gress may or may not pass such laws: the articles, &c., from and after that day, may be admitted, subject to such duty, not exceeding 20 per cent., as shall be imposed by law. But whether the free articles shall be subjected to duty or not, or whether the articles mentioned in the first section shall be subjected to a lower duty or not, depends on future legislation. In the absence of such legislation, clearly the positive subsisting provisions of that act, and all acts not repealed or modified by it, remain and are the law of the land.

And this leads me to consider more particularly the effect of the words of the third section upon the interpretation of the first. They are as follows: "That, until the 30th day of June, 1842, the duties imposed by existing laws, as modified by this act, shall remain and continue to be collected. And from and after the day last aforesaid, all duties upon imports shall be collected in ready money; and all credits now allowed by law in the payment of duties shall be, and hereby are, abolished; and such duties shall be laid for the purpose of raising such revenue as may be necessary to an economical administration of the government. from and after the day last aforesaid, the duties required to be paid by law on goods, wares, and merchandise, shall be assessed upon the value thereof at the port where the same shall be entered, under such regulations as may be prescribed by law."

And

It has been suggested to me that some stress has been laid on the wording of this whole section, to show that the previous acts, subjected to the reductions prescribed in the first section, are no longer in force. But surely it can have no such effect. No principles of interpretation are better established than the following: 1st. That the law does not favor repeal by implication, and that it is not to be allowed, unless the repugnancy be quite plain and irreconcilable. (Wood vs. the United States.) 2d. That, if a statute, before perpetual, be continued by an affirmative statute for a limited time, this does not amount to a repeal of the former at that time. (Sir Thomas Raymond, 397, and the case there cited from Hobart.)

Put it, then, in the strongest way-that is to say, that the third section expressly continued the statutes left of force by the first, up to the amount of 20 per cent., till the 1st July-still they would continue to subsist after that day, by virtue of the principle last enunciated, unless there were some irreconcilable repugnance between them. Therefore, conceding to the words "until the 30th June, 1842," &c., all the force that can possibly be claimed for them-that is, suppose them to be an express declaration that the acts not repealed, but only modified, by the first section, shall continue of force till that day-and they have no effect whatever to repeal those acts after that day. But that is not, in my opinion, their true meaning. They are merely introductory to the change made in the suc ceeding clauses, that from and after that date, the residue of the excess having been deducted as in the first section, duties shall be collected in ready money, and credits be abolished; secondly, shall be imposed for the purpose of revenue necessary to an economical administration of the government, and not of protection, or revenue to be wasted in profligate expenditures; thirdly, shall be assessed at home. Of these three provisions, the first is a positive precept of law; the second is directory, or rather declaratory, to the legislature itself, as to the great principle of future indirect taxation; and the third prescribes, as we have seen, the mode of executing the ad valorem provision. Not one of these provisions can be tortured into a

direct and necessary repeal of the statutes left standing by the first section, up to the amount of 20 per cent. The first is clearly consistent with them all. The second is simply declaratory to succeeding legislatures of the principle recognised in the compromise; or, at any rate, it is merely executory, and, even if the legislature were bound-that is, morally bound-under it to pass a new and a different body of laws, until they do so, there is no principle and no authority to warrant the idea that a declaration of this sort, without one word of direct repeal, amounts to a repeal by implication of statutes which I have shown to be subsisting. The third I have already discussed at great length. The last or repealing clause does no more than abolish all past legislation inconsistent with this act, except the two provisions so strikingly expressive of the character of the whole act as a fundamental law, founded upon a great principle of legislative compromise. There is no pretence to say that the provision of the first section is inconsistent with any other part of the act, as 1 have shown. That provision expressly is, that the excess above 20 per cent. is to be deducted, from and after the 30th day of June, 1842, from the amount of duties imposed by previous acts; and, therefore, all not de. ducted still remains to be collected under those acts. Nothing can be more clear. I will barely add, in reference to the point submitted to me in your first note upon this subject, the rule of universal application, that where a statute gives or provides a thing, the common law supplies all manner of requisites. I am certainly far from affirming that the whole case is entirely free from difficulties. Neither do I think it desirable that the legislature should do nothing to guide and assist the Executive in the performance of its duties under the law. Far from it. On the contrary, the Treasury Department is, I am sure, very much interested in the limiting, as far as possible, its discretion in a matter so very delicate and so full of the greatest responsibility. But, being called on to say whether I think the law, as it now stands upon the statute book, will, if left so, be capable of enforcement after the 30th of June, I am constrained to answer in the affirmative. The manner of execution may possibly prove unsatisfactory to the country, to the parties, and to the Executive itself; but you are at all events bound, in my opinion, to execute it, to the best of your ability, under existing laws.

I have the honor to be, sir, your obedient servant,

Hon. W Forward,

H. S. LEGARE.

Secretary of the Treasury.

RECIPROCITY ACT OF 1817.

The reciprocity act of 1817 does not permit even an indirect carrying trade by foreign ships. Belgian vessels carrying hides and wool from Buenos Ayres to Boston come within the prohibitions of, and are subject to the forfeitures denounced by, the act.

OFFICE OF THE ATTORNEY GENERAL,

June 30, 1842.

SIR: In your letter of the 17th instant, you request my opinion as to the proper construction to be given to the first section of the act of Congress, approved 1st March, 1817, entitled "An act concerning the navi

gation of the United States." You state, as follows, the question, and the case out of which it arises: "The question presented is, whether the forfeiture by the second section of the act will be incurred by the vessels of a foreign nation, which does not prohibit the indirect trade referred to in the act, upon their arrival in the United States with productions of countries other than that to which such vessels may belong?

"To elucidate the question, I will state an actual case of recent occur. rence, to wit: A Belgian vessel lately arrived at Boston, from Buenos Ayres, laden with hides and wool, the productions of that country; and the question arises, whether such trade is prohibited by the law before referred to, and the vessel and cargo subjected to forfeiture under the provisions of the second section of said act. There is no evidence to show that any prohibition like that mentioned in the act has ever been adopted by Belgium. On the contrary, it is satisfactorily proved that that nation has thrown open her ports to the indirect trade of vessels of the United States and other nations."

The language of the first section of the act of 1st March, 1817, is not, perhaps, so free from ambiguity as it were desirable it should be; but I am of opinion that it does not in any case authorize an indirect carrying trade by foreign ships. The proviso was intended to restrain the privi lege extended to foreign vessels in the enacting clause. By this they are allowed, where they belong wholly to the citizens or subjects of that country of which the goods, &c., are the growth or manufacture, to bring these goods into our ports. By the proviso, this is confined to cases where a reciprocal privilege of the same kind is extended to our vessels.

I have the honor to be, sir, your obedient servant,

Hon. W. FORWARD,

H. L. LEGARE.

Secretary of the Treasury.

ADJUSTMENT OF OVERPAYMENTS OF PENSIONS.

If a person entitled to a pension from the government be overpaid by mistake, or by the application of some wrong principle of computation, and yet have a further claim against the government, the claim may set off against the said overpayment.

Mr. Butler's opinion reviewed and commented on.

OFFICE OF THE ATTORNEY GENERAL,

July 2, 1842.

SIR: In the matter of James Palmer's pension, considered as a matter unprejudiced by previous decisions in this office or in yours, I should be of opinion that the deduction ought to be made. In all cases of mistake of fact, there is a condictio indebiti even in favor of an individual, much more of a government, which is, on strict principles, not estopped even by a judgment of a court in case of subsequently discovered evidence. I do not conceive there would be, on general principles, any objections to setting off a demand of the government against a pensioner arising out of a separate cause. (See Priddy vs. Rose, 3 Mer., 84, especially at p. 104.) But the statute of 1836 (20th May) has, as far as it goes, certainly altered the law in this respect. The case here, however, is not a defalcation in

a disbursing officer, or even a collateral demand. It involves merely an adjustment, on correct principles, of the very account on which the claim of the pensioner arises. If he have been paid already by anticipation, what equity is there in the present demand? How can he keep what is enough to pay his whole claim, and yet insist on having more?

Thus stands the case between him, as creditor, and the government, as debtor. But there is another view of the subject; and that is the one taken by the authors of the above cited law of 1836, and by Mr. Butler, when acting as Secretary of War. It is this: Pensions are given to maintain decently a person entitled to public bounty for past service, and have no reference whatever to any present relation between government and the beneficiaries. This is plausible; and the act of 1836 certainly gives it countenance. But I cannot accede to the general principle. I have cited authority to show that pensions at common law are liable to set-off. Beyond the scope of the exception in the act of 1836, the common law is still unchanged. But that statute only applies to defalcations in disbursing officers, and can by no fair construction be made to affect a settle. ment in such an account. Suppose the pensioner to have invested, and still to possess, the overplus paid him; can he conscientiously keep it? The maxim is universal, neminem alieno damno ditiorem esse oportet. Sull, if Mr. Butler's opinion has been acted on, and has grown into settled practice, I would not advise you to disturb it now. I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

Secretary of War.

H. S. LEGARE.

THE DISTRIBUTION ACT.

The States to which five hundred thousand acres of land were given for internal improvements are not entitled to take any land to which pre-emption rights exist.

OFFICE OF THE ATTORNEY General,

July 11, 1842.

SIR: In compliance with your request, contained in your letter of the 9th instant, I have examined the eighth section of the act of 4th September, 1841, together with the opinion of the late Commissioner of the General Land Office thereon. I concur with the Commissioner. Statutes must be so construed as to avoid, if possible-first, conflicts between their provisions; secondly, the divesting of any rights of third parties. I think, therefore, the selections must be made by the States in such manner as not to take any land to which any valid pre emption right exists. I have the honor to be, sir, your obedient servant,

Hon. W. FORWARD,

Secretary of the Treasury.

H. S. LEGARE.

CLAIMS FOR INDIAN DEPREDATIONS.

The 17th section of the act of 1834 applies only to tortious and violent, if not to felonious taking.

The United States undertook to guaranty against violence on both sides; but differences in matters of contract do not come within the 16 h and 17th sections of the act. Provision is made for such controversies in the 22d section, and the presumption of law is against the whites.

SIR: I have the honor to acknowledge the receipt of your letter of the Sth instant, enclosing a letter from Mr. E. Pond to the Hon. D. H. Lewis, and other papers, relative to a claim of Mr. J. B. Cleaveland for Indian depredations under the act of 1834. The state of facts presented in the letter referred to me is neither complete nor clear enough to enable me to give an opinion on the point of law involved in Mr. Poinsett's decision. They do not meet the issue. According to that decision, the facts dis closed in evidence made out a case of disputed property. It does not appear from the letter whether the property was seized under color of title or not. This is a vital circumstance in the case. My opinion, therefore, is only hypothetical. I am quite clear that the 17th section applies only to tortious and violent, if not to a felonious taking. Read this act with that of 1802, of which it was only the reproduction, and you will perceive at once that it could contemplate nothing more. The United States, as having exclusive jurisdiction of the country, were a guaranty against violence on both sides. Differences in matters of contract do not come within the purview of the 16th and 17th sections. Provision is made for such controversies in the 22d section, and the presumption of law is against the white man.

I have assumed that this case, by its locality, comes properly within the act which provides only for offences committed within the Indian country, or predatory excursions made from within that country by somebody resident there. Was the locus in quo the Indian country within the meaning of the statute, or was the act committed by an Indian residing in that country? This depends on evidence not before me; but I recommend to your particular attention the description given of that country in the 6th section of the act. It contains two distinct territories: first, all the country west of the Mississippi, &c.; secondly, that part of the United States east of the Mississippi, and not within any State, to which the Indian title has not been extinguished. If the fact neither occurred within the territories so described nor was perpetrated by any Indian residing within such territories, it would not, even were it a tort, fall within the provisions of the act. The 17th section clearly refers only to the Indian country designated in the first section.

I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

H. S. LEGARE.

Secretary of War.