to do the greater? Were it even in invitum, I could scarcely doubt it was; but it is not so. The true interpretation of the contract, and the conduct of the parties, is, that it gave an option to the contractor, as soon as he received his notification that the Postmaster General considered himself as no longer bound, to renounce it entirely on his part, and receive his month's pay in advance. Clearly he had a right to do so. If he preferred going on with the service on the new terms, he has nobody to blame but himself, if he be paid only for the services he has actually rendered the government. Otherwise the case would stand thus: if the Postmaster General discontinued the route entirely, and gave no employment at all to the labor and capital prepared for performing the contract, the claimant would be compelled to acquiesce in this decision, on receiving a reasonable pay; for the contract is express to that effect, and he has nothing to do with the question whether the discretion of the Postmaster General was properly exercised or not; all he might say in such a case would be, damnum absque injuria. But because a new arrangement, providing for his employment, to a very considerable extent, and so diminishing the loss or chances of loss he incurs, was offered him, he is entitled to full damages for all he suffered by incomplete performance of the original contract. Surely this were a solecism in law. The construction of the contract which I have adopted appears to me, independent of all practice or precedent, the sound and reasonable one; and I regret that I cannot concur in the view of this subject taken by the committee of the House in 1838. But I have no doubt that the uniform practice of the department must be considered as impliedly entering into the contract, and making a part of it. (Beers et al. vs. Houghton, 9 Pet., 329.) It is a universal principle and elementary rule of the law of contracts that a contract is understood to contain the customary clauses, although they are not expressed; in contractibus tacite veniunt quæ sunt moris et consuetudinis. (Evans's Pothier, 95.) I have the honor to be, sir, your obedient servant, E WHITTLESEY, Esq., Auditor of the Post Office Department. H. S. LEGARE. THE CLAIM OF JOHN MARTIN FOR FREIGHT. The government is not responsible for the acts of the assistant commissary general, who had no authority to discharge a vessel without the master's consent; and the claimant is only responsible entitled to freight freight pro rata. The delivery took place in consequence of an interference, for which the government is no more responsible than for captures by enemies or accidents of the seas. OFFICE OF THE ATTORNEY GENERAL, January 11, 1843. SIR: I have looked into the claim of John Martin for freight of the schooner Marietta, submitted to me in your letter of the 2d instant. Assuming, upon the statement mentioned in your letter, that the assistant coinmissary general had no authority to do what he did, the government is nowise responsible for any damages occasioned by his interference in the matter; and, therefore, the discharge of the vessel, though without the master's consent, and though he were willing and able, after refitting, to complete his voyage, does not entitle him to the entire freight. This he certainly might claim, had the properly-authorized officer of the government insisted on delivery at Norfolk; for the contract for freight is, in general, an entire one. As it is, however, that delivery took place in consequence of an interference, for which the government is no more responsible than for captures by enemies or the accidents of the seas. I am of opinion, therefore, that this case falls within the principle laid down by Sir William Scott in the case of the Friends, Edo. 246-8, and that freight pro rata ought to be allowed by the government, and ought to satisfy Mr. Martin. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, Secretary of War. H. S. LEGARE. COUPONS-HOW TO BE SIGNED. Coupons of the loan of 1842 should be signed by a person acting under the direction and authority of the Secretary of the Treasury. OFFICE OF THE ATTORNEY GENERAL, January 31, 1843. SIR: In regard to the question whether the coupons of the loan authorized by the 3d section of the act of 15th April, 1842, should be signed by a person acting under the direction and authority of the Treasury Department, or whether it should be done under the authority of the Treasurer, I am of opinion, 1st, that it is matter of form, which that act refers entirely to the discretion of the Secretary; 2d, that it would be a proper exercise of that discretion to have the coupons signed under his immediate authority and instructions. I have the honor to be, sir, your obedient servant, Hon. WALTER FORWARD, Secretary of the Treasury. H. S. LEGARE. POWER OF PRESIDENT TO REMIT FORFEITURES OF BAIL BONDS. The President has no power to remit the forfeiture of a bail bond. OFFICE OF THE ATTORNEY GENERAL, February 20, 1843. SIR: In compliance with your request endorsed on the petition of Alexander Caldwell and Thomas Hunter, I have had the honor to look into the question propounded for my consideration, and am of opinion that the President has no power to remit the forfeiture of a bail bond. I have the honor to be, sir, your obedient servant, The PRESIDENT. H. S. LEGARE. POWER OF THE PRESIDENT TO PREVENT INDIAN EXHIBITIONS. The President has no power to prevent exhibitions of Indians. OFFICE OF THE ATTORNEY GENERAL, February 21, 1843. SIR: In answer to your inquiry as to the power of the President to pre. vent the exhibition of Indians contemplated in Philadelphia, I have to say that I do not know of the existence of any such. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, H. S. LEGARE. Secretary of War. VESSELS FOR THE REVENUE SERVICE. The Secretary of the Treasury is not restrained to the use of sails for the revenue service, but may adopt such of the improved modes of navigation as he shall deem indispensable at this time. He is, however, restricted as to the amount and description of military and naval force, and by its equity in regard to the sum to be laid out in building and equipping the vessels. OFFICE OF THE ATTORNEY GENERAL, February 21, 1843. SIR: I have had the honor to receive your letter of the 18th instant, requesting my opinion, whether vessels propelled by steam can be employed in the revenue service under the laws regulating that service. I have looked into the act of 1799, (2d March,) with a view to the power of the Secretary of the Treasury as to the building, &c., of the revenue cutters. My opinion is, that the Secretary certainly is not restrained to the use of sails in these vesels; that he may adopt the improved modes of navigation which are, indeed, indispensable at this time; but that he is restricted by the words of the act in regard to the amount and description of military and naval force, and by its equity in regard to the sum to be laid out in building and equipping the vessels. If, consistently with the law in these particulars, he can employ (as I have no doubt he can) steam, instead of sailing vessels, I think he would be exercising a sound executive discretion in doing so. I have the honor to be, sir, your obedient servant, Hon. WALTER FORWARD, Secretary of the Treasury. H. S. LEGARE, SALARIES OF CLERKS OF CIRCUIT AND DISTRICT COURTS. A person filling the offices of clerk of a circuit court and clerk of a district court, is entitled to the salaries of both offices under the act of 1842. The salaries attach to the offices for the services rendered in discharge of the duties thereof, and there is no law prohibiting the discharge of the duties of both offices by the same person. SIR: Your predecessor submitted to me the following question: "The section numbered 167, in the act entitled 'An act making appropriations for the civil and diplomatic expenses of government for the year 1842,' approved 18th May, provides for defraying the expenses of the judiciary, and, in reference to the amount of fees and emoluments to be retained by the officers therein mentioned, contains the following, viz: No clerk of a district court, or clerk of a circuit court, shall be allowed by the said Secretary to retain of the fees and emoluments of his said office, or, in case both of the said clerkships shall be held by the same person, of the said offices, for his own personal compensation, over and above the expenses of his offices, and necessary clerk-hire included, (also to be audited and allowed by the proper accounting officers of the treasury,) a sum exceeding three thousand five hundred dollars per year for any such district clerk, or a sum exceeding two thousand five hundred dollars per year for any such circuit clerk, or at and after that rate for such time as he shall hold the office. The question presented is, does this clause authorize a clerk holding both clerkships to retain the salaries allowed to both, or only the maximum, three thousand five hundred dollars?" I see nothing in the act of 1842, interpreted according to any acknowledged rule of construction, that deprives a person filling both the office of clerk of a circuit court and of a district court, of the maximum of each. It does not, indeed, appear improbable that the author of this very badly expressed provision did mean something more, but quod voluit non dixit. It would be mere interpolation to insert the words necessary to effect such a purpose. If the clerk, in the predicament contemplated, is not to take both sal. aries, which is he to take? I confess I see no ground on which I can deny him full compensation for services which the act itself contemplates as respectively worth $3,500 and $2,500 a year. If the legislature meant anything more than that the uniting of the two offices was not to exempt the incumbent from the maximum in force on each, they would doubtless make their meaning plainer by the addition of the necessary words at the next session. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, Secretary of the Treasury. H. S. LEGARE. PRE-EMPTION RIGHTS OF COLORED PERSONS Free colored persons are entitled to the benefits of the pre-emption act of 1841. OFFICE OF THE ATTORNEY GENERAL, "SIR: I have the honor to submit herewith a letter from the Commissioner of the General Land Office, and request your opinion on the question therein stated, viz: Whether a free man of color, in the case presented, can be admitted to the privileges of a pre-emptioner under the act of 4th September, 1841? I enclose, also, a communication from the register of the land office at Edwardsville, Illinois, containing a statement of facts in the case, together with the usual declaratory statement of the appli cants. دو 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 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. a 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, Secretary of the Treasury. H. S. LEGARE. 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 |