REPAYMENT OF FEES AT THE PATENT OFFICE. Repayment of patent fees can only be made under the circumstances and in the manner and to the persons provided by the faw; and that justifies no repayment to any other than the party in whose name the deposite has been made, or to his duly constituted attorney. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the communication of Mr. Ellsworth, the Commissioner of the Patent Office, under date of the 23d of October instant, transmitted to me this morning, and am of opinion that the rule hitherto observed in the Patent Office in making repayments of patent fees is a sound and salutary one, and ought not to be relaxed. The indemnity proposed, the commissioner, I presume, has no authority in any case to take. He can only refund under the law, and that clearly will not justify the repayments to any other than the party in whose name the deposite has been made, or to his duly constituted attorney. It cannot be expected of the head of the Patent Office that he is to go into the accounts of Mr. Mohur, the applicant for the patent, with Pool & Carpmeal, for the purpose of ascertaining which way the balance may be, or to ad just such balance when ascertained. If Mr. Mohur be entitled to withdraw any part of the fee deposited, he must do so personally or through his agent duly authorized to act. I have said, "if Mr. Mohur be entitled to withdraw any part of the fee deposited," because it may well be questioned whether, according to the statement of Messrs. Pool & Carp meal, the case is one which falls at all within the provisions of the 12th section of the act of the 3d of March, 1837. Upon this subject, however, I mean to express no decided opinion. The case does not require it. When it is put in a condition to call for it, the matter will be worthy of examination. Very respectfully, sir, your obedient servant, Hon. A. P. Upshur, JOHN NELSON. Secretary of State. COMPENSATION OF COMMISSIONERS OF EXPLORATION AND SURVEY. A commissioner for the exploration and survey of the northeastern boundary cannot be al- ATTORNEY GENERAL'S OFFICE, SIR: The case of Mr. Andrew Talcott, late a commissioner for the exploration and survey of the northeastern boundary, falls directly within the provisions of the 3d section of the act of the 3d of March, 1839, and the 2d section of the act of the 23d of August, 1842. This claim seems to be reasonable and fair, and such a one as Congress should provide for; but I am constrained to say that, in my view, it is not competent for the accounting officers of the government, without the interposition of the legislative authority, to allow it. I have the honor to be, very respectfully, sir, your obedient servant, THE EXECUTIVE AND THE JUDICIARY-ABDUCTION. The courts of the United States are open to the complaint of the owner of the abducted slave; but the executive authority cannot properly interfere to administer relief in such cases. Where an American vessel has brought off a slave from the Cape de Verde islands, the Executive will not interfere, further than to direct the district attorney to inquire into the facts, and institute a prosecution if they warrant it. ATTORNEY GENERAL'S OFFICE, SIR: The case referred to my consideration by your communication of the 25th of October, if the testimony furnished by the minister resident of Portugal be accurate, is one of great aggravation, and the wrong inflicted on Antonio Soares Timas, the owner of the abducted slave, should, if possible, be redressed. But I am aware of no authority that can be properly exerted by the government of the United States adequate to the relief that is sought; all that can be done is, to instruct the district attorney of the United States, for the district in which the accused resides, to inquire into the facts, and to institute a prosecution if they will warrant it. In regard to the property in the negro alleged to have been abducted, the government of the United States cannot interfere; its courts are open to the party injured. To them he may safely appeal for the full vindication of his claim to the property, and to the damages consequent upon its withdrawal from his service. I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON. Hon. A P. UPSHUR, Secretary of State. CONCERNING THE COASTING TRADE. Foreign ships or vessels may carry passengers from port to port in the United States, except steamboats employed on rivers and harbors, subject to the conditions as to fees, tonnage duties, &c., prescribed by the act of 1793, and other laws of the United States. ATTORNEY GENERAL'S OFFICE, SIR: The questions propounded in your communication of the 27th ult. are novel, and not free from difficulty. I have examined carefully the acts of Congress to which you refer, and others regulating the coasting trade, and will state briefly the conclusions to which my mind has been conducted. Under the 6th and 24th sections of the act of 1793, ch. 52, foreign vessels were authorized to trade to a limited extent between district and district, upon permits obtained from the collectors of the ports of departure. This privilege was burdened, it is true, with certain discriminating fees and tonnage duties; but, subject to these, the trade was legitimated. The 4th section of the act of the 1st of March, 1817, restricts the privileges recognised by the act of 1793, and declares: "That no goods, wares, or merchandise shall be imported, under penalty of for feiture thereof, from one port of the United States to another port of the United States, in a vessel belonging wholly or in part to a subject of any foreign power," with the qualifications that the clause thus recited "shall not be construed to prohibit the sailing of any foreign vessel from one to another port of the United States; provided no goods, wares, or merchandise, other than those imported in such vessel from some foreign port, and which shall not have been unladen, shall be carried from one port or place to another in the United States." That a foreign ship or vessel may lawfully proceed from one port to another port of the United States, subject to the conditions and restrictions imposed by the acts of 1793 and 1817, is therefore indisputable. May such ship or vessel, in such intercourse between port and port, carry passengers? The acts of Congress contain no provisions on the subject. There is a total omission of all legislation in regard to it. Persons are not ordinarily the subjects of trade or commerce, (city of New York vs. Milor, 11 Peters 102.) Hence it probably is, that the laws of the United States are silent upon the subject of passengers. They prescribe no regulations for the government of ships or vessels of the United States engaged in their conveyance, nor do they either recognise the right of foreign vessels to be so employed, or prohibit them its exercise. Of the right of the citizen to pass from port to port in the United States free, there can be no doubt; of that of foreign ships or vessels so to pass, there can be as little. In the absence of all inhibitions, then, why shall not the citizen choose his own mode of conveyance, and avail himself, if he will, of foreign ships or vessels to effect his transportation? It can hardly be, that, in prosecuting the trade authorized by the act of 1793, foreign ships or vessels, in passing from port to port, did not sometimes carry passengers. It is much more probable in the then condition of commercial intercourse, and before the facilities of transportation since supplied existed, that they were often or perhaps usually thus employed. If they be so, the act of 1817, designed to impose additional restrictions by the very mission to prohibit the transportation of passengers, has unequivocally affirmed the right of such vessels to carry them. Considerations of public policy may dictate the expediency of some legislation on this subject; but applying to the laws now existing a reasonable rule of interpretation, I am of opinion that foreign ships or vessels of every description (except steamboats employed in the rivers or bays of the United States, which are regulated by the act of the 12th of March, 1812) may lawfully carry passengers from one port to another port, subject to the con ditions as to fees, tonnage duties, &c., prescribed by the act of 1793, and other laws of the United States. I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON. Hon. JOHN C. SPENCER, Secretary of the Treasury. COMPENSATION OF SUPERINTENDENTS OF LIGHT-HOUSES. Collectors of customs, who are made superintendents of light-houses, may receive commissions on their disbursements. Opinion of 22d September, 1843, reconsidered and re-affirmed. ATTORNEY GENERAL'S OFFICE, SIR: I have carefully reconsidered the opinion communicated to you on the 22d of September, in connexion with the 2d section of the act of the 23d of August, 1842, and still think that allowances may be made to collectors of commissions upon disbursements of public money expended by them in their capacity of superintendents of light-houses, subject to the limitation imposed by the 18th section of the act of the 7th of May, 1822. This conviction is founded upon the reasons assigned in the original opinion, which I do not think at all weakened by the act of 1842, and which it is not necessary here to repeat. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN C. SPENCER, Secretary of the Treasury. POWER OF REMISSION OF TONNAGE DUTIES, &c. Neither the President nor the Secretary of the Treasury has power to remit the tonnage duty assessed with reference to the character of the vessel, officers, and crew, nor to remit the pen. alty of a bond to return seamen. The case is not within the act of 1797, nor of any other of the remission laws. ATTORNEY GENERAL'S OFFICE, November 3, 1843. SIR: I have had the honor to receive your letter of the 28th of October, submitting for my consideration two questions; the first arising upon the 6th section of the act of the 1st March, 1817, and the second upon the 1st section of the act of the 28th of October, 1803. With regard to the first, I am of opinion that there is no power in either the Secretary of the Treasury or the President to remit the tonnage duty incurred. The duties under that section are assessed with reference to the character of the vessel, and of the officers and crew by which she is navigated, and are not at all, in my mind, in the nature of a penalty. This being so, there is no more authority in the executive department of the govern ment to give up these duties, than in any other case of revenue accruing under the laws of the United States. Upon the second question proposed, I am of opinion that there exists no authority in any of the executive departments of the government to remit the penalty of the bond forfeited under the act of 1803. The case is not within the terms of the act of the 3d of March, 1797, nor of any other of the remission laws; and the four hundred dollars, the amount of the bond, being in the nature of a debt ascertained to be due to the government, distinguishes it from cases of fines, penalties, and forfeitures, to the release of which the President is competent. The only authority by which relief can be granted in this case is that of Congress. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN C. SPENCER, Secretary of the Treasury. SENTENCES OF COURTS-MARTIAL` A sentence of dismissal from service, approved by the President, cannot be annulled. The officer dismissed can be restored only by a new nomination by the President, the confirmation of the Senate, and all the requisites to constitute an original appointment to office. Even though the proceedings of the court-martial were irregular, if the sentence of dismissal were pronounced, approved, and carried into effect, there is no means of reviewing it. ATTORNEY GENERAL'S OFFICE, November 6, 1843. SIR: I have examined the questions growing out of the proceedings of the courts-martial held in the cases of Lieutenant Louis F. Whitney, of the marine corps, and Passed Midshipman Joseph Moorhead, of the navy, transmitted to me with your communication of the 24th of October. The case of Lieutenant Whitney has heretofore engaged the attention of Mr. Crittenden, late Attorney General, to whose consideration it was referred by one of your predecessors, and who stated the results of his examination in two opinions on file in your department. In those opinions I entirely concur, as far as they relate to the character and validity of the proceedings of the court and to the harshness of the sentence pronounced by that tribunal. But I know of no revisory power by which that sentence can now be rescinded, annulled, or modified. It has been passed upon by the competent authority from whose decision the law has provided no appeal. It must, therefore, forever stand as the judgment of the court. The effect of the judgment, it is true, may be removed; not, however, in virtue of any authority to reverse the court's sentence, but in the exercise of the power of appointment with which the constitution has clothed the President. No case has been brought to my notice in which an officer once dismissed has ever been restored to the service otherwise than by nomination by the Chief Magistrate and confirmation by the Senate, where the grade of the appointment was within the control of their joint action; and if such a case has occurred, I should not hesitate to declare it to be in direct repugnance to the constitution and the laws, and to every principle applicable to their just and safe construction. Of the propriety of the renomination of Lieutenant Whitney it does not become me to express any opinion. That is a matter for the consideration of the President, who is clothed with the authority, by and with the advice and consent of the Senate, to reappoint-an authority which he will doubtless exert with an eye to the good of the service, liberally looking to the claims of the dismissed officer on the one hand, and to the interests, in regard to others, which have supervened since his dismissal, on the other. The case of Passed Midshipman Moorhead stands precisely, as far as the law is concerned, upon the same footing with that of Lieutenant Whit ney. The facts disclosed by the record show it to be one in which the sentence pronounced and executed was peculiarly harsh and severe. The proceedings of the court held in his case I do not deem it necessary particularly to discuss. I have no difficulty, however, in stating that they were exceedingly irregular. Testimony, manifestly illegal, was admitted, whilst that which was legal was ruled to be indispensable. But still Í do not perceive how those irregularities can be regarded as annulling the judgment pronounced. They might have been appealed to as reasons' |