OPINIONS

OF

HON. JOHN BRECKENRIDGE, OF KENTUCKY:

APPOINTED AUGUST 7, 1805.

EFFECT OF AN AWARD TO SEVERAL COLLECTIVELY.

An award by commissioners under the 7th article of the treaty with Great Britain to several persons collectively, is conclusive upon the matter so far that the right to transfer is vested in all the persons in favor of whom it is made; and if those concerned have neglected to have inserted in it the amount of their respective interests, or if they disagree as to their several proportions, the embarrassments are attributable to themselves. The government cannot undertake to decide among them.

Question for the opinion of the Attorney General.

"IN the award rendered by the commissioners under the 7th article of the treaty with Great Britain, in the case of the Somerset, in favor of John R. Livingston, Wm. Henderson, Messrs. Clarkson & Cross, and Charles Miller, Mr. Livingston claims £54, which, in the report of the assessors, appears to be considered as the property of C. Miller; it being alleged by Mr. Livingston that C. Miller had no right to that sum, and that it was the property of Clarkson & Cross, of whom he is the assignee. The question is, do the award and papers in that case, herewith enclosed, justify the payment of this sum of £54 to Mr. Livingston?"

Answer.

WASHINGTON, December 24, 1805.

The award being rendered in favor of several persons, who do not appear to be in partnership, the right to its amount is in all collectively, and not in any individually; of consequence the right to transfer must be in all. No transfer from Miller is

Effect of an Award to several collectively.

produced. Evidence to show (as has been attempted in this case) that Miller had neyer any interest in this sum, (nor, indeed, in the award,) and that it was so understood by the commissioners, is, I conceive, wholly inadmissible. This would be going into a re-examination of the matters referred to and decided on by the commissioners, of which, under the treaty, they had the exclusive and final jurisdiction.

It would be contesting the verity of the award, by setting up a claim contrary to its very letter. If the parties cannot adjust their respective interests in the award, or if either of them shall receive more than his proportion, they must resort to a court of justice for redress. The government has only to see that the moneys are paid to those in whose favor they were awarded, or to those who are legally entitled under them.

The award not ascertaining the separate interest of the parties, and the report of the assessors not being referred to, nor made part of the award, the government has not, I conceive, either the means or the power of examining into such facts. The report of the assessors may furnish evidence for the parties. in a contest among themselves, with regard to their respective interests in the award. But, as the commissioners, in making up their awards, were not bound by the reports of the assessors, but might depart from them as they thought fit, the award alone appears to me to be the only portion of their proceedings from which the government can draw that information of which it is bound to take notice. If those concerned have neglected to have inserted in the award the amount of their respective interests, or if they disagree as to their several proportions, the embarrassments are attributable to themselves; the government cannot, without endangering the rights of the parties, as well as the interest of the public, interpose (and that, too, ex parte) and undertake to decide among them.

Cases may probably occur where it might be very difficult, perhaps impossible, to procure complete evidence of the transfer of the claims of some of the persons in whose favor awards like the present have been rendered. Such cases must rest on their own circumstances, and may, no doubt, furnish such satisfactory proof of the equitable right of the claimant as to induce the government to direct payment, upon receiving from

Treaty of 1794 with Great Britain-Duties, Tonnage, &c.

him an indemnity against all future demands on the same.

account.

JOHN BRECKENRIDGE,

Attorney General.

To the SECRETARY OF STATE.

TREATY OF 1794 WITH GREAT BRITAIN-DUTIES, TONNAGE, &c. Goods and merchandise carried from any place in the territory of his Britannic Majesty on the continent of America by the subjects of Great Britain into any of the northern districts of the United States, are subject to the same duties which would be payable by our citizens on the same goods imported from the same place, in American ships, into the Atlantic ports of the United States. The provision in the treaty relating to the duties on goods and merchandise does not extend to tonnage duties.

The subject of trade with the Indians commented upon and explained.

WASHINGTON, March 22, 1806.

SIR: I have examined with attention the note of Mr. Merry of the 7th of January, and the accompanying papers, which I had the honor to receive from you.

With respect to the first point-" the mode of calculating the duties collected in the northern districts of the United States, upon goods carried across the boundary line"-I can discover no other admissible construction of the 3d article of the treaty with Great Britain of 1794, than that adopted and practised by the government of this country. Under that construction and practice, goods and merchandise carried from any place in the territory of his Britannic Majesty on the continent of America by the subjects of Great Britain, by land, or by inland navigation, into any of the northern districts of the United States, shall pay the same amount of duties which would be payable by our citizens on the same goods and merchandises imported from the same place in American ships into the Atlantic ports. of the United States. The object of that part of the treaty being to exempt the subjects and citizens of each party, in their inland navigation with each other, from the duty imposed on goods imported in foreign vessels, that object is certainly effect. ed when no higher duties are collected from British subjects than are collected from American citizens on the same goods,

Treaty of 1794 with Great Britain-Duties, Tonnage, &c.

and imported from the same place in American vessels. This construction is deducible not only from the letter, but also from the spirit of the instrument. A different construction would give to British subjects a privilege not claimed nor permitted to our own citizens, which certainly never could have entered into the mind of those who made the treaty.

2d point: "The imposition of tonnage duties on British ves. sels navigating the lakes."

I am unable to discover, in the 3d article of the treaty with Great Britain, anything which can support the construction insisted on by Mr. Merry. Nothing like it is deducible from the letter of the article. The provision relating to the duties on goods and merchandise cannot, by the natural import of the words, or by any rule of sound construction, be extended to tonnage duties. They are distinct subjects of municipal regulation-if not in all commercial countries, certainly in those of the contracting parties-and are governed by distinct and separate provisions. To have exempted British ships, therefore, from foreign tonnage duty, it would have been necessary to have declared so in the treaty, in terms as explicit as those which exempted goods and merchandise from foreign import duties. Duties on both existed by law at the formation of the treaty. To have exempted one and not the other, would, under such circumstances, be conclusive to show that such exemption was not intended. Such, I conceive, would be the fair and legal construction, admitting the treaty was equivocal. If this construction be right as to tonnage, it will be also correct as to light money.

3d point: "The compelling of British subjects to take out licenses for the Indian trade, in the same manner as citizens of the United States."

I am not certain that I fully comprehend the extent of Mr. Merry's observations on this head. If they only extend to question the right which he states to be claimed by our agents there, of exacting a fee of six dollars from each British subject for a license to trade with the Indians within our boundaries, I agree with him that the practice is improper, because it is not warranted by any law of the United States, and will doubtless. be forbidden. But if his observations are considered as claim