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to be the proper) boards: all, in short, was general, indefinite, and execu. tory. Not so with the article as amended by the Senate. This generality of expression is there rejected, both as to subject and object. There is a certain degree of definiteness and precision-instead of mission establishment," it is “the Missionary Society," and its buildings; instead of the appraisement to be made, the indemnity is ascertained: it is the value of the fee-simple of the land itself on which the improvements have been made; and that land is described, not in loose terms, but as "the 160 acres” actually set apart and occupied by the society. It is a universal rule that the general shall yield to the particular in such descriptions, even where the same parties have used both forms of expression; much more is this rule binding where the particular has been substituted for the indefinite, by a separate body, whose function is independent, and whose province it is to correct. Therefore, I hold the true question to be, What is meant by the words “the Missionary Society" in the Sth article as modified by the Senate?. This may be a question of latent ambiguity, and, in that case, must be settled by parol evidence. Was there, in fact, more than one missionary society? If so, did they both stand in the same relation to the government and to the Indians ? or did one of them hold, as it were, of the other, as sub-tenant, or in sufferance, &c.? The presumption arising on the use of the definite form, “ the Mission. ary Society," is, that only one was in the contemplation of the Senate. This presumption may be rebutted, and a case of ambiguity raised; but then, I think the evidence must be clear to show that there was a second—that is, a body that might properly be called, and which was called, by the name of “Missionary Society.'
Of course, all this is matter of fact, with which this office can have nothing to do. The department, or those who execute the treaty, must take the necessary evidence. But Mr. Butler's opinion is, that the change made by the Senate, in the 8th article, goes only to the mode of payment of the indemnity stipulated for, and leaves the objects where they stood, under the general words of the treaty. I do not think so. I know of no principle of law upon which such an interpretation can be supported; but I admit that it has an air of equity in it; and since his opinion has sanctioned the claim of the Catholics, and since it appears, from the papers before me, that this church had, in fact, a small establishment there, I would advise the department to act on his view of the subject, and to distribute the fund in the proportion of the appraised value of the Baptist and Catholic improvements-that is, as $6,000 is to $300. The next question is, what is that fund? The words of the 8th article, as modified by the Senate, are, to a certain intent, precise: “It is the 160 acres on Grand river, on which the society has erected its buildings.” But does this mean a quarter section, technically so called, according to the gov. ernment plan of survey; or does it mean black acre, or white acre, contain: ing 160 acres, actually occupied under certain metes and bounds by the society? Here, again, it may be necessary to look into the facts. But the country being at that time in possession of the Indians, had not been surveyed; and so I take it that a technical quarter section, as such, is out of the question. As to arbitrary, metes and bounds, containing 160 acres, the idea is not to be entertained. All locations, in the absence of express statutable provisions to the contrary, must conform to the exact system of surveys adopted as the fundamental law of the public domain.
I am of opinion, therefore, that the quantity named (160 acres) must be taken so as to include all the improvements on the river, and so as to conform, as nearly as possible, to the systems of subdivision adopted by law. The survey that must obtain is that of the surveyor general. The location made by the State of Michigan was unauthorized, and ought to be cancelled, if, as I suppose, it has not been patented. The last question is, shall the Baptist society have a patent? I should answer this question unhesitatingly in the affirmative, if I were quite sure, as I certainly believe, they are the society in the contemplation of the Senate. Being entitled to the net proceeds of the sale, they would have the option of taking the land. But since Mr. Butler's opinion admits the Catholics to a share in those proceeds, a sale may be necessary unless the Catholics agree to take a pecuniary indemnity proportioned to the appraised value of their improvements (5300 to $6,000) charged upon the land in satisfaction. In that case, I see no difficulty in granting the patent. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. JOHN C. SPENCER,
Secretary of the Treasury.
CONFIRMATION OF SPANISH GRANTS OF LAND IN MOBILE.
By an act approved 30 March, 1819, there were confirmed to John Forbes & Co. 310 arpens
of land near Mobile; and the question of the extent of the claim confirmed was acted upon many years ago. The survey, as executed by the surveyor general, (Wheatley,) which recognises the claim of
Forbes & Co, to hold the strip of land not embraced in the original British grant, ought
not to be disturbed. It is the Spanish grant, enlarging the English grant, that is confirmed, whereby the strip of
land between the latter and the river is added.
OFFICE OF THE ATTORNEY GENERAL,
March 20, 1843. Sır: Your predecessor submitted to me, on the 27th ultimo, a com. munication from the “ Commissioner of the General Land Office, relative to the claim of John Forbes & Co., a complete title embraced in Crawford's report (American State Papers, vol. 3, page 7, numbered 8,) for 310 arpens, near Mobile, in the district east of Pearl river, in Louisiana, and confirmed by act of Congress, approved 3d March, 1819, entitled "An act for adjusting claims to land and establishing land offices in the district east of the island of New Orleans;' together with a statement prepared by the Solicitor of the General Land Office;” and requested my opinion on the question, What is the extent of the claim of. John Forbes & Co., as confirmed by the act above referred to?
The Commissioner of the Land Office expresses a very clear opinion, that the survey as executed by the surveyor general, (Wheatley,) ought not to be disturbed. That survey, it seenis, recognises the claim of Forbes & Co. to hold the strip of land, as not embraced in the original British grant as good. On looking into the papers before me, I confess I see no ground to doubt the correctness of this conclusion of the Com. missioner. This whole subject appears to have been acted upon in the Land Office many years ago, and it is not very clear to me that the de. cision of the proper department ought, without stronger reasons than have been presented here, to be disturbed at this time of day. It cannot be too often repeated, that if the heads of executive departments under. take to review the judgments of their predecessors, they will have no thing else to do, even supposing they have a right to do this.
But taking it up as res integra, I entirely concur in the opinion of the former Solicitor and the present Commissioner of the Land Office. I see nothing in the objection, that this claim is described as covering 310 acres, in the report on which Congress confirmed it. The quantity in this case was mere matter of description—as much so as if the convey. ance had been of black acre or white acre.
The Commissioner expressly reports it as resting on a grant of Morales and a survey of Pintado. That grant and survey are before me. In both, the strip of land now in question, between the English granı and the river, is added, in the most precise terms, to the quantity called for by the English grant—that is, to the 310 arpens. It is not the English grant that is confirmed; it is the Spanish-thus enlarging the English grant. To say that the Commissioner meant to confirm, not the Spanish, but the English grant, is to contradict his very words. To say, that though he confirmed the Spanish grant, he meant that it should not carry all it conveyed, is to interpolate an exception into his acts which is repugnant to its general scope.
Clearly, the mere fact that, in a tabular statement, he describes this grant thus precisely, calling for a strip of ground in addition to the 310 arpens in the English grant, as being for 310 arpens, cannot be construed as excluding that strip.
The gist of the matter was, that it was a Spanish grant made by Morales, and surveyed by Pintado. That grant is unconditionally confirmed, as it ought to have been.
If the Commissioner meant to do anything else than confirm it as one entire act; if he meant to say that it was good for part, and bad for the rest; if he meant to pass it qua English grant and reject it qua Spanish grant, he was bound to specify, and distinguish the valid from the invalid. He was bound to say what he meant, in language clearly importing it. Instead of confirming this as a grant by Morales, he ought expressly to have confirmed it as an English grant, which Morales attempted to en large, and either had no power to enlarge, or did not, by any effectual conveyance, enlarge. In short, precise negative words, incopsistent with the general idea of a grant by Morales, surveyed by Pintado, ought to have been, and doubtless would have been used. As it is, the quantity, 310 arpens, is consistent with the Spanish title, and a good description of the grant so far as it goes; but it would be a most strained and unwarrantable construction to give it the effect of turning this Spanish grant into an English one, or nullifying a part of a Spanish grant just as valid as any other. The only point in the case on which I should have felt a doubt, was the power of Morales to make any grant at all after the year 1803, when this part of Louisiana was ceded to us. But the Supreme Court, in the case of Pollard's heirs vs. Kibbie, (14 Pet. 353,) have recognised that power in the Spanish governor, and the executive department will act upon that doctrine. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. John C. SPENCER,
Secretary of the Treasury.
RIGHT OF ADAMS & CO.'S EXPRESS TO CARRY LETTERS. The transmission by a private express of letters, packages, &c., over mail routes, is a viola
tion of the acts of 1825 and 1827; and the district attorney should proceed to prosecute the
offenders. It is a fraud upon the revenue for any common carrier to be the bearer of any letters, except
those of his employers, whether with or without recompense; and a messenger regularly going between two points, carrying letters for a fee, is a common carrier.
OFFICE OF THE ATTORNEY GENERAL,
March 22, 1843. Str: Your letter of the 18th instant submits to me the following case: “It becomes my duty to solicit from you an official opinion by which the action of this departinent must be regulated. It would be affectation in me to say that I have no opinion of my own upon the question stated. Yet it is due to you and to myself to say, that the necessity of this application is forced upon me by the opinion of the district attorney for the southern district of New York, who had been required to institute proceedings against certain individuals for the violation of the laws of the United States regulating the post office establishment; which opinion accompanies this communication.
“The case is this: Adams & Co., of New York and Boston, constitute a firm engaged in what has assumed the name of a private express between New York and Boston, and between those points and other post towns. They are openly and avowedly the carriers of what they call packages, besides bundles of goods, samples, merchandise, &c., of light freight. They were seen, on the 15th December, 1842, to take letters sufficient to amount to three dollars; which amount they received for transporting them to New York. Generally these letters, packages, &c., are conveyed in the train of cars and the steamboats which carry the mail-always over mail roads, or roads parallel thereto. These men and officers are in the daily habit of doing this to such a degree as to threaten bankruptcy to the department. The evidence of this fact was furnished the district attorney, accompanied by a request that he would institute proceedings. He replies as in paper No. 1.
“If the facts be as stated, your official opinion is required whether these men have not incurred the penalty imposed by the acts of Congres of 1825 and 1827."
I have looked into the acts of 1825 and 1827, and, although they are certainly not drawn with all the precision and explicitness desirable in penal legislation, I have no doubt but that the case you have stated comes within the true intent and spirit of the former, and constitutes an offence which it is impossible you should suffer to pass without an attempt to punish and arrest it. The district attorney must be instructed to proceed, under the act of 1823, against all the parties concerned in this systematic fraud upon the revenue of the country. Should the court (unexpectedly) rule that what is so clearly within the meaning of the law is not defined with the accuracy necessary in such cases, it will be your duty immedi. ately to bring the matter to the view of Congress, in order that a com. plete remedy for so crying an evil be promptly adopted. But I am of opinion, on a full examination of the act of 1825, that no further legislation is needed to punish and prevent the class of offences in question. It is plain, from sections 6, 15, 17, and 19, that it is the duty of every owner and manager of a packet ship, &c., either in the foreign or coasting
trade, to deliver to the postmaster of the respective ports all letters, except those addressed to consignees and owners, &c. It is unlawful, and a fraud upon the revenue, for any common carrier to be the bearer of any letters, except those of his employers, whether with or without recompense; but a fortiori in the latter case.
By section 19, no stage, &c., and no packet boat or other vessel, which regularly plies on a water declared to be a post road, shall convey letters, except such as relate to some part of the cargo. For the violation of this provision, the owner of the carriage or vessel shal incur a penalty of fifty dollars; and the person who has charge of such carriage or vessel may be prosecuted under this section, and the property in his charge levied on and sold in satisfaction of the penalty and costs of suit: provided that it shall be lawful for any one to send letters by special messenger.
This proviso is loosely worded; but it adinits of no fair judicial construction but this: The only case excepted out of the provision of this law is that of a person sending letters by a messenger not generally engaged in such a service. A messenger regularly going between two points, and taking any letters trusted to him for a fee, is not a special but a general messenger, and, in every sense of the word, a common carrier. To except such a case would be to make the law repugnant to itself. Suppose the owner or carrier of a boat to set up such an express; any and everybody would see that it were a palpable evasion of the law. But if anybody else may do it, why should the owner or master alone be prohibited?
As to the vessel, &c., it can make no difference whether she carry the mail or no. The act is, in this respect, as comprehensive as possible, except that if the master or owner of a steamboat which carried the mail for an adequate compensation from government should take part in or connive at such a fraud upon the post office, he would be doubly guilty in law and morals.
As to the commercial partnership engaged in this violation of the law, I confess I was inclined to agree with Mr. Hoffman until the twentyfourth section of the act of 1825 was brought to my view. The words of that section appear to me directly to embrace their case.
With regard to the principle of interpretation applicable to laws intended to protect the revenue against fraud, 1 ought, perhaps, to add, that they are not subjected to the narrow rules formerly applied in the construction of penal statutes. In Eugland, the very opposite principle is adopted. (Edw., 289, the Adam.) In our courts, such acts receive the same construction that would be put upon any other remedial legislation; that is, a fair, sensible, practical interpretation, without reference to any merely technical rule in favor of the accused. The question is, Is it not plainly unlawful to set up a private post for hire on a post road, defrauding the post office of its dues, and making it a mere burden on the honest classes of the community, to the advantage of interlopers and their customers?
It is manifest that either the post office monopoly ought to be abolished for all, or the laws that protect it from invasion be indiscriminately enforced. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. C.A. WICKLIFFE,