The New York herald., 1870-09-10
AMERICAN SHIPPING INTERESTS.
Foreign Built Vessels Owned by Ameri-
cans Not Entitled to Pro-
lection Papers.
Iu,pertapt Opinion Of tho Acting Attorney
General.

Iu,portant Opinion Of tho Acting Attorney
General.
WASHINGTON. Sept. 0, 1870.
postmaster General Creswen addressed certain
inquiries few weeks ago to the Attorney General,
asking his legal opinion questions Of vast interest
20 the commercial and shipping interests Of tho
country. Acting Attorney General Talbert has re-
piled Id long letter. the Importance Of which con.
slider justnes the telegraphing OF the document d"
ertenso. The following is complete copy
ATTORNEY GnSIsAls 9fg,cn, poI, A. sus, 81 1870
SIR-Your letter or tb5 I'd Inst sdtrcssinn "a
the Attorney General our omes,oSs h@reInaftet re-
RR.st ~ the ousS ID my careful consideration. The
First~is ..ions is as follows:-
,ne nrct, citizen Of the United States entitled to
vesle. -cuon OF this government for any foreign
i or vessels which he may purchase OF citizen
aforeign Power, without specal ACT oi Congress
Sohs@iaer1DSs. @ this ,,'sss gnsson ,as rs,aes ses%s
In foreign vessel or vessels, meaning thereby yes
seIs built without the limits OF the United states or
otherwise excluded from the privileges accorded to
vessels Of The United STATES by the navigation laws
Without special act OF Congress authorizing such
acquisition the right OF properly IN %aa,ever
are though regulated and protected, Is not created
by statute. on the other hand both laws ana con-
stitunOns-certainly those OF tins eoun,ry-recoy'
nlze this right existing anterior 10 their enact
ment or adoption. Among the regulations OF this
rlnnr none can be found in the constitution or laws
Of ihe United states orbdding the citizens Of this
country TO acquire property In foreign vessels ON
the other hand, an early statute OF the United
expressly recognizes that there may be American
property in vessels not 0l the United States. Ac-
o0rujngly / have no hesitation In following the
opinion OF Attorney General Cushing In treating
vessels thus purchased as lawful properly oil the
citizens purchasing the same Opinions vol .. page
$685. The right OF the citizen to protection anu the
duty OF the government TO project extending IN
general alike 10 all and every species OF property VI
is ciJizens have no hesitation IN giving my opin-
ion that this class OF property, namely, vessels
once foreign and nov owned by citizeEs Of
the United States are. ., IN the words oos o.
ernnent OF this country. The word protection here
being used In its primitive sense, ana signify ing
protection from depreciation or injury by roregn
governments or persons: parngrapn iroin .ne
opinion OF Mr.. Cushing before cited, may, without
omitting anything material 10 your question, DC
read as follows and In that form has my entire con-
currcnce:-
Upon fn consideration, therefore, OF all the relations Of
riht Of citizen OF tho United purchase foreign
ship and ship purchased becomes entitled to receive
the protection OF the United Statss.VoL W. p. e52.
The second question, namey:--Secoad-What
paper or certificate, II any, can lie rightiuy Issued
by The customs officers Of The United states III ev-
dence OF the duty obligations OF the government
pYots CT any vessels SO acquired by citizen or the
United States Ianswer, without hesitation, Win
complete negative. The customs officers are not by
law authorized 10 issue aay paper or certificate 'in
evidence OF the duty or obligation or the government
TO project any EeSSeiS SO acquired UY cZ4n 0l Tie
United S,ates.r Those onlcers are created by
statute charged with duties and clothed with powers
raised by statutes, and In no other way, and
among all their dulles and powers, as set forth
IN the statutes OF the United states, l cannot
find the duty or power TO issue such paper as Is
the subject OF your Inquiry furthermole, the main
n not 70 certify or IN any way to create evidence OF
the obligation of the government 10 protect any pro-
perry or It's citizens. Their duties are primarily 10
attend IN the collection OF the revenue, and the
same lEiitatou which prevents the navigation
laws irom making the vessels IA question other
ban American vesseis IN any respect save Tor par
poses or The Custom House, and Of The navigation
acts, disaoies the Custom Eouse nom certifying
their AnierIcan character IN these peSsS, not CI
the customs or navigation laws.
The third question addressed 70 the Attorney Gen.
era y as loows:-TaicG-lst the PRESIDENT or SecEe-
taTy OF the Treasury authorized 10 Issue any special
certificate or natiQLa protection ~ 20 give sSeh
vessels "a national character and pace them under
the protec. Ion VI the Eas ol the UrLsed >-a5est
answer, with r. erenee the President ana Sccre-
tary OF the Treasury as aave eefere slls werG with
reference 10 the customs 01icers. ceIEher rne laws
nor the e0naluti0n OF rhe Nnl0eil states ~ c91-
terred upon either or these ciicers the saGGriEy 10
issue The d0cunens ln question. and uhere Is rc
othef source OF slCA GuEilort1Y. Phe opE4mn
upon this matter al Il preceding Attorney
General, whom L have already quoted, Hou- Caieo
Gushing OF justly high reprLe zoe his learning and
profess ona aEI1y has Rcs aiiSseq ray careful znd
most deiereIt.ai con deF-tloa, t>ee Opinions. vol
VII, D. 54ll Alter e.fiRg authority ~ the point,
that 'tbe court LOOKS Silely TO the bill o. sale as
document which Is recognized by the law OK nations
and the ownership must he decided Dy it,f he pro-
eeeds rom this undisputed premise 10 further
statement as ioiiows.-
The Collector the OF the Treasury lawfully
Ieselvs Az mt.e ssG,d p te oii :. ,@.e ne eau .w-
bbi OF sale he can uly deaver to the owner doc
ewpershp this laS fact The ega of the pre-
cedng facts de eantaso certify that the citizen
OF the United States, ard from The
thencated viii ense te general consequence that the SHIP
supposDg e TRANSFER TO nave been tide, s entitled 10
sis,e. sse.'n ' "' A"''' properly 0 '1sn OF the oni''
That collector of customs can lawfully execute
the legal Iormatles here specified with reference IL
foreign vessel purchased by citizen OF the United
States without Il special act OF Congress 1 am
unable TO ascertain from the laws OF the
United States. These laws do not authorize
their execution. They do authorize the bill OF sale
Oi vessel or any part OF any vessel OF the
United States, "to be recorded In the olilce OF the
Collector of the Customs where such vessel regis
tered enrolled" tAct OF July 90 1850. Stat $40
act OF December 81 1882, a. Stat. 29a.) Other
wise,' reads The lasi named statute, ''she shall
cease to be deemed snip or vessel OF The tnited
States thai is OF vessels neither registered
rolled, a collector OF customs has no more lawful
authority 10 record the bill of sale than register Of
deeds has TO record deeds or land lying out
eide OF his county or other limits, tue
sxsntv sxsnt Of his authority resser The
sury In this mater is OF s!ill narrower scope
u Is confined to specific class OF ships or yesse
"bullt In the United States after the 18th day OF
August l1se." tAct Of 3lst December 1872 sec. 70,
stat 296)
Furthermore / remark in passing the legal IN.
tendment and effect of the various certificates sci
forth by Mr.. Cushing, Ia the above extract In my
opinion are that of certificate OF ownership by an
American citizen and In tnat view viii call Iol
notice later III this opinion. Accordingly
dissent from the conclusion Of law
which the editor of this opinion has inferred
from these premses-for the opinion itself sets
forth no sach conclusion TO this effect. The Secre
tary OF The Treasury may regulate IN such case, the
authorization OF the bill OF safe, which is The high
est evidence OF the change or property. IL seems
clear To me that In this opinion Attorney General
Gushing felt himself at liberty 10 speak OF unofficial
acts not forbidden by law. Your question, how
ever, leaves no such scope to my reph. iou ask,
.is the President or Secretary OF The treasury au-
thorlZedT BY The words President and Sectetary'
/ understand you to refer to each IA an orlcer Ia
what each may do ofncially ny virtue ol
his office; and by the word authorized"
suppose you mean authorized by law. Thus
understanding your question answer that neither
Of those olcers is by law authorized 10 Issue the
document mentioned ia your question. and The
giving OF such document wond not bo an orilcaI
act, and the document would Itself have no Iegs
validity.
The analogy between property OF this class and
other Kinds OF property, winch | have availed my