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other officer of the government, has the power to suspend the operation of an act of Congress, unless specially authorized 10 do so by the act itself, or some other law. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF THE TREASURY,
P. S.-Since the foregoing opinion was given, the Supreme Court has decided that silk stockings and half-stockings, coming from this side the Cape of Good Hope, are free of duty.
PENSIONS TO WIDOWS OF REVOLUTIONARY SOLDIERS.
Widows of revolutionary soldiers whose first marriage took place after the expiration of the
last period of their service, and before January 1, 1794, who remarried anterior to the passage of the act of July 7, 1838, are not entitled to pensions.
ATTORNEY GENERAL'S OFFICE,
September 18, 1838. Sir: In your letter of the 17th instant, you propose the following question for my opinion: “Is a widow, whose husband served six months during the revolutionary war, and who was married to him prior to the year 1794, excluded from the provisions of the act of the 7th of July, 1838, in consequence of having married after the death of her husband, on ac. count of whose service she claims ?”
The first section of the act of the 7th of July, 1835, is as follows: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if any person who served in the war of the Revolution, in the manner specified in the act passed the seventh day of June, eighteen hundred and thirty two, entitled 'An act supplementary to the act for the relief of certain surviving officers and soldiers of the Revolution,' have died, leaving a widow, whose marriage took place after the expiration of the last period of his service, and before the first day of January, seventeen hundred and ninety-four, such widow
hall be entitled to receive, for and during the term of five years from the fourth day of March, eighteen hundred and thirty-six, the annuity or pension which might have been allowed to her husband in virtue of said act, if living at the time it was passed: Provided, That, in the event of the marriage of such widow, said annuity or pension shall be discon. tinued."
It is upon this section, and no other provision of law, that the class of claims embraced in your question is to be allowed or rejected. It cannot be believed that Congress intended to, and did, provide for a discontinu. ance of a pension already granted, upon the event of the widow's second marriage, and still that such marriage should not prevent the allowance of the pension in the first instance, when the second marriage took place before the pension was granted. I am, therefore, of opinion that the Commissioner of Pensions decided correctly in rejecting this class of claims. Yours, with much respect,
FELIX GRUNDY. To the SECRETARY OF WAR.
Where an American vessel had entered and cleared from a port ander blockade, and, whilst
returning to New Orleans, was captured by a vessel belonging to the French blockading squadron, from which the captain of the former rescued her and broaght her into the port of New Orleans, to which she was destined; and demand, subsequently, being made of the Executive to deliver up the vessel cargo, both on account of the said breach of blockade and the rescue-DECIDED, that the captors have no right of property in said vessel and cargo; and that the liability of the vessel to condemnation, if it ever existed, has ceased by the ter
mination of her voyage at the port of her destination, The case made by the French government calls for a judicial decision settling certain questions
of fact concerning the legality of the blockade, capture, &c., before the Executive can aci. Independently of this, there is no constitational right vested in the Execative to deliver up the
property of an American citizen, claimed by him as his own, and in his actual possessiolig and not eondemned, nor legally adjudged to belong to another.
ATTORNEY GENERAL'S OFFICE,
October 11, 1838. SIR: In the investigation of the different points submitted for my examination respecting the vessel Lone, Captain Clarke, and her
her cargo, 1 have been able to derive very little assistance, upon the important principles involved, from any opinions given by my predecessors. No similar question ever appears to have been submitted to their consideration. The public authorities of another country bave never heretofore made an application to this government to deliver up property claimed by, and in the possession of, a citizen of the United States, under circunstances like the present- upon the obligation of its forfeiture for a breach of blockade, and before any condemnation. Nor is any instance known to me in which this government has been called on to interpose, and restore to the captors property that was rescued from them by reason of a failure on their own part to make the capture sure. By the well-settled principles of international law, it is made the duty of the captors to place an adequate force upon the captured vessel; and if, from a mistaken reliance on the sufficiency of their force, or misplaced confidence, they fail to do so, the omission is at their own peril. No instance is known in which it has been regarded as a ground for asking such interposition as is now sought.
To these causes, which may account for the want of any precedent, is to be added the novel nature of the blockade itself. It has been resorted to, not as a warlike, but as a peaceful measure for the reparation of an injury alleged to be committed by one nation upon another. The writers on international law seem not to have enumerated a blockade among the peaceful remedies to which an injured nation may resort, but class it among the usual measures of direct hostility. No principles, therefore, have been laid down by them strictly applicable to the present case, and it can only be treated on those which refer to ordinary blockades in time
These rules, then, must be the guide in giving this subject the respectful consideration that is due; and the rights which belong to the captors of this vessel and cargo, under these rules, form the first point of inquiry.
Captain Clarke had entered the port of Matamoras; he sailed from thence bound to New Orleans, as his port of final destination. On his homeward voyage, he was captured by a vessel belonging to the French blockading squadron. The condition of this squadron at the time he entered the port, whether it was actually present, or so far absent as tem. porarily to relax the blockade, does not appear. Some days after the cap
ture, he rescued his vessel, and, continuing his original voyage, brought her safe into New Orleans, where it terminated. If it were admitted that there was such a violation of the blockade as to justify, according to the law of nations, the original capture; and if further admitted that the rescue of the vessel was, by the same law, an additional and lawful cause of condemnation; still it is a principle equally well established and recognised, that the offence thus incurred never travels on with the vessel further than the end of the return voyage. If captured, or recaptured, in any part of that voyage, she is taken in delicto, and liable to be con. demned; but if she terminates the entire voyage in safety, that liability has entirely ceased; nor can the captors demand her condemnation, much less her delivery to them.
It is a principle of international law equally well established, that the capture transfers no property in the vessel and cargo to the captors; but the title to it remains unchanged until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction. Upon this principle, the captors in the present instance can claim no more property in the vessel and cargo than they could have done had there been no seizure. Their right of property, whatever it may be, does not vest until the vessel shall be legally condemned; and before that event they cannot ask the delivery of the property.
On these grounds, whatever may be thought of the conduct of Captain Clarke, in entering the port of Matamoras, and subsequently rescuing his vessel, it is clear that, by the well-settled principles of international law, the captors, who now claim the vessel and cargo, have no right of property in her; and that her liability to condemnation, if it ever existed, has ceased by the termination of her voyage at the port of her destination.
The next point of inquiry suggested by this application is the authority of the Executive to direct the delivery of the vessel and cargo. Without discussing the relative functions and powers of the different departments of the governinent, it is sufficient to observe, that the case, as presented by the French government, calls for a decision not executive, but judicial. It involves necessarily these questions: Was the blockade estab. lished and maintained according to the law of nations ? Was the capture a lawful one? Was there a rescue, and with what attendant circumstan. ces? And what is the legal effect of the rescue and safe arrival of the vessel at her port of final destination? These are points which it would be necessary to ascertain before the Executive could act. They are points strictly within the cognizance of judicial tribunals; and there are courts in which they may be fully investigated.
But, independent of this consideration, there is no constitutional right vested in the President to deliver up the property of an American citizen, claimed by him as his own, and in his actual possession, and not condemned, or legally adjudged to belong to another. Some years since, the jewels of the Princess of Orange, which had beer stolen and brought to this country, were seized by the collector of New York, and libelled in that district, and an application for their delivery was made by the government of Holland. My predecessor (Mr. Taney) gave several opinions in the progress of the proceedings. The inference fairly to be deduced from the whole of them is, that where there are different claimants to property, who can litigate their rights before the judiciary, the Executive cannot interfere; but he may order property to be restored to the rightful undisputed owner, in a case where the United States alone, under their revenue laws, have put in a claim for a forfeiture. I think I am safe in saying that no opinion going farther than this has ever emanated from this office. But were the President to accede to the present application, it would be, in fact, to take the property from the possession of an individual, once admitted to be the rightful owner, still claiming it as such, and never having had his title divested by the judgment of a court, upon the mere allegation of his having violated a blockade. This the Presi. dent cannot do.
It is, however, satisfactory to know that, notwithstanding these views as to the course of the Executive, there are ample means of redress left to the captors, should they have a legal right to this property; and that, if there has been any injury, the institutions of this country afford that full satisfaction which it is the object of the French government to obtain by its present application. The admiralty courts of the United States, whose judgments are based upon the established principles of international law, as recognised by all modern and civilized nations, are open to the captors, and will administer justice commensurate with their rights. The only requisites necessary to give them jurisdiction exist in this case; for the parties to be proceeded against, and the property, are now within their power, can be reached by their process, and bound by their decrees.
In declining, therefore, to accede to the present application, on grounds of international law, as well as under his constitutional obligations, the President is not instrumental in interfering with the legal claims of those on whose behalf the government of France has interested itself; but leaves them, as every just government must be disposed to do, the amplest means of asserting those claims, and regaining any rights they may have lost. I have the honor to be, sir, very respectfully, your obedient servant,
FELIX GRUNDY. To the PRESIDENT OF THE UNITED STATES.
EXTRA PAY OF CLERKS IN THE WAR DEPARTMENT.
The two clerks in the bureau of Indian Affairs are not entitled to the additional compensation
asked for, under the third section of the act of 3d March, 1837.
ATTORNEY GENERAL'S OFFICE,
November 6, 1838. Sir: Your communication of the 17th of September, enclosing the claim of two of the clerks employed by the Commissioner of Indian Affairs, for additional compensation, has been considered. I am unable to discover any legal foundation whatever for their claim to the benefit of the 3d sec. tion of the act of the 3d of March, 1837.
In the first place, it cannot be supposed that Congress intended to embrace in that provision salaries not fixed by themselves, but which had been fixed by the head of a department; and, in the present case, the Secretary of War had fixed the salaries of the present applicants, according to his own judgment and discretion.
In the second place, the case of an allowance of $2,400 by Congress to clerks performing a particular service, and its being left to the Secre
tary of the Treasury to apportion it between them, is conceived to be a very different case from the present. In that case, Congress had fixed the compensation of the clerks jointly, and the Secretary only apportioned it.
Therefore these clerks might well be allowed the benefit of the act of 1837, referred to; their compensation having been fixed by Congress, and not coming within the exception contained in said act.
My opinion, therefore, is, that the additional compensation asked for by the applicants cannot lawfully be granted. I am, sir, very respectfully, your obedient servant,
FELIX GRUNDY. To the SECRETARY OF WAR.
REAL CHARACTER OF LAND SCRIP IN SATISFACTION OF WARRANTS.
Land scrip issued in satisfaction of military bounty land warrants must be regarded as real
estate, and to go upon the death of the holder to the heirs-at-law, and not to the executors and administrators.
ATTORNEY GENERAL'S OFFICE,
November 9, 1838. Sir: I have the honor to acknowledge the receipt of yours of the 6th instant, enclosing a communication from the Commissioner of the General Land Office, with sundry accompanying documents.
The question submitted for my opinon is, Whether land scrip issued in satisfaction of military bounty land warrants is personal property, and subject to the exclusive control of the executor or administrator; or is real estate, which descends to the heirs-at-law?
Military bounty land warrants have always been considered as real estate, and, of course, land scrip issued to satisfy them should be consid. ered in the same light; for it would not do to say that the warrant be. longed to the heirs-at-law, and that the scrip, which the government fur. nished in satisfaction of the warrant, should belong to the personal repre. sentatives of the deceased. By this means, the government by its act of payment, or furnishing a new evidence of debt, would be changing the ownership as between individuals. This could not be deemed admissible.
That scrip should be considered as real property, is proved not only by the fact that it is payable in land only, but also by the provisions of the act of May 30, 1830, which provides that all certificates or scrip to be issued in virtue of any warrant hereafter to be granted, shall be issued to the party originally entitled thereto, or his heir or heirs, devisee or devisees, as the case may be.” My opinion therefore is, that land scrip is real, and not personal property.
I cannot consider the opinion of the late Attorney General in the case of Triplett as applicable to the question now under consideration; and if it were, I should feel it my duty to say that I wholly dissented from it.
I therefore advise that the practice which has hitherto prevailed in the Land Office, of considering scrip as real property, and subject to the dis