1. From the principle already cited from the case of the Fama, it results. hat a bona fide importation of goods into the Floridas, previous to the lelivery of possession, was an affair between the importer and the Spanish overnment, of which the government of the United States had no right o complain. I mean a bona fide importation in the British sense; that s, an importation which looked to no ulterior destination; which termiated in the Floridas, or, in the language of Sir W. Scott, "an importaion into the common stock of the country." Goods thus imported, acording to the laws of Spain, during the continuance of the Spanish auhority, and found in the country after the delivery of possession, would ertainly not be liable to American duties, although the owner may have aade the importation in avowed reference to that delivery, and on the alculation of the increased demand resulting from the influx of American population which the cession would bring in. This I understand to be he case put by the Supreme Court, by way of illustration, in deciding he custom case of the United States versus Rice, (4 Wheaton, 255.)

2. On the other hand, I apprehend that goods carried into a port of Florida before the delivery, remaining in port on ship-board until after the lelivery, and then brought into the United States in the same vessel, or by transhipment into others, having been never entered in the Spanish ustom-houses, nor landed, nor the duties thereon paid or secured, but aving continued all the while water-borne, would be subject to our evenue laws; because the voyage ought, I think, to be considered as one ntire voyage from the original foreign port or place of shipment into the United States; the mere stoppage in transitu at a port of Florida not beng sufficient to break the continuity of the voyage.

3. There is another class of cases, novel in character in our courts, and, o far as I am informed, in those of Great Britain; and in relation to which tis impossible to predict, with certainty, what the decision of the Supreme Court would be. Goods are carried from Havana into Florida, before he delivery of possession; are regularly entered in the Spanish customouse; the duties, which are understood to be very light, are paid; the mods are landed and stored; they are not blended with the common tock of the country, nor offered there for consumption; but remain sepa ately stored, until after the provinces are delivered to the United States, when they are cleared out with our officers there, for a port of the United States. Are these goods within our duty laws?

Our laws impose duties only on goods imported into the United States from some foreign port or place; if, therefore, in the case put, the importation be, in contemplation of law, an importation from the Floridas, the case is not within our laws; because, at the time of the importation, the Floridas were not foreign ports or places. On the other hand, if the trans. actions at Florida were not sufficient to break the continuity of the voyage from the original port to the United States, then the importation is from a foreign port, and the case is within our duty laws. The question then is, whether the facts supposed would be sufficient to break the continuity of the voyage at the Floridas, and constitute the subsequent part of it a new and original voyage from the ports of those Territories to the United

States.

So far as I am informed, this question would be perfectly res integra in the Supreme Court of the United States; nor am I aware that it has been decided in Great Britain, in regard to a revenue case. In prize cases, how

ever, and particularly in the practical assertion of the belligerent claim to restrain neutrals from carrying on the colonial and coasting trade of an adversary shut against them in time of peace, they have adopted a cri terion as to identity and continuity of voyage, which, if correct in itself, and applicable to the case of revenue, would decide the hypothetic cir cumstances, in the case put, to be insufficient to break the continuity of the voyage from the original place of shipment to the United States; and would, consequently, bring that case completely within the operation o our revenue laws. That criterion is the animus importandi-what is the ultimate terminus of the voyage for which the goods were destined? If thi be manifest, the voyage is a continuous one to this port, whatsoever may have been done at an intermediate port to give it a colorable termination there. "The Americans," says Jacobsen in his Sea Laws, (American translation, page 455,) "misled by the precedent of the case of the Polly: Larky master, (2 Robinson, 361,) had conceived that the discharge of the cargo, and the payment of the duties, broke the continuity of a colonia voyage. But when Great Britain perceived that by the drawback they re gained almost the whole of the original duties, (for instance, if they ha run into America with a Spanish colonial cargo, and immediately tran shipped it in the same or in another vessel to the mother country,) with the case of the Essex, Orme master, they commenced the condemnation of a number of vessels thus situated. Sir Wm. Grant, master of the rolls remarked, that the English courts had always supposed the bona fides o the importation, (i. e. into the intermediate port;) and attempted to showi by a close analysis of the earlier decisions." The case in which Sir Wm Grant made this attempt (and in which I think he succeeded) is the cas of the William, (5 Rob., 349, Am. ed.). In this case the ship had take a cargo of cocoa on board at Laguira. The ship and cargo at the time o capture were proceeding to Spain; but the ship had touched at an Ameri can port, where the cargo was landed and entered at the custom-house and a bond was given for duties to the amount of $1,239. The carg was reshipped, and a debenture for $1,211, by way of drawback, was ob tained. On these facts the claimant contended that the voyage was to be considered as a voyage from America to Spain; the landing and paymen of duties in America being, as he insisted, conclusive to establish the lega. termination of the voyage from Laguira at that point, and the inception of a new voyage thence to Spain. The master of the rolls having dwelt on the circumstances separately, to refute the inference of a termination of the voyage in America, proceeds thus: "Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo purely and solely for the purpose of enabling himself to affirm that it was at such other place that the goods were taken on board: would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of shipment, notwithstanding the attempt to give it the appearance of having been begun from a different place? The truth may not be always discernible; but, when it is discov ered, it is according to the truth, and not according to the fiction, that we are to give to the transaction its character and denomination. If the voy age from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense

annot alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence to show the purpose for which the cts were done; but, if the evasive purpose be admitted or proved, we can ever be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it. Between the actual importation, by which a voyage is ended really, and the colorable importation, which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts, to be done, must be almost entirely the same; but there is this difference between them: the landing of the cargo, the entry at the custom-house, and the payment of such duties as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of the owner cannot be effected without them. But in a fictitious importation they are mere voluntary ceremonies, which have no natural connexion whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation which he has resolved not really to make." Again he proceeds: "Why should a cargo, which there was to be no attempt to sell in America, have been entered at an American custom-house, and voluntarily subjected to the payment of any, even the most trifling, duty? Not because importation was, or in such a case could be, intended; but because it was thought expedient that something should be done which, in a British prize court, might pass for importation. Indeed, the claimants seem to have conceived that the inquiry was not whether the importation [into the intermediate port] was real or pretended, but whether the pretence had assumed a particular form, and was accompanied with certain circumstances, which by some positive rule were in all cases to stand for importation, or to be conclusive evidence of it." He then proceeds to inquire whether the British court of admiralty had ever decided that proof of landing and payment of duties at the intermediate port would, in every case, be held absolutely decisive of the legality of the voyage; and proves, I think, very satisfactorily, that no such general rule had been established; but that each case had been decided on its own peculiar circumstances, but with reference to the same governing question, whether the "animus importandi" terminated at the intermediate, or looked to an ulterior port; and whether the transactions at the intermediate port were the attendants of a bona fide importation ending there, or mere contrivances to cover the original and true scheme of the voyage to an ulterior port, which, without such cover, would not have been tolerated.

I have quoted this reasoning of the British judge thus at length, because I think it bears with great fairness and force on the particular question before us. It is true that in the case of the William it was used to enforce a belligerent claim of restraint on the commerce of neutrals, which we deny; yet, so far as the separate question of a mere continuity of voy. age was concerned, there is a direction, a comprehensiveness, and cogency of reasoning, which I think it would be much easier to censure in general terms than to elude or resist by open and candid argument. My opinion is, that, in its application to the supposed class of cases under consideration, our Supreme Court would, because I think they ought to,

yield to its force. To this class of cases, therefore, I am of the opinio that our act to regulate the collection of duties extends.

Without attempting to anticipate further the minute and varied circum stances which may diversify these questions, I beg leave to repeat th suggestion of the propriety of deciding each case, as it may arise, on it own peculiar circumstances..

I remain, sir, &c., &c.,

To the SECRETARY OF THE TREASURY..

WM. WIRT.

BREVETS IN THE MARINE CORPS.

The act of 3d March, 1817, fixing the peace establishment of the marine corps, not havin retained any majors in service, the brevets theretofore conferred were thereby made to ceas with the termination of the lineal rank of majors by commission.

OFFICE OF THE ATTORNEY GENERAL.

SIR: I have, in compliance with your request of the 15th instant, re considered the question which you submitted to me on the 17th Febru ary, 1819, and on which I then gave an opinion adverse to the claims o the officers of the marine corps for brevet pay. With the most perfec willingness to retract that opinion if I should find it wrong, I have beer the more confirmed in it, and can see nothing like legal plausibility ever for the claim.

The act of the 16th April, 1814, "authorizing an augmentation of the marine corps and for other purposes," authorized the President, in the 30 section, to confer brevet rank on such officers as should distinguish themselves, &c., with this proviso: "that nothing herein contained shal be so construed as to entitle officers so brevetted to any additional pay of emoluments, except when commanding separate stations or detachments when they shall be entitled to and receive the same pay and emolument which officers of the same grade are now, or hereafter may be, allowed by law." The President, under the authority of this law, appointed severa brevet majors. On the 3d March, 1817, the act to fix the peace establish ment of the marine corps was passed, by which no majors were retained in service; the only officers that were retained being one lieutenant colo nel commandant, nine captains, and subaltern officers. The brevet mo jors consider themselves as being retained in service still-at least to th purpose of receiving the pay of brevet major, under the proviso of the a of 1814 before quoted. But, if they are in service as brevet majors fo one purpose, they are so for all purposes. If the act of 1814 be in ford for one purpose, it is for all; and the President may still go on to appoin brevet majors to the marine corps, although the peace-establishment that corps recognises no such grade. It seems to me a palpable solecis in military language to talk of the existence of brevet rank, after the line rank by commission (of which the brevet is merely the shadow) has bee destroyed; and not less so to talk of pay graduated by a rank which r longer exists, having been abolished by positive law.

On what ground of reason can the brevet major claim to stand on better footing than the commissioned major, or on a better footing tha he would himself have stood, if, instead of holding a brevet, he had he

commission? Is the brevet more stable or of higher grade than the mmission? or is there more of contract in the one case than in the her? I cannot perceive even the shadow of a foundation for the claim. he act of 1814 was predicated on a state of things which no longer exts. We were then at war, and the commissioned rank of major then tisted; the design of that act was to augment that corps, and to stimulate to deeds of arms. We are now at peace; the corps has been reduced d adapted to the state of peace; the grade of major exists no longer, even ough it had been conferred by commission, much less when conferred y brevet; and with the grade falls the claim to pay. There is no breach contract in this. The contract is a contract for war. Congress might ave disbanded the whole corps without any violation of the constituon of the United States, and without any breach of contract with the fficers of the corps. If they might do the greater act, they might cerinly do the less. If they might disband wholly, they may surely disand partially, without any imputation of their having transcended either eir power or their duty. They have disbanded the majors. They rein the captains; and some of these captains still claim the pay of their isbanded and annihilated rank. To render the injustice of this claim till more manifest, let me put the case-that the President, under the act f1814, had been desirous of promoting two of these captains to majori es. There was one vacant majority only in the line. He promotes the aost worthy of them to this vacancy; he is commissioned, and his compission is confirmed by the Senate. The other, because there was no acancy for him in the line, is, as the least worthy of the two, promoted perely to brevet. Shall we say that the act of 1817, to fix the peace. establishment, which abolishes majorities in the corps, abolishes the commission, but not the brevet-falls with all its weight on the most worthy, and leaves the least worthy untouched? Could such have been the intention of Congress! It must be very manifest it could not; and the language which is to produce so irrational, so unequal, and so unjust an effect, must be insurmountable before it can be permitted to take such a construction. What is the language which is relied on as making this distinction in favor of brevet majors-as keeping them still in existence after the name of their office is extinguished-after the commission (the substance of which their brevet is merely the reflection) has departed; and of preserving this shadow of rank, without the substance, in being merely for the purpose of pay after it has been utterly abolished for every other purpose? The language relied on is that of the proviso of the act of 1814 before quoted. The argument seems to me to be worse, if possible, than the claim which it is adduced to support. This proviso, which is relied on as making a distinction in favor of brevet officers, is, upon its face, an enactment to abridge, not to enlarge their rights; it is to their prejudice, not to their advantage. But for this proviso, their bre vets would have placed them on the same footing, as to pay, with commissioned officers of the same grade; they would have been entitled to the pay of their brevet rank (as the commissioned officers of that rank were entitled to it) at all times and in all situations. It was expressly with the view of narrowing this general right, which their brevets would have conferred, that this proviso was made; to distinguish them, indeed, from commissioned officers of the same rank-not to their benefit, but to