Gambar halaman
PDF
ePub

in view of these, that the department adopted the construction set forth in the circular of 1835. That construction confines the provision of 10 cents a mile to travelling in this country. If this is interpolation, it was a reasonable and necessary interpolation, if the foreign service was to go on at all under such an act. It is impossible that the legislature meant it to be applied to travelling by sea. I think it also improbable that it meant to confine rigorously to that sum the indemnity of officers travelling in foreign countries by order of their superiors, and on the public service. Ten cents a mile was a very proper allowance here, for obvious reasons. But these reasons apply nowhere else, and in some cases would be ab. surdly inapplicable." Yet, were it res integra, the words of the act would not, according to any received rule of interpretation, admit of the con. struction thus put upon it, and, it seems, uniformly acted on. The legislature meant, no doubt, more than it has said; and the department has only done what the legislature meant. But quod voluit non dicit.

One construction, not unauthorized by precedents, is open to you. By reading, for “10 cents per mile shall be allowed,” “10 cents per mile may be allowed”-making the provision universal, and the amount a maximum only-you would obviate many, and even most, of the incon. veniences. Still some would remain, when it should be necessary to ex. ceed that amount. In such case, however, 10 cents might be allowed, and the claim for the rest referred to Congress. On the whole, however, my opinion is that subtile interpretations are to be avoided, and that you ought to call for a supplementary act to sanction the practice of the department hitherto, and to establish it for the future. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. A. P. UPSHUR,

Secretary of the Navy.

PATENTS TO ASSIGNEES OF INDIAN RESERVES.

On a certificate to A and company, assigned by A alone, a patent may issue to A's assignee;

and his, A's partners, musi seek relief, if they shall be entitled to any, in the courts. The opinions of Attorneys General Grundy and Crittenden have settled the practice of the Land Office, and the subject is not now res iniegra.

OFFICE OF THE ATTORNEY GENERAL,

October 20, 1842. Sır: In the matter of Mr. Foster's protest against the issuing of patents to Joel Hart and others, I have to regret the delay that has occurred in the consideration of this case. The questions were submitted to my predecessor, and my attention not having been particularly called to them, they have been postponed to the other multifarious business of this office. After what my iwo predecessors, Mr. Grundy and Mr. Crittenden, have done to settle the course of the Land Office in regard to assignments of In. dian titles, I see nothing open for my decision, unless (which is not the fact) I were willing to take up the whole matter de novo, and change the practice in regard to it.

Mr. Grundy rules, that on a certificate to A and company, assigned by A alone, a patent may issue to A's assignee. Whatever I might have de. cided, had I been in his place, I shall not shake the rule laid down by him, which, besides having been constantly followed in practice, is recomnended by its conveniency and simplicity. But this rule cuts off all questions as to who may claim under the « Co.If the land office go at all into the question who the parties in interest other than those named are, it can only be ex abundanti cautela. Mr. Grundy's opinion just cited authorizes them to issue the patent to A, and to turn over his partners, real or pretended, to the courts for their remedy. Therefore, it is unnecessary to decide whether the articles in this case were properly set up in Georgia. Suppose they were not; the patent then may be given to those whose names appear on the paper in the usual form. As to the chancery suit to which the claimants were not parties, it is res inter alios acta,

and a mere nullity, so far as they are concerned. If delay were asked for in order to make them parties, it might be very proper to grant the request. The decision of a court of chancery would aid the Land Office in doing its duty; that is to say, taking it for granted, as I do, that the Land Office sometimes goes beyond Mr. Grundy's rule, and receives evidence to show who the company really are. But this, as I have said, they are not, under that rule, obliged to do. It is matter of sound discretion. The executive department cannot act as a court of chancery. It has neither the time nor the instruments to do justice in cases of a doubtful or complicated equity. All that can be expecied of it in such cases is, that it should pass the title of the United States to the claimants, who, according to Mr. Crittenden's opinion, can show a written derivation of it, marking on the face of the patent itself the exact form of the claim as it came to the Land Office. I refer to that opinion for a full development of all the grounds of the practice, (26th July, 1941.)

If there is any point in this case on which a more precise opinion from me is wanted, you have only to state it, and I shall consider it immedi. ately. What I have said seems to me to cover the whole ground, so far as I can gather from the not very clear statement presented to me. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. WALTER FORWARD,

Secretary of the Treasury.

[ocr errors]

RIGHTS OF SOVEREIGNTY-THE CASE OF THE CREOLE. A ship entering the port of a friendly nation, with slaves on board, is not, by the law of na

tions, responsible to the local authorities of that nation, so long as the slaves remain on

board, notwithstanding, &c. In the case of a compulsory entry of a foreign port, under an overruling necessity, the en

forcement of the municipal law of that nation having jurisdiction over the port, to the subversion of the authorities and rights guarantied by its own country, is not in any respect justifiable. If a vessel be compelled, by any overruling necessity, to take refuge in the ports of another,

she is not subject to the municipal law of that other, so far as concerns any penalty, prohibition, tax, or incapacity, that would otherwise be incurred ; provided she do nothing further to violate the municipal law during her stay.-(2 Coke's Inst., 57 ; 1 Rob., 243; 5 Rob., 27; 1 Chitty, Com. Law, p. 245.) OFFICE OF THE ATTORNEY GENERAL,

July 20, 1842. The Attorney General being called by the Secretary of State to take part in the discussion, with Lord Ashburton, of the point mentioned in

the following paper, reduced, at Lord Ashburton's instance, his remarks to writing, as follows:

In another paper I shall collect a number of cases in which the law, in all its departments, of civilized States, considers the necessity imposed on vessels of neutral or friendly countries, by the dangers of the seas, of en. tering prohibited ports or free ports with prohibited articles or persons, as a protection against forfeiture and penalty. These cases should seem to put an end to the whole question; for if an absolute and proclaimed prohibition does not under such circumstances authorize a State to enfose its municipal law against foreigners who violate that law involuntarily, how should it be authorized to do so in a case where the entry of its ports is not, even by implication, fobidden; and where, on the contrary, it is pre. sumed to be permitted on principles of common humanity? If England were to proclaim that certain property should be confiscated if any attempt be made to import it into her territories, it is her own adjudged law that a case of necessity from dangers of the seas would save the forfeiture, on the ground that such a compulsory entry is not an importation, and the property not really, in legal contemplation, within her jurisdiction. She might, it is true, carry the principle of territorial sovereignty so far as to proclaim that ships with prohibited property or persons on board should go down at sea, rather than be allowed a momentary asylum on her coasts or in her roadsteads; but, would such proclamation be consistent, I will not say with her character among nations, but with any notion of comity or civilization, or peaceful relation to the rest of mankind? But it may be argued that slaves are, in the eye of English law, not things, but per. sons, and have a right to the protection of that law. It is conceded that a government which prohibited the importation of slaves, while it recog. nised the relation of master and slave, could not be justified in seizing a ship driven into one of its ports by stress of weather; but it is maintained that, having abolished that relation itself, the implied prohibition of such an importation gives it a right to do what the express prohibition in the other case did not, viz: to take possession of a ship in distress, and set the persons on board at liberty. I confess I am unable to perceive any difference between these two

It must not be lost sight of, that what we are now considering is not the right of the master to use the legal process and the executive power of a State to enforce his rights. We concede that he who calls on a foreign court to enforce his rights in a matter of conflict of law, must be content to accept the assistance of that court, with the qualifications and conditions imposed upon such interposition by foreign policy and laws. But the question here is, not how our municipal law is to be enforced by Great Britain within her undoubted jurisdiction, but wheth. er her municipal law is to be enforced without any invitation from us, but against our will, within our jurisdiction; for we maintain that our ships driven upon her coasts or into her harbors by dangers of the seas, are not to be held accountable for what they contain when they are driven in, the entry or imposition being involuntary, and so considered as not made at all. We protest against the interference of her authorities and people, to enforce her municipal law in respect to one of the domestic relations of life in such a case, and we affirm that she has no more right to do so than to interfere in any other matter of municipal law, or mere question of property. The relation of master and slave exists even now in most countries, and was until re

cases.

cently as universal as that of parent and child, husband and wife, guar. dian and ward. In the New Testament the only word for servant, with scarcely an exception, is slave. But if there is any part of the municipal law of a nation which she has a right to insist on being acknowledged by foreign and friendly States, it is that which regards personal capacity or status. The continental lawyers almost universally maintain that such laws follow the person everywhere Qualitas personam sicut umbra sequitur. The French code (article 3d) lays down the principle broadly. Les lois concernant l'etat et la capacité des personnes, regissent le français meme redidaut en pays etranger.

Miners, married women, prodigals under interdict, idiots, madmen, apprentices, &c., are, say these jurists, everywhere to be treated as laboring under the incapacities to which they are subjected by the law of their own country. I am aware that these principles can seldom be enforced in practice, and are even in theory liable to many qualifications and excep

I know what a conflict of opinion exists in regard to them, and that the common law of this country and of England is particularly stubborn in refusing its help to any right springing out of mere positive legis. lation in foreign countries, and inconsistent with our ideas of policy or obligation. But I mention the doctrine of continental jurists to show, that interference with the persons on board a foreign ship, on the ground of personal capacity or status, is, to the full, as gross a violation of inter. national comity as any interference with property or contract.

Capacity or status is generally matter of fundamental public law; and if there is any particular whatever, in which a country may claim that foreigners should not directly or wilfully interfere with her legislation and institutions, it is surely her public law. Considered as mere matter of municipal right and authority, the domestic relations are not less, but more sacred than contracts which individuals may make and modify at their discretion. I repeat, 1 do not pretend, with the foreign jurists, that the personal qualities imposed upon men follow them everywhere, and are to be enforced in foreign countries by foreign courts, or even in regard to what passes in foreign countries by their own courts. Sir William Scott, indeed, in a famous case, solemnly ruled that an English marriage cannot be dissolved by the sentence of any foreign tribunal founded upon any foreign law. My proposition does not go to that length. All I maintain is, that within our own jurisdiction these relations are as sacred as contract and property, and more sacred, too; and that in no case has a for. eign nation a right to interfere with them, where it has no right to interfere in matters of contract and property. But we have seen that in all cases of importation of merchandise, breach of blockade, prohibited en. try, &c., the dangers of the seas exempt a foreign ship from the application of municipal laws, and treat her as if she were still on the high seas. I insist, therefore, that on every principle a fortiori is this exemption from the municipal law secured to foreign ships in that predicament, with regard to persons and personal capacity. This is, indeed, the universal practice of nations; and I venture to say that, were it not for the peculiar feelings with which all questions connected with domestic slavery are treated, it would command the assent of mankind. A ship, though at anchor in a foreign harbor, preserves (independently of the ground of being driven in by stress of weather, &c.) iis jurisdiction and its laws.-Martens, b. iii, c. 3 and 8; Vattel, 1. i, c. 19, § 216.)

This, with regard to men-of-war, is familiar doctrine. They stand on precisely the same foot as the persons, suite, and residence of foreign min. isters, or of sovereigns themselves, in the territory of a friendly power. All access may, indeed, in strict law, be refused in these cases; but the presumption is the other way, and if admitted at all, these persons and things are supposed to be admitted with the immunities that belong to them by the usages of nations. But merchant vessels enjoy the same privilege of a fictitious extra territoriality, though not in the same degree. It is admitted that though they keep to many intents, their own laws and jurisdiction, still that these are not exclusive. Certainly, for any thing that happens after they arrive in port, or for any previous breach of the law of the country where they happen to be, they are answerable to its laws. But persons aboard of her may, in certain cases, for the same thing, be held responsible to their own government. There is in this respect divisium imperium, and the ship's company are, like the old feudal tenants that held of two lords, ad utruisque fidem. But for every thing that happened on the high seas before her entry into port, or in other countries—for all the personal relations and responsibilities existing in a ship at the time she entered a port, and established or permitted by the laws of her own country-her authorities are answerable only at home, and to interfere with them in the discharge of the duties imposed upon them, or the exercise of the powers vested in them by those laws,* on the ground of their being inconsistent with the municipal legislation of the country where the ship happens to be lying, is to assert for that legis. lation' a superiority not acknowledged by the law and inconsistent with the independence of nations.

dmit that in such cases a habeas corpus would be allowed, to bring up a man; would it not be a sufficient return 10 say that he had been always kept on board a ship belonging to the United States, by whose laws the captain had an undoubted authority so to keep him, and that nothing had happened since his arrival in port to justify any interference of the local authorities with the authority of the master? Put the case of a murder committed on the high seas, and the murderer brought into a British port in chains, and so kept with a view to be taken for trial to his own country. He, too, might sue out a habeas corpus, and might very well allege that he was imprisoned within the territorial jurisdiction of the British crown for no offence against the laws of England; but is there a judge or a lawyer in England who would hold him entitled to his discharge on that ground, because all criminal laws are strictly local ? Certainly not. He would be restored, as in all other cases, to the place and the condition from which he had been taken.

Just as in the report of the English crown lawyers: in the matter of the Silesian loan of 1753, it is stated, “that French ships and effects wrong. fully taken after the Spanish war, and before the French war, have during the heat of the war with France, and since, been restored by sentence of your Majesty's courts to the French owners. No such ships and effects ever were attempted to be confiscated as enemies' property here during the war; because, had it not been for the wrong first done, these effects would not have been in your Majesty's dominions." This is a clear ground, and susceptible, in practice, of various applications.

* It must be remembered that a ship's master is treated as a quasi military officer, and is armed with despotic power, under the jus gentium: in short, it is a public authority.

« SebelumnyaLanjutkan »