. Vain is the suggestion, that private rewards like these, are innocent incentives to duty. That he who must he corruptly bought to do his duty, will perform any duty with fidelity, is an idle supposition. The necessary tendency of such rewards is to debauch; and the faithful discharge of a public trust, can not be expected from him who will accept a bribe to do his duty. The distinction between bribes to obtain the discharge of a duty, and bribes for other objects, is far too subtile and fallacious for practice ; a restraint too feeble, either for the suborner or for the officer accepting a bribe; a barrier too slight to secure fidelity and integrity'inthe discharge of public trusts. If these different cases of bribery involve different degrees of moral guilt, both are still crimes ; and the sophistical pretence now advanced, that an act criminal in itself, becomes lawful, when .the intention of the parties committing the offence, is to promote the due performance of the public service, must be rejected. The argument that private compensation might be justifiably received for the protection and the services stipulated by this contract, because these objects were matters of public duty, is in itself unsound, subversive of the clearest principles of law and morals, and inconsistent with the pure administration of public trusts. If the services engaged by this contract, were within the scope of public duty, they were to be performed as a public duty, which could not be bought or sold for private gain.

- If this contract stipulates, that the officers named should do something not their public duty, it is still more plainly corrupt, as involving both a violation of duty, and a pecuniary reward for such an act.

Whether therefore, the protection to be given by the ship. Franklin, and the services to be performed by Weaver, were acts of duty on the part of those who were to perform them, or acts transgressing their public duty, the agreement is in either view corrupt and illicit; and either degree of turpitude - vitiates the contract.

But it is evident, that the object of this contract, was not merely to engage officers of the navy, to do their duty. For such a purpose, no contract was necessary. . The object here was to obtain advantages which could not be obtained or were not expected, without this contract. The special protection of the ship Franklin, and the representation that the America was a store ship, bound to the Pacific ocean with stores for the navy of this country, and that Weaver was an officer of the navy in charge of such stores, were the objects for which a price was to be paid; and these objects were not matters of duty. The particular protection which the ship Franklin was to afford to a ship and cargo, in which the particular friend of the commander of the Franklin should be interested, cannot be viewed, as a legitimate duty ; and the contrivance by which the America was to be represented as a store ship of the United States, was a fraudulent disguise. Acts like these, were not acts of public duty; nor did these merchants agree with Weaver, that they should pay, or that he should receive a large portion of the profits of their adventure to Lima, as a compensation for the discharge of any public duty. The objects of this contract, were wholly foreign to any such duty.

The agreement is a fraud upon the United States, and upon the rights of other nations, and a fraud in all respects.

The America was not a store ship of the United States, and the expedient of sending some stores of the navy in that ship, was evidently adopted to conceal a falsehood, under some color of truth, and to give to the America and her cargo, guise of public property of the United States. This contrivanee was a fraud upon the United States, their public service and their sovereignty; a fraud upon the rights of other nations ; and a fraud in all respects. The contract exhibits this artifice in its naked character of fraud.

I inquire not, what was in fact done, by the ship Franklin or her officers, in pursuance of this contract. What was done or omitted, after this contract was made, is of no moment in deciding upon its legality. The special protection intended, may have been given to the America and her cargo, and every public duty of the commander of the Franklin may have been also discharged. But it is manifest, that while the ship Franklin should be engaged in giving special protection to the America and her cargo, other protection to other vessels and other commerce might be withheld, and other services might be neglected. The obvious sense of the contract is, that the protection to be given, should be special and unusual; and without some reason better than those which appear in this contract, such extraordinary protection could not be an act of' duty. The protection to be given, was protection to the voyage of the America; that ship was to be represented as in the service of the United States; and thus, the force of the Franklin was engaged to be used, not merely for such protection to private commerce as might be legitimate, but also, as it seems, for the purpose of enforcing a fraudulent usurpation of the rights of a public vessel of the United States.

The twenty second article of the navy regulations, declares in th«- case there specified, a principle equally applicable to every branch of the public service.

The service upon which the Franklin was about.to proceed to the Pacific ocean, and the instructions of. the government concerning the employment of that ship, do not appear; but whatever may have been the objects of the governmental that expedition, it must be supposed that .the commander- of. the Franklin had much latitude .of discretion in respect to. his voyage, and the employment of the force entrusted to his .direction. In all naval service, the commanding officer of a distinct force, has and must have, a wide extent .of mere discretion, in the choice of his operations, and in .the employment of his force. Such a discretion should never be subject to the influence of motives of private gain. That the forcé, of the nation should be employed by public officers, for their .private profit; that they should make bargains to employ that:force,: for their own benefit; and that they, who receive the .honors and rewards of their country, for performing a, branch of. its service, should reap the fruits of such contracts, would be prostitutions of all duty, law and public principles. The national force belongs to the nation itself, to be employed by the government under the laws, for public objects; the emoluments of all who wield that force or direct its use, are está-' blished by law; and all private compensations for the use of that force, are corrupt and illicit.

The duties of officers of the navy, are in many cases, defined by law; in others, they depend upon the instructions of their executive superiors; and where regulations have been established by law, they must prevail. The twenty second article of the regulations established by law, for the government of the navy, provides, that “ the officers and privates of “ every ship or vessel, appointed as convoy to merchant or oth- “ er vessels, shall diligently and faithfully discharge the duties “ of their appointment, nor shall they demand or exact any ft compensation for their services, nor maltreat any of the offi- “ cers or crews of such merchant or other vessels, on pain of “ making such reparation as a court of admiralty may award, “ and of suffering such further punishment as a court martial* “ shall adjudge.” This regulation declares, the great principle, that compensation shall not be exacted by officers of the navy, for their services. It relates to cases of convoy, its object being, to authorise summary redress and summary punishment for exactions in those cases; but the principle concerning compensations, is applicable to all the services of those officers. The laws of the union determining the emoluments of officers of the navy, exclude all other compensation; not expressly, but by necessary consequence. When the emoluments of public officers are stated and determined by law, and paid in a manner prescribed by law, the rewards of those officers for all their services, are the rewards thus given , ° "r ilien- country. All other compensations direct or indirect a£e illegal, not only as corrupt, but also as transgressing both the legal amount and the legal manner of compensation. The laws which define and limit the emoluments of those officers, ■ virtually prohibit all other compensation for their official services ; and any rewards beyond those prescribed are illegal.

Where the laws of the union determine the compensation for a public service, they exclude by necessary consequence, all other compensations, and all such are illegal and corrupt.

The United States have in some cases, adopted the principle of stimulating their officers to duty and activity, by rewards proportioned to the success of official exertions. The shares of penalties and forfeitures, given to officers of their revenue, and the portions of prizes, allotted to officers and seamen of the navy, are provisions of this character. But all these are legal regulations ; and whatever may be the services of any of those officers, all their rewards, ordinary and extraordinary, are given and limited by law.

Whether therefore, I regard the corruption of a practice which should permit officers of the navy to employ the national force for tlieir private profit, or consider the laws establishing and limiting the emoluments of those officers, I find the strongest reasons to decide, that all private, compensations are illegal.

The faith of contracts cannot be claimed for a violation of the laws.

This is in substance, a contract for a bribe to a public ofiicer. It is unnecessary to examine the turpitude of this transacti.on, in comparison with bribes to magistrates, or other agents of the public, or to graduate the guilt of different cases of the same crime. All such bribes and all such contracts, are illegal. The motives of such contracts must- always be corrupt; or if such a case can exist without the guilt of corruption, the direct tendency of all such transactions to corruption, renders it necessary, that they should be universally unlawful.

• It is unnecessary to cite authorities to show, that illegal contracts are not enforced by the courts of the country, whose laws they violate-or evade. This principle is fully established in our law; and is indeed, fundamental in every code. A system of laws destitute of such a principle, would beinconsistent with itself; and- the regulations of society would be easily frustrated,, if men were at liberty to contravene them by compact, and to claim the faith of contracts, as a sufficient reason for violating the laws of their country.

In all cases of this nature, where a contract not prohibited in express terms, is impeached, as in effect violating the principles andpolicy of express laws, an examination of the policy of the laws, and of the operario . and tendency of the contract, becomes necessary. I have thus examined this contract and the principles applicable to it. The present case is, in its circumstances, without a precedent, and I rejoice in the want of any preceding case like this, as I regret, that this has occurred. The absence of a precedent, is not a want of principles ; and those which must govern this case, are clear and undoubted. My duty is, to pronounce, that the stain of this transaction, rests not on the laws of this country. This contract being illegal, jts execution cannot be enforced; and the suit is dismissed with costs.