DUTIES ON GOODS SOLD UNDER ORDER OF COURT, &c.

Duties on goods seized with a vessel of a neutral nation and sold, but afterwards adjudged to be unlawful prize, may be lawfully exacted, and cannot be remitted by the Executive.

ATTORNEY GENERAL'S OFFICE, April 16, 1814.

SIR: In answer to your letter of yesterday's date, I have the honor to state it as my opinion, that the duties in the case of the brig Euplus should be paid.

The cargo having been sold under an interlocutory order of the district court for the district of Georgia, and the goods thus distributed through the country in the hands of consumers while the libel was depending, I do not think it would comport with the meaning and objects of the revenue laws that they should be discharged of duties. The apparent hardship to the neutral claimants, to whom the cargo has been released by the ulti mate decision of the court, on the ground that it was not lawful prize, must be taken to be done away in the presumption of the enhanced price at which it sold under the interlocutory order, by reason of the outstanding bonds for the duties which hung over it. Had it remained in bulk, or unsold, so as to be capable of specific restitution under the final decree, a different case, working in favor of the claimants, might have been presented. In answer to the other question, whether, if the duties are to be exacted, the relinquishment of them is within the remitting power confided to the President? I have to reply, that I am not aware of his possessing any such. The act of Congress of the 3d of March, 1797, made perpetual by that of the 11th of February, 1800, invests the Secretary of the Treasury with certain powers to remit in cases of fines, penalties, and forfeitures; but I do not take the case of a debt due to the United States under a bond given for duties to fall under either of these heads, or that of a disabilitythe other word used in the act.

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

RICHARD RUSH, Attorney General.

To the SECRETARY OF STATE.

OFFENCES ON VESSELS WITH LETTERS-OF-MARQUE.

Punishment by court-martial of offences committed on board of letters-of-marque, is contem. plated only when such offences are committed without the jurisdiction of the United States.

OFFICE OF THE ATTORNEY GENERAL OF THE U. S.,

May 24, 1814.

SIR: In answer to your letter of yesterday's date, I have the honor to state it as my opinion, that, under the true meaning of the 15th section. of the act of Congress of the 26th of June, 1812, the punishment by court martial of offences committed on board of letters-of-marque is contemplated only when such offences happen out of the jurisdiction of the United States. The reason for the distinction may probably have been, that, unless the authority of the court-martial had been recognised for offences committed on board of these vessels when abroad, no punishment could have followed them-it being matter of great doubt how far the common code of the United States extends to the high seas; but for

all such offences as may take place on board of them while they are within the jurisdictional limits of the United States, or their territories, the ordinary courts of law of the country are competent to afford redress. The jurisdiction of the military tribunals is not to be stretched by implication. I am further of opinion, in answer to your second question, that a courtmartial can take no cognizance of the validity of a contract.

I have the honor to be, very respectfully, sir, your most obedient servant,

To the SECRETARY OF THE NAVY.

RICHARD RUSH.

MARSHAL'S COMMISSIONS.

A marshal is not entitled to the commission of one and a quarter per cent. provided by the art of 28th February, 1799, upon specie captured, as in cases where he sells vessels and other property.

WASHINGTON, July 26, 1814.

SIR: In answer to the case you submitted to my consideration, relative to the claim of the marshal of Georgia, I have the honor to state that I continue to entertain the same opinion which I intimated to you verbally; that is, that, upon the specie captured on board the Epervier, he is not entitled to the commission of one and a quarter per cent., under the act of Congress of the 28th of February, 1799, as in cases where he sells vessels and other property.

I should have furnished you with this answer at an earlier period, but that I was desirous to inform myself as to the practice upon this point in other districts. I have accordingly done so, as far as I could. The claim, I am given to understand, was made by the marshal of Massachusetts in the case of the money taken in the Swallow packet, by Commodore Rodgers, soon after the war. Full argument was had upon it before the court; but it was withdrawn before a decision, on a strong supposition, (as the abandonment itself would seem to indicate,) that it would not be allowed. I do not learn that it has since been renewed in any district north of New York.

In New York it has been allowed to the marshal; but whether under a judicial decision or silent acquiescence, I am not distinctly informed. The point of practice appearing to be thus different, I incline to the opinion I have expressed as the safer of the two, and as a construction of the act best comporting, according to my views, with its equitable intendment, as well as its literal praseology.

I have the honor to be, with great respect, your most obedient servant, RICHARD RUSH, Attorney General.

To the SECRETARY OF THE NAVY.

ABUSE OF LETTERS-OF-MARQUE AND REPRISAL.

Where an American vessel commissioned with a letter-of-marque and reprisal has been sold to foreigners, and the new owners are found cruising with the same commander, with the same letter, and under the American flag, and there is good reason to suppose that the commission of the letter-of-marque has been intentionally transferred, it is such an abuse of it as will warrant a suit upon the bond.

COLLECTOR'S OFFICE,

Norfolk, December 5, 1814.

SIR: In February last, a commission of letter-of-marque and reprisal issued from this office for the "Four Friends," a schooner belonging to Messrs. Butler & Seymour, merchants of this place. The vessel, it ap pears, was afterwards sold, and, as is stated by one of those gentlemen, the commission retained by the Spanish authority there-the reason he alleges for its not being returned; in proof of which, a certificate, purporting to be from an officer of that government, has been produced, but without any seal or other marks that could be discovered, giving it any official character. Information derived from another source leads me to believe that this vessel has since been employed by her new owners (Carthagenians, it is presumed,) as a cruiser under cover of this com mission and of the American flag. What contributes very much to strengthen this opinion is, that it appears the commander named in the commission was acting as such subsequently to the sale. I have deemed it my duty to represent this case to you, in order that I may be instructed what steps, if any, it will be proper to adopt. It is a case which does not seem to be embraced by the conditions of the bond required to be given previous to the emanation of the commission, unless that be revoked. I have the honor to be, most respectfully, your obedient servant, CHAS. R. MALLORY.

Hon. JAMES MONROE,

Acting Secretary of State.

DECEMBER 26, 1814.

If there is reason to suppose that the commission of the letter-of-marque within named was intentionally transferred, I think it such an abuse of it as would justify the bond being put in suit; but if it was forcibly detained by the Spanish authority, the owners or captain ought not to be visited by such responsibility. If a Spanish vessel should cruise under a commission so assigned, it would be at her peril.

To the SECRETARY OF STATE.

R. RUSH.

INTRUDERS UPON PUBLIC LANDS.

Intruders, without title subsequent to March 3, 1807, may be removed under the provisions of the act of that date, without three months' notice. If the marshal fail to effect such removal, upon trial, the President may employ adequate military force to accomplish it.

WASHINGTON, April 4, 1815. ASSUMING it as fact, under the letter from the register of Shawneetown, dated March 11, 1815, that the intruders in question are utterly without

!

title: that their unlawful possession was subsequent to the 3d of March, 1807, and previous to any sale made by the United States of the lands entered upon, I am of opinion:

That such intruders should be dispossessed by the authority of the government, in the manner pointed out in the 1st and 4th sections of the act of Congress of the 3d of March, 1807. The three months' notice mentioned in the 4th section will not be necessary, as it applies to another class of intruders.

If the instructions which are issued in the first instance to the marshal, or officer acting as such, are not found available to oust them from the land, and the marshal, upon trial, fails to effect that end, it is clear that the President may direct the employment of such military force as he may deem adequate and necessary to its accomplishment.

RICHARD RUSH,
Attorney General.

PENSIONS TO OFFICERS, &c., IN THE PEACE ESTABLISHMENT.

Ofers, musicians, and privates, composing the peace-establishment, who, although not Wounded," have lost their health whilst in the line of their duty to such an extent as to be disabled from performing duty any more, are within the meaning of the term " or otherwise," and are prima facie entitled to the charitable relief of the legislature. Erery officer, &c., in full commission, and not on furlough, must be considered in the line of hes daty, although at the moment no particular duty is devolved upon him.

WASHINGTON, April 6, 1815. THE Secretary of War having, in a letter of the 4th instant, desired my opinion on the true meaning of the first clause of the 14th section of the act of Congress passed on the 16th of March, 1802, for fixing the ary peace-establishment, I have the honor to submit the following: The words of the clause are: "That, if any officer, non-commissioned musician, or private, in the corps composing the peace-establishme shall be disabled by wounds or otherwise while in the line of his duty in public service, he shall be placed on the list of invalids of the United States, at such rate of pay, and under such regulations, as may be directed by the President of the United States for the time being.'

The question made is, in what other way than by wounds must the disability have been incurred, to entitle the party to the pay provided? The words of the section are not quite so distinct as to remove all grounds for diversity of opinion; yet, unless some liberality in their inthe law might be in danger of being curtailed or frustrated. The exterpretation be allowed, it is to be feared that the benignant intentions of pression" or otherwise" is placed in contradistinction to wounds. In its primary signification, it may be taken to import a disability brought on by the direct and apparent agency of accidents or inflictions from the hand of discharge of his duty, but which could not, with technical propriety? denominated wounds. Instances of the kind may readily be conceived;as if an officer, exercising his men on a hot day, should receive a stroke of the sun; a musician, while obeying an order to sound his bugle, should rupture a blood-vessel; or a soldier, while working upon fortifications,

God or men,

happening

to the party while in the immediate and obvious

be

should dislocate a limb: in such, and similar cases that may be imagined, it cannot be doubted but that the disability would be brought on in a mode to meet the alternative stated in the act. It will be to enlarge it but. a little more, and, as is conceived, to uphold its genuine and humane spirit, as well as its legal sense, to say that the connexion between the inflicting agent and consequent disability need not always be so direct and instantaneous. It will be enough if it be derivative, and the disa bility be plainly, though remotely, the incident and result of the military profession. Such are the changes and uncertainties of the military lifesuch oftentimes its trials, as well as its hazards-that the seeds of disease, which finally prostrate the constitution, may have been hidden as they were sown, and thus be in danger of not being recognised as first causes of disability in a meritorious claim put forth for the bounty of the act. It would not, I think, be going too far to say, that in every case where an officer or private loses his health while in the service, to such a degree as to be disabled from performing his duty any more, he is contemplated, prima facie, as an object of this charitable relief from the legislature. I feel more doubtful in fixing, by any undeviating standard, what is meant by being in the line of his duty. Upon this point, I should presume, however, that every officer in full commission, and not on furlough, must be considered in the line of his duty, although, at the moment, no par ticular or active employment is devolved upon him. The same of a soldier who is kept in pay, for it is presupposed of both the one and the other that they are at all times prepared for duty; and it is surely of indispensable obligation upon them to keep themselves detached from other pursuits, so as to be ready at a moment to answer any call emanating from those who may be authorized to command them. Perhaps a volun. tary absence, too long continued, on the part of an officer, from his station, might form an exception, so as to exclude the idea of his being in the line of his duty during any accident or sickness palpably proceeding from causes while he was away. But the officer who, by reason of marches in damp or cold weather, or who, from being in a garrison exposed to marshy exhalations, finds, even at some interval, his constitution broken down by rheumatism, or enfeebled by the constant recurrence of fevers, is surely as just an object of this humane stipend at the hands of the government, as he who may have had his arin shattered by a bullet. Such cases are again put only as examples. Others may also be supposed, in which the per formance of military duty in some of the various shapes it may be made to assume, has proved the original, though it may not be admitted as the proximate, cause of the disability superinduced.

In the discretion which is vested in the President, a sufficient guard is established that an interpretation of the act, such as is indicated by the foregoing remarks, will not open the way to abuse. If the loss of health should have proceeded from careless or irregular habits in the partymuch more if from vicious ones; or if he brought to the service or ranks of his country a constitution already impaired, or rankling with the germ of maladies that afterwards do nothing more than ripen into activity; these will form occasions for caution, or for an entire exclusion from the bounty, when the executive duty comes to be performed in the way Con gress have pointed out. A claimant who was suspected not to stand in lights altogether meritorious or innocent, must expect that his application would meet a severe scrutiny, and certain rejection at the discovery of any.