Municipal Authority to Impose Taxes. ing for the subjects of his Britannic Majesty any dispensation from the laws of the United States which regulate the trade and intercourse of our citizens with the Indian tribes, I have no difficulty in saying that they are not, in my opinion, founded upon the treaty, nor the explanatory article thereof, nor, so far as I am informed, on any principle or usage applicable to cases of a similar nature. Permission to the citizens and subjects of each nation, and also to the Indians, "freely to pass and repass, by land or inland navigation, into the respective territories and countries of the two parties on the continent of America, and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other," could not possibly by the contracting parties be intended, nor by the treaty can be construed, to give permission to the citizens and subjects. of each to carry on a trade within the territories of the other, unchecked and unrestrained by the municipal laws of the respective countries. Had a provision of a kind so novel and extraordinary been contemplated by the contracting parties, an express stipulation would have been necessary; and that, too, couched in terms so irresistibly clear as to have permitted no doubt. But this trade, I conceive, like all internal commerce of the country, is subject to the regulation of Congress; and if the subjects of Great Britain are allowed to participate in it upon. the same principles, and under the same regulations, which are prescribed by law for our own citizens, it is granting them everything which could have been contemplated by the parties, and everything which can be extracted from the most liberal construction of the treaty. I have the honor, &c., &c., To the SECRETARY OF STATE. JOHN BRECKENRIDGE. MUNICIPAL AUTHORITY TO IMPOSE TAXES. Neither the city council nor any department of the government of Orleans can legally tax the property of the United States within that territory. WASHINGTON, April 28, 1806. I AM of opinion that there rests no power in the city council, nor in any department of the government of Orleans, to tax the Municipal Authority to Impose Taxes. property of the United States within that territory. I believe the exercise of such power has never been before attempted in any part of the United States, and I think the general government ought not to admit the principle. Laying the tax will be harmless, for I see no means by which the payment of it can be enforced. JOHN BRECKENRIDGE. To the SECRETARY OF STATE. OPINIONS OF HON. CESAR A. RODNEY, OF DELAWARE: APPOINTED JANUARY 20, 1807. LAND PATENTS ISSUED BY MISTAKE. A land patent issued under a mistake, in consequence of a Virginia military land warrant located on lands which had been previously and regularly loca ted by others, is null and void. BALTIMORE, June 10, 1807. DEAR SIR: I have read and considered the case stated in your letter of the 28th of April on the subject of a patent issued under a mistake, in consequence of a Virginia military land warrant "located on lands which had been previously and regularly located by others." The patent thus issued can be of no effect: it is, I conceive, null and void. The identical land, by the same metes and bounds, having been previously granted according to law, by the United States, to other individuals, no subsequent act on the part of the United States could possibly affect the prior title to the premises, derived from their own patent. The use and object of a patent is to complete and render perfect a title to lands, being the formal instrument established by law for this purpose. But if the title of the United States to the same lands has been before parted with by patent, and vested in prior purchasers or warrantees, it must be extremely obvious that the patent cannot operate on lands thus previously granted. It cannot, then, accomplish the object for which it issued, in consequence of the mistake committed in attempting to grant lands before granted; nor can it produce any effect. It is, therefore, a void act, to all intents and purposes. If there were any shadow of interest in the paper, the United States, by whom it was delivered, and the person in whose name it issued, are the only parties concerned. They have, therefore, undoubtedly the right to cancel the patent, and to retrace all the previous steps which led them into the error, provided at House Rent of Commanding Officer at Navy-yard. no stage they affect the interests of third persons. I consider, in all cases where a mistake of this kind happens, it is just and fair on the part of the United States to correct it as soon as it is discovered, with the privity and consent of all parties interested. I would only recommend accuracy and attention to the locations and surveys, in order to be certain of the identity of the lands, with respect to which mistakes may happen in the issuing of patents. Yours, very respectfully, To the SECRETARY OF STATE. C. A. RODNEY. 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 emolu› ments 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 officer-holding the rank of a captain, too, in the navy was to take up his habitation in the cabin of a House Rent of Commanding Officer at Navy-yard. 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 construc tion 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 uniformly 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 lodg ing 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 houserent 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 |