oth in the French and English service a brevet is considered as a mission. It is defined to be "a commission or appointment." And, n, brevet rank is said to give precedence (when corps are brigaded) e date of the "brevet commission. Thus the brevet is treated as a mission. In our own service, too, and in the very articles of war ch we are considering, while the 64th article requires a court martial onsist of commissioned officers, the 61st authorizes officers holding ets to sit in such court. If it be said that the brevet officers spoken 1 this article are those who are also commissioned officers, the answer hat there are certain provisions in the article which relate exclusively heir brevet character, and assign the rank which they shall take on ts-martial to them as brevet officers. If, then, commissions are to be idered as contradistinguished from brevets, it would seem that brevet ers, sitting, by virtue of the aforesaid article, on courts-martial comd of different corps, must sit as brevet, and not as commissioned offi, in apparent contravention of the article first referred to. To avoid collision, would it not be safe to consider a brevet as in fact a comion, except for the purpose of pay, generally, and for rank in the s? and that the term commission, in the 64th article, is used in conistinction to non commissioned, and not to brevet?

ach is the view to which we are led by considering the question geny; but the particular provisions of the fourth section of the act of the | April, 1812, seem to lead to a different result. It is therein provided a cadet who has received his degree "shall be considered as among candidates for a commission in any corps, according to the duties he 7 be judged competent to perform." If there be no vacancy, he may, he discretion of the President, be attached to such corps as a supernuary officer, with the usual pay, &c., until a vacancy happens. Now, it be remembered that our inquiry is, whether the official personage è described is a commissioned officer of the army of the United States, lified, under the 64th article of the rules and articles of war, to sit on rts-martial? I incline to think, especially in favorem vitæ, that the wer must be in the negative.

The

He is not a commissioned officer, but only entitled, in consequence of degree, "to be considered as a candidate for a commission," &c. is not a commissioned officer, again, because he could only become by an appointment to a vacant office. But he has received no such apntment, for the brevet issues only because there was no office vacant. ally, he is not to be considered as a commissioned officer of the army the United States, because the act under which he is brevetted distinshes him as a supernumerary; thereby declaring that, at the time of ing such brevet, the army has the full complement of commissioned cers known to the law, among whom he is certainly not one. th of the public is pledged to him that a commission shall be awarded him, when a vacancy happens, in the corps to which he is attached. s brevet is the evidence of this, and, whatever its form, would seem to controlled by the spirit and intention of the act. But until such vaney does in fact occur, he continues as a graduated cadet, privileged, virtue of his degree and the recommendation of the academical staff, become a commissioned officer, but not in fact such officer. Independently of these considerations, it is difficult to believe that Coness would have deemed it expedient to introduce into the administration

of justice, in its military courts, persons who, speaking of them as a class, must be so young and inexperienced, and whose introduction into the army depended on the existence of vacancies, which the sentences of such courts might create.

JN. MACPHERSON BERRIEN.

To the PRESIDENT OF THE UNITED STATES.

APPOINTMENT OF MARSHAL FOR NORTHERN DISTRICT OF ALABAMA.

The general provisions of the 24th section of the judicial act of 1789 confer no authority upor the President to appoint marshals in districts created subsequently to the passage of tha law.

ATTORNEY GENERAL'S OFFICE,

August 27, 1829. SIR: Your letter of the 25th is before me. It proposes two questions: First. Whether the President had authority to issue a commission to Benjamin Tyson Moore, as marshal of the northern district of Alabaina? Second. Whether the commission actually issued is valid?

As you have not pointed out any diversity between the commission in this case, and those which are ordinarily issued, with which I have no means to compare it; and as I do not perceive any defect, other than that of a mistake in the second baptismal name of the person commissioned, (which, so far as it is important, your department may correct by the award of a new one,) I have been disposed to doubt whether it was intended to present the second of these questions as a distinct and subsequent object of inquiry. The opinion which I have formed on the first, has seemed to me, also, to render unimportant the consideration of the second; but if, in this view of the subject, I have mistaken your wishes, you will be pleased to advise me of the error.

I proceed to state to you my opinion on the first question which you have referred to me; which is, that the President had no authority to issue a commission to Benjamin Tyson Moore as marshal of the northern district of Alabama.

The appointing power of the President, with reference to the present inquiry, is limited to such offices as "are established by law." The sole question, therefore, is, whether the office of marshal of the northern district of Alabama be provided for by an act of Congress: in other words, whether it is established by law. It is agreed that no express provision exists; but it is said that the general authority given by the judicial act of 1789 (which declares that "a marshal shall be appointed in and for each district") gives the power; and that, whenever a new district is created by law, the authority to appoint a marshal necessarily follows. That opinion seems to me to be liable to the following objection:

The several parts of an act are to be taken together in interpreting it, and to be construed with reference to the expressed objects of the law. The 2d section of the act in question had divided the United States into thirteen districts; and the provision of the 24th section must be construed to have reference only to the districts so created. If the words of the two sections are put in juxtaposition, this result will appear to be inevitable;

yet this change in the order of the sections will not alter the enactts of the law. The law will then read thus:

The United States shall be, and they are hereby, divided into thirteen: icts, to be limited and called as follows, &c, &c. A marshal shall be inted in and for each district," &c. If we inquire what is the antent of each, the answer is, that it must necessarily have relation to one e thirteen districts created by the previous provision; that such is the and manifest intent of Congress; and that it is equally true, since e two provisions are parts of the same act, however widely they may eparated.

gain: the legislative history of this question shows one uniform acant interpretation of this provision; and that is the one which I have

n.

t the time of passing the act of 1789, North Carolina and Rhode Island not yet entered into the Federal Union; they were not, therefore, inled in the arrangement of judicial districts made by that act. When sequently, in 1790, these States were declared respectively to constitute cial districts, Congress deemed it necessary, moreover, expressly to vide that the act of 1789 should have like force and effect within those es, as elsewhere in the United States A provision similar in effect be found in the act of 1791, in relation to Vermont. Kentucky and ne had been included in the original enumeration of judicial districts, igh they were not then States; and no further provision was necessary, his particular, on their admission into the Union. But on the admis. of Tennessee, that provision is found; and when subsequently, in 2, that State was divided into two judicial districts, the power to apnt a marshal in each was expressly given. When Ohio and the States sequently admitted, including Alabama, were introduced into the ion, and judicial districts established therein, express provision was de for the appointment of marshals in such districts respectively. The condition of New York was analogous to that of Alabama. That te was divided into two judicial districts in 1814; but Congress did not nk proper to authorize the appointment of a marshal for the northern trict until the following year.

When two judicial districts were established in Pennsylvania, Virginia, d Louisiana, express provision was made in each case for the appointent of an additional marshal.

By the act of 1801, additional districts were established in Jersey, Maryad, Virginia, and North Carolina; and it was provided that a marshal ould be appointed for each of the districts established by that act. In 02, Congress authorized the President to dismiss such newly-appointed arshals. By the same act North Carolina was divided into three discts; but no provision was made for the appointment of additional mar als, and none have been appointed. South Carolina in 1823, and labama in 1824, were divided into two districts; but in neither case was 1 additional marshal authorized. And what proves, in the case of Alaama, that the omission was er industriâ, is, that provision was expressly ade for the appointment of an additional attorney and clerk.

It is obvious, then, that the framers of this bill had considered what fficers were necessary in the newly-created district, and had purposely mitted to provide for an additional marshal: for if the construction of the ct of 1789, which I am resisting, could be maintained, the provision for

an additional attorney and clerk would have been wholly unnecessary, since that act declares that "there shall be appointed in each district a meet person, learned in the law, to act as attorney," &c.; and vests each district court with power to appoint clerks for their respective courts.

Thus, sir, the ordinary rules of interpretation, and the concurring constructions of the legislative and executive departments of the government, unite to support the opinion which I entertain-that the general provisions of the 24th section of the judicial act of 1789 give no authority to appoint marshals in districts created subsequently to the passage of that law. JN. MACPHERSON BERRIEN.

To the SECRETARY OF STATE.

OBLIGATIONS OF SHIP-MASTERS.

The three months' pay, over and above the wages due mariners, establishes a necessary con nexion between the pay so to be advanced to the consul by the ship-master, and the rate of wages then accruing to the seaman.

ATTORNEY GENERAL'S OFFICE,

August 28, 1829.

SIR: I have considered the question proposed in the letter of the consul of the United States at London, which you have referred to me; and have to state to you my entire concurrence in the opinion of that officer.

The words of the act of 1803 which he has referred to, and which re quire the master, for every seaman discharged in a foreign port, to pay to the consul "three months' pay, over and above the wages which may then be due to such mariner," seem to me to establish a necessary con nexion between the pay so to be advanced to the consul, and the rate of wages then accruing to the seaman.

I acquiesce also in the other suggestions contained in that letter; and would add, that the policy of the law, and the plain intention of Con gress, were to discourage, as far as it was practicable, the discharge of American seamen in foreign countries, under any circumstances what

ever.

To the SECRETARY OF STATE.

JN. MACPHERSON BERRIEN.

CONTRACTS AND PURCHASES FOR THE NAVY.

All contracts and purchases entered into and made by the Navy Department must be entered into and made by or under the direction of the Secretary.

Where the public exigencies do not require the immediate delivery of the articles, or per formance of the service, it is necessary to advertise previously for proposals respecting the

same.

Where immediate delivery is necessary to the wants of the public service, the article required must be obtained by open purchase; ie., at places where articles of the description wanted are usually bought and sold, and in the mode in which such purchases are ordinarily made

between individuals.

you

hare

as used

SIR: I have received your letter of the 24th instant, in which requested my opinion of the import of the term "open purchase,'

the 5th section of "An act further to amend the several acts for the blishment and regulation of the Treasury, War, and Navy Departits," approved the 3d March, 1809.

'wo modes of answering this question occurred to me: the first was, give you the legal interpretation of the term, considering it as purely inical; the second was, to ascertain its meaning and intent, by referto the legitimate history of the act. Believing that the latter mode ild be more satisfactory, I have examined the cotemporary journals Congress, congressional documents, and public newspapers, in which debates of that body were registered, with a view to discover the ses which led to the enactment of this law; and the time spent in an fectual search of these records has hitherto delayed my reply to your munication. I will proceed to state to you the opinion which I have ned on this subject.

'echnically considered, the term "open purchase" would seem to be correlative of "market overt"-a purchase in open market. Unfortuely, however, for this interpretation, market overt, in its true technical eptation as it exists in England, (from whence we derive the term,) is known in this country. It there signifies a public mart established by king's grant, or by immemorial custom and prescription, where, from publicity of sales, and for the convenience of commerce between man I man, a sale is binding, not only to the parties to it, but on all persons ing any right or property in the thing sold. To all the practical purposes he present inquiry, however, market overt may, to a certain extent, be 1 to exist in this country. By the law of England, every shop in Lon1, in which goods are publicly exposed to sale, is market overt for such ngs only as the owner professes to trade in. There can be no objection applying that doctrine here, with a view to the interpretation of the rds "open purchase;" and then it may be said that an open purchase any article is effected when the same is bought publicly, in the ordiry mode of purchase between individuals, and at the places where ods of like description are usually sold.

Turning now to the legislative history of the act of 1809, with a view the interpretation of this term, I regret to say that my researches have en so unsatisfactory. Something, however, may be gleaned from this amination, to aid us in our inquiry.

I understand, verbally, that the act of 1809 had its origin in the dissatisetion which was felt at the mode in which contracts were entered into, ore particularly in the department over which you now preside. Referng to the journals of the Senate, it appears that a committee was raised r the purpose of inquiring into this subject, with authority to communite with the several heads of departments. That committee reported a ll, which, having been made a special order, and subjected to amendent in the Senate, passed that body; and, having been amended in the louse, and eventually referred to a committee of conference, finally assed both Houses in the form in which it now is. The reports of deates of that day, in the public papers, are meagre; and I have not been ble to ascertain whether that which occurred on this bill was published. 'wo files of the National Intelligencer (the only collection of cotemporary azettes to which I have had access) are deficient at this precise point And I have searched, with the same want of success, for the correspond ence which must have taken place between the committee and the severa