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of mine adjacent to said mill, in the counties of Alexandria and Fairfax, in the State of Virginia, the use and benefit of all just mentioned, during the term of her natural life, together with my horses and carriages, furniture, pictures, and plate, during the term of her natural life.
“On the death of my daughter, Mary Ann Randolph Lee, all the property left to her during the term of her natural life I give and bequeath to my eldest grandson, George Washington Custis Lee, to him and his heirs forever, he, my said grandson, taking my name and arms.
My daughter, Mary A. R. Lee, has the privilege by this will of dividing my family plate among my grandchildren; but the Mount Vernon plate altogether, and every article I possess relating to Washington, and that came from Mount Vernon, is to remain with my daughter at Arlington house during said daughter's life, and at her death to go to my eldest grandson, George Washington Custis Lee, and to descend from him, entire and unchanged, to my latest posterity."
In accordance with the directions contained in this will, the articles relating to Washington, which came from Mount Vernon, remained at Arlington until early in 1862, when their presence there was made known to General Irvin McDowell by an old servant of the Lee family, to whom her mistress, when leaving, had intrusted the key of one of the cellar rooms in which they were packed. This room having been broken open, and the safe-keeping of the articles thus endangered, the faithful servant properly laid the matter before General McDowell, who was in command. Realizing that under the circumstances Arlington was not a safe place to keep articles of such historical value, and as he stated at the time, being “interested only in their preservation,” General McDowell communicated the facts to General S. Williams, Assistant Adjutant-General, in a letter dated January 7, 1862, with the suggestion that they be placed in the Patent Office or the Smithsonian Institute (see H. R. Rep. 36, 41st Cong., 2d sess.). In response he was informed by a letter from General Williams, dated January 13, 1862, that the Secretary of the Interior had “kindly
consented” that they might be placed "for safe-keeping in the National Patent Office," and was directed to send them there. In 1870, upon the suggestion of the Commissioner of Patents, these and other relics of Washington were removed to the Smithsonian Institution. There they still remain.
No steps were ever taken by the Government to divest the title of Mrs. Lee and her son to these relics, nor does it appear that the Government ever claimed ownership to them, as captured or abandoned property, or upon any ground.
In February, 1869, just before the close of President Johnson's term, Mrs. Lee applied for the restoration of the relics. The request was delivered to the President in full Cabinet meeting by Mr. Browning, then Secretary of the Interior, who afterwards stated to a committee of Congress that, upon being read, every member of the Cabinet agreed that the request of Mrs. Lee should be complied with, and it was so ordered. Before the transfer was effected an inquiry was ordered by the House of Representatives, and all further proceedings ceased. (H. R. Rep. 36, 41st Cong., 2d sess.)
In the next House, the disposition which ought to be made of these relics was the subject of a report by the Committee on Judiciary, which reached the following conclusion (H. R. Rep. 36, 41st Cong., 2d sess.; ordered printed March 7, 1870):
“These articles were the property of Mrs. Lee for her natural life, to be transmitted as heirlooms to her posterity. Mrs. Lee is the daughter and only child of George Washington Parke Custis, who was the grandson of Mrs. Martha Custis, afterwards Martha Washington, wife of the Father of His Country." She became possessed of Arlington house and estate under her father's will. That estate and these relies belonged to Mrs. Lee and not to her husband, Gen. R. E. Lee. The Federal Government never attempted by any legal proceedings to divest her title. The title appears, therefore, to be still in her alone. In the judgment of your committee the possession ought to be transferred to her.”
In October, 1870, Robert E. Lee died, and in November, 1873, he was followed by his wife, whereupon her son, George Washington Custis Lee, succeeded to the title to Arlington and the Mount Vernon relics, under the will of his grandfather. After an unavailing application to Congress for compensation, George Washington Custis Lee brought suit to recover the Arlington estate, which the Government had seized during the civil war and devoted to public use as a military fort and a national cemetery. He relied upon his title under the will of his grandfather. The defendants, agents of the Government, relied, first, upon a title based on a tax sale, and later, after the United States had intervened, upon the asserted lack of jurisdiction in the courts to pass upon the acts of the President in seizing Arlington and devoting it to public uses. The case was carried to the Supreme Court and finally decided in 1882 (U. S. v. Lee, 106 U. S., 196). The tax title was held invalid, and upon the question of jurisdiction, the Supreme Court, speaking by Mr. Justice Miller, said (p. 219):
It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the Executive branch of the Government, however clear it may be made that the Executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the Executive and the Legislative, to deprive anyone of life, liberty, or property without due process of law, or to take private property without just compensation.”
So the title under the will was sustained, and as a result the Government subsequently purchased Arlington.
Application is now made to you by George Washington Custis Lee for the return to him of the Mount Vernon relics, which he inherited under the same will that transmitted the title to Arlington, and you request my opinion upon the question whether he is the owner of these articles, and if so, whether you have power to deliver them to him.
Let the material facts in this matter be conceded and the
law of the case is plain. And all the material facts appear to be conceded. It is conceded that the Mount Vernon relics belonged to Martha Washington's grandson. It is conceded that he left them by his will to his daughter for life and then absolutely to his eldest grandson, the claimant. It is conceded that the Government never took any steps to divest the title thus transmitted, and it does not appear that in any valid way it attempted to assert any title of its own. General McDowell did not seize the relies as captured or abandoned property. They were turned over to him for safe-keeping by the servant in whose care they had been left. “Interested solely in their preservation," he received them for safe-keeping. For the same purpose the Secretary of the Interior “kindly consented” that they might be placed in the Patent Office, and for the same purpose the Government has retained possession of them to this time. It follows that the relics are the private property of George Washington Custis Lee, which he has never been deprived of hy due process of law, and to the possession of which he is justly entitled under the law.
The remaining question is whether, as Chief Executive, you have the power to deliver these articles to their rightful owner. I think you have. Your predecessor took possession of them during a time of war, when the person in whose care the owner had left them was unable to protect them, and when they were consequently exposed to the risk of destruction. Being of great historical value and of common interest to all the people, the President naturally and patriotically intervened for their preservation. But now that the need for such protection has ceased, and the owner requests their return, I believe the President has power to restore them to the person entitled under law to their possession. Their restoration now is quite as much within the scope of Executive authority as bas been their preservation. Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General. The PRESIDENT.
Where a customs entry was made in June, 1900, and additional duties
levied and collected thereon were remitted by the Secretary of the Treasury on the ground of a manifest clerical error, but at the time of the remission such duty had been paid into the Treasury, Held: That under section 24 of the Customs Administrative Act (June 10, 1890; 26 Stat., 140) the Secretary of the Treasury has authority to refund out of an appropriation for that purpose the additional duties which accrued by reason of a manifest clerical error upon an entry, within a year from the time of their payment. The authority to refund in such
case is a necessary consequence of the authority to remit. Opinion of Attorney-General Harmon of March 13, 1896 (21 Opin., 320), distinguished.
DEPARTMENT OF JUSTICE,
April 9, 1901. Sir: I have the honor to acknowledge the receipt of your communication of March 22, in which you express a doubt as to your authority to refund additional duties arising under section 32 of the act of July 24, 1897, under the following circumstances: A certain customs entry was made in June, 1900. Additional duty, amounting to $50.91, accrued thereon and was remitted by you on the ground of manifest clerical error. Thereafter it was discovered that the additional duty had been paid and covered into the Treasury.
Section 32 aforesaid, amending section 7 of the Customs Administrative Act, permits the remission of additional duties in cases arising from a manifest clerical error, and then provides that such additional duties shall not be refunded in case of exportation of the merchandise or on any other account, nor shall they be subject to the benetit of draw back.
Section 24 of the Customs Administrative Act authorizes the Secretary to refund out of a permanent, indefinite appropriation an excess of money paid to or deposited with a collector as ascertained by final liquidation in any case of unascertained or estimated duties or payments made upon appeal, and also permits the Secretary to correct manifest clerical errors in entry or liquidation at any time within one year of the date of entry. And the district court of the United States for the southern district of New York has recently decided in the case of United States v. Gray, not