OPINIONS ОР RICHARD RUSH, OF PENNSYLVANIA. APPOINTED FEBRUARY 10, 1814. ATTORNEY GENERAL'S OFFICE, April 11, 1814. SIR: I have had the honor to receive your letter of the 9th of this month, enclosing one addressed to you from Mr. John Jacob Astor, in which he asks permission of the Government to send a vessel in ballast to Michilimackinac, for the purpose of bringing away a quantity of skins and furs belonging to him, and now at that place; and requesting my opinion whether such permission would be warranted by our laws. Considering Michilimacinac as a place now in the actual possession and under the dominion of Great Britain, I think the decisions of the last Supreme Court of the United States would make it unlawful to grant the permission in question. To the SECRETARY OF STATE. RICHARD RUSH. Office of the ATTORNEY GENERAL of the U. S., April 14, 1814. SIR: I have received your letter of the 13th instant, relative to Edwin T. Satterwhite, formerly a purser in the navy, reappointed and confirmed by the Senate under the act of the 30th of March, 1812, in which you state its having become important to know whether his sureties under the original bond are, or are not, liable for acts done since the reappointment. On examining the act in question, I think its correct interpretation imports the necessity of a new bond in all cases of reappointment under its provisions. But, by this opinion, I would not be understood to say that the original sureties of Mr. Satterwhite are wholly discharged of responsibility since the reappointment. This point should be saved on behalf of the United States. I have the honor to be, with very great respect, sir, your obedient servant, RICHARD RUSH. To the SECREtary of the Navy. 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 ultimate 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, 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 disability— the other word used in the act. I have the honor, &c., &c., To the SECRETARY OF STATE. RICHARD RUSH, Attorney General. 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 con templated 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. 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 ifferent, 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 phraseology. I have the honor to be, with great respect, your most obedient servant, RICHARD RUSH, To the SECRETARY OF THE NAVY. Attorney General. WASHINGTON, July 28, 1814. SIR: In answer to your note, upon the subject of Mr. B. W. Rogers's application, received this morning, I have to state that I think his acceptance of a British license for the purposes he sets forth would be unlawful; and that, consequently, it would not be right to grant him permission to go on board the enemy's ships to obtain one. To the SECRETARY OF STATE. RICHARD RUSH. WASHINGTON, November 12, 1814. SIR: I have examined the papers relative to the within claim of General Wilkinson, and am of opinion that the regulation of the War Department upon the subject of fuel, referred to in the accountant's note of the 10th instant, cannot control the act of Congress of the 1st of July, 1812, passed specially for the relief of General Wilkinson; and that he should be allowed for fuel according to the terms of that act. RICHARD RUSH. To the SECRETARY OF WAR. WASHINGTON, December 16, 1814. The Attorney General has the honor to send the enclosed opinion, in answer to the Secretary of War's communication of the 12th of this month. Questions stated by the Secretary of War for the opinion of the Attorney General. Is there any authority to allow compensation to the militia-cavalry in the service of the United States for their horses which may have been killed in action? If there be, how is the compensation to be regulated? By the value of the horse? or is there any law by which that value may be considered as restricted? Answer. I think that the cavalry called into the service of the United States under the act of the 6th of February, 1812, are entitled to compen. sation for their horses killed in action, or otherwise lost, without fault or negligence. I should suppose that, in the allowance of this right, the provisions of the act of May the 12th, 1796, ought to be considered as furnishing the rule of proof, as well as that of restriction in value. I am not aware that militia-cavalry, called into service under any other act of Congress, are entitled to compensation for horses killed in action. The 2d section of the act of January the 21st, 1795, appears to have excepted this from other risks. To the SECRETARY OF WAR. RICHARD RUSH. Case stated by the Department of State for the opinion of the Attorney General. DECEMBER 17, 1814. A imagines himself to be the author of a useful invention connected with the manufacture of salt, and in the year 1802 files his written description in the Patent Office, in conformity with the 3d section of the act of Congress of February the 21st, 1793. He takes no step beyond this to perfect his patent until the year 1814. In this year, B, without any knowledge of A's invention, falls upon the same, and presents his petition to the Secretary of State, according to the 1st section of the act aforesaid, filing also a description of his invention, as pointed out by the first section. A, as soon as B.'s description is placed on file, insists upon his prior right, and claims a decision in the manner prescribed by the 9th section of the act, as in case of interfering applications. Ought a patent to issue in favor of B? or does it present case proper for arbitration, as mentioned in the 9th section? Answer. No part of the existing patent laws having fixed any limitation of time within which a patent must be taken out after the specification filed, I do not see that the above statement can be otherwise considered than as presenting a case of interfering applications; to be left in the first instance to arbitrators, according to the 9th section of the act of February the 21st, 1793. To the SECRETARY of State. RICHARD RUSH. 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 appears, 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 commission 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 were 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. 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 marshall, 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 |