War Department 20th. Sept. 1816
An account has been Presented for payment at this department, which involves a Principle which so far as I have been informed has not been distinctly decided.
It appears that one Whitmore Knaggs, acted in the Year 1812 at Detroit in the double Capacity of Deputy Indian agent, & Indian interpreter before the Capture of that place, he was carried into Captivity by the enemy, & detained for a considerable time as a Prisoner.
It does not appear that he was in the Military Service of the United States. He now claims the pay & emoluments, to which he would have been entitled had he continued in the discharge of the duties of his civil appointments. I Presume, that an office, which according to military usage, subjects the incumbent to captivity, when within the power of the enemy, will secure him in the enjoyment of its emoluments during that Period. If the office does not expose him to captivity, I think it questionable whether upon general Principles he can claim his salary from the government, which is given for consideration of Services Rendered.
In the course of the last war, I believe it was no uncommon Practice on the part of the enemy, to Seize upon Persons not in the land or naval Service, or in the merchant service at sea. In these cases I presume no remuneration has been required or granted. Yet the inconvenience which has been suffered, is as great, as in the Case of Civil officers, whose Captivity has not been Produced by their official character. The true Principle of indemnity, appears to me, to be the exposure to captivity, to which the office subjects the incumbent. Where there is no such exposure, the claim to the emoluments of office, during Captivity, appears to me not to be well founded. Had the officer been a Private, his exposure would have been the same, & his sufferings as great, & perhaps much greater;
The Question appears to me sufficiently doubtful at least, to solicit your decision upon it. I have the honor to be your most obt. & very humbe. servt.
Wm. H Crawford
P S. Perhaps there may be a distinction drawn between officers ho⟨ldi⟩ng their appointments during good behavior, & those holding, at the will of the government. The maxim of the common law, that the act of God, & of the Kings enemies, shall injure no man, may also be thought to apply to this case. In countries where of⟨fices⟩ are considered estates, this may be true, but in this Country where the salary is considered an equivalent for services Performed, especially offices at the will of the government, the app⟨lication⟩ of this maxim of the common law may be considered doubtful.
W. H. C.
DLC: Papers of James Madison.