HOUSE RENT OF COMMANDING OFFICER AT NAVY YARD.

The commanding officer at the navy-yard is entitled to receive the pay and emoluments of a commodore, and therefore is entitled to apartments or house free of rent.

BALTIMORE, June 10, 1807.

MY DEAR SIR: I have reflected much on the case stated for my opinion in your favor of the 12th of March, and feel considerable difficulty in forming a correct judgment on the subject.

The commanding officer at the navy-yard is, by the law to which you refer, entitled to receive the pay and emoluments of a captain commanding a squadron on separate service, or, in other language, that of a commodore. The very term emolumen's imports profit, benefit, or advantage, and is, perhaps, of extensive signification. It must immediately occur to you, that a commodore or captain commanding a squadron on separate service is not only entitled to double rations, but has apartments ready furnished on board his ship. It is very clear that the law of the 27th March, 1804, does not contemplate any residence of this kind for the port admiral (if I may use the expression;) because, for the accommodation of an inferior officer, even a sailingmaster, there is not only no provision, but the regulations under which each vessel previously contained one are repealed. It is not reasonably to be supposed, then, that the commanding officerholding the rank of a captain, too, in the navy-was to take up his habitation in the cabin of a ship not prepared for the reception of a sailingmaster, and without either officers of any kind, or a crew, or any part thereof. A liberal construction of the law would entitle him to a habitation, as comfortable at least, and not more expensive to the United States, than what he would possess if commanding a squadron on separate service; yet, in' the strict legal construction of the terms in which the law is couched, independent of other considerations, the question proposed to me is, in my humble opinion, involved in doubt.

There is another and important view to be taken of this subject, and which is worthy of consideration in fixing the just construction to be given to this act of Congress. If I am correctly informed, there exist in the army, navy, and marine departments, precedents applicable to the present case, where, under similar circumstances, the house-rent of an officer has been allowed to him. There is no act of Congress which particularly gives, eo nomine, to any officer in the army his house rent; and yet, I understand, when they are placed on duty where there is a garrison, barracks, or quarters, for their accommodation, this charge has been uni formly admitted. When an officer has been appointed to superintend a ship whilst building, as, from the nature of the case, it could afford him no accommodation, a compensation has been allowed for lodging and extra expenses on shore. The same thing, I believe, has taken place where any ship required such repairs as to afford no accommodation for the commanding officer on board. So of the commandant of the marine corps, to whom house-rent was allowed until the present quarters were prepared for him in the marine barracks.

I am sensible that the usage of any particular department does not create or constitute the law, and I am aware of the jealousy manifested by the federal courts on this particular topic. Yet, in ascertaining the just and reasonable construction of a law not unequivocally plain, the

course of a department acting under the law from its first existence, or other departments acting under laws precisely similar, is entitled to respect and consideration. In England, the judges have gone great lengths on this subject. Were I to decide in a judicial capacity, unfettered by the decisions which have heretofore taken place in our country, I would say that the correct course lies between the two extremes. Viewing the usage referred to as a light to direct my judgment on this occasion, I feel disposed to follow it; and, as the best result of my reflections, to say that the commanding officer of the navy-yard at Washington should be allowed

his house-rent.

If any additional reasoning were required, I would observe that the officer, under the existing establishment, next in rank, has a house free of rent. The building, it is true, belongs to the United States; but that does not vary the question. Is not the superior officer equally entitled to as comfortable a mansion, upon common principles of justice, unless there be some provision which precludes him? My impressions might have been different if this were res integra; but I will frankly acknowledge my inclination in favor of the claim. The leaning of your mind, I am sensible, must be equally strong with my own.

I am, dear sir, yours, very respectfully,

To the SECRETARY OF THE NAVY.

C. A. RODNEY.

LIABILITY FOR CAPTURE OF A CHARTERED VESSEL.

The owners of a vessel chartered to the Navy Department, for the purpose of carrying provis ions and naval stores to Malta and Syracuse, without stipulations in the charter-party to furnish any particular or special papers, captured by a Spanish privateer on the ground that the vessel was carrying naval stores to the port of an enemy of Spain, the voyage and risk being fixed by the charter-party and freight charged accordingly, are liable for the loss sustained by the capture.

WASHINGTON, July 20, 1507.

SIR. I have read and considered your letter of the 7th instant, and the papers which accompanied it, referred to you by a resolution of the House of Representatives.

From the best consideration I have been able to give the subject, I concur with you in the opinion that the owner of the Huntress has no legal claim on the Navy Department for the compensation he demands.

William Hodgson, of Alexandria, as the agent of the owner, chartered this vessel to your department, for the purpose of carrying provisions and naval stores to Malta and Syracuse. No stipulations are contained in the charter-party to furnish any particular or special papers. In general, it is the duty of the captain to procure all the usual documents for the protection of his ship and carg; nor should he set sail without them.

It is stated by Mr. Abbot, in his Treatise on Shipping, (a work of uncommon merit and estat lished reputation,) "The master must also take on board no false or colorable papers that may subject the ship to capture or detention; and he must rocure and keep on board all the papers and documents required for the manifestation of the ship and cargo by the laws of the country from and to which the ship is bound and by the aws of nations in general." Had the United States shipped, in conjuncvion with others, goods on board this vessel for the accustomed freight, without any charter-party, the rule of law would seem perfectly clear.

Whether the charter-party varies the case, and constitutes the person who charters a ship, pro hâc vice, the owner of the vessel, and makes the captain, of course, his agent, I do not conceive is material to be decided; because it does not appear, in this instance, that any of the usual papers were omitted. In fact, certificates from the President, as well as from the British and French ministers, were obtained to prove that the cargo belonged to the United States, and that it was destined to supply our squadron in the Mediterranean. The reason why a similar certificate was not obtained from the Spanish minister, as correctly stated in your letter, was, because all official communication between him and our government had ceased.

However, I do not consider the certificates of foreign ministers as composing a part of the regular papers with which a ship is usually furnished for the protection of herself and cargo. They are a species of extra documents, seldom procured, and which, though sometimes of advantage, are at others injurious. The freight was to compensate for the risk of capture or detention, to which all neutral vessels are subject flagrante bello. The freight, however, was not due, (or rather one-third of it,) according to the express contract, until the delivery of the goods at Malta; unless some person, duly authorized by the Navy Department, had released the captain from the further prosecution of the voyage, or had the vessel discharged in England. The consul, you state expressly, had no such authority. The owner, therefore, without performing his part of the contract, has not only received all the freight due by the charter-party, but has actually been paid $444 44 more than was due to him.

It is true, that from one of the papers it appears that the officer of the Spanish privateer made the want of a certificate from the Spanish minister, similar to those from the French and English ministers, a part of the pretext for capture; but as this is a paper not really required, nor constituting a part of the regular documents to be exhibited by neutrals, it cannot vary the case. The principal and real ground of capture was, that the vessel was carrying naval stores to a port of an enemy of Spain. The voyage, in this case, was settled, and the cargo fixed by the charter party. The freight must therefore have been in proportion to all risks and hazards on such a voyage with such a cargo. No fault can be attributed to the Navy Department for not procuring a paper which, if there had been a Spanish minister corresponding with the government, must have been asked as a matter of favor, and not of right. Hence, such documents as protections from foreign ministers are not required of neutrals by bellige. rents, according to the law of nations. The regular papers are those alone which the constituted authorities of the country are competent to give. I think the owner must bear the loss, under existing circumstances. C. A. RODNEY. To the SECRETARY OF THe Navy.

BATTURE IN FRONT OF ST. MARY'S, AT NEW ORLEANS.

The military force may be employed by the President to remove from these lands any persons who may have taken possession of them since the passage of the law of 3d March, 1807.

WILMINGTON, October 24, 1807.

SIR: Previous to my receiving your note of the 22d instant, Mr. Madison had sent me a lengthy statement of facts relative to the batture in

front of the suburb St. Mary, at New Orleans, or alluvial lands to which you refer. On this statement Messrs. Derbigny and Lislet, French lawyers of reputation, and Mr. Gurley, district attorney of the New Orleans Territory, have, I understand, given decided opinions in favor of the title of the United States to the batture. Upon reflection, I concur with them. The statement I must presume to be correct, as it has been officially furnished.

Under the 1st section of the act of the 3d of March, A. D. 1807, I am of opinion that military force may be employed by the President to remove from these lands any persons who may have taken possession of them since the passage of the law. This, I think, appears to have been the fact in the present case, from the letter of Mr. Van Praddles, of the 11th ultimo, which I return you. At first I entertained doubts on this point, but further inquiry removed them. These observations contain. the requisite answers to the two questions proposed, viz: 1. Have not the United States a claim to these lands? 2. If they have, may not military possession be taken?

Yours, &c., &c.,

To the PRESIDENT OF THE UNITED STATES.

C. A. RODNEY.

POWER OF THE PRESIDENT TO NOMINATE A BRIGADIER FOR TERRITORIAL MILITIA.

The President has power to nominate to the Senate a suitable person for the office of brigadier general of the militia of the Territorial governments.

WILMINGTON, April 12, 1810.

SIR: In answer to the question proposed by you, "Is the President authorized by law to appoint general officers to the militia of the Territorial governments?" permit me to state: That the ordinance of the old Congress of the 13th July, 1787, "for the government of the Territory of the United States northwest of the river Ohio," declares, "the governor for the time being shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress." By an act of Congress under the present constitution of the United States, passed on the 7th August, 1789, entitled "An act to provide for the gov ernment of the Territory northwest of the river Ohio," it is provided that "the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers which, by the said ordinance, [of 1787,] were to have been appointed by the United States in Congress assembled; and all officers so appointed shall be commissioned by him," &c. The act of April 7, 1798, erects the Mississippi territory (to which the papers transmitted specially apply) into a Territorial government of the first grade, in all respects similar to that of the Territory north west of the river Ohio, under the ordinance of 1787, with the exception of the last article contained in that ordinance. The act of May 10, 1800, gives to the Mississippi Territory a government of the second grade established by the ordinance of 1787, and provides for the organization of a general assembly therein. The general assembly, by the ordinance of 1787, pos

sesses the "authority to make laws in all cases for the good government of the district," &c. Possessing this authority, the general assembly of the Mississippi Territory have passed an act entitled "An act to organize the militia," which provides that "the whole militia of the Territory shall form one brigade, and be officered as follows: one brigadier general, with one brigade inspector," &c.

From this view of the subject I can see no reason to doubt the power of the President to nominate to the Senate a suitable person for the office of brigadier general, thus created by law. It has been done, I understand, in more instances than one. The principle is clearly established by the plain language of the statutes cited, and is supported by precedent. C. A. RODNEY.

To the SECRetary of War.

COURTS MARTIAL.

When inferior officers or soldiers who think themselves wronged complain to the commanding officer of a regiment, he ought to summon a regimental court-martial to inquire into the truth or falsehood of the complaint, and decide thereon; but, as its authority extends no further than a court of inquiry, the rules and practice of such courts should, in general, govern the proceedings.

WILMINGTON, March 16, 1811.

SIR: You have requested my opinion on the construction of the 35th article for the government of the army of the United States.

At first sight there would seem to be an apparent contradiction between the provisions contained in this article and some which are subsequent: I allude more particularly to the sixty-seventh and seventy-fifth. On attentive consideration, however, they may be reconciled. This should always be done where it can be accomplished. It is the true rule to be followed in the sound exposition of statutes.

The thirty-fifth article is intended for the benefit of inferior officers and soldiers. It gives them the privilege of complaining to the commanding officer of a regiment when wronged or aggrieved, who is required to summon a regimental court-martial on the case. This latter provision is imperative and compulsory. It is not a matter of favor or discretion, but of right, and is strictly ex debito justicia. It constitutes, in fact, a special court of inquiry on the subject, and affords a summary remedy to the party supposed to be injured. The only authority, however, given to this court, is to decide on the justice or injustice of the complaint. By the subsequent articles, they have no authority to punish any officer against whom a complaint may be exhibited or preferred, though they may think it well founded. If further redress be proper, a general court-martial must be called. If the regimental court-martial be of opinion that the complaint is not founded in fact, the complainant may appeal to a general court-martial, but subject to this provision: that, if they consider the complaint groundless, they may punish, at their discretion, the party complaining.

This article, which is literally transcribed from the old articles of war, was originally taken from the British martial code. This code, like our