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occurrence of late so frequent) to the buildings belonging to individuals on grounds originally purchased on the faith of the plan, which promised such a security. Whatever might have been my opinion on the question whether the erection of a theatre came within the power to occupy and improve these grounds for public purposes, the facts to which I have ad. verted leave no doubt with me that the President may, with propriety approve the second resolution so far as a specific purpose-the erection of a theatre-is expressed.

It may not be out of place to observe, that, in the projection of a city like this, it was natural to anticipate that a theatre would, at some day or other, be built. A city like this without a theatre, would have formed an exception from the civilized world. The people will have amusements of some sort; and a theatre I believe is one of the most innocent and elegant that can be found, adapted to tastes of all sorts. Hence it was, probably, that in projecting the plan of this city, a site was selected for a'theatre. and judiciously selected, too, I humbly think; but whether so or not, this site, it seems, was published to the world as constituting part of the permanent plan of the city, and, in all probability, afforded an inducement to purchasers, either from its contiguity, its remoteness, or the security which its position promised to private dwellings. I consider sales made under the public exhibition of this plan, as amounting to a contract between the public and the individual purchasers, from which it would be unwarrantable to depart. ..

You will observe that the correctness of this reasoning depends on the correctness of the supposition that the plan of the city, which has been exhibited to me by the mayor, who handed me your communication, is a true copy of the original plan, so far as the site for a theatre is concerned, as it is certified by Doctor Thornton to be.

2. As to the manner in which the President should express his assent to an act of the corporation, I observe that the practice has been to do it precisely in the form in which the President approves an act of Congress. I have the honor, &c., &c.,

To the PRESIDENT OF THE UNITED STATES.

WM. WIRT.

LIGHT-HOUSE AT THE MOUTH OF THE MISSISSIPPI.

The contractor to build a light-house at the mouth of the Mississippi is not answerable for the failure of the foundation unless the choice of the same be left to himself.

OFFICE OF THE ATTORNEY GENERAL,

June 6, 1820.

SIR: If the undertaker to build a light-house at the mouth of the Mississippi had contracted to build a house of particular dimensions, the choice of the foundation being left to himself, he would have been bound to have made a sufficient foundation to support the building, and would have been answerable in damages if it had failed. But, inasmuch as in the contract with Winslow Lewis the United States specify the particular foundation which they will have, I am of the opinion that, if the contractor complied faithfully with this specification in laying the foundation, he is not answerable for its failure. In this case, if either party is to be

considered the insurer of the foundation, it is the party who made the selection to wit, the United States; and the undertaker would, I think, in a suit against him, be permitted to retain so much of the advance as would cover the cost of the materials and labor furnished by him towards the work, so far as it went.

If, on the contrary, the foundation was not that for which the United States stipulated, then the undertaker is answerable on his bond, and would be forced not merely to refund the advance which he has received, but to answer in damages for the breach of his undertaking.

I have the honor, &c., &c., &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

THE NEW MADRID CERTIFICATES.

When a New Madrid certificate calls for a quantity of land greater than 160 acres and less than 640, and it becomes necessary to subdivide a quarter section, it should only be done by making the subdividing line parallel and co-extensive with the line of the contiguous quarter. May be located on a fractional section, or part of it, but not so as to appropriate all of the local advantages to the injury of the public.

Locations made in a square, previous to the sectional lines being run, &c., are inadmissible, as the sale is unauthorized until the sectional lines are run.

Holders may take less than 160 acres, provided they can find such a tract liable to sale.

OFFICE OF THE ATTORNEY GENERAL,

June 19, 1820.

SIR: Major Berry's letter of the 17th instant, which you have done me the honor to submit for my opinion, proposes that patents may issue under the act of Congress of the 17th February, 1815, "for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes," in four classes of cases, which I shall consider in the order presented by him:

1. "That patents may issue upon locations made upon certificates for more than 160 acres and less than 640, where the locater takes one or more quarter sections, and so much of an adjoining one as will make the quantity."

In the communication which I had the honor to make to you on the 11th of the last month, I expressed the opinion that it was not the intention of Congress, in this act of charity to the New Madrid sufferers, to permit them, by their locations, to break in upon the plan of sections and their subdivisions which had been adopted for the sale of these territo ries; and I inferred this from the circumstances, that where a sufferer had lost less than a quarter section, he was still permitted to locate that quan tity; and where he had lost more than a whole section, he was reduced, in his right of location, to one entire section; both which regulations are departures from the general and avowed object of the law, (which was to give them the exact quantity they had lost;) and for the adoption of which the manifest reason was, to preserve the entire system as far as it could be preserved. I am still of this opinion. These two cases, however, of the sufferer who had lost less than a quarter section, or more than a whole section, (the only two cases in which Congress has given an explicit direction,) will not furnish an answer to the case proposed by Major Berry,

which is that of a sufferer who has lost more than a quartor section, and less than a whole one; and yet a quantity not coinciding with any subdivision of the section. In this case, the only guide given us by the act is, that the party shall have the like quantity of land with that which he has lost; and if to give him this like quantity it becomes necessary to subdivide a quarter section, I do not perceive that it can be avoided consistently with the avowed object of the law. In making this subdivision, however, the policy of the law should be so far respected as not to change the rectangular and quadrilateral form of the residue of the quarter sec. tion; which can be effected only by making the subdividing line parallel and co-extensive with the line of the contiguous quarter section which forms a part of his location. Suppose, for example, the party be entitled to 200 acres: he will take one quarter section-160 acres; and from either of the adjoining quarter sections of the same section he will take 40 acres, to be cut off from it by a line parallel and co-extensive with the line of the quarter section which he has previously chosen. By this means he will get the exact quantity to which he is entitled which meets the express object of the law; and he will get it in the form which interferes the least with the admirable system of our territorial surveys, which so far respects the manifest wish of Congress apparent on the face of the act. No other method occurs which so well attains both these purposes. proceed to consider Major Berry's second proposition.

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2. "That a location may be made to take so much of a fractional section or sections as will make the quantity, where the sections are made so by the river or private claims."

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The act authorizes the sufferers to locate the like quantity of land on "any of the public lands of the said Territory, the sale of which is authorized by law. The sale of fractional sections being authorized by law, they are, consequently, open to the location of the sufferers: this, as a general position, appears to me unavoidable under the language of this law. If a quarter section and a fractional section together will make the quantity to which the party is entitled, I do not perceive that it can be refused to him; or if a fractional section alone will make the quantity, I should think him entitled to it, as the law now stands; but if there be any local advantage attached to such fractional section (e. g., if one side of it be washed by a river,) he ought not to be permitted so to decide it as to monopolize the whole of this advantage to himself, but to apportion it equally between the part which he takes and that which he leaves. So, if the quantity to which he is entitled under the law would require several fractional sections to make the complement, bounded by a river, or any other local advantage, the party should not be permitted to string his locations along the shore, so as to pass from one range of sections into another, and thereby to engross the shore to himself; for this would be to abuse the charity of the law, to the public detriment. It is dangerous to give a general answer to a general and abstract question like this; for that which is true in the general, often becomes erroneous and unjust in its application to particular cases. It is better to put the specific case, and, if necessary, to accompany it by a diagram.

3. "That locations made in a square previous to the sectional lines being run, &c., &c., &c., shall be patented."

This is wholly inadmissible. The authority given is to make these locations on any of the public lands of the Territory the sale of which is

authorized by law. But the sale is not authorized by law until the sectional lines are run; and, consequently, all locations previously made by those sufferers are unauthorized. The circumstance of their being located in a square, is perfectly immaterial to the policy of the law; for, although in a square, they may not, and most probably will not, quadrate with the sectional lines of the general survey, since squares may lie to any and to every point of the compass-no two contiguous squares quadrating together; whereas the sectional scheme calls for parallel lines throughout the whole Territory.

4. "And, lastly, that where a location shall be made upon a certificate issued in lieu of a town lot, certifying that the claimant may locate any quantity not exceeding 160 acres, and the claimant shall, at his option, locate a piece of land bounded by other claims, so that the whole quantity cannot be had, a patent shall issue for the location."

As a general proposition, this, I think, is to be answered affirmatively; though a diagram in the particular case might change my opinion. The law does not say that the party who has lost less then 160 acres shall locate that precise quantity; but that he is authorized to locate and obtain any quantity of land not exceeding 160 acres. He may, consequently, if he chooses, take less than 160 acres, if he can find a less quantity together coming within the description of public lands, the sale of which is authorized by law.

The law is imperfect, and requires amendment. The opinions which I have expressed appear to me to correspond with the intention of Congress, so far as that intention is discoverable on the face of this act; yet the case is far from being one of absolute certainty.

I have the honor, &c., &c., &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

RIGHTS OF DEFENDANTS IN PATENT SUITS.

A defendant, when sued by a patentee for an alleged violation of his patent-right, has a right to a copy of the specifications for use on the trial, in order to enable him to show, if he can, that the specification does not contain the whole truth relative to the discovery, or that it contains more than is necessary to the effect desired; and, as the law gives this privilege, it by implication gives the right of using the specification openly and publicly in court. The established forms of jury trials, in other cases, cannot be departed from in patent cases, even though patentees may desire secrecy. Nolumus leges mutari, etc.

OFFICE OF THE ATTORNEY GENERAL, June 20, 1820. SIR: During my late absence in Richmond, a communication was left at this office from your department, covering a letter from Mr. Ingersoll, of Philadelphia, to you, and an answer thereto from Dr. Thornton, the superintendent of the Patent Office, endorsed on the envelope "A patent case for the consideration and opinion of the Attorney General;" from which I infer that my opinion is desired only on the particular case which

has arisen.

The case I understand to be this: A defendant, sued by a patentee for an alleged violation of his patent right, has obtained, through his counsel, a copy of the specification filed by the patentee in the Patent Office, as a document material to his defence; but the copy is accompanied by a

request that it may be used only for legal and necessary purposes, lest the secret of the discovery should become public, and the patentee should thereby lose the benefit of his exclusive right. The counsel replies that the paper, having been procured for the defence of his client, must of necessity be shown to that client; and that, being an official exemplification of a public document, he cannot consent to hold it under any restriction or injunction of secrecy whatever. To this disclosure of the paper to the defendant, the superintendent of the Patent Office is understood to object; and, if the paper is to go before the jury, he requires that it shall pass through the hands of the court only; that the jury shall have a special oath of secrecy administered to them; and, as necessary to this concealment, I presume it is intended that there shall be no open discussion at the bar on the specification, but that the whole trial shall be in secret. However desirable it might be, in the class of cases to which the superintendent alludes, (those in which the benefit of the discovery might be used in secret,) that the law were thus, I have only to say that the law is not so written. The 6th section of the act of 1793 permits the defendant to protect himself by proving, inter alia, that the specification filed by the plaintiff in the Patent Office does not contain the whole truth relative to his discovery, or that it contains more than was necessary to produce the desired effect, &c., &c. How can he avail himself of this privilege, but by calling for a copy of the specification, so as to enable him to collect and bring his proofs to bear on it? When the law gives a privilege, it gives, by unavoidable implication, all the means of using it. Every defendant, therefore, to an action charging him with the violation of a patent-right, has a right, as soon as he is made a defendant, to call for a copy of the plaintiff's specification; and the superintendent of the Patent Office is bound to furnish it on payment of the fees prescribed by the 11th section of the law; and the defendant has the same right to use the specification on the trial-and to use it in the same way, too, as any other piece of evidence whatever; that is, not merely to exhibit it, but to illustrate by argument the purpose for which he introduces it.

As to changing the established forms of jury trials, in patent cases, by clearing the court-house of the suitors, shutting the doors, silencing the counsel, and swearing the jury to secrecy, it is only necessary to say that, if it were proposed, the answer from the bench would be, “Nolumus leges mutari."

I have the honor to be, sir, most respectfully, your obedient servant, WM. WIRT.

To the SECRETARY OF STATE.

EXECUTION OF A CONSULAR BOND.

Attestation is not essential to the validity of a consular bond,

OFFICE OF THE ATTORNEY General,

June 30, 1820.

SIR: I know not by what accident your communication enclosing Mr. Strong's bond of office has been misplaced, so as never to have been

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