the northern districts of the United States, shall pay the same amount of duties which would be payable by our citizens on the same goods and merchandises imported from the same place in American ships into the Atlantic ports of the United States. The object of that part of the treaty being to exempt the subjects and citizens of each party, in their inland navigation with each other, from the duty imposed on goods imported in foreign vessels, that object is certainly effected when no higher duties are collected from British subjects than are collected from American citizens on the same goods, and imported from the same place in American vessels. This construction is deducible not only from the letter, but also from the spirit of the instrument. A different construction would give to British subjects a privilege not claimed nor permitted to our own citizens, which certainly never could have entered into the mind of those who made the treaty.

2d point: "The imposition of tonnage duties on British vessels navigating the lakes."

I am unable to discover, in the 3d article of the treaty with Great Britain, anything which can support the construction insisted on by Mr. Merry. Nothing like it is deducible from the letter of the article. The provision relating to the duties on goods and merchandise cannot, by the natural im port of the words, or by any rule of sound construction, be extended to tonnage duties. They are distinct subjects of municipal regulation; if not in all commercial countries, certainly in those of the contracting parties, and are governed by distinct and separate provisions. To have exempted British ships, therefore, from foreign tonnage duty, it would have been necessary to have declared so in the treaty, in terms as explicit as those which exempted goods and merchandise from foreign import duties. Duties on both existed by law at the formation of the treaty. To have exempted one and not the other, would, under such circumstances, be conclusive to show that such exemption was not intended. Such, I conceive, would be the fair and legal construction, admitting the treaty was equivocal. If this construction be right as to tonnage, it will be also correct as to light money.

3d point: "The compelling of British subjects to take out licenses for the Indian trade, in the same manner as citizens of the United States." I am not certain that I fully comprehend the extent of Mr. Merry's observations on this head. If they only extend to question the right which he states to be claimed by our agents there, of exacting a fee of six dollars from each British subject for a license to trade with the Indians within our boundaries, I agree with him that the practice is improper, because it is not warranted by any law of the United States, and will doubtless be forbidden. But if his observations are considered as claiming for the subjects of his Britannic Majesty any dispensation from the laws of the United States which regulate the trade and intercourse of our citizens with the Indian tribes, I have no difficulty in saying that they are not, in my opinion, founded upon the treaty, nor the explanatory article thereof, nor, so far as I am informed, on any principle or usage applicable to cases of a similar nature. Permission to the citizens and subjects of each nation, and also to the Indians, "freely to pass and repass, by land or inland navigation, into the respective territories and countries of the two parties on the continent of America, and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each

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 contemplated by the parties, and everything which can be extracted from the most liberal construction of the treaty.

I have the honor, &c., &c.,

To the SECRETARY OF STATE.

JOHN BRECKENRIDGE.

MUNICIPAL AUTHORITY TO IMPOSE TAXES.

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 payment of it can be enforced.

To the SECRETARY OF STATE.

JOHN BRECKENRIDGE.

OPINIONS

OF

CESAR A. RODNEY, OF DELAWARE:

APPOINTED JANUARY 20, 1807.

LAND PATENTS ISSUED BY MISTAKE.

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

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 had 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 previously granted according to law, by the United States, to other individuals, 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 use 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 patent, and vested in prior purchasers or warrantees, it must be ex· tremely obvious 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 granted; 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,

To the SECRETARY OF STATE.

7

C. A. RODNEY.

HOUSE RENT OF COMMANDING OFFICER AT NAVY YARD.

The commanding officer at the navy-yard is entitled to receive the pay and emoluments of a 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 opinion in your favor of the 12th of March, and feel considerable difficulty in forming 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, that 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 regu lations 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 comfortable 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, independent 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

course of a department acting under the law from its first existence, or fa other departments acting under laws precisely similar, is entitled to respect and consideration. In England, the judges have gone great lengths on this subject. Were I to decide in a judicial capacity, unfettered by the decisions which have heretofore taken place in our country, I would say that the correct course lies between the two extremes. Viewing the usage referred 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 the commanding officer of the navy-yard at Washington should be allowed ng his house rent.

e. 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 acknowledge my inclination in favor of the claim. The leaning of your mind, I am sensible, must be equally strong with my own.

I

am, dear sir, yours, very respectfully,

To the SECRETARY OF THE NAVY.

C. A. RODNEY.

at

3

LIABILITY FOR CAPTURE OF A CHARTERED VESSEL

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 sustained by the capture.

WASHINGTON, July 20, 1807. Str. 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 s of Representatives.

t

a

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

naval stores to Malta and Syracuse. No stipulations are contained in the -the duty of the caprain to procure all the usual documents for the proteca charter-party to furnish any particular or special papers. In general, it is tion of his ship and cargo; nor should he set sail without them.

Common merit and established reputation,)

It is stated by Mr. Abbot, in his Treatise on Shipping, (a work of un

"The master must also take

on board no false or colorable papers that may subject the ship to capture or detention; and he must rocure and keep on board all the papers and documents required for the manifestation of the ship and cargo by the aws of the country from and to which the ship is bound and by the vion with others, goods on board this vessel for the accustomed freight, aws of nations in general." Had the United States shipped, in conjunc. without any charter-party, the rule of law would seem perfectly clear.