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other," could not possibly by the contracting parties be intended, nor by the treaty can be construed, to give permission to the citizens and subjects of each to carry on a trade within the territories of the other, unchecked and unrestrained by the municipal laws of the respective countries. Had a provision of a kind so novel and extraordinary been contemplated by the contracting parties, an express stipulation would have been necessary; and that, too, couched in terms so irresistibly clear as to have permitted no doubt. But this trade, I conceive, like all internal commerce of the coun. try, is subject to the regulation of Congress; and if the subjects of Great Britain are allowed to participate in it upon the same principles, and under the same regulations, which are prescribed by law for our own citizens, it is granting them everything which could have been contemplared by the parties, and everything which can be extracted from the most liberal construction of the treaty. I have the honor, &c., &c.,



Neither the city council nor any department of the government of Orleans can legally tax the

property of the United States within that territory.

Washington, April 28, 1806. I am of opinion that there rests no power in the city council, nor in any department of the government of Orleans, to tax the property of the United States within that territory. I believe the exercise of such power has never been before attempted in any part of the United States, and I think the general government ought not to admit the principle. Laying the tax will be harmless, for I see no means by which the payınent of it can be enforced.


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A load ratent issued under a mistake, in consequence of a Virginia military land warrant lented on lands which had been previously and regularly located by others, is null and

BALTIMORE, June 10, 1807. DEAR SIR: I have read and considered the case stated in your letter of the 28th of April on the subject of a patent issued under a mistake, in consequence of a Virginia military land warrant “located on lands which bad been previously and regularly located by others.

The patent thus issued can be of no effect: it is, I conceive, null and void. The identical land, by the same metes and bounds, having been preriously granted according to law, by the United States, to other indi. viduals, no subsequent act on the part of the United States could possibly affect the prior title to the premises, derived from their own patent. The nise and object of a patent is to complete and render perfect a title to lands, being the formal instrument established by law for this purpose. But if the title of the United States to the same lands has been before parted with by matent and vested in prior purchasers or warrantees, it must be ex. tremely obvions that the patent cannot operate on lands thus previously granted. It cannot, then, accomplish the object for which it issued, in consequence of the mistake committed in attempting to grant lands before zranted: nor can it produce any effect. It is, therefore, a void act, to all intents and purposes. If there were any shadow of interest in the paper, the United States, by whom it was delivered, and the person in whose name it issued, are the only parties concerned. They have, therefore, undoubtedly the right to cancel the patent, and to retrace all the previous steps which led them into the error, provided at no stage they affect the interests of third persons. I consider, in all cases where a mistake of this kind happens, it is just and fair on the part of the United States to correct it as soon as it is discovered, with the privity and consent of all parties interested. I would only recommend accuracy and attention to the locations and surveys, in order to be certain of the identity of the lands, with respect to which mistakes may happen in the issuing of patents. Yours, very respectfully,



The commanding officer at the navy-yard is entitled to receive the pay and emoluments of

commodore, and therefore is entitled to apartments or house free of rent.

BALTIMORE, June 10, 1807. MY DEAR SIR: I have reflected much on the case stated for my opinioi in your favor of the 12th of March, and feel considerable difficulty in form ing a correct judgment on the subject.

The commanding officer at the navy-yard is, by the law to which you refer, entitled to receive the pay and emoluments of a captain commanding a squadron on separate service, or, in other language, that of a commodore The very term emolumen's imports profit, benefit, or advantage, and is perhaps, of extensive signification. It must immediately occur to you, tha a commodore or captain commanding a squadron on separate service is not only entitled to double rations, but has apartments ready furnished on board his ship. It is very clear that the law of the 27th March, 1804, does not contemplate any residence of this kind for the port admiral (if I may use the expression;) because, for the accommodation of an inferior officer, even a sailingmaster, there is not only no provision, but the regulations under which each vessel previously contained one are repealed. It is not reasonably to be supposed, then, that the commanding officerholding the rank of a captain, too, in the navy—was to take up his habitation in the cabin of a ship not prepared for the reception of a sailingmaster, and without either officers of any kind, or a crew, or any part thereof. A liberal construction of the law would entitle him to a habitation, as com. fortable at least, and not more expensive to the United States, than what he would possess if commanding a squadron on separate service; yet, in the strict legal construction of the terms in which the law is couched, in. dependent of other considerations, the question proposed to me is, in my humble opinion, involved in doubt.

There is another and important view to be taken of this subject, and which is worthy of consideration in fixing the just construction to be given to this act of Congress. If I am correctly informed, there exist in the army, navy, and marine departments, precedents applicable to the present case, where, under similar circumstances, the house-rent of an officer has been allowed to him. There is no act of Congress which particularly gives, eo nomine, to any officer in the army his house-rent; and yet, I understand, when they are placed on duty where there is a garrison, barracks, or quarters, for their accommodation, this charge has been uni. formly admitted. When an officer has been appointed to superintend a ship whilst building, as, from the nature of the case, it could afford him no accommodation, a compensation has been allowed for lodging and extra expenses on shore. The same thing, I believe, has taken place where any ship required such repairs as to afford no accommodation for the commanding officer on board. So of the commandant of the marine corps, to whom house-rent was allowed until the present quarters were prepared for him in the marine barracks.

I am sensible that the usage of any particular department does not create or constitute the law, and I am aware of the jealousy manifested by the federal courts on this particular topic. Yet, in ascertaining the just and reasonable construction of a law not unequivocally plain, the

ourse of a department acting under the law from its first existence, or Other departments acting under laws precisely similar, is entitled to respect ind consideration. In England, the judges have gone great lengths on his subject. Were I to decide in a judicial capacity, unfettered by the lecisions which have heretofore taken place in our country, I would say that the correct course lies between the two extremes. Viewing the usage eferred to as a light to direct my judgment on this occasion, I feel disposed to follow it; and, as the best result of my reflections, to say that tho commanding officer of the navy-yard at Washington should be allowed his house-rent.

If any additional reasoning were required, I would observe that the officer, under the existing establishment, next in rank, has a house free of rent. The building, it is true, belongs to the United States; but that does not vary the question. Is not the superior officer equally entitled to as comfortable a mansion, upon common principles of justice, unless there be some provision which precludes him? My impressions might have been different if this were res integra; but I will frankly acknowl. edge my inclination in favor of the claim. The leaning of your inind, I am sensible, must be equally strong with my own. I am, dear sir, yours, very respectfully,



The owners of a vessel chartered to the Navy Department, for the purpose of carrying provis. ions and naval stores to Malta and Syracuse, without stipulations in the charter-party to furnish any particular or special papers, captured by a Spanish privateer on the ground that the vessel was carrying naval stores to the port of an enemy of Spain, the voyage and risk · being fixed by the charter party and freight charged accordingly, are liable for the loss sugtained by the capture.

WASHINGTON, July 20, 1507. Sir: I have read and considered your letter of the 7th instant, and the papers which accompanied it, referred to you by a resolution of the House of Representatives.

From the best consideration I have been able to give the subject, I concur with you in the opinion that the owner of the Huntress has no legal claim on the Navy Department for the compensation he demands.

William Hodgson, of Alexandria, as the agent of the owner, chartered this vessel to your department, for the purpose of carrying provisions and naval stores to Malta and Syracuse. No stipulations are contained in the charter-party to furnish any particular or special papers. In general, it is the duty of the caplain to procure all the usual documents for the protection of his ship and cargo; nor should he set sail without them.

It is stated by Mr. Anbot, in his Treatise on Shipping, (a work of uncommon merit and established reputation,) “ The master must also take on board no false or colorable papers that may subject the ship to capture

I detention; and he must rocure and keep on board all the papers and Jocuments required for the manifestation of the ship and cargo by the laws of the country from and to which the ship is bound and by the aws of nations in general.”. Had the United States shipped, in conjunc. blon with others, goods on board this vessel for the accustomed freight, without any charter-party, the rule of law would seem perfectly clear.

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Whether the charter-party varies the case, and constitutes the person who charters a ship, pro hâc vice, the owner of the vessel, and makes the captain, of course, his agent, I do not conceive is material to be de. cided; because it does not appear, in this instance, that any of the usual papers were omitted. In fact, certificates from the President, as well as from the British and French ministers, were obtained to prove that the cargo belonged to the United States, and that it was destined to supply our squadron in the Mediterranean. The reason why a similar certificate was not obtained from the Spanish minister, as correctly stated in your letter, was, because all official communication between him and our government had ceased.

However, I do not consider the certificates of foreign ministers as composing a part of the regular papers with which a ship is usually furnished for the protection of herself and cargo. They are a species of extra documents, seldom procured, and which, though sometimes of advantage, are at others injurious. The freight was to compensate for the risk of capture or detention, to which all neutral vessels are subject flagrante bello. The freight, however, was not due, (or rather one-third of it,) according to the express contract, until the delivery of the goods at Malta; unless some person, duly authorized by the Navy Department, had released the captain from the further prosecution of the voyage, or had the vessel discharged in England. The consul, you state expressly, had no such authority. The owner, therefore, without performing his part of the contract, has not only received all the freight due by the charter-party, but has actually been paid $444 44 more than was due to him.

It is true, that from one of the papers it appears that the officer of the Spanish privateer made the want of a certificate from the Spanish minister, similar to those from the French and English ministers, a part of the pretext for capture; but as this is a paper not really required, nor constituting a part of the regular documents to be exhibited by neutrals, it cannot vary the case. The principal and real ground of capture was, that the vessel was carrying naval stores to a port of an enemy of Spain. The voyage, in this case, was settled, and the cargo fixed by the charter party, The freight must therefore have been in proportion to all risks and hazards on such a voyage with such a cargo. No fault can be attributed to the Navy Department for not procuring a paper which, if there had been a Spanish minister corresponding with the government, must have been asked as a matter of favor, and not of right. Hence, such documents as protections from foreign ministers are not required of neutrals by bellige. rents, according to the law of nations. The regular papers are those alone which the constituted authorities of the country are competent to give. I think the owner must bear the loss, under existing circumstances.



The military force may be employed by the President to remove from these lands any persons who may have taken possession of them since the passage of the law of 3d Mareh, 1807.

WILMINGTON, October 24, 1807. Sir: Previous to my receiving your note of the 22d instant, Mr. Madison had sent me a lengthy statement of facts relative to the batture in

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