OPINIONS OF FELIX GRUNDY, OF TENNESSEE: APPOINTED SEPTEMBER 1, 1838. PENSIONS FOR WOUNDS RECEIVED IN THE NAVAL SERVICE. The act of 23d April, 1800, does not authorize pensions for wounds received in the line of duty prior to the passage of the act; nor can the act of 3d March, 1837, be construed to embrace such cases. ATTORNEY GENERAL'S OFFICE, SIR: You state in your letter of the 31st of August last, that Commodore David Porter claims a pension for wounds received in the line of his duty in the naval service prior to the 23d of April, 1800, (the date of the law which established the navy pension fund;) and my opinion is requested whether your department has authority to grant pensions for deaths or disabilities which occurred before the pension fund was established. My opinion is, that no such authority exists. Upon an examination of the act of 23d April, 1800, no expression is found indicating an intention on the part of Congress that the fund then provided should be subject to cases which had occurred before that time. The second section of the act the 3d of March, 1837, it is believed, cannot be so construed as to embrace a class of persons not included in former laws. The only object of that section is to make the pensions more ample in behalf of those entitled under pre-existing laws. Yours, very respectfully, To the SECRETARY OF THE Navy. FELIX GRUNDY. DUTIES ON MILLINERY, HOSIERY, AND READY-MADE CLOTHING. The act of 2d March, 1833, to modify the act of July 14, 1832, and other acts admitting silks, did not repeal the act of 14th July, 1832, and former acts, which impose duties on millinery, hosiery, and ready-made clothing; and those articles, of whatever material composed, are subject to duties." The operation of the revenue laws cannot be legally suspended by the Comptroller, even though goods may have been ordered in view of an erroneous practice, and the importers wish to countermand their orders from abroad. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the two questions submitted for my opinion in your letter of the 4th instant. The first is, "Has the act of the 2d of March, 1833, entitled An act to modify the act of July 14, 1832, and all former acts, by declaring that manufactures of silk, or of which silk shall be the component material of chief value, coming from this side the Cape of Good Hope, except sewing silk, shall be admitted to entry free of duty,' repealed in effect those portions of the act of the 14th of July, 1832, and of former acts, in which certain duties are imposed upon millinery, hosiery, and ready made clothing, without reference to material, when such articles are composed wholly or in part of silk?" In deciding upon this question, it should be remembered that, prior to the passage of the act of the 14th of July, 1832, Congress had imposed certain duties on articles of millinery, hosiery, and ready-made clothing, at a higher rate than those specified in the fifteenth clause of the second section of that act; and the language of the fifteenth clause of the second section of the act of 1832 is as broad and comprehensive (so far as this question is concerned) as that of the fourth section of the act of 1833the first reducing the duty to five per centum ad valorem upon the articles referred to in your inquiry, and the latter act repealing the duty altogether. Yet, under the act of 1832, the higher duties were collected upon millinery, hosiery, and ready-made clothing; nor have I learned that any serious question was ever raised upon the subject. Since the passage of the act of 1833, the same practice has prevailed, with slight variations, arising from the difficulty of classifying particular articles. The construction thus placed upon these acts immediately after their passage, and the acquiescence of the parties interested, and of Congress, furnish strong evidence that the construction was correct. Upon a view of all the acts upon this subject, and giving to them a reasonable interpretation, so as to carry into effect and not defeat the intention of the legislature, I have come to the conclusion that millinery, hosiery, and ready-made clothing, of whatever materials composed, are subject to duties; and that the laws imposing them prior to the act of the 2d of March, 1833, are not repealed by that act. To illustrate my opinion practically, I would say, that where the mer. cantile community have given a name, appellation, or description, to any article or articles of merchandise, and by that name, appellation, or description, Congress has imposed a certain duty on them, the duty is to be collected; and that, in all other cases, manufactures of silk, or of which silk shall be the component material of chief value, coming from this side the Cape of Good Hope, shall be free of duty, except sewing silk, which is subject to a duty of forty per centum ad valorem. By pursuing this course, it seems to me the Comptroller, in performing his duties of commissioner of the revenue, will act agreeably to the spirit of the various laws on this subject, and in accordance with the course hitherto pursued under them, and will avoid the dangerous practice of repealing laws by constructive implication. Your second question is, "Can the Comptroller, in giving a construction to the revenue laws, which, from former erroneous practice, may prove injurious to the commercial community if immediately acted on, legally suspend their operation, as construed by him, with the view of allowing the importers of the goods time to countermand their orders for goods from abroad?" My answer to this question is decidedly in the negative. The duty of the Comptroller is to exccute the revenue laws. Neither he, nor any other officer of the government, has the power to suspend the operation of an act of Congress, unless specially authorized to 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, 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 shall 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 discontinuance 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, To the SECRETARY OF WAR. FELIX GRUNDY. BREACH OF BLOCKADE-CAPTURE, RESCUE, &c. Where an American vessel had entered and cleared from a port under 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 brought 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 and 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 termination 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 act. Independently of this, there is no constitutional right vested in the Executive to deliver up the property of an American citizen, claimed by him as his own, and in his actual possession, and not condemned, 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 cargo, I 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 have 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 circumstances 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 of war. 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 condemned; 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 vést 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 government, 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 circumstances? 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 been 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 |