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in the case, together with the usual declaratory statement of the applicants."

I have delayed giving an opinion on the subject, because I was desirous of bestowing upon it a very deliberate consideration. The result is, that I am of opinion that a free man of color, a native of this country, may be admitted to the privileges of a pre emptioner under the 10th section of the act of 4th September, 1841.

It is not necessary, in my view of the matter, to discuss the question how far a free man of color may be a citizen, in the highest sense of that word that is, one who enjoys in the fullest manner all the jura civitatis under the constitution of the United States. It is the plain meaning of the act to give the right of pre-emption to all denizens; any foreigner who had filed his declaration of intention to become a citizen is rendered at once capable of holding land.

I conceive the purpose of the lawgiver to be only to exclude aliens, in the proper acceptation of the word-men born and living under the lige. ance of a foreign power-from the enjoyment of the contemplated privileges. This acceptation of the word "citizen" is familiar in questions of national character arising during war in the prize courts, and might easily be illustrated by reference to the analogies of the law and the provisions of other statutes. Now, free people of color are not aliens; they enjoy universally (while there has been no express statutable provision to the contrary) the rights of denizens. Even in the slaveholding States they are capable of all the rights of contract and property. In all nations, without exception, ancient and modern, in which domestic slavery has existed, even the slave is distinguished from the alien. He is a part of the family, and, as soon as he passes into the class of freemen, is consid. ered as at once capable of all the rights which mere birth, under the ligeance of a country, bestows. How far a political status may be acquired is a different question, but his civil status is that of a complete denizenship. Therefore, free people of color having always hitherto been admitted to share in the benefit of the pre emption laws, I see nothing in the law of 1841, requiring a man to be a denizen, that necessarily excludes them.

I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

H. S. LEGARE.

Secretary of the Treasury.

APPLICATION OF APPROPRIATIONS AFTER TWO YEARS.

The act of 1839 for the relief of the claimants, being for re-imbursement of a sum of money advanced on account of the United States, comes within the equity of the exception in the sixteenth section of the act of 1795—“ reimbursement, according to contract, of any loan

made on account of the United States."

But if the practice of the department respecting the disposition to be made, after two years of appropriations, be settled, such practice should be pursued.

OFFICE OF THE ATTORNEY GENERAL,
March 15, 1843.

SIR: Your predecessor addressed me the following letter: "The Third Auditor has addressed me, requesting a decision upon the question

whether a sum of money appropriated by the act of 3d March, 1839, entitled 'An act for the relief of John Jones and Charles Souder, and Robinson, Carr & Co.,' can be drawn from the treasury, more than two years having elapsed since the expiration of the calendar year on which the act of appropriation passed.

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"The sixteenth section of the act of 3d March, 1795, entitled An act making further provision for the support of public credit, and for the redemption of the public debt,' requires sums so appropriated and unexpended to be carried to an account in the books of the treasury, to be denominated The Surplus Fund' I will be obliged if you will favor me with your opinion whether appropriations under the first mentioned act are controlled by the operation of the last-mentioned law in regard to the time within which the amount is to be drawn from the treasury, or expended."

That general provision has repeatedly been under consideration in this office. With some hesitation, I think the act of 1839, being for a reimbursement of a sum of money advanced on account of the United States, comes within the equity of the exception in the sixteenth section of the act of 1795-" reimbursement, according to contract, of any loan made on account of the United States."

The smallness of the amount can make no difference in the application of the rule, which seems to be, to repay money advanced without loss of time, whenever it should be demanded.

Yet I repeat, that I give this opinion with hesitation, and quite agree with Mr. Butler as to the practice of the department. This must, I should think, be settled on such a point; and if it be at variance with the conclusion to which I have been led, I have no scruple in recommending that you follow it in preference to that conclusion. The necessity of requiring a new appropriation is too insignificant to weigh against the importance of having, and adhering to, a fixed rule in the executive depart

ment.

I have the honor to be, sir, your obedient servant,
H. S. LEGARE.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

RESCISSION OF PATENTS ERRONEOUSLY ISSUED, AND ISSUE OF NEW

ONES.

Patents erroneously issued, or rendered invalid by an act of Congress confirming adverse titles, must be cancelled, or judicially avoided, before another can be issued for the same land, even to confirmees.

After one patent has issued for lands, the executive department is functus officio in respect to such lands until its former act is judicially set aside.

The issuing of new patents whilst others are outstanding will lead to infinite mischief and confusion, by the blending of executive and judicial functions in a manner unknown to the laws and the constitution.

In the present case, the act, so far as it operates as a grant, supersedes the necessity of a patent to the confirmees, according to the case of Strother vs. Lucas, 12 Peters, 454.

OFFICE OF THE ATTORNEY GENERAL,

March 15, 1843

SIR: Your predecessor referred to me a letter from the Commissioner of the General Land Office to him of the 1st instant, of the following tenor:

"By the act of Congress approved 29th August, 1842, (Acts 2d session 27th Congress, page 136, chap. 232,) the heirs of James Simpson are confirmed in their claim to a certain tract of land, with the proviso that this confirmation shall only be construed as a relinquishment of the title of the United States to said land, and not to prejudice any superior and better title.

"Urgent application has been made to this office for a patent to issue for said claim; but, on examination, it is found that there are certain conflicting sales, two of which have been patented.

"On the said application the Solicitor of this office has made a report, (No. 422, herewith,) in which he refers to the Attorney General's opinion (in another case) of the 26th November, 1842, and, taking that as a rule of action, states that adverse patents being now outstanding, although, in virtue of the confirmatory act, rendered invalid, must be surrendered, to be cancelled, or judicially avoided, before a patent can be issued to these present claimants or confirmees, &c. As I doubt whether a refusal of the patent in such a case follows as a necessary and legitimate consequence from the opinion to which reference is made, and as the operation of such rule would be productive of much delay, and perhaps difficulty, it is respectfully submitted whether a patent may not issue in the present case, according to the form herewith sent; and on this point I request the At torney General's opinion, and your instructions.

"It may be remarked, that by the second patent the claimants are not placed in a worse, but perhaps a better condition than they would be without it; and if the first patent, so far as the conflict is concerned, should be judicially avoided, the second patent will take as a matter of course."

I adhere to the opinion given by me to the Land Office on the 26th November, 1842, which only confirmed one previously given, in the case of William Russell, on the 26th March, 1842.

Supposing patents to land already issued covering the very lands in question, the executive department is, in my opinion, under the general rule, functus officio in the premises, until its former act be judicially set

aside.

Any other practice would lead to infinite mischief and confusion, by the blending of executive and judicial functions in a manner unknown to the laws and constitution.

Besides, in the present case, Congress has expressly saved the rights of others. Where, then, can the Executive find any authority either directly or impliedly prejudicing them, by issuing a patent, as if all former ones were void? Again, so far as the act operates as a grant, it supersedes the necessity of a patent. (Strother vs. Lucas, 12 Pet., 454, and the cases. there cited.)

Take it any way, I think no patent ought to issue.

I have the honor to be, sir, your obedient servant,
H. S. LEGARE.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

99

PURCHASE OF SUPPLIES FOR THE NAVY.

The proviso contained in the appropriation act of 3d March, 1843, as to how supplies are to be furnished for the navy, does not affect contracts previously made.

A retroactive effect, especially where it would be a violation of contracts, is not to be given, by construction, to the words of a statute, unless they are too express to admit of any other interpretation.

OFFICE OF THE ATTORNEY GENeral,

March 16, 1843.

SIR: I have had the honor to receive your letter of the 10th instant, requesting my opinion on the following case:

"In the act making appropriations for the naval service for the half calendar year ending 30th June, 1843, and for the fiscal year ending 30th June, 1844, there is a proviso that all provision, clothing, hemp, and other materials, of every name and nature, for the use of the navy, and the transportation thereof, when time will permit, shall hereafter be purchased by contract, &c. I request the favor of your opinion, whether this proviso affects contracts or agreements already made, but the execution of which has not been entered upon.'

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A retroactive effect, especially where it would be a violation of contracts, is not to be given by construction to the words of a statute, unless they be too express to admit of any other interpretation.

Now, for all damages that shall ensue upon the breach of any contract already entered into by the Navy Department under its former practice and powers, the United States would be liable, notwithstanding the proviso in the law of 1843. But the government could only be held to indemnify the contractor against actual damages-not to a specific performance of its contract; and, in some cases, those damages would be merely nominal. In others, however, where the parties have incurred expenses and made great preparation for performing their part of the contract, their claim might be very considerable

I hardly think that Congress could mean that, in such cases the execu tory contract should be rescinded, and that only for the purpose of making another, very possibly in terms not more advantageous. Therefore, it is my opinion that you might fairly go on to execute such a contract. Where no such steps had been taken by the parties, I should think you would be fully justified in calling upon them to make their proposals under the new law.

In dealing with the government, which cannot be sued, the mere summum jus is less to be regarded, and the substantial equity of things more, than between individuals.

I have the honor to be, sir, your obedient servant,
H. S. LEGARE.

Hon. A. P. UPSHUR,

Secretary of the Navy.

DISPOSAL OF THE MISSIONARY LANDS ON GRAND RIVER.

It having been decided by Mr. Butler that the Catholics, as well as the Baptists, have an interest proportionate to their improvements in the net proceeds of the sales of the 160 acres of land upon Grand river, ceded to "the Missionary Society" in the treaty with the Otto

was, ratified 27th May, 1836, and since it appears, from the papers produced, that the Catholics have a small establishment there, the department is advised to distribute the fund in proportion to the appraised value of their respective improvements.

Therefore the Baptist society are not entitled to a patent for the whole land, unless the Catholics will consent to take a pecuniary indemnity in satisfaction of their proportion of the appraised value of the improvements.

In that case, the Baptists may receive a patent.

This opinion is one of acquiescence, from expediency, in the views of Mr. Butler, as will be seen from its reading, and not the judgment of the present Attorney General, if the question were res integra.

OFFICE OF THE ATTORNEY GENERAL,

March 17, 1843.

SIR: Your predecessor, on the 28th ultimo, propounded to me certain questions, arising on the memorial of the Baptist Board of Missions, relative to the tract of land lying on Grand river, and which they claim as ceded to them under the treaty with the Ottowas, ratified 27th May, 1836. The points on which my opinion was asked were the following:

1st. Can the claim, as presented by the Baptist board, to a patent for the land, be granted?

2d. If the Baptist board are not entitled to the whole tract, are they entitled, in proportion, to the value of the improvements made by them in comparison with the improvements made by the Catholic clergy, viz: as $6,000 is to $300, the value as appraised by the United States com. missioner?

3d. Can the location made by the State of Michigan be sustained? If not, is it not the duty of the Secretary of the Treasury to vacate said location?

4th. As there have been two surveys of the land-one by the surveyor general, under the Treasury Departinent, and one by Mr. Almy, under the War Department-which of these surveys shall govern? And to which department does the duty of selling these lands belong?

This matter having already been passed upon by my predecessor, Mr. Butler, I am extremely unwilling to treat it as if it were res integra. But as it appears that the department has come to no conclusion, and requires ad vice as to the course it ought to pursue, I find myself constrained, with a view to justify as well as to explain that advice, to take up the whole subject de novo. The words in the treaty, as ratified, are: "The net proceeds of the sale of the 160 acres of land upon the Grand river, upon which the Missionary Society' has erected their buildings, shall be paid to the said society in lieu of their said improvements.

These words are introduced in the Senate by way of amendment to the treaty, as it had been negotiated.

In the original form, the provision on this point was as follows: "The mission establishment on the Grand river shall be appraised, and the value paid to the proper boards." On reading these clauses together, it is quite evident that the words of the treaty, as negotiated, are large enough to embrace any number of establishments, and provided, in a general manner, for an indemnity to be paid to whatever boards might prove themselves entitled to the benefit of the provision. Nothing was definitively ascertained on this point. Everything was left to those to whom the execution of the treaty should be confided. If there were one establishment, or a hundred were proved to exist, the treaty had provided for the appraisement and payment to the proper (that is, those which should be shown

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