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ALTERATIONS OF PATENTS FOR INVENTIONS.
granted by the King of Bavaria, where the mistake in that already issued arı se from no
ATTORNEY GENERAL'S OFFICE,
September 24, 1844. Sır: I have examined the question suggested by the Acting Commis sioner of Patents in his letter accompanying your communication of the 19th instant, and am of opinion that the correction of the date of Mr. Detmold's patent may be made to correspond with that of the patent granted him by the King of Bavaria, if the mistake in that already issued arose from no fraudulent or deceptive intention. This case, if not within the letter, is within the equity of the patent laws, and is covered by the principles asserted by the Supreme Court in the case of Grant and Raymond, reported in the 6th volume of Peters's Reports. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. John C. CALHOUN,
Secretary of State.
VIOLATION OF NEUTRALITY AND THE ACT OF 1818.
New York, they not being Mexicans transiently within the United States, is a clear viola-
of their force by adding to the number of their guns, or by changing those originally on board for those of a larger calibre, or by the addition of any equipment solely applicable to
war, is a violation of the 5th section of ihe same act. But the repairs of their bottoms, copper, &c., do not constitute any increase or augmentation
of force within the meaning of the act; and the steamers themselves are not subject to seiz
ure by any judicial process under it. But the commanders and officers of vessels of o'her nations found to have violated the statute
in question, are amenable to the criminal jurisdiction of our courts, and may be successfully prosecuted
ATTORNEY GENERAL'S OFFICE,
September 30, 1844. Sir: I have carefully considered the questions suggested in your com. munication of the 28th instant, as well as those proposed in the joint let. ter to Mr Calhoun, of Ogden Hoffman, and Richard S. Coxe, esqrs., of the same date, and am of opinion that their resolution depends on the interpretation of the provisions of the act of Congress of the 20th of April, 1818, which was passed to preserve and vindicate the neutrality of the United States, and reflects substantially the principles of international law as asserted and enforced by Mr. Jefferson, in his correspond. ence with Mr. Genet in 1793. (The sections of the act of 1818 which apply to the subject under consideration, are the 2d, 3d, 5th, 6th and 8th.) The second section forbids all persons within our jurisdiction or territory, except the citizens or subjects of the foreign power making the enlistment transiently within the United States, from enlisting or entering themselves, or from hiring or enlisting other persons in the service of any foreign prince, State, colony, district, or people, as a sol. dier, or as a marine or seaman on board of any vessel of war, letter of
marque, or privateer, and declares every person offending against this pro. vision to be guilty of a misdemeanor, and to be punishable by a fine not exceeding one thousand dollars, and imprisonment not exceeding one year. The third section prohibits the fitting out and arming of any ship or vessel within the limits of the United States, with the intent that such ship or vessel shall be employed in the service of any foreign prince or State, to cruise or commit hostilities against the subjects, citizens, or property of any foreign State with whom the United States are at peace, and declares every person offending against this provision guilty of a misde. meanor, punishable by a fine not exceeding ten thousand dollars, and by imprisoninent not exceeding three years; and, moreover, subjects the ship or vessel, so fitted out or armed, to condemnation. The fifth section pro. bibits the increase or augmentation of the force of any ship-of war, cruiser, or other armed vessel, which, at the time of her arrival within the United States, was a ship-of war, or cruiser, or armed vessel, in the service of any foreign power, the same being at war with any other foreign power with whom the United States are at peace, by adding to the number of the guns of such vessel, or by changing those on board of her for guns of a larger calibre, or by the addition thereto of any equipment solely ap: plicable to war, and denounces against the violators of this provision a penalty of not more than one thousand dollars, and an imprisonment of not more than one year.
The sixth section prohibits the beginning or setting on foot, or providing, or preparing the means for any military expedition or enterprise to be carried on from the United States, against the territory or dominions of any foreign power with whom the United States are at peace. And the eighth section authorizes the President, in the cases therein enumerated, to employ the land or naval forces, or the militia, for the purpose of carrying into effect the provisions of the act.
These provisions are, in my view, unambiguous and plain, and are ad. mirably adapted to the maintenance of the relations and obligations inci. dental to a condition of neutrality.
The enlistment of the seamen or others, for marine service on board the Mexican steamers, in the port of New York, they not being Mexicans transiently within the United States, is a clear violation of the 2d section of the act of 1818; and the persons enlisted, as well as the officers enlisting them, are liable to the penalties thereby denounced.
The acts alleged to have been committed by the Mexicans in regard to the repairs, augmentation of force, &c., of the steamers now lying in the port of New York, do not, in my opinion, bring them within the opera. tion of the 3d section of the act of 1818, which I interpret to relate to an original fitting out or arming; and I therefore think that no proceedings under that section can be maintained. The provisions of the 5th section are clearly applicable to the case, if it be true that the force of the steamers has been augmented in the port of New York by adding to the number of their guns, or by changing those originally on board for guns of a larger calibre, or by the addition thereto of any equipment solely applicable to war; but I do not think the repairs of their bottoms, copper, &c., constitute any increase or augmentation of force within the true meaning of
I am further of opinion, that the steamers themselves are not subject to seizure by any judicial process under the act of Congress; but that their commanders and officers are amenable to the criminal jurisdic. tion of our courts for violations of the statute in question. The very
purpose of the act would be defeated were it otherwise; and there is no principle of which I am aware which exempts from responsibility for criminal acts, within our jurisdiction, the commanders or officers of shipsof-war of other nations with whom we are at peace.
The 6th section of the act does not, in my judgment, affect this case; applying only, as it does, to the beginning or setting on foot, or providing the means for military expeditions or enterprises, to be carried on from the United States against the dominions of a foreign power with whom the United States are at peace. Upon the whole case, therefore, I am of opinion that prosecutions may be commenced under the 2d and 5th sections of the act of 1818; that the proceedings must be against the persons violating the law for the penalties, and cannot be successfully prosecuted against the ships, which are not liable to be detained under judicial process. The authority of the President to employ the naval forces of the United States, conferred by the 8th section of the act, will be dependent upon the resistance to the execution of the process of the courts of the United States on board of the steamers, and to the refusal of their commanders, if their force has been augmented or increased, to discharge therefrom such augmentation or increase.
I would respectfully suggest, that an application for the effectuation of these purposes should be addressed, by the proper departinent, to the Mexican minister, at New York, before any adversary proceedings are commenced. I have the honor to be, very respectfully, sir, your obedient servant,
JOHN NELSUN. The PRESIDENT,
CLAIM OF LIVE-OAK AGENT IN EAST FLORIDĄ.
The live-oak agent in East Florida is not entitled to the value of one-half of the live-oak timber
unlawfully cut from the public lands and seized as the property of the United Sta/es. Timber unlawfully cut and carried from the public lands remains the property of the United
States; and when seized by the public authorities, restitution will be awarded, but not for
feiture nor condemnation. Informers are only entitled to a share of the penalties and forfeitures recovered for the cutting,
destroying, or removing live-oak, red cedur, &c., from the public lands, not to any part of the timber.
ATTORNEY GENERAL'S OFFICE,
October 2, 1844. Sir: I have no doubt about the correctness of your
upon application of H. L. Thistle, live-oak agent in East Florida. He claims one half of the value of the live oak timber seized at Trout creek as the property of the United States unlawfully cut from the public lands, and rests his claim upon the provisions of the act of the 2d of March, 1831. That act does not at all apply to the case. It makes no provision for the condemnation to the use of the United States of timber cut upon the public lands. It would have been extraordinary, if Congress had by law provided for any such thing. When timber is seized as public property, its restitution to the true owner may be decreed, but not its forfeiture or condemnation. Accordingly, you will perceive, upon examining the act of 1831 referred to, that it merely provides penalties against persons cutting, destroying, or removing live-oak or red cedar trinber from the public lands, and for the forfeiture of vessels engaged in
transporting the same. These penalties and forfeitures it directs to be paid over, one half to the informer or informers, or captor or captors, when seized, and the other half to the commissioners of the navy pen. sion fund, for the use of the said fund. But there is no provision in any of the laws touching the subject, which distributes the timber of the United States when seized, or provides for its condemnation or forfeiture. I have the honor to be, very respectfully, sir, your obedient servant,
JOHN NELSON. Hon. John Y. MASON,
Secretary of the Navy.
STAFF OFFICERS OF MARINE CORPS TO BE TAKEN FROM THE LINE. By the 6th section of the act of the 30th June, 1834, the staff officers of the marine corps are required to be taken from the rap ains or subalterns of the corps; wherefore only thode are qualifieil to act as such staff officers who have, at the same time, a lineal rank of captain or subaltern.
ATTORNEY GENERAL'S OFFICE,
Otober 5, 1844, SIR: Your communication of the 2d instant submits for my opinion the question following: Can the adjutant and inspector, the quartermaster, and the paymaster of the marine corps, hold their commissions in the staff and the line of the corps at the same time?
This inquiry is answered, as I think, by the provisions of the act of the 30th June, 1834, and more especially by the terms of the 6th section of that act, which requires that the staff officers of said corps shall be taken from the captains or subalterns of the corps; which is equivalent to declaring that none are qualified to act as such staff officers who have not at the same time a lineal rank as captains or subalterns. Had I doubts on this question, I should readily yield them to the views of the board of officers, a copy of whose report accompanies your communication; and I take the liberty to add that, in my judgment, a decision so deliberately formed and pronounced, made by gentlemen of enlarged military experience, sanctioned by the President of the United States, and always since recognised as law, ought not now to be disturbed by any action of the executive department of the government. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. JOHN Y. MASON,
Secretary of the Navy.
THE EXECUTIVE AND THE CHOCTAW LAND CLAIMS.
A subject once disposed of by the proper executive department, except under peculiarly strong
circumstances, ought to be regarded as settled. Slare decisis is a most salutary rule for the executive department in cases of claims.
ATTORNEY GENERAL'S OFFICE,
October 18, 1844. Sir: I have had the honor to receive the papers accompanying your note of the Ilth instant, and have carefully examined the proceedings to
which they relate. The questions now propounded refer to claims which were fully considered, and deliberately passed upon, as long ago as the 25th day of March, 1843, by the Commissioner of Indian Affairs, the Secretary of War, and the President of the United States, in pursuance of the provisions of the act of Congress of the 23d day of August, 1842. The judgments thus pronounced it is proposed now to disturb. I think this ought not to be done. A subject once disposed of by a department, er. cept under peculiarly strong circumstances, ought to be regarded as settled. These cases connect themselves, in my opinion, with no such circumstances.
Considering, as I do, the rule of stare decisis as not only sound in itself, but as most salutary of observance in the action of the executive department of the government, and regarding it as applicable to the class of cases to which the papers transmitted to me relate, I do not deem it necessary to answer in detail the interrogations propounded by Mr. For. rester. I will only add, that in the decisions heretofore made by the ex. ecutive, a careful 'investigation has not satisfied me that any material errors have been committed. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. To the PRESIDENT.
COMPENSATION OF OFFICERS OF THE NAVY.
The provision that officers or persons in public employ, whose salaries are fixed by law, cannot
receive any additional allowance except for travelling for the performance of duties at a dis. tance from their stations or domicils, applies to the officers of the navy as well as to other
public officers. The Attorney General is of opinion that there cannot be a case presented in which an officer,
whose salary is fixed by law, can be entitled to an extra compensation for the discharge of & public service.
ATTORNEY GENERAL'S OFFICE,
October 18, 1844. Sir: I have had the honor to receive your communication of the 30th ult., with the papers accompanying it, and, after a careful examination of the acts of Congress, I am of opinion that officers or persons in public employ whose salaries are fixed by law cannot receive any additional allowance, except for travelling for the performance of duties at a distance from their stations or domicils. The acts of Congress relating to this subject, more particularly applicable to the cases referred to by the Second Comptroller, are the acts of the 3d of March, 1835, the 3:1 of March, 1839, and the 23d of August, 1842. The second section of the act first mentioned, in regard to officers of the navy, expressly declares that the yearly allowance thereby provided is all the pay, compensation, and allowance that shall be received under any circumstances whatever by any officer or person named in said act, except for travelling expenses when under orders, for which ten cents per mile shall be allowed. The third section of the act of 1839 is more comprehensive, and, if possible, more explicit. It declares that no officer in any branch of the public service, or any