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 decided; 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. C. A. RODNEY.

To the SECRETARY OF THE NAVY.

BATTURE IN FRONT OF ST. MARY'S, AT NEW ORLEANS.

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 March, 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

front of the suburb St. Mary, at New Orleans, or alluvial lands to which you refer. On this statement Messrs. Derbigny and Lislet, French lawyers of reputation, and Mr. Gurley, district attorney of the New Orleans Territory, have, I understand, given decided opinions in favor of the title of the United States to the batture. Upon reflection, I concur with them. The statement I must presume to be correct, as it has been officially furnished.

Under the 1st section of the act of the 3d of March, A. D. 1807, I am of opinion that 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. This, I think, appears to have been the fact in the present case, from the letter of Mr. Van Praddles, of the 11th ultimo, which I return you. At first I entertained doubts on this point, but further inquiry removed them. These observations contain the requisite answers to the two questions proposed, viz: 1. Have not the United States a claim to these lands? 2. If they have, may not military possession be taken?

Yours, &c., &c.,

To the PRESIdent of the UNITED STATES.

C. A. RODNEY.

POWER OF THE PRESIDENT TO NOMINATE A BRIGADIER FOR TERRITORIAL MILITIA.

The President has power to nominate to the Senate a suitable person for the office of brigadier general of the militia of the Territorial governments.

WILMINGTON, April 12, 1810.

SIR: In answer to the question proposed by you, "Is the President authorized by law to appoint general officers to the militia of the Territorial governments?" permit me to state: That the ordinance of the old Congress of the 13th July, 1787, "for the government of the Territory of the United States northwest of the river Ohio," declares, "the governor for the time being shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress." By an act of Congress under the present constitution of the United States, passed on the 7th August, 1789, entitled "An act to provide for the government of the Territory northwest of the river Ohio," it is provided that "the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers which, by the said ordinance, [of 1787,] were to have been appointed by the United States in Congress assembled; and all officers so appointed shall be commissioned by him," &c. The act of April 7, 1798, erects the Mississippi territory (to which the papers transmitted specially apply) into a Territorial government of the first grade, in all respects similar to that of the Territory north west of the river Ohio, under the ordinance of 1787, with the exception of the last article contained in that ordinance. The act of May 10, 1800, gives to the Mississippi Territory a government of the second grade established by the ordinance of 1787, and provides for the organization of a general assembly therein. The general assembly, by the ordinance of 1787, pos

sesses the "authority to make laws in all cases for the good government of the district," &c. Possessing this authority, the general assembly of the Mississippi Territory have passed an act entitled "An act to organize the militia," which provides that "the whole militia of the Territory shall form one brigade, and be officered as follows: one brigadier general, with one brigade inspector," &c.

From this view of the subject I can see no reason to doubt the power of the President to nominate to the Senate a suitable person for the office of brigadier general, thus created by law. It has been done, I understand, in more instances than one. The principle is clearly established by the plain language of the statutes cited, and is supported by precedent. C. A. RODNEY.

To the SECRETARY OF WAR.

COURTS MARTIAL.

When inferior officers or soldiers who think themselves wronged complain to the commanding officer of a regiment, he ought to summon a regimental court-martial to inquire into the truth or falsehood of the complaint, and decide thereon; but, as its authority extends no further than a court of inquiry, the rules and practice of such courts should, in general, govern the proceedings.

WILMINGTON, March 16, 1811.

SIR: You have requested my opinion on the construction of the 35th article for the government of the army of the United States.

At first sight there would seem to be an apparent contradiction between the provisions contained in this article and some which are subsequent: I allude more particularly to the sixty-seventh and seventy-fifth. On attentive consideration, however, they may be reconciled. This should always be done where it can be accomplished. It is the true rule to be followed in the sound exposition of statutes.

The thirty-fifth article is intended for the benefit of inferior officers and soldiers. It gives them the privilege of complaining to the commanding officer of a regiment when wronged or aggrieved, who is required to summon a regimental court-martial on the case. This latter provision is imperative and compulsory. It is not a matter of favor or discretion, but of right, and is strictly ex debito justicia. It constitutes, in fact, a special court of inquiry on the subject, and affords a summary remedy to the party supposed to be injured. The only authority, however, given to this court, is to decide on the justice or injustice of the complaint. By the subsequent articles, they have no authority to punish any officer against whom a complaint may be exhibited or preferred, though they may think it well founded. If further redress be proper, a general court-martial must be called. If the regimental court-martial be of opinion that the complaint is not founded in fact, the complainant may appeal to a general court-martial, but subject to this provision: that, if they consider the complaint groundless, they may punish, at their discretion, the party complaining.

This article, which is literally transcribed from the old articles of war, was originally taken from the British martial code. This code, like our

own, does not subject officers to punishment by a regimental court-martial. On recurring to their best writers on this subject, I find them laying down the rule agreeably to the opinion I have expressed.

Mr. Tytler, in his accurate essay on military law, speaking of a similar provision in their martial code, says: "It is material, however, to observe, that, as no commissioned officer is properly amenable to the judgment or sentence of a regimental court-martial, the court, on such complaint and inquiry, can only pronounce their opinion whether the complaint is well or ill founded. If they declare the latter, the complainant must either acquiesce in that opinion, or, if he thinks himself aggrieved, follow the mode of appeal to a general-court martial above prescribed. If the regimental court declare the complaint to be well founded, the complainant may, on that authority, request a general court-martial to take cognizance of the injury, and bring the offender to proper punishment.”

Mr. McArthur, in a note on the same point, uses correspondent language: "It is proper to note, that a regimental court-martial cannot adjudge a commissioned officer to any punishment, but only, like a court of inquiry, the members give their opinion whether the charge be well or ill founded. If the charge be adjudged unfounded, the accuser may still, on the grounds of thinking himself aggrieved or wronged, appeal to a general court-martial; and if, on the contrary, the charge be adjudged well founded, the oflicer accused may appeal to a general court-martial." The same doctrine is maintained in a valuable treatise, which does credit to an American officer-Major Macomb.

With these lights to direct me, I feel no hesitation in saying, that when inferior officers or soldiers who think themselves wronged complain to the commanding officer of a regiment, he ought to summon a regimental court-martial, to inquire into the truth or falsehood of the complaint, and decide thereon. But, as their authority extends no further than a court of inquiry, the rules and practice of such courts should in general govern their proceedings; for the regimental court-martial in this instance differs only in a few features from the ordinary courts of inquiry. Should the complaint be considered as well founded, and warrant a charge under any of the articles of war, a general court-martial may be ordered, who will have jurisdiction of the whole case, and may punish the offence. The officers may, at the proper season, be arrested; but, in the present stage, I apprehend an arrest would be irregular and premature.

Yours, very respectfully,

C. A. RODNEY.

Hon. P. HAMILTON.