(Snm^ll llaui ^rl|ooI ©bratg Cornell University Library KF 5406.A62U581 1885 Digest of the Official opinions of the A 3 1924 019 970 809 Cornell University Library 3j The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019970809 48th Congeess, ) HOUSE OF EEPEESENTATIVES. i Mis. Doc. 2d iiession. i i No. 15. DIGEST THE OFFICIAL OPINIONS COMPRISING ALL OF THE PUBLISHED OPINIONS CONTAINED IN VOLUMES I. TO XVI. INCLUSIVE, AND EMBEACING THE PEEIOD PEOM 1789 TO 1881. PEEPAEBD BY A, J. BENTLEY, ESQ. [PUBLISHED BY AUTHORITY OF CONGRESS.] WASHINGTON: GOVERNMENT PRINTING OFFICE. 1885. INDEX OF TITLES, TOGETHER WITH THEIR PRIlSrCIPAL SUBDIVISIONS. Note. — The titles printed in italics contain cross-references only. < Page. Accounts ..- 1 1. Generally 1 3. Eendition 1 3. Adjustment 2 4. Eeopening 4 5. Property Accounts (Army) ■. 6 Accounting Officees 6 1. Generally r 6 2. Powers and Duties 7 3. Effect of Settlement by 10 4. Appeal from 10 Administeative Practice 11 Adminisirator 11 Advertisement 11 Agent 13 Agent of the Teeasuey 14 Ageicultueal Fund 14 Alaska 14 Aliens 15 Allotment Checks 16 Allowances 16 Ambassador 16 Annuity 16 Appeal 16 Appointment 17 Appeopeiations , 17 1. Generally 17 2. Transfer of.- - -■ 19 3. Unexpended Balances 20 III IV INDEX OF TITLES. Page. Aekansas 22 Aemy 22 1. Generally -— 22 2. AppoiBtment and Promotion ., 24 3. Brevets 27 4. Bank - 28 5. Relative Rank 28 6. Transfer of Officer 29 7. Resignation 30 8. Holding Civil Office 30 9. Dismissal or Removal of an Officer 31 10. Restoration of Lost Rank 31 11. Allowances to Of&cers 32 12. Pay Accounts of Officers 33 13. Longevity 34 14. Examining Board 34 15. Retired List 34 16. Enlistment 35 17. Minors - 36 18. Stoppage of Pay 37 19. Money of Enlisted Persons 37 20. Furlough 37 21. Discharge — .. 37 22. Regulations— — 38 23. Civil Authorities 38 Armsfm- the Militia 39 Aeeest 39 Assignment 40 Attachment 40 Attoeney-Gkneeal 40 Banks and Bankers 45 Bankrupt ,._ 46 Bequest op James Smithson 46 Belligerents 46 Bids and Bidders 46 Bill of Exchange 46 Blockade , 46 Bond 47 1. Generally 47 2. Official Bonds - , 47 3. Other Bonds 49 Bonds poe Pacific Raileoad Company 49 Bonds of the United States :, 49 Booty 50 INDh.X OF TITLES. V Page. Boston Post- Office-.- 51 boundaeies 51 Bounty -_- _ _ __ 51 1. Generally 51 2. Colored Soldiers 53 3. Indian Troops 53 4. Forfeiture of 53 Bounty Land 53 Branch Mint at New Oeleans 55 Srevet 55 Bridges 55 Cadet 56 Canal-Boat 56 Capture 56 Captured and Abandoned Property 56 Caveat J . 56 Cession op Jurisdiction » 56 Checks 57 Chiriqui Improvement Company 57 Citizenship 57 Oivil Engineer 60 Civil War 60 Claim Agent 60 Claims 61 1. Generally . 61 2. Against Foreign Government 69 3. Under Treaties with Foreign Nations 69 4. Under Indian Treaties I 72 5. Under Special Acts 73 6. Under Contracts 75 7. For Damages 76 8. Services 77 9. Army Supplies 77 10. Property Lost or Destroyed in the Military Service ..- 78 11. Proceeds of Cotton Seized and Sold 81 12. From States in Insurrection : 82 13. Infringement of Patent 84 14. Eeimbursement for Expenditures 84 15. For Indian Depredations 84 16. Of Colored Soldiers and Sailors 85 17. Of States 85 18. Oaths in Support of- 86 19. Transmission of, to Court of Claims 87 20. Assignment of - 87 VI INDEX OF TITLES. Page. Claims — Continued. 21. Settlement of. ._. 87 22. Eeconsideration and Eeadjustment of 88 23.. Payment of - 89^ 24. Of the United States 92 Cleeks of Cotjets 92 Coasting Trade 92 Coast Suevey 9S Collector of Oustoms - 9S COMMEEOB AND NAVIGATION 93^ 1. Eegistry of Vessels 93 2. Enrollment and License of Vessels 94 3. Tonnage Duties - 94 4. Foreign and Coasting Trade 95 5. Fees Collected from Vessels 9& 6. Officers of Steam Vessels » . 96 7. Inspection of Steam Vessels 96 8. Obstruction to Navigation 96 9. Improvement of Navigable Waters 97 commissionee of intbenal revenue 98 commissioneb op pensions : 98 Compensation 98 1. Generally - 98 2. Officers, &c., in the Civil Service - 98 3. Officers, &c., in the Military Service 112 4. Officers, &c., in the Naval Service - 118 5. Officers, &c., in the Marine Corps 122 6. Counsel Employed by Head of Department 122 7. Where Officer Holds more than One Office.- 123 8. Extra Pay 123 9. Withholding Pay 128 compeomise 128 confedeeate debt „ 129 Confiscation 129 Conflict of Laws '. 129 congeess 129 CONGEESSIONAL PeINTBE 130 Conquest 130 Constitutional Law , 131 Convicts 132 Conml - — - 132 Consulae Court 132 Contract - - '■ 134 1. Generally 134 INDEX OF TITLES. Vir „ Page. CoNTEACT — Continued. 2. Authority to Make. — Parties _ _ _ 142 3. Advertisement. — Proposals. — Bidders, &o ' 145 4. Condition , 148 5. Assignment of. — Annulment 149^ 6. Error. — Eescission. — Forfeiture. — Damages 150 7. Release of Contractor 152 8. Payment 152 Conveyance 153 Coolies 153 copyeight... 153 coepoeation's 153 Costs - 154 Counsel 154 COUETS 155 1. Jurisdiction 155 2. Eemoval of Causes 156- 3. Foreign 156. Cotjet-Maetial , 157 1. GeneiuUy . 157 2. Jurisdiction 158 3. Accuser or Prosecutor 160 4. Proceedings 160 5. Sentence ^. 163 6. Eeconsideration of Judgment 166 7. Disapproval of Proceedings. — New Trial 166 8. Employment of Counsel 167 CouET OF Claims . 167 COTTET OF INQUIEY 167 COUET OP Eecoed - .. 167 Ceimes and Misdemeanoes 167 cumbbeland eoad 169 CusTOM-HousE Lot at San Feancisco 169 Customs Laws ^' 169 1. Generally - --- 169 2. Officers of Customs 171 3. Entry of Dutiable Merchandise 172 4. Transportation in Bond 173 5. Withdrawal for Exportation ■ 173 6. Bonds for the Payment of Duties 173 7. Duties and the Collection thereof 174 8. Damages on Dutiable Merchandise 177 9. Drawback. — Eebate. — Exemption , 178 10. Forfeitures, Penalties, and Fines. — Seizure 179 VIII INDEX OF TITLES. Pftge. Customs Laws — Continued.. 11. Storage ^80 12. Distribution of Proceeds of Fines, Penalties, and Forfeitures 180 13. Eefundof Duties, Tonnage, &c ^^1 14. Appeals to the Secretary of the Treasury 183 DAMAGES---, 183 Deed 184 Demueeage 184 Department of Justice 185 Deposit of Public Funds 185 Deeelict 185 Descent 185 Desertion 185 Devise 185 Diplomatic and Consulae Oppicees 185 1. Ambassadors, other Public Ministers, &c 185 2. Consuls, Vice-Consuls, Commercial Agents, &c 188 Dieect-Tax Law 192 disbuesement op public moneys 193 Discharge 194 Dismal Swamp Canal : 194 Dismissal 194 Disposal of old Mateeial 194 DiSTEICT Attoeney 194 DiSTEICT COUET of THE UNITED STATES 196 DiSTEICT OF Columbia - 196 1. Generally 196 2. Commissioners of 198 3. Police Board.— Board of Health.-. 198 4. Sinking Fund 199 5. Bonds and other Securities of 199 Domestic Violence in States 200 Domicile 200 DOWEE 200 Drafts op Foeeign Goveenment 200 Dravibaclc 201 Duties 201 Easement 201 EiGHT-HouE Law 201 Eminent Domain 202 Enlistment 203 Enrollment of Vessels 203 Evidence 203 Exclusive Jurisdiction 204 INDEX OP TITLES. IX Page. Execution of Capital Sentences 204 Executive Depaetments 204 executoes and administrators _. 206 Expatriation , 208 Exportation of Arms and Munitions of War 210 exteeeitoeiality 210 Extradition 210 Extra Fay - 214 Fees and Costs 214 Fines, Penalties, and Forfeitures 216 Fishing Bounties . 217 Florida Bonds _ ..... 217 Foreign Coins 217 Foreign Enlistment 218 Foreign Government 218 1. Eeclamation 218 2. Violation of Eevenue Laws of 219 Foreign Intercourse Fund 219 Foreign Mails 219 Forfeiture — 219 Fort Snelling — 219 Franchise 220 Feankinq Privilege.. 220 Freedmen's Bureau ." 220 Feeedman's Savings and Teust Company 222 Funded Debt 222 Furlough 222 Geneeal Aveeage 222 General Land Office 223 Grant to the United States 223 Guano Islands 224 Habeas Corpus 224 Harper's Ferry 226 Hbad-Money 226 Hospital foe the Insane -.. 226 Hot Springs 226 Indemnity 227 Indian Agents and Agencies., 227 Indian Country 227 Indian Depredations 227 Indians ^ 227 1. Generally .--. 227 2. Trade with. — Contracts. — Intercourse Laws 229 3. Lands of. — Trespass.— Sales and Conveyances by 230 X INDEX OF TITLES. Page;. Indians — Continued. 4. Annuities. — Trust Funds of. — Investments for 2^* 5. Employment of, in Co-operation with Troops ^'^^ 6. Hostilities.— War 232 7. Jurisdiction of Indian Courts 233: Indian Teeeitoey 233 infoemees 233- INSOLVENT DEBTOE 234 Insurt-ection 234 INTEEEST 235 Interior Department ■ 238- INIEENAL Revenue 23& 1. Generally 238- 2. Collection Districts 241 3. States and Municipal Corporations 241 4. Banks and Bankers 242 5. Salaries ' — 243 6. Export Bond 243- 7. Distiller's Bond.— Surety on 24a 8. Stamps 243 9. Refunding 244 10. Forfeiture. — Compromise 245- 11. Informer's Share 246 12. Property in Custody, &c., of Court 24ff Inteenational Exhibition 247 inteenational law 247 1. Generally 247 2. Claims for Indemnity 249' 3. Exterritoriality 250' 4. Jurisdiction of Local Authorities , 251 5. Sea Letter 251 Invalid and Disabled Soldiees 251 Isthmus op Panama 252 Judgment 252: JUDiciAEY Fund 252 JUEISDICTION 252 JUEY DE MEDIETATE 253 Lakes 253 Land-Geant Roads , 253 Lands Acquieed foe Public Uses 254 1. Generally 254 2. Exclusive Jurisdiction over 254 3. License to Occupy 256 4. National Cemeteries 25& INDEX OF TITLES. XI Page. IiANDS USTDBE NAVIGABLE WATEKS 256 Lease 25S Legal Representatives 257 Legal Tender 257 Letter of Marqitb 257 Libel 257 Liberia 257 License of Vessels 257 Lien 258 Lime Point, California ._ 258 Limitation 258 1. Civil and Crimipal Proceedings 258 2. MiHtaiy Offenses - - 258 Louisville AND Portland Canal 260 Mail Contractor 260 Mail Depredations 260 Mail Transportation 260 Marine Corps 260 1. Generally 260 2. Brevets- - -- 261 3. Appointment and Dismissal of Officers 261 4. Eetired List - 262 Marine-Hospital Tax - — 262 Mariner 262 Marriage 262 Marshal 263 Martial Law -- 265 Mexican Contribution. 265 Mileage 265 Military Academy 265 Military Commission 267 Military Law 267 Military Salvage — - 267 Military Storekeeper 267 Militia and Volunteers 268 1. Generally - - 268 2. Clothing, Traveling, and other Allowances 268 3. Arms for Militia 269 4. Draft - - - — -- 269 Minor 270 Mitigation of Fines, Penalties, amd Forfeitures — - - 270 Money-Orders - — - — 270 Moneys Paid into United* States Courts 270 Mutiny - - ^70 XII INDEX OF TITLES. Page. National Asylum foe Disabled Voluntbees --- ^^■'■ National Banking Associations -- ^"^^ National Boaed opi Health ^^^ National Cemetery-' ^'" Nationality 272 National Militaey and Naval Asylum '^^ Naval Academy '^^ Naval Pension Fund 274 Navigable Waters ~ 274 Namgation 274 Navy - — 274 1. Generally - - - 274 2. Appomtment and Promotion 276 3. Eelative Rank - 277 4. Transfer of officer 278 5. Sea Service 278 6. Allowance to officers 279 7. Dismissal from the Service 279 8. Examining Board. — Efficiency Acts 279 9. Retired List - 280 10. Pay Corps 281 11. CivU Engineers - - 282 12. Enlistment — - 282 13. Eegulations — -- 283 Navy Agent 283 Navy Department 283 Negligence 283 Negotiable Papee 283 Negeoes 284 Neuteality 284 Neuteal Teeeitoey 287 Oath op Allegiance 287 Office 287 1. Appointment 287 2. Acceptance 294 3. Oath of Office 294 4. Term and Tenure 295 5. Holding Over 296 6. Performing Duties of More than One Office 297 7. PluraUty of Offices 297 8. Eligibility.— Disability 297 9. Suspension. — Removal 297 10. Resignation 299 11. Abeyance. — Vacancy 300 12. Office of Trust 301 INDEX OF TITLES. XIII Page. Officer 301 Official Bond 302 Official Envelope and Postage Stamps 302 Official Signature 302 Pacific Railroads 303 Pardon 305 Partnership Assets 308 Passenger Laws 308 Passport 309 Patent Office 309 Patents for Inventions 310 1. Generally 310 2. Patentability of Invention 311 3. Application. — Claim and Specification. — Caveat 311 4. Appeal from Commissioner 312 5. Surrender and Reissue 313 6. Extension of Patent 313 7. Correction of Patent 314 8. Assignment 314 9. Eights of Patentees 314 Payment 315 Pea Patch Island 318 Pennsylvania Reserve Regiments 318 Pension Agencies and Agents 318 Pensions 319 1. Generally 319 2. War of the Revolution, including Pensions to "Widows of OfBceJs, &c., who served therein . 322 3. Invalid Pensions (Army) subsequent to the Revolution 325 4. Invalid Pensions (Navy) subsequent to the Revolution 326 5. Widows, Children, &c. (Army and Navy) 327 6. For Service in War of 1812 ._— 332 7. Virginia Half Pay 333 Piracy 332 Posse Comitatus 333 Postal Service 333 1. Generally , 333 2. Bids and Contracts for Carrying the Mail. — Subletting Contract. — Annul- ment of Contract. — Damages 335 3. Mail Contractors. — Sureties. — Their Liability 339 4. Mail Transportation. — Extra Allowance. — Deduction for Non-performance of Service 340 5. Compromise, &c., of Claim against Contractor.— Remission of Forfeiture of his Pay, &c 342 XIV INDEX OF TITLES. Page. Postal Sbevice — Continued. 6. Foreign Mails 3*3 7. Matter Excluded from the MaU — - 344 8. Postage. — Stamps. — Metric System 344 9. Delivery of Letters. — Letter Carriers. — Newspapers 345 10. Detention of MaU Matter 347 11. Mail Depredations. — Special Agents 347 POSTMASTEE-GrENEEAL 347 Post-Office Department 348 Post-Teadee 348 PowEE OF Attobney -- 348 POWEES AND TETJSTS 349 Pre-emption 349 Peesents 349 Peesident 350 Peesidential Mansion ■■ 357 Peinting ^ 357 Peioeity 357 Peisonees of Wae 358 Peivileged Communication 358 Peizk — - 359 Peocess 1 362 Promotion 362 Peopeety of United States _ 363 Proposals 363 Public Aems 363 Public Buildings 363 Public Lands , 364 1. Generally ^ 364 2. Disposal of. — Public Sales. — Private Entries 365 3. Pre-emption 367 4. Purchase by Aliens 373 5. Eefii Tiding Purchase Money 372 6. Land Warrants and Scrip. — Virginia Military Scrip 373 7. Land Warrants obtained by Fraud 375 8. Surveys 375 9. New Madrid Certiflcates. — Location 376 10. Town Sites 376 11. Suspended Entries 377 12. Patent 377 13. Statutory Grant 380 14. School Laud Grants 381 15. Swamp Land Grants 381 16. Grants in aid of Canals, Railroads, &c 381 INDEX OF TITLES. XV Public Lands— Continued. ^^^^' 17. Indemnity for Lost Granted Lands 389 18. State Selections under Grants thereto 392 19. Salt Springs 393 20. Mineral Lands 393 21. Eeservations for Public Use.— Sale of Military Sites 395 22. Claims under Indian Treaties 395 23. Private Land Claims in California : 396 24. Private Land Claims in Florida 399 25. Private Land (including Back Land Pre-emption) Claims in Louisiana 399 26. Private Land Claims in Michigan 402 27. Private Land Claims in Mississippi Territory 402 28. Private Land Claims in Missouri and Arkansas 402 29. Private Land Claims in New Mexico 404 30. Private (including Donation) Land Claims in Oregon 405 31. Missionary Stations 405 32. Indian Title 405 33. Intruders. — Cutting or Removal of Timber 405 34. Construction of Eoad through , 406 35. Registers and Receivers 407 Public Loans 407 Public Moneys 408 Public Papees--- , 409 Public Wobks 409 PuGET Sound Ageicultueal Company 410 Purchase of Land 410 puepeestuee 411 <3uaeantine 411 Sank 411 Hansom Money, &c 412 Jlebate 412 Rebellion 412 Receipt foe Payment 412 Reconsteuction Laws 412 Sefund of Duties 413 Begislers and Becewera — 413 Begislry of Vessels 413 Regulations 413 Belative Bank ... 413 Relief of George Mattingly 414 Bemission of Fines, Penalties, and Forfeitures 414 Bemoval 414 Bemoval of Causes 414 Reprisal -- - 414 XVI INDEX OF TITLES. Page; Eequisition foe Payment... ^^^ Eesebvatiosts '^-'-^ 1. Indian . - ^14 2. Military 418 Resignation 420 Ees Judicata 420 Retired Officer 421 Eevenue-Maeinb Seevicb 421 Eevised Statutes 422 Eight of Way 427 EiPAEiAN Eights. 427 ElVERS AND HAEBOES 427 EocK Island Beidge 427 EocK Island Militaey Eeseevation 428 Eogatoey Commission 428 Safe-Conduit -.-. 428 Sale of Aems 428 Sale of Militaey Sites 423 Salvage 428 School Lands 429 Seamen 429 Seceetaey of State 431 Seceetaey of the Inteeioe 432 Seceetaey op the Navy 432 Seceetaey of the Teeasuey 432 Seceetaey op "Wae 434 Seizueb 434 Set-Off 435 Shipping 437 Shoees and Beds of Navigable Watees 438 Silvee Coin 438 Slaves 438 Slave Teade 440 Smithsonian Institution 443 Soldiees' Home 443 SoLioiTOE op the Teeasuey 443 South Pass op the Mississippi Eivee 444 State Depaetment 447 State Officer 447 State Peocess 447 State Taxes 447 Statutes 443 1. Generally 443 2. Publication 449 INDEX OF TITLES. XVII Statutes— Continued. ' ''^'^' 3. Construction 449 4. Repeal. 450 Steam Vessels 456 Stolen Peopeety 456 Stoppage in Teansitu 456 Stoppage of Pav 456 Storage 456 Subsidiary Silver Coin 456 Suits and Peoceedings rs Couets 456 Supreme Couet • 459 Surety 459 SuEPLUs Fund * 46i Suspension 461 SUTLEE 4G1 Swamp Lands 462 Taxes 462 Telegeaph 462 Teeeitories 464 Texas Bonds 467 Texas Colonization Grants 467 Time 467 Title 467 Tonnage 468 Teade-Maek 468 Teanspoetation 468 Traveling Allowances 469 Treasury 470 Treasury Department 470 Treasury Notes 470 Treaties 470 1. Generally 470 2. With Indian Tribes 471 3. "With Foreign Nations 477 Ultra Viees -' 482 United States 482 United States Bank 483 United States Commissionee 484 Vessel 484 Virginia Bounty Land-Waeeants 484 Virginia Military Bounty Lands 485 Wae Department 485 Washington Aqueduct 486 Washington City 486 DIG II XVIII INDEX OF TITLES. Page. ■Washington Monument 488 West Point 488 Will ^ 489 Wisconsin 489 Witness 490 Weeck 490 Weits op Eeroe and Appeals 491 A LIST Of the Attorneys-General of the United States who were appointed and served within the period embraced hy this Digest, viz, from the year 1789 to the year 1881, arranged in chro- nological order according to their terms of service respectively. 1789-1794, Hon. Edmund Randolph, of Virginia. 1794-179^, Hon. "William Bradford, of Pennsylvania. 1795-1801, Hon. Charles Lee, of Virginia. 1801-1805, Hon. Levi Lincoln, of Massachusetts. 1805, Hon. Eobert Smith, of Maryland. 1805-1807, Hon. John Breckinridge, of Kentucky. 1807-1811. Hon. Csesar A. Eodney, of Delaware. 1811-1814, Hon. William Pinkney, of Maryland. 1814-1817, Hon. Richard Rush, of Pennsylvania. 1817-1829, Hon. William Wirt, of Virginia. 1829-1831, Hon. John M. Berrien, of Georgia. 1831-1833, Hon. Roger B. Taney, of Maryland. 1833-1838, Hon. Benjamin F. Butler, of New York. 1838-1840, Hon. Felix Grundy, of Tennessee. 1840-1841, Hon. Henry D. Gilpin, of Pennsylvania. 1841, Hon. John J. Crittenden, of Kentucky (see seventh line below). 1841-1843, Hon. Hugh S. Legar^, of South Carolina. 1843-1845, Hon. John Nelson, of Maryland. 1845-1846, Hon. John Y. Mason, of Virginia. 1846-1848, Hon. Nathan Cliflford, of Maine. 1848-1849, Hon. Isaac Toucey, of Connecticut. 1849-1850, Hon. Eeverdy Johnson, of Maryland. 1850-1853, Hon. John J. Crittenden, of Kentucky. 1853-1857, Hon. Caleb Cashing, of Massachusetts. 1857-1860, Hon. Jeremiah S. Black, of Pennsylvania. 1860-1861, Hon. Edwin M. Stanton, of Ohio. 1861-1864, Hon. Edward Bates, of Missouri. 1864-1866, Hon. James Speed, of Kentucky. 1866-1868, Hon. Henry Stanbery, of Ohio. 1868, Hon. O. H. Browning, of Illinois {ad interim). 1868-1869, Hon. William M. Evarts, of New York. 1869-1870, Hon. Ebenezer Rookwood Hoar, of Massachusetts. 1870-1872, Hon. Amos T. Akerman, of Georgia. 1872-1875, Hon George H. Williams, of Oregon. 1875-1876, Hon. Edwards Pierrepont, of New York. 1876-1877, Hon. Alphonso Taft, of Ohio. 1877-1881, Hon. Charles Devens, of Massachusetts. DIGEST OF OPIMONS ATTORFETS-GEMEAL OF THE UNITED STATES. ACCOUNTS. See also Accounting Offiobes; Claims. I. Gimerally. II. Bendition. III. Adjustment- IV. Beopening. V. Property Accounts (Army). I. Generally. 1. The acoounte of Army contractors should be settled by the accounting officers. If they have any doubts on questions of law, arising in the course of the settlement, they will state them to the head of the Department, who, if he please, may call for the opinion of the At- torney-General. Opinion of July 27, 1824, 1 Op. 678. 2. The interference of the President in any form with the settlement would be illegal. He has no official connection with the settlement of such accounts; and so far from being called upon to interpose any directions to the account- ing officers, it would be an unauthorized as- sumption of authority for him to interfere at all. Ibid. 3. The late commissioners to hold treaties with the Chickasaw and Choctaw Indians are not bound to account to the Government for the depreciation of the money deposited by them in bank to the credit of the Treasurer of the United States. Opinion of June 8, 1830, 2 Op. -346. 4. The act of August 2, 1861, chap. 37, does not transfer the settlement of the accounts of district attorneys and marshals to the Attor- ney-General's Office. Opinion of Aug. 10, 1861, 10 Op. 95. 5. Duties of the accounting officers of the Treasury as to the auditing of the accounts of the State of Indiana, under the provisions of the act of March 29, 1867, chap. 14, to reim- burse that State for moneys expended in en- roUiug and equipping troops to aid in suppress- ing the rebellion, defined. Opinion of Feb. 19, 1870, 13 Op. 218. II. Rendition. 6. The clerk of the circuit court of the Dis- trict of Columbia, who is also clerk of the criminal court of the District, is bound to ac- count to the Treasury for the fees which he receives in the latter capacity. Opinion of March 2, 1854, 6 Op. 388. 7. The clerks of the district courts of the United States in California are bound to ren- der to the Treasury an emolument account equally with clerks of other districts. Opinion of May 1, 1854, 6 Op. 433. 8. The provision in section 3622, Rev. Stat., giving the Secretary of the Treasury power, when, in his opinion, the circumstances of the case justify and require it, to extend the time prescribed for the rendition of accounts, does not authorize him to institute a new system of rendering accounts — e. g., by permitting dis- bursing officers to render their accounts bi- ACCOUNTS, III. monthly, quarterly, or at longer intervals, in- stead of monthly, as now required. Opinion of Dec. 2, 1878, 16 Op. 222. 9. That provision is intended only to enable the Secretary of the Treasury to deal with par- ticular cases wherein accidental circumstances make it proper to give more time for the ren- dition of the accounts, by way of exception to the general rule. Ibid. III. Adjustment. 10. The first section of the act of March 2, 1833, chap. 123, for the relief of Colonel Car- ter, assumes that the item of $1,860 has been paid, and provides for the immediate payment of a gross sum in addition to the amount be- fore received, without authorizing the account- ing of&cers to open the former account or to re- adjust it. It is, therefore, a provision by itself, and should be so considered i n reference to other matters provided for in said act. Opinion of April 23, 1834, 2 Op. 640. 11. The second section provides for the settle- ment of various other accounts — i. e. , those ac- counts only which, on the 2d March, 1833, were unadjusted and unsettled between him and the Government. In settling these ac- counts the accounting officers may proceed and settle any one or more of the separate accounts referred to in the papers, for the claimant is entitled to such a settlement. Ihid. 12. How far it may be proper to make par- tial settlements of either of the separate ac- counts is a question of convenience and discre- tion; but it occurs to the Attorney-General that what may be required by justice and equity in respect to the accounts under each contract cannot very well be ascertained with- out a view of all the claims which it is intended to present under it. Ibid. 13. But in adjusting the unsettled claims and accounts presented under the act in ques- tion, the accounting officers have no authority to reopen the former settlements, nor to require the production of evidence to establish their correctness, nor to set off errors prejudicial to the Government which may be detected therein against the allowances to which Colonel Carter may now show himself to be entitled in the unsettled accounts. Ibid. 14. On a reconsideration of the opinion given in Carter's case (2 Op. 640), lield that the ac- counting oificers may continue the former accounts by charging to the debit of Carter all such sums as they may find to have been erro- neously credited to him in either of the former accounts, and all items of this nature will pass to his debitin thegeneral account between him and the Government. Opinion of May 3, 1834, 2 Op., 650. 15. The several sums which may be allowed under the act for his relief should be credited in the above-mentioned general account, and the balance, either for or against him, should be certified in the usual manner. Ibid. 16. The accounts of marshals, certified by the court, or one of the judges thereof, as pro- vided in the fourth section of theact of May8, 1792, chap. 36, are conclusive upon the ac- counting officers of the Treasury, except in cases where charges shall be allowed by the court or j udge for a service or purpose not mentioned in the acts of Congress, and where a greater sum shall be allowed than that fixed by law. Opinion of March 20, 1838, 3 Op. 316. 17. As to whether a charge of |2 for serving a writ of subpoena is proper, it is not per- ceived that there is any legal warrant for ex- cepting it from the enacting words of the stat- ute giving that compensation for the service of any process, &c. Ibid. 18. The account of the marshal of the Dis- trict of Columbia for extra allowances to Gov- ernment witnesses on the trial for the burning of the Treasury buildings, made by the circuit court, and certified, cannot be legally paid, notwithstanding the certificate, for the reason that no act of Congress authorizes payment of charges for .such a purpose. [The distinction between this and the preceding case is, that here the service is not, whilst there it was, au- thorized by law. The two opinions read to- gether clearly define the views of the Attorney- General upon the subject of the efficacy and legal bearing of the certificate of the court upon the accounts of marshals.] Opinion of March 20, 1838, 3 Op". 318. 19. The accounting officers may allow an ac- count, if it be a just one, of C. J. I., district attorney of the eastern district of Pennsylva- nia, notwithstanding his having been sued by the United States for various bonds placed in his hands for collection, for moneys received thereon, and for other moneys (his account not having been set off in the suit), and a judo-- ACCOUNTS, III. ment recovered by the United States against him for $3,975.78, the same as If it were pre- sented prior to the institution of that suit, as the said account was a matter separate and dis- tinct from the subject-matter of the suit, and a set-off not having been required to be made. Opinion of Aug. 6, 1838, 3 Op. 345. 20. Where the acceptance of a Postmaster- General had been given in payment of an account for work done, and the amount thereof had been recharged by a subsequent Postmaster- General, held that the amount of the accept- ance ought not to be deducted from an account current for other work. Opinion of March 3, 1841, 3 Op. 624. 21. The sixth section of the act of September 22, 1789, chap. 17, and also the third section of the act of January 22, 1818, chap. 5, provide that the compensation which shall be due to the members and officers of the Senate shall he certified by the President thereof, and the same shall be passed as public accounts and paid out of the Treasury ; and the certificate of such President, which is the presumed act of the Senate ^ro hac vice, is conclusive upon the matter as between that body and the ac- counting ofi&cers. Opinion of Oct. 18, 1841, 3 Op. 662. 22. The certificate of the presiding officer of the Senate is conclusive evidence in support of charges for certain payments of mileage made by the Secretary to Senators for attending a special session. Opinion of Nov. 27, 1849, 5 Op. 191. 23. Under the first section of the act of Jan- uary 22, 1818, chap. 5, the Secretary of the Senate is entitled to credit for such payments, whether the certificate of the presiding officer be conclusive or not. Ibid. 24. Where a receiver of public moneys, re- ceived from sales of public lands, made default after November, 1841, and it was made to ap- pear that a former commission to that office expired on the 13th September in that year, that the bond given for the performance of duties under the former commission was dated in March, and that given for performance of duties under the latter was dated in Novem- ber, held that in stating the account an amount of the public moneys, certified to have beeniu his hands in November, 1841, sufficient to pay for all the lands sold up to the 13th of Sep- tember, 1841, should be credited to him in the discharge of the first bond, and the deficit found charged to the account of said receiver and his sureties in the second bond. Opinion of July 2, 1851, 5 Op. 396. 25. A statute of private relief enacted that Sk certain account in the Post-Of&ce Department, which had been rejected by the Sixth Auditor and on which appeal had been taken to the First Comptroller, should be finally adjusted by the Second Comptroller and the Commis' sioner of Customs, and, in case of their disa^ greement, by the Attorney-General. Held that the effect of this provision is to substitute another person or persons, pro ha.c vice, to per- form one of the statute duties of the First Comptroller. Opinion, of June 25, 1856, ,7 Op. 724. 26. This may be lawfully done, in so far as respects the Second Comptroller and the Com- missioner of Customs, who will thus in effect control an auditing of the Sixth Auditor, and certify the same to the Postmaster-General. But the Attorney-General cannot lawfully be required to act as the substitute of the First Comptroller; and, so far as regards him, the only effect is to require him to advise the Sec- ond Comptroller and the Commissioner of Cus- toms on matters of law arising in the case. Ibid. 27. All accounts of the post-ofifioes, in com- mon with other public accounts, are to be ad- justed quarterly, with such vouchers as the Postmaster-General may prescribe. Opinion of Oct. 26. 1856, 8 Op. 125. 28. Under section 3 of the act of May 4, 1858, chap. 25, fortherelief of the Clerk of the House of Representatives, that officer is enti- tled to credit only for those extra allowances that were both authorized by the House and approved by the Committee of Accounts. Opinion of June 21, 1858, 9 Op. 172. 29. Where the accounts of a mail contractor have been fully settled, and no attempt has been made to disturb them for many years, they are conclusive, and no charge can now be made against him which ought to have been set- tled then. Opinion of July 21, 1858, 9 Op. 198. 30. An act of Congress granting money to one mail contractor, or ordering the same amount to be charged upon the account of an- other, whose accounts have been long since settled, is void and of no effect as against the latter. Ibid. ACCOUNTS, IV. 31 . Under the resolution of Congress of Feb- ruary 2, 1859 (11 Stat. 571), directing the Sec- retary of the Treasury to readjust certain ac- counts, his authority and duty are confined to the accounts specified. Opinion of March 1, 1859, 9 Op. 270. 32. An account is adjusted when the proper Auditor and Comptroller have stated and certi- fied the amount due on it, and the head of the Department, at the request of the proper officer, has drawn a requisition for that amount, and it has been paid out of the Treasury to the claim- ant. Opinion of April 25, 1862, 10 Op. 231. 33. In stating an account between the United States and the State of Illinois, under the second section of the act of March 3, 1857, chap. 104, the Commissioner of the General Land Of5ce should debit the United States with 5 per cent, of the sales of the public lands in Illinois, in- cluding in the computation all the Indian reser- vations within the State at the rate of one dol- lar and a quarter per acre, and then credit the United States with the amount of the 3 per cent, on such sales already paid the State, to- gether with the whole amount of the 2 percent, fund reserved up to the passage of that act. Opinion of July 6, 1870, 13 Op. 268. 34. The act of March 30, 1868, chap. 36, au- thorizes the head of a Department, before sign- ing a warrant for any balance certified by a Comptroller, to submit to the latter any facts which in his j udgment affect the correctness of such balance; but it makes the decision of the Comptroller thereon final and conclusive upon the executive branch of the Government, and subject to revision by Congress or the proper courts only. Opinion of July ,22, 1872, 14 Op. 65. 35. Under the provision in the act of March 3, 1875, chap. 131, which reads: "To enable the Secretary of the Treasury to pay Eobert B. Lacey, late captain and quartermaster, ' ' a cer- tain sum, ' ' as the amount due him as arrear- ages of pay while on duty and prior to his final discharge," the settlement should take the course appropriate to an account accruing in the Treasury Department, and payment be made by the Secretary of the Treasury with- out a requisition from the Secretary of War. Opinion of Sept. 16, 1875, 15 Op. 46. 36. Sections 273 and 277 Rev. Stat, consid- ered with reference to the relative duties of the Second Comptroller and the Auditor in the set- tlementofaccounts; and held that every account falling within the scope of the latter section must undergo, successively, an examination by the Auditor and an examination by the Comp- troller; that the action of the Auditor is pri- mary altogether, and not definitive, while the action of the Comptroller is wholly revisory, and final. Opinion of Aug. 2, 1876, 15 Op. 140. 37. The word "settled," as used in section 273, is equivalent in meaning to "finally acted upon." IHd. 38. Where the Comptroller, on revision, does not concur in the action of the Auditor disal- lowing an account, but finds and admits a bal- ance arising thereon; or where he disagrees with the Auditor in allowing an account, and rejects it, or increases or diminishes the bal- ance reported by the Auditor in such ac- count — in any of these cases the account is hy the action of the Comptroller finally adjusted, and further action by the Auditor is not re- quired, nid. 39. The purpose of section 191 Eev. Stat, is to declare the effect of the settlement of an ac- count by the accounting officers of the Treas- ury as regards the executive branch of the Gov- ernment, not to define or explain the duties of those officers relative to the settlement itself; and the provisions thereof comprehend all bal- ances arising upon settlement of accounts which it becomes the duty of the Comptroller to cer- tify to the heads of Departments. Ibid. 40. Accordingly, where an account against the Government is disallowed by the Auditor, who in consequence reports no balance due thereon, but transmits the account with his action to the Comptroller for revision, and the latter officer, upon examination, finds and ad- mits a balance due the claimant: Held (assum- ing the action of the Auditor and of the Comp- troller to appear in due form) that nothing more remains to be done by either officer to complete the settlement of the account, but that the Comptroller should certify the balance which he finds and admits, accompanying his certificate with evidence of the action of the Auditor in the same matter. Ibid. IV. Reopening. 41. Items of account had once been presented to the accounting officers and rejected and afterwards to Congress and rejected by that ACCOUNTS, IV. bouy In part, and the rejected items were again presented to the accounting officers on new proof. Held that they cannot reopen the account nor take any new testimony in respect to those items. Opinion of May 23, 1832, 2 Op. 515. 42. Where Congress directs an account to be opened for a specific purpose, that purpose only can be subserved by so doing. Ihid. 43. Accounts once closed and settled (under the circumstances communicated to the Attor- ney-General) cannot be opened, except on the principles governing courts of equity in opening decrees. Opinion of Aug. 8, 1836, 3 Op. 148. 44. Although it is doubted whether an ac- count which has been finally adjusted, settled, and closed ought to be reopened, the claim in behalf of William Otis, late collector of cus- toms at Barnstable, not having been fully settled, may now be settled without violating such a rule. Opinion of April 20, 1840, 3 Op. 521. 45. The accounts of the Chickasaw fund are within the fourth section of the act of March 3, 1845, chap. 71, making appropriations for civil and diplomatic expenses of Government, and, having been once passed upon, cannot be reconsidered without the authority of law. Opinion of April 26, 1845, 4 Op. 369. 46. By the fourth section of the act of 3d March, 1845, chap. 71, no accounts adjusted by the accounting officers of th^ Treasury can be reopened without authority of law, except in cases where special acts have been passed for the relief of individuals. Opinion of May 14, 1845, 4 Op. 378. 47. Where A, who was the partner of B in one contract for carrying the mail, contracted individually with the Department to carry an- other mail on another route, and gave B and C as sureties for the performance of the same, and a portion of the contract price had been along, from time to time during the existence of the contract, paid to B without objection on the part of A, whose accounts were finally adjusted before the passage of the act of March 3, 1845, chap. 71, by charging to him the money paid to B, but who, being dissatisfied with such adjustment, on the 5th of Septem- ber, 1840, applied to the Sixth Auditor of the Treasury for payment to him of so much of his contract price as had been paid to B, and, on being refused, applied to a subsequent Post- master-General and then to Congress without success, and again to the Postmaster-General for allowance of his claim: Held that the ac- count having been once settled cannot be re- opened without authority of law. Opinion of Aug. 22, 1845, 4 Op. 429. 48. And it is further decided that a claim- ant who appeals to Congress after an unsuc- cessful application at the Department must g,bide by his election, whether the result shall be favorable or otherwise. IMd. 49. When accounts settled at the Treasury are for any lawful cause reopened at the request' of a claimant, and to correct errors in his be- half, they are to be considered open for errors in behalf of the Government. Opinion of June 23, 1854, 6 Op. 576. 50. Where, by a private act, the Postmaster- General is required to cause to be re-examined the transportation account of a mail contractor, it is to be intended that the same shall be done in the statute routine of the accounting of the Department. Opinion of Aug. 25, 1855, 7 Op. 439. 51. The accounting officers had no authority in 1850 to reopen the accounts of Captain Heintzelman without his consent, after they had been finally and conclusively settled by the proper Department in 1847, and charge him with a sum of money behind his back and without notice to him. Opinion of Nov. 24, 1860, 9 Op. 505. 52. Where an account has been finally set- tled and adjusted, the accounting officers are not authorized by la w to reopen and re-examine it; and the rule applies equally to the adjust- ment of an account under a special act of Con- gress, which, when it purports to be final, can- not be reopened without further special legis- lation. Opinion of April 25, 1862, 10 Op. 231. 53. Where the account of a Superintendent of Indian Affairs was finally adjusted, under a special act of Congress, and the amount allowed duly paid, and the accounting officers after- wards made an additional statement and al- lowance to the claimant: Held that the Secre- tary of the Interior might lawfully refuse to sign a requisition upon the Treasury for such additional allowance. Ibid. 54. The fourth section of the act of March 3, 1845, chap. 71, is repealed by the fifth sec- tion of the act of August 10, 1846, chap. 175. Opinion of Maij 19, 1862, 10 Op. 255. 55. Irrespective of the fourth section of the iCCOTJNTS, V; ACCOirNTING OFFICEKS, I. act of March 3, 1845, chap. 71, the doctrine has been repeatedly and distinctly asserted by the Attorney-General, and has received judi- cial sanction, that a settlement of an account "by the acconnting officers, in pursuance of spe- cial statutory authority, which purports to be final, and which, having passed from their hands, has been consummated by payment, can- not afterwards be opened and readjusted by them. The previous opinion in case of Anson Dart (10 Op. 231) reafdrmed. Ibid. 56. Where an account has been duly ad- justed, settled, and closed by the proper offi- cers, upon a full knowledge of all the facts, and no errors in calculation have been made, it cannot be reopened without express author- ity of law. Opinion of April 20, 1868, 12 Op. 386. V. Property Accounts (Army). 57. The laws, regulations, and departmental practice concerning the settlement of war ac- counts generally, but more especially ot prop- erty accounts relating to the Army, from the commencement of the Government down to the present time, reviewed. Opinion of Aug. 4, 1871, 13 Op. 483. 58. Under the law as it stood before the passage of the act of March 3, 1817, chap. 45, the settlement of property accounts arising in the military service belonged to an officer in the "War Department, called the superintend- ent-general of military supplies, who discharged this duty under the direction of the Secretary of War. Ihid. 59. The office of superintendent-general of military supplies was abolished by that act, and , as it seems from the last clause of the sixteenth section thereof, the legislature contemplated that the duties of that officer touching the settlement of property accounts should there- after be performed by such of the accounting officers of the Treasury, then created, upon whom was devolved the adj ustment of accounts pertaining to the military service. IMd. 60. The subsequent course of departmental regulations and practice has in general coin- cided with that understanding of the statute, and, moreover, the duty and authority of the accounting officers of the Treasury to settle property accounts relating to the Army have been presupposed and distinctly recognized by subsequent legislation. Ibid. 61. Thus the practice of referring such ac- counts to those officers for settlement is not founded merely upon departmental usage or departmental regulation, but rests upon direct legislative enactment; and they are to be re- garded as authorized by law to settle such ac- counts until Congress shall otherwise provide. Ibid. 62. But the act of 1817 left this duty to be discharged by those officers as it was pre- viously discharged by the superintendent-gen- eral of military supplies, that is to say, under the direction of the Secretary of War; and no alteration of the law in that respect has been made by any subsequent statute. Ibid. 63. It follows that the property accounts of quartermasters in the Army should be trans- mitted from the War Department to the proper accounting officers of the Treasury for settle- ment—such settlement to be made by them, however, under the direction of the Secretary of War. Ibid. ACCOUNTING OFFICERS. I. Generally. II. Powers and Duties. III. Effect of Settlement by. TV. Appeal from. I. Generally. 1. A public debtor proposes to dischargehim- self of an aggregate sum of upwards of $7,000 by his own oath alone, without any detail of particulars: Seld that no principle of common law or equity would justify the accounting officers in allowing charges on such evidence. Opinion of March 20, 1823, 1 Op. 601, 602. 2. It is inexpedient for accounting officers in any case, unless thereunto specially directed by act of Congress, to readjudicate upon the items of an account once considered and settled iu then- offices. If the practice be allowed, the experiment will be made upon every change of accounting officers, by persevering claimants who may imagine themselves entitled to more than they have been allowed, to procure a re- consideration and revision of former decisions- and the same would be likely to result disad- vantageously to the Government. Opinion of April 24, 1839, 3 Op. 461. 3. The Comptroller and Auditors of the Treasury, whose appointments were author- ized hy the third section of the act of 3d March, 1817, chap. 45, are officers in the Treasury Departmentpreviously established by law, and are embraced in the restrictions imposed upon certain public officers by the eighth section of the act of September 2, 1789, chap. 13. The object of the law was to withdraw from the ac- counting officers every motive of private in- terest in the performance of their public duties. Opinion of March 15, 1847, 4 Op. 555. 4. Acts of Congress granting relief in special cases, and referring claims to the Second Audi- tor, confer upon him a j urisdiotion exclusive of any other Department ; and where one Audi- tor settles such accounts, his successors are bound by his decisions. Opinion of May 8, 1849, 5 Op. 97. 5. The heads of Departments have a right- ful authority to direct allowances to be made, or to reject claims for allowances, in settling and adjusting accounts relating to the business of their respective Departments ; and such directions and rejections ought to be conformed to by the Auditors and Comptrollers and Com- missioner of Customs, respectively. Opinion of Nov. 13, 1852, 5 Op. 630, 656. 6. The Secretary of the Treasury is not bound to grant warrants for issuing money from the Treasury for whatever balances the Auditors and Comptrollers and Commissioner of Customs may state and certify; but, as the head of the accounting officers of the Treasury Depart- ment, as the Secretary of the Treasury and the head of the Department, he has the rightful authority to cause accounts to be reformed, re- adjusted, and settled according to his judg- ment of the right and justice of the case. Ibid. 7. The duty to countersign warrants does not include the power to supervise, reverse, or frustrate the decision of tte Secretary, nor au- thorize a refusal to countersign because the Comptroller or the Commissioner of Customs diflfers in opinion from the Secretary as to the sum proper to be allowed, or is of opinion that the warrant ought not to issue for any sum. Jhid 657. 8. The Auditor of the Treasury for the Post- Office Department has direct official relation to both the Treasury and Posfc-Offioe Depart- ments. Opinion of Aug. 25, 1855, 7 Op. 439. 9. If an accounting officer refuse to couiply with the lawful instructions of the head of the proper Department in respect to the settlement of an account, the appropriate ultimate remedy is his removal. Opinion of Oct. 8, 1864, 11 Op. 109. , 10. The regulations of the Navy concerning payments to administrators of balances due de- ceased seamen and marines, payments of ar- rearages claimed under wills, &c. , are not ap- plicable to or binding upon the accounting offi- cers of the Treasury Department in the set- tlement of naval acounts. They extend to and govern only those persons who are in the naval service. Opinion of May 21, 1880, 16 Op. 494. II. Powers and Duties. 11. The accounting officers may adopt the report of a committee of Congress upon which a given law was reported and passed for the principles which are to govern in the settlement of accounts under the law. The passage of « bill accompanying a written report may be con- sidered the adoption of that report. Opinion of March 7, 1823, 1 Op. 597. 12. The accounts and claims of Daniel D. Tompkins are, under the act of February 21, 1823, chap. 12, to be settled on principles of equity and good conscience, subject to the re- vision and final decision of the President. Ibid. 13. The accounting officers in adj usting such accounts may receive depositions, taken on no- tice, as proof of the items thereof. Ihid. 14. Such officers must act upon the accounts in the first instance. They must pass upon them so that there shall be decisions to be ap- proved or disapproved by the President, whose power is only appellate in its nature. IWd. 15. Accounting officers may re-examine any case where judgment has been rendered by a court and jury before the passage of the act of 1st March, 1823, chap. 37, if the defendant against whom the judgment has been rendered has any solid ground on which to ask a court of law for a new trial. Opinion of March 20, 1823, 1 Op. 598. 16. Where it shall appear to an accounting officer that there is newly discovered legal evi- dence of which the defendant was wholly and innocently ignorant at the time of the trial, and which if he had had the benefit of it would ACCOUNTING OFFICBES, II. have produced a difterent result, he may open the matter and give the party the benefit of it. But accounting officers are to re-examine and admit no claims under said act where suits have been commenced unless where new evidence is adduced other than that of the party interested. lUd. 17. It is not incumbent on the Second Comp- troller to pass the amount of the claim of a purser in the Navy to his credit, unless the same has been settled by the Fourth Auditor and the balance certified by that officer for his decision. Opinion of June 19, 1830, 2 Op. 352. 18. The Second Comptroller of the Treasury is authorized by law, in every case where, in his opinion, further delays will be injurious to the United States, to direct the Auditors, whose duties are to pass upon accounts confided to his revision, to audit and report the same to him, that he may revise and finally decide thereon. Opinion of March 26, 1834, 2 Op. 625. 19. The accounting officers may make rests and settlements in accounts which are not final settlements, and which may be reviewed and corrected whenever errors or false items are found therein; not, however, by reopening or restating previous adjustments, but by making such new entries as shall produce the proper correction. IMd. 20. Even after accounts are finally closed, so far as the Auditors are concerned, there may be cases in which the Comptroller or head of the Department maybe authorized to interfere for the purpose of correcting errors or frauds which may have been discovered after the ac- tion of the Auditor. And still further, al- though the matter may have passed beyond the reach of all the executive officers, the Gov- ernment may yet be entitled to surcharge and falsify by an appeal to the appropriate reme- dies furnished by the j udicial tribunals . But accounts of claimants presented for settlement in the ordinanj course and under the general laws, and long since examined and finally set- tled, cannot be reopened and further evidence received in respect to them. Ibid. 21. Where accounts are presented for set- tlement under special acts of Congress, the powers and duties of the accounting officers must principally depend on the terms of the acts themselves, and be varied according to the variations of the special acts from the gen- eral law. Ibid. 22. The accounting officers have authority to reconsider a matter that had passed from the executive department to the legislative, under and pursuant to section 2 of the act of March 3, 1841, chap. 37. Opinion of Dec. 8, 1841, 3 Op. 731. 23. They are directed to settle and adjust the accounts of the claimants under a contract alleged to have been made on the 12th of June, 1838, for subsisting and emigrating the Chero- kee Indians, upon principles of equity and justice; but in settling them the contract of the claimants with the United States of the 27th of June, 1838, must be taken into con- sideration. Ibid. 24. There are no obligations resting upon the Government to indemnify claimants for an amount of provisions beyond what might be necessary for furnishing six thousand Indians during the probable period of their journey. Ibid. 25. The contractors are entitled, in strict law, to the difference between the contract price of the provisions they were bound to furnish and the actual value or market price of them in the country where they were to be supplied; but, by the act of 3d March, 1841, chap. 37, the accounting officers are bound to call for proof that the provisions were actu- ally procured to be furnished, and loss on them actually sustained, before making any allow- ance whatever. Ibid. 26. Theactof MarchS, 1841, chap. 37, which is a positive enactment specially applicable to the case, so far alters the common rule upon the subject of damages for breach of an exec- utory contract as to supersede that rule, and must govern the Department. Ibid. 27. By the twenty-fifth section of the act of August 26, 1842, chap. 202, no allowance can be made by the accounting officers of the Government for any commission or inquiry, except military or n'aval, until special appro- priations are made by Congress for the pur- pose. Opinion of Oct. 25, 1842, 4 Op. 106. 28. The accounting officers have no author- ity to adjust the claims of contractors with. the Government for damages without the special authority of Congress. Opinion of May 29 1844, 4 Op. 327. ' 29. The accounting officers cannot allow credits to pursers for public store,? destroyed by inevitable accident whilst in their posses- ACCOUNTING OFFICEKS, II. ^ sion, Congress only being competent to grant relief in such cases. Opinion of Feb. 11, 1845, 4 Op. 355. 30. The accounting oificers of the Treasury are not authorized to allow a claim for un- liquidated damages alleged to have been sus- tained by a contractor for emigrating Indians in consequence of the interference of and per- formance by the officers of the Government of a part of the services.' Opinion of Sept. 30, 1847, 4 Op. 627. 31. If the contractors in this case have any equitable claim upon the Government for dam- ages, they can be awarded only pursuant to a future act of Congress. Ibid. 32. Where the Secretary of War has decided that certain officers have a command accord- ing to their brevet rank, it is the duty of the accounting officers of the Treasury to respect his decision. Opinion of June 26, 1851, 5 Op. 386. 33. The existence of a command according to brevet rank is to be presumed from the decis- ion or order of the Secretary of War respecting them, and to be regarded by the Auditor and Comptroller as established by and according to his decision and orders. Ibid. 34. Acts done within the peculiar and legiti- mate sphere of the Secretary's official duty are to be taken and understood as rightly done, and to preclude all collateral inquiry by ac- counting officers. Ibid. 35. In case a contract for services be re- scinded by the United States, without mal- feasance of the other party, and after the serv- ices have been partly performed by him, if he claim unliquidated damages as for breach of contract the case is beyond the powers of the accounting officers of the Treasury; but if he waive all other claims and elect to take pay- ment as for part performance in discharge of the contract, it is a mere question of account to be passed by the proper Auditor and Comp- troller. Opinion of June 1, 1854, 6 Op. 496. 36. The Comptrollers and Auditors of the Treasury have no general authority to award damages as for tort, on contract broken; their jurisdiction is confined to matters of account arising ex contractu or by operation of law. Opinion of June 7, 1854, 6 Op. 516. 37. It is the general duty of the accounting officers of the Treasury, by standing laws, to deal with accounts only; in doing which they are subject to the supervision of some proper head of Department. Opinion of Jan. 6,1857, 8 Op. 293. 38. When by special law, or in reference to any special matter, the authority of the ac- counting officers of the Treasury is extended beyond the question of accounts to one of unliquidated damages, such officers are not thereby converted into independent courts of law, but still remain executive or administrar tive officers of a Department. Ibid. 39. An accounting officer has undoubted power to disallow a fee charged by a person who is not an officer and who had no right to perform the services for which he seeks to be paid. Opinion of Feb. 11, 1859, 9 Op. 268. 40. A settlement was made by the account- ing officers of the Treasury with F. , as assignee of certain parties, for the use and occupation of some buildings by the military authorities, whereupon he was paid the amount allowed. Subsequently another settlement was made with him, as assignee of certain other parties, for the use and occupation of other buildings by the same authorities, wherein, it having in the mean time been ascertained that the allowance on the first settlement was improper, and made in ignorance of a fact which, had the accounting officers been cognizant thereof at the time, would have precluded such allow- ance, the amount paid as aforesaid was de- ducted, and only the balance remaining after the deduction allowed: Held that; notwith- standing the claims originally belonged to and were derived by assignment from different per- sons, it was competent to the accounting offi- cers, under the circumstances, to make a de- duction in the last settlement of what had been improperly allowed and paid on the first. Opinion of July 10, 1874, 14 Op. 412. 41. The authority of the Third Auditor and Second Comptroller to settle claims or accounts of any kind against the United States is de- rivable solely from legislative enactment. The statutory provisions conferring upon them au- thority in that regard reviewed ; and held that the authority so conferred does not extend to the settlement of any claims or accounts for compensation for damages (whether the dam- ages were sustained by the loss of property or otherwise) other than such as are of the classes specifically described in those provisions. Opinion of Sept. 9, 1875, 15 Op. 39. 42. It is not the duty of the accounting offi- 10 ACCOUNTING OFFICERS, III, IV. •cers of the Treasury to require of claimants under the act of March 3, 1849, chap. 129 (sec- tion 3483 Rev. Stat.), proof of loyalty. Opin- ion of ISept. 6, 1877, 15 Op. 652. III. Effect of Settlement by. 43. The settlement of an account hy the proper accounting officers is final ahd conclu- sive, so far as concerns the executive depart- ment of the Government. If the individual whose account has been settled conceives him- self inj ured by such settlement, his recourse must be tothe judiciary orto Congress. Opim- ion of Oct. 20, 1823, 1 Op. 624. 44. Where the Third Auditor shall have ex- amined and certified, and transmitted, with vouchers, an account to the Second Comptroller, and the latter officer shall have certified the amount due to the Secretary of War, the mat- ter is final so far as the accounting officers of the Government are concerned, and can only be set aside by the Secretary, acting under the direction of the President. Opinion of Dec. 4, 1829, 2 Op. 303. 45. A decision by the Second Comptroller upon a claim properly before him cannot be questioned by any other of the accounting offi- cers. A demand after passing him ceases to be a matter of account, and becomes a liqui- ■dated and adj usted demand. Ibid. 46. Where the account of General Taylor had been settled by the accounting officers and a. balance found against him, for which a suit had been commenced, and a memorial was subsequently presented by him to the Presi- dent, requesting the discontinuance of the suit on account of alleged errors in the settlement: Held that the decision of the Comptroller was conclusive upon the executive branch of the Government, and that the President does not possess the power to enter into the correctness of the account for the purpose of taking any measures to correct the errors which the ac- counting officers may have committed. Opin- ion of April 5, 1832, 2 Op. 508. 47. Where the question is merely one of com- putation oramount, thedecision of theaccount- ing officers is to be regarded as final. Opinion ■of March 25, 1869, 13 Op. 6. 48. Provisions of the acts of March 3, 1817, chap. 45, and March 30, 1868, chap. 36, relating to this subject considered. Ihid. 49. Section 191 of the Revised Statutes is limited to cases where balances are found upon the settlement of accounts or claims, and certif- icates thereof are transmitted to the head of the proper Department for his warrant or requisi- tion; it does not extend to any case where no balance is certified, or where the whole account or claim is disallowed. Opinion of Feb. 7, 1877, 15 Op. 192. 50. The prohibition in that section against changing or modifying balances certified by the Commissioner of Customs and the Comptrollers of the Treasury does not apply to these officers. Ibid. 51. The provision making their findings "conclusive upon the executive branch of the Government ' ' signifies only that such findings are not to be revisable by any other officer or officersofthat branch ofthe Government. Ibid. 52. Whether the Comptrollers and Com- missioner are authorized to reopen settlements made by themselves or their predecessors in office depends upon considerations founded on the law as it stands independently of the said section; its provisions have no bearing on this subj ect. Ibid. IV. Appeal from. 53. The laws regulating the settlement of the public accounts, under which the Treasury Department is organized, require the Auditors to receive and examine accounts, and to certify them to the Comptrollers, who also examine and pass upon them and certify the balances thereon to the Register, and give no power of appeal tothe President, except in particular in- stances," like that of the accounts of Daniel D. Tompkins, where the power of revision and final decision by the President was expressly conferred by the act. Opinion of Oct. 20, 1823, 1 Op. 624. 54. An appeal does not lie to the President from the determination of accounting officers acting in the sphere of their duties; nor can the President interfere with their decisions. Opin- ion of Dec. 18, 1832, 2 Op. 544. 55. The provision ofthe fourth section of the act of August 16, 1856, chap, 124, declariugthat, as to the accounts of marshals, district attor- neys, &c., "an appeal shall lie from the decis- ion of the accounting officers to the Secretarv of the Interior, ' ' was impliedly repealed by the ADMINISTRATIVE PRACTICE — ADVERTISEMENT. 11 act of March 30, 1868, chap. 36. Opinion of Aug. 91, 1872, 14 Op. 104. 56. Prior to the act of 1856 there was no law authorizing an appeal in such cases to the Sec- retary of the Interior, and none was enacted sub- sequent to the act of 1868 down to the act of June 22, 1870, chap. 150, by which only such powers as were then exercised by the Secretary of the Interior over the accounts aforesaid were thereafter to be exercised by the Attorney- Greneral. lUd. 57. No statute has been passed since the last- Tnentioned act giving an appeal from the ac- counting ofScers to the Attorney-General in the cases referred to; and hence, under the exist- ing law, such an appeal does not lie. Hid. ADMINISTRATIVE PRACTICE. See also Accounts, IV; Claims, XXII; Ees Judicata. 1. It is a rule which each administration has prescribed to itself to consider the acts of its predecessors conclusive, so far as the Execu- tive is concerned. If a decision in a case, made eight years ago, under a former Executive, is open for review and revisal, the same principle will open decisions made during the Presi- dency of Washington, and keep the acts of the Executive perpetually unsettled and afloat. Opinion of Oct. 1, 1825, 2 Op. 8. 2. Where a question has been deliberately settled, and the practice of the Department, under the eye of the Government, during suc- cessive sessions of. Congress, has conformed to the decision then made, it does not seem proper to disturb such a decision unless a very strong and pressing case should be made for consider- ation. Opinion of July 2, 1829, 2 Op. 220. 3. It having been the usage of the War De- partment to require of States which were en- titled to reimbursements, such as are provided for in the act of 2d June, 1848, chap. 60, to furnish proof of actual expenditure of money, and of the purpose to which it was applied, it is to be presumed that Congress in that act ex- pected such usage to be followed. Opinion of July 8, 1852, 5 Op. 563. 4. Adherence to established rules prevents the arbitrary action of the executive branches of the Government, and produces certainty and equality, at least, in their administrations. Ibid. 5. Where application was made to the Secre- tary of the Interior for a review of the action of his predecessor in ofiice and of the Execu- tive in a case passed upon by them during the preceding administration, the application rest- ing solely upon the ground of alleged error in the construction of a statute : Advised that the former action in the case cannot with propriety be reviewed. Opinion of March 20, 1877, 15 Op. 208. 6. It is a settled rule of administrative prac- tice that the official acts of a previous admin- istration are to be considered by its successor as final, so far as the Executive is concerned. Ibid. ABMINISTRATOR. See Executors and Administeatobs. ADVERTISEMENT. See also Conteact, III; Printing. 1. The twelfth section of the act of 3d March, 1845, chap. 77, concerning the ad- vertising which the heads of Departments and Bureaus are required to do, does not entitle the National Era, weekly newspaper, to any part of the printing. Opinion of July 25, 1849, 5 Op. 145. 2. The clause permitting a third paper to be selected requires that the publications therein shall be made equal to the others as to frequency. lUd. 3. Under section 12 of the act of March 3, 1845, chap. 77, the Postmaster-General is not authorized to order advertisements from his Department to be published in more than three newspapers in the city of Washington. Opin- ion of April 9, 1851, 5 Op. 315. 4. The opinion previously given upon the construction of the act of 3d March, 1845, chap. 77, relative to publications in news- papers by the Executive Departments, is con- firmed. Opinion of July 13, 1852, 5 Op. 566. 12 ADVERTISEMENT. 5. Semble, if the provisions of law which require certain contracts to be advertised are disregarded, that the contracts, while they re- main executory and without commencement of performance, are subject to be rescinded. Opin- ion of March 24, 1854, 6 Op. 406. 6. The provisions of the act of February 26, 1853, chap. 80, regulating the fees of clerks of the courts of the United States and other offi- cers, which provides, among other things, a price for publishing any statute, notice, or order re- quired by law, or by the lawful order of any court. Department, Bureau, or other person, in any newspaper, applies only to such a publi- cation in the case of judicial proceedings, and not to the publication of laws and treaties by the Secretary of State. Opinion of June 3, 1854, 6 Op. 502. 7. The act of March 3, 1845, chap. 77, re- quires the advertising of the Executive Depart- ments to be given to the two newspapers printed in the city of Washington which have the largest permanent subscription, and per- mits the President to select a third. Opinion of July 21, 1857, 9 Op. 54. 8. Where a daily, weekly, and tri-weekly newspaper are printed and published in the same office, by the same person, and under the same name, they are not different papers, but different editions of the same paper. Hid. 9. The advertising should be given to those papers which have the largest permanent sub- scription to all their issues. IMd. 10. The proprietor of the Constitution news- paper is not entitled to be paid for any execu- tive advertisement printed in his paper after notice of the order of the Secretary of State of January 10, 1860. Opinion of Jan. 12, 1860, 9 Op. 2. 11. Aresolutionof the Senate requesting the Secretary of War to advertise certain hospital notices has not the force of law. But if the request is complied with by the Secretary, the advertisements should be published in accord- ance with the twelfth section of the act of March 3, 1845, chap. 77. Opinion of Hay 28, 1862, 10 Op. 263. 12. The proprietors of certain newspapers in the District of Columbia are entitled (under sec- tion 10 of the act of March 2, 1867, chap. 167, and sections 2 and 4 of the act of July 20, 1868, chap. 176) to payment for the publica- tion, without the previous order of the Post- master-General, of those notices of mail-let- tings which the law required him to publish in those papers; but they must show a previ- ous order for the publication of such notices as the Postmaster-General was only authorized to publish in those papers before they can claim payment therefor. Opinion of March 3, 1869, 12 Op. 559. 13. The proviso in the act of March 3, 1875, chap. 128, making appropriations for the serv- ice of the Post-Office Department, was in- tended to relieve the heads of all the Execu- tive Departmen ts from the requirements of sec- tion 3826 of the Revised Statues, respecting the publication of advertisements, notices, and pro- posals for Virginia, Maryland, and the District of Columbia, as well as to provide specifically respecting the publication of mail-lettings by the Postmaster-General for the States and Dis- trict above mentioned. Opinion of May 6, 1875, 14 Op. 577. 14. It is, accordingly, left discretionary with each head of Department whether he will make the publication referred to in that sec- tion in one or more papers of the District of Columbia. Ibid. 15. In October, 1875, the Postmaster-Gen- eral requested the publisher of a newspaper in Alabama to insert therein an advertisement of proposals for carrying the mail in that State, provided he would do it for a sum not exceeding $688.12. The advertisement was duly inserted, and the publisher claims therefor |1,992, the latter amount being agreeably to the rate fixed by the Clerk of the House of Representa- tives under section 3823 Rev. Stat. : Seld that section 3941 Rev. Stat., and not section 3823 Rev. Stat., furnishes the law applicable to this case; that under the former of these sections the Postmaster-General had power to select the medium of advertising the proposals and to limit by agreement the compensation therefor; and that the publisher is bound the same as he would be in an ordinary case of compliance with a request conditioned like the above. Opinion of Jan. 13, 1876, 15 Op. 527. 16. The joint effect of sections 8.53 and 3826 Rev. Stat., as regards Government advertise- ments in newspapers published in the District of Columbia, was to allow the' compensation fixed by section 853, unless (under section 3826) AGENT. 13 that be more than is paid by private individ- uals for like services. But section 1 of the act of 1875, chap. 128, repeals section 3826 for every purpose connected with claims for such services. Opinion of Aug. 14, 1876, 15 Op. 594. 17. Sections 853 and 854 Eev. Stat, (though modified by a proviso in the act of March 3, 1875, chap. 128, with respect to the advertise- ment of certain mail-lettings) are still in force, without modification, with respect to adver- tising of the Treasury Department. Opinion of August 14, 1876 (15 Op. 594), reafdrmed. Opinion of May 21, 1877, 15 Op. 282. 18. Section 5 of the act of July 12, 1876, chap. 180, providing for the publication of lists of property in arrears for taxes, does not authorize the Commissioners of the District of Columbia, in determining the "lowest bid- der ' ' for making such publication, to have re- gard to the circulation of each newspaper bid- ding. It is sufficient if the paper is a iona fide newspaper, and there is nothing as to the amount of publicity which the notice may receive that will defeat the purpose of the leg- islature in requiring the advertisement. Opin- ion of June 27, 1877, 15 Op. 324. 19. The advertisement of the list of prop- erty in arrears for taxes, under section 5 of the act of July 12, 1876, chap. 180, would not be in conformity to the laws in force in the Dis- trict of Columbia if made in a newspaper pub- lished on Sunday. The provisions of that act must be construed in connection with the other statute law of the District, and they are not to be taken to repeal any part of the latter unless where necessarily repugnant thereto. Opinion of June 30, 1877, 15 Op. 327. 20. Opinions of August 14, 1876, and May 21, 1877 (15 Op. 282, 594), upon the scopeand effect of sections 853 and 854 Eev. Stat., in re- gard to departmental advertising, reconsidered and reafiirmed. Opinion of July 7, 1877, 15 Op. 633. 21. The provisions of section 3828 Rev. Stat., forbidding the publication of advertisements "for any Executive Department of the Gov- ernment, or for any Bureau thereof, or for any office therewith connected," except "under written authority from the head of such De- partment," extend to offices connected as aforesaid, no matter where located. Opinion of Dec. 16, 1878, 16 Op. 616. AGENT. See also Claim Agent; Indian Agents and Agencies; Navy Agent; Pension Agen- cies AND Agents; Power op Attorney. 1. An ordinary letter from E. M. H. to J. H. E. , authorizing the latter to transact cer- tain business for the former, does not empower him to execute, in the name of the former, a power of attorney, assignment, or other in- strument under seal. Opinion of Aug. 11, 1853, 6 Op. 79. 2. The conclusions of law in a previous opin- ion in the case of the late Navy Agent E. O. Perrin (see opinion of Feb. 27, 1854, 6 Op. 314) reaffirmed. Opinion of May 22, 1854, 8 Op. 450. 3. When a commissioned officer or other agent of the United States raakes a contract with any person for their use and benefit, and with due authority of law, such officer or other public agent is not responsible to the party, whose only remedy is against the Government. Opinion of April 10, 1855, 7 Op. 88. 4. But, in making contracts with any one claiming to act for the Government, it is the duty of the party contracting to inquire as to the authority of such agent or officer; without which it is doubtful whether the contract aifects the Government. Ibid. 5. If a public officer, however, make a Government contract without authority, and which therefore does not bind the Government, such officer is himself personally responsible to the contracting parties. Ibid. 6. But a public officer or other agent, though contracting for the Government, may, if he see tit, make himself the responsible party, either exclusively or in addition to the Government. Ibid. 7. Heads of Departments or of Bureaus, and other certifying officers of the Government, can- not certify by delegation, unless when specially authorized so to do by act of Congress. Opin- ion of Nov. 9, 1855, 7 Op. 594. 8. A claimant of money payable from the Treasury has the right to choose his own agents and attorneys for collection, and to change them at pleasure. Opinion of Dee. 21, 1863, 11 Op. 7. 9. In the absence of special contract, fees or compensation payable by a claimant to his at- 14 AGENT OE THE TBEASTJEY — ALASKA. torney constitute a general charge against the client, but not a specific lieu on the subject- matter of the claim. Ibid. 10. The conflicting equities between a claim- ant and his attorneys should be left by the Executive Departments to be settled before the courts. Ibid. AGENT OF THE TREASURY. See also SoLioiiOE of the Tbkasuey. The act of May 15, 1820, chap. 107, makes it the duty of the agent of the Treasury, ap- pointed thereunder, to instruct district attor- neys when, against whom, and for what amount to institute suits; when to press the collection and when to indulge; when, and under what circumstances of additional security, to renew the debts; what substitution, what commuta- tions, what partial payments, what compro- mises to accept; when to acquiesce in the de- cisions of the courts below, and when to ap- peal ; always leaving to the learning of the law ofScer (district attorney) the direction of all measures merely technical and professional. Opinion of April 11, 1823, 1 Op. 612, 613. AGRICULTURAL FUND. 1. All the existing legislation appropriating money for the collection of agricultural statis- tics evinces an intention on the part of Con- gress that the money appropriated for that ob- ject should be expended and accounted for by the Commissioner of Patents. Opinion of Oct. 17, 1861, 10 Op. 147. 2. The Secretary of the Interior has no power to defeat that intention by transferring to an- other of&cer the expenditure and administra- tion of those appropriations. Ibid. 3. Since the act of May 15, 1862, chap. 72, the Commissioner of Patents is not authorized to use the unexpended portion of the appro- priation for agricultural purposes of the pre- ceding year to pay the debts of that year chargeable on that fund. Opinion of Sept. 18, 1862, 10 Op. 344. 4. It is the duty of the Commissioner of Ag- riculture to take charge of that fund, and see to the payment of claims against it. Ibid. ALASKA. 1. The provisions of the act of July 1, 1870, chap. 189, to prevent the extermination of fur- bearing animals in Alaska, considered and con- strued with reference to the authority and duty of the Secretary of the Treasury touching the time and mode of executing the same, so far as they relate to the granting of a lease of the right to engage in the business of taking fur-seals on the islands of Saint Paul and Saint George, and the parties to whom such lease may be granted by him. Opinion of July 6, 1870, 13 Op. 274. 2. Proposals for a lease of the exclusive right to take fur-seals upon certain islands off the coast of Alaska, agreeably to the provisions of the act of July 1, 1870, chap. 189, having been solicited by the Secretary of the Treasury, a party, besides other considerations, offered to pay a stated amount on each skin in addition to the revenue tax specified in that act, and also a stated amount for each gallon of oil obtained from the seals: Held tha,t those parts of the bid are in conformity to the statute, and wouldbe binding if incorporated in the lease. Opinion of July 29, 1870, 13 Op. 293. 3. The buildings in Alaska, consisting of warehouses, store-houses, blacksmith-shops, cooper-shops, fish- houses, dwelling-honaes, &c., purchased by Hutchinson, Kohl & Co. from the Eussian-American Company in March, 1868, were not included in the cession made by Russia to the United States in the treaty of March 30, 1867, and did not become the prop- erty of the latter under that treaty. Opinion of Sept. 27, 1873, 14 Op. 303. 4. But the Eussian-American Company never had anything more than the use of the land on which its buildings stood — the dominium, or riglit of property therein, ever remaining in the Government of Eussia; and by the sixth article of the treaty the right of possession, use, and all other privileges which that company then enjoyed in the soil were in effect extin- guished; so that the United States acquired under the said cession the absolute proprietor- ship of all the lands on which the establish- ments of that company were located, and as a consequence the latter could occupy such lands thereafter only by the sufferance of the Govern- ment of the United States. Ibid. 5. Hence, although the ownership of the buildings referred to may be in Hutchinson Kohl & Co., under their purchase from the ALIENS. 1& Eussian-American Company, they acquired no interest whatever in the soil by the purchase of such buildings; they are simply occupants of the public domain, without right or title, and at the sufferance of the Government. Ibid. 6. By the act of March 3, 1873, chap. 227, the introduction of spirituous liquors or wine into the Territory of Alaska, unless authorized by the War Department, is absolutely prohib- ited. Opinion of Nov. 13, 1873, 14 Op. 327. 7. By virtue of the acts of February 13, 1862, chap. 24; March 15, 1864, chap. 33; and March 3, 1873, chap. 227, the War Department is clothed with a discretionary authority over the introduction of spirituous liquors or wines into the Territory of Alaska, and may permit such articles to be taken there, whether they are or are not intended for the use of oflScers or troops in the service of the United States. Opinion of June 3, 1874, 14 Op. 401. 8. The first of these acts, though in form an amendment, is really a substitute for the whole of section 20 of the act of June 30, 1834, chap. 161, and nothing of said section not contained in that act is left in force. Ibid. 9. The President has no authority, by virtue of section 2132 Ee v. Stat. , to prohibit the in- troduction of molasses into the Territory of Alaska (the article being used there for manu- facturing distilled spirits for sale among the natives) when in his judgment the public in- terest seems to require that he should do so. In this matter that Territory caiinot be consid- ered as a country belonging to an Indian tribe. Opinion of Sept. 24, 1878, 16 Op. 141. ALIENS. See also Public Lands, IV. 1. Thelategovernorof Guadaloupe, who had caused a vessel to be seized and condemned by authority assumed as such officer, being prose- cuted in the court of Pennsylvania whilst here as a prisoner of war to the British forces on parole, is not more exempt than any other for- eigner (not a public minister) from suit and arrest. Opinion of June 16, 1794, 1 Op. 45. 2. The Government will not interfere with a private action against a foreigner for receiving anegro on board his ship. Such defendant is, as to his liability to suit, on a footing with every foreigner, not a public minister, who comes within the jurisdiction of our courts. If he has a defence under the treaty of peace he must plead it in the usual course of judicial proceedings. Opinion of .July 26, 1794, 1 Op. 49. 3. A person acting under a commission from, the sovereign of a foreign nation is not amena- ble to the United States courts for what he does- in pursuance of his commission. But where there may be a legal trial the President will not interfere with the action against him . Opin- ion of Dee. 29, 1797, 1 Op. 81. 4. The courts of the United States in every State are at all times open to the subjects of a foreign power in friendly relations with them; and they are entitled to claim the benefit of every legal remedy in as ample a, manner as could be enforced by citizens of the United States. More especially will such remedies be extended in a case of fraud. Opinion of Oct. 1, 1816, 1 Op. 192. 5. An alien can inherit, carry away, and alienate personal property without being liable to any jus detraetus, but not real estate. Opin- ion of July 30, 1819, 1 Op. 275. 6. Jaqu^s Porlier, who settled in the Mich- igan Territory prior to the execution and rati- iication of Jay's treaty, is not a citizen of the United States. Opinion of Sept. 3, 1819, 5 Op. 716. 7. It is the duty of the Executive, to whom the care of our foreign relations is committed, to take all lawful measures for the protection of alien subjects of a state with whom the United States are at peace, who shall have placed themselves under the safeguard of our laws. Opinion of July 5, 1837, 3 Op. 254. 8. But where aliens shall have suifered vio- lence from citizens of the United States, they can be protected only by the redress to be af- forded in the courts and the special interposition of the legislature. Ibid. 9. The State courts oily have jurisdiction of the criminal olfense in such cases; the circuit court of the United States of civil actions where the offenders are citizens. Ibid. 10. Aliens only, in the proper acceptation of the term, are excluded from the privileges of pre-emptioners. Opinion of Blareh 15, 1843, 4 Op. 147. 11. An alien can be enlisted in the naval or Marine Corps service of the United States, and is bound the same as citizens to serve for the IG ALLOTMENT CHECKS — APPEAL. term of his enlistment. Opinion of Nov. 20, 1844, 4 Op. 350. 12. An alien may hold, convey, and devise real estate in the District of Columbia. Opin- ion of Sept. 2, 1852, 5 Op. 621. 13. Of the disability of alienage as affecting interest in land in California. Opinion of Feb. 3, 1855, 8 Op. 463. 14. Under the land laws of the United States aliens are entitled to purchase the public lands, subject only, as to their tenure, to such limi- tations as particular States may enact; with this exception, however, that pre-emptions are secured to aliens who have declared theirin- tention to become naturalized according to law, and to citizens, whether native-born or natural- ized, and none others. Opinion of July 28, 1855, 7 Op. 351. 15. The same distinction is maintained in the graduation acts, with the further condition that the limited quantity of land purchasable by any person at the reduced prices can be pur- chased only for personal use, and for actual settlement and cultivation. Ibid. 16. The Government of the United States has constitutional power to enter into treaty stipulations with foreign governments lor the purpose of restricting or abolishing the prop- erty disabilities of aliens or their heirs in the several States. Opinion of Feb. 26, 1857, 8 Op. 411. 17. It seems that there is no existing treaty stipulation between the United States and the Netherlanders on the subject of the rights by inheritance of children of a deceased child of a Netherlander dying intestate in the United States. Opinion of Aug. 8, 1866, 12 Op. 5. 18. In this absence of treaty stipulation the subject-matter is regulated by the laws of the respective States, and they, as a general rule, recognize the children of a deceased child as entitled to represent their deceased parent in the share which he would have taken from the intestate if such deceased parent had survived the intestate, the descent being per stirpes, and not 2)er capita. Ibid. ALLOTMENT CHECKS. The United States are legally bound to pay the allotment checlss or drafts issued by Army paymasters under the act of December 24, 1861, chap. 4, in the hands of bona fide holders, with- out regard to the fact that such paymasters have not placed in the hands of the drawee sufficient funds to meet the drafts. Opinion of Feb. 25, 1865, 11 Op. 156. ALLO"WANCBS. See Army, XI; Compensation, VIII; Mile- age; Militia AND Volunteers, II; Navy, VI; Traveling Allowances. AMBASSADOR. See Diplomatic and Consular Officers. ANNUITY. See Indians, IV. APPEAL. See also Accounting Officers, IV; Cus- tom Laws, XIV'; Patents for Inven- tions, IV; Writs of Error and Ap- peals. 1. In a matter which the law confides to the pure discretion of the Executive, the decision by the President orproper head of Department of any question of fact involved is conclusive, and is not subject to revision by any other authority in the United States. Opinion of Nov. 23, 1853, 6 Op. 226. 2. There is no direct appeal from the Com- missioner of Pensions to the Attorney-General. Opinion of July 8, 1856, 7 Op. 759. 3. The President ought not, as a general rule, to entertain an appeal from the decision of the head of a Department respecting a pri- vate claim against the Government. Opinion of Oct. 9, 1863, 10 Op. 526. 4. Nor, as ;i general rule, ought the Presi- dent to entertain appeals from the heads of Bureaus or other inferior officers of the Ex- ecutive Departments. Opinion of Oct. 9 1863 10 Op. 527. 5. An appeal from a decision of the Commis- APPOINTMENT; APPROPRIATIONS, I. 17 sioner of the General Land Office ought to be taken not to the President, but to the Secre- tary of the Interior. IMd. 6. Under the act of March 3, 1857, chap. 104, requiring the Commissioner of the Gen- eral Land Office to state an account between the United States and the State of Illinois of the '••-J per cent, fand," tjie State has no legal right to take an appeal to the President, and require him to state such account, after the re- fusal of the Commissioner of the General Land Office and of the Secretary of the Interior to tomply with the law. Opinion of March 8, 1864, 11 Op. 14. T. The President is not an auditor or comp- troller of accounts, nor the accountant-general of the nation ; but he may require an account- ing officer and other subordinate executive officers to perform the duty imposed on them by statute. Ibid. 8. The opinions of the Attorneys-General touching the relation of the President towards the administrative officers of the Departments and Bureaus reviewed. Ibid. 9. It is competent to the President to enter- tain an appeal from the head of a Department which concerns the authority of a subordinate officer in the Department. Opinion of May 15, 1876, 15 Op. 94. 10. Where a statute imposes a particular duty upon an executive officer, and he has acted (performed the duty according to his under- standing of the statute), there is no appeal from liis action to the President or to any other ex- ecutive officer, unless stich appeal is provided for by law. Opinion of May 2, 1879, 16 Op. 317. APPOINTMENT. See Aemy, II; Maeine Coeps, III; Navy, II; Office, I. APPROPRIATIONS. I. Generally II. Transfer of. III. Unexpended balances. I. Generally. 1 . Where an appropriation act (that of March 3, 1839, chap. 93) expressed a sum for the ag- gregate of certain expenses which was less than the aggregate, in fact, of the several items of expense therein enumerated: Held that the amount equal to all the items was appropriated, and that an erroneous addition of said items produced no effect upon the law. Opinion of March 13, 1839, 3 Op. 419. 2. The expenses incurred on account of the negroes taken out of the Amistad cannot be defrayed from the appropriation of March 3, 1819, in the act entitled "An act in addition to the acts prohibiting the slave trade. ' ' Opinion of April 11, 1840, 3 Op. 510. 3. The appropriation for repairs, improve- ments, and new machinery at Harper's Ferry Armory, made by the act of August 8, 1846, chap. 95, cannot, nor can any portion of it, be applied to the purchase of the lands de- scribed in the estimate made at the Ordnance Office. Although a portion of the appropria- tion was asked for with a view to the pur- chase of lands, Congress saw fit to specify the purposes for which it granted it, among which the purchase of lands is not included. Opin- ion of Sept. 18, 1846, 4 Op. 533. 4. The contract for embankment in the navy-yard at Memphis is not within the trne meaning of the proviso in the naval appropri- ation act of March 3, 1843, chap. 83. Opin- ion of April 20, 1849, 5 Op. 89. 5. Where an appropriation was made by Congress expressly for opening or improving a maritime channel by a particular method men- tioned: Held that the specification is not to be so construed as to defeat or control the general object. Opinion of April 11, 1853, 6 Op. 19. 6. In the absence of any .specific appropria- tions for the obj ect, the expense of transporting prisoners held for trial by the authorities of the United States in China is a lawful charge on the general appropriations for defraying the judicial expenses of the Government. Opin- ion of June 28, 1853, 6 Op. 59. 7. The incidental expenses attending the purchase, care, preservation, and transporta- tion of provisions and clothing for the Navy are not chargeable to the specific appropriations for provisions and clothing made by the act of March 3, 1853, chap. 102. Opinion of June 22, 1854, 6 Op. 569. 8. Under the act of March 3, 1859, chap. 83, appropriating for the payment to the State of Minnesota, for expenses incurred by Captain DIG- 18 APPEOPEIATIONS, I. Statkey's company of Minnesota Volunteers, called out by the governor of the Territory, a sum of money, or so much thereof as may be necessary, the accounting officers of the Treas- ury are to determine, before any payment is made, what amount the State is entitled to receive. Opinion of Nov. 4, 1859, 9 Op. 396. 9. Where an act of Congress (that of Febru- ary 20, 1847, chap. 14) authorized the Secretary of War to report how much was due to a claim- ant, not exceeding ?25,000, and directed the amount to be paid out of the Treasury, and the then Secretary of War reported as due to the claimant the sum of §18,000, which was paid: Held that the appropriation was exhausted when the amount awarded was paid, and that a succeeding Secretary had no jurisdiction to award the claimant an additional amount. Opinion of July 20, 1860, 9 Op. 451. ■ 10. The rules by which oi5acers in charge of appropriations are to be governed in applying the fund of one year to pay the debts of a pre- vious year stated. Opinion of Sep. 18, 1862, 10 Op. 344. 11. By the terms of the act of March 3, 1865, chap. 127, " making appropriations for the cur- rent and contingent expenses of the Indian Department," &c., for the year ending June 30, 1866, the appropriations therein made for the relief and support of certain refugee In- dians and for payment of interest on non-pay- ing stock held in trust for Indian tribes can be rightfully drawn upon by the Secretary of the Interiorbefore the commencement of the fiscal year ending June 30, 1866. Opinion of Marcli 22, 1865, 11 Op. 171. 12. The appropriations made by the acts of April 16, 1862, chap. 54, and July 16, 1862, chap. 182, for the purposes of facilitating the colonization of persons of African descent, cannot be used to pay the salary of the ' ' Com- missioner of Colonization ' ' for services ren- dered after the passage of the act of July 2, 1864, chap. 210. Opinion of June 2, 1865, 11 Op. 241. 13. The 20 per centum increase of compen- sation allowed by section 3 of the act of June 25, 1864, chap. 147, to the employ t's of the several Departments for the fiscal year ending ' June 30, 1866, is not payable from the appro- priation made by that section, such appropri- ation terminating with the fiscal year ending June 30, 1865 Opinion of Oct. 30, 1865, 11 Op. 387. 14. Claims allowed under the act of July 4, 1864, chap. 240, are not payable from appro- priations made for the fiscal year 1870-'71, none of those appropriations seeming to be ibr that object. Opinion of July 27, 1870, 13 Op. 289. 15. Appropriations which, in terms, are for the service of the year 1870-'71 cannot be used for any other purpose than the payment of the expenses incurred for the service of that year. Ibid. 16. Nor can money be taken, by counter requisitions,' from such appropriations to set- tle old accounts. Jbid. 17. Permanent appropriations are those made for an unlimited period; indefinite appropria- tions are those in which no amount is named. lUd. 18. The appropriations made by the acts of June 15, 1864, chap. 124, and March 3, 1865, chap. 81, "for supplies, transportation, and care of prisoners of war," are in terms appli- cable to none but prisoners of war. Opinion of May 14, 1872, 14 Op. 41. 19. By the words "prisoners of war," as used in those acts, are meant persons of the enemy who are captured and detained by our forces; and therefore Union soldiere who were captured by the rebels and afterward escaped or were paroled are not within the scope of the appropriations mentioned. Ihid. 20. Accordingly, where persons of the latter description were supplied with necessaries of life and otherwise aided by a private party, who presents a claim against the Government for reimbursement of his outlays and compen- sation for his services: Held that the claim, however meritorious it may be, cannot be paid! out of either of those appropriations. Hid. 21. By act of March 3, 1871, chap. 113, an appropriation was made to meet [inter alia) the expenses of publishing speciiications and draw- ings required by the Patent Ofiice during the year ending .June 30, 1872. The appropriation was to be disbursed by the Superintendent of Public Printing, under whose direction the' execution of the work mentioned was then placed; but by the act of March 24, 1871, chap. 5, the Joint Committee of Congress on Print- ing was authorized to transfer the direction of APPROPEIATIONS, II. 19 the work to the Commissioner of Patents, should it he deemed expedient to do so, and on the 16th of June, 1872, such transfer was made: Seld that, notwithstanding tlie transfer of the direction of the work, the appropriation was still applicable to the payment of expenses ineurred in its prosecution, and might there- fore be employed by the Superintendent of Public Printing in payment of work done under the direction of the Commissioner of Patents; yet held, also, that under section 5 of the act of July 12, 1870, chap. 251, the appro- priation having been made specifically for the fiscal year ending June 30j 1872, was only ap- plicable to expenses incurred during that year, or to the fulfillment of contracts made within the same period. Opinion of July 13, 1872, 14 Op. 58. 22. The proviso in the Army appropriation act of March 3, 1875, chap. 133, viz, "that no part of this sum shall be paid for the use of any patent process for the preservation of cloth from moth or mildew, ' ' does not forbid the application of any patent process to the pres- ervation of clothing where the use of the same may be obtained without paying or incurring any obligation to pay therefor. The appro- priation referred to may accordingly be em- ployed in applying the Cowles process, if its use can be had without charge. Opinion of Aug. 25, 1875, 15 Op. 37. 23. The appropriation made by the act of March 3, 1877, chap. 105, to pay the amount due to mail contractors ' ' for mail service per- formed ' ' in certain Southern States before the war of the rebellion, is not applicable to the payment of a claim for one month's additional pay to which a contractor beeame entitled by his contract where the same was arbitrarily terminated by the Government, such claim being in the nature of a claim for liquidated damages. Opinion of July 5, 1877, 15 Op. 329. 24. The appropriation of $75,666.50 to pay for horses, steamboats, and other property lost in the military service, made by the act of June 14, 1878, chap. 191, was not intended to apply to the steamboat B. P. Cheney. The provision in the act of June 20, 1878, chap. 359, declaring that said appropriation should not be construed to authorize the payment of the claim for that steamboat without further legislation is explanatory of the former enact- ment. The amount of the appropriation is, subject to the requisition of the Secretary of War, to be applied to those objects which the appropriation describes, with that exception. Opinion of Nov. 23, 1878, 16 Op. 213. 25. Section 2 of the act of June 19, 1878, chap. 328, providing that $20,000 be placed to the credit of the contingent fund of the Senate, is to be construed as if the words ' ' said in- vestigations and inquiries as have already been, ' ' &c. , read ' ' such investigations and in- quiries as have already been," &c. Opinion of Dec. 28, 1878, 16 Op. 235. 26. The contingent fund of the "War De- partment cannot be applied to meet the ex- pense attending the employment of a detective to discover and furnish evidence necessary to convict the persons concerned in setting fire to certain buildings which were rented for the Quartermaster's Department at Atlanta, Ga. Opinion of Dec. 19, 1879, 16 Op. 412. 27. The words "contingent expenses," as used in the appropriation acts, mean such incidental, casual expenses as are necessary or appropriate and convenient in order to the performance of duties required by law of the Department or the office for which the appro- priation is made. Ibid. II. Transfer of. 28. The President does not possess the power to order any portion of a specific appropriation for the mileage and pay of members of the House of Representatives to be transferred to the contingent fund of that body. Opinion of April 8, 1839, 3 Op. 442. 29. The President has power, under section 2 of the act of July 2, 1836, chap. 268, to direct appropriations for one fortification to be trans- ferred to another, the provision therefor being construed to be perpetual. Opinion of Nov. 3, 1842, 4 Op. 110. 30. Since the passage of the act of August 31 , 1842, chap. 286,thePresidenthasnopowerto di- rect transfers in th e IN avy Department of moneys appropriated for one particular branch to the account of another branch of expenditure. Opinion of Oct. 23, 1843, 4 Op. 266. 31. The limitation imposed by the last clause of the act of February 23, 1844, chap. 3, "to authorize the President of the United States to direct transfers of appropriations for the naval service under certain circumstances, ' ' does not 20 APPEOPEIATIONS, III. fetter the authority to transfer from any gen- eral head of appropriation left unaffected by the previous clause. It applies only to appro- priations for specific and local objects, from which the act inhibits any diversion. Opinion of Feb. 29, 1844, 4 Op. 310. 32. The President may,- if he deems it con- ducive to the public interest, direct transfers of appropriations from the branch of expendi- ture of incidental expenses of the Quarter- master's Department to the other branches of barracks, quarters, &c. , and of transportation of officers' baggage. Opinion of April21, 1845, 4 Op. 363. 33. Congress having taken from the Execu- tive the power to transfer appropriations from one head of expenditure to another in the Navy Department, no portion of the money appro- priated by the act of June 17, 1844, chap. 107, for books, maps, charts, and instruments, and for binding and repairing the same for the Hy- drographical Office can be transferred and ap- plied to the building of a house for the super- intendent. Opinion of Aug. 18,1845,4 Op. 428. 34. The President is not authorized to direct a surplus of an appropriation for the Winne- bago Indians to be transferred to meet expenses in the Department of the Interior, for which the appropriation is inadequate, or for which none had been made. Opinion of April 25, 1849, 5 Op. 90. 35. Nor can the head of the Department find sufficient authority in the twenty-third sec- tion of the act of August 26, 1842, chap. 202, to authorize him to make such a transfer. The power given by that act is limited to trans- fers within the same Bureau, and to appropri- ations lor such objects as are enumerated in its twenty-second section. Ihid. 36. The head of a Department is authorized by the twenty-third section of the act of Au- gust 26, 1842, chap. 202, to transfer the surplus of an appropriation for one or more objects of expenditure to supply the deficiency of any other item of appropriation in the same De- partment or office. Opinion of Nov. 26, 1850, 5 Op. 273. 37. The twenty-third section of the said act is not a temporary but a permanent enactment, and limits transfers by the heads of Depart- ments to the surplus of appropriations, whilst the power conferred upon the President extends to entire appropriations. Ibid. 38. So, also, the act of August 26, 1842, chap. 202, authorizes the transfer and application of the surplus of appropriations standing to the credit of the War Department to supply the deficiency of appropriation for preventing and suppressing Indian hostilities. Opinion of Nov. 30, 1850, 5 Op. 274. 39. The twenty-third section of the act of Au- gust 26, 1842, chap. 202, authorizes the transfer and application of the surplus of appropriations standing to the credit of the War Department, and not transferred by the Secretary of the Treasury to the general account of moneys not appropriated, to supply the deficiency of the appropriation for preventing and suppressing Indian hostilities. Opinion of Dec. 5, 1850, 5 Op. 283. 40. Such transfer will not conflict with the first article, eighth section, and tw,elfth para- graph of the Constitution of the United States, nor with the sixteenth section of the act of March 3, 1795, chap. 45. Ibid. III. Unexpended Balances. 41. Moneys appropriated to the service of the War Department, and remaining unex- pended in the Treasury, may be carried to the surplus fund, without a report from the Secre- tary of War that such moneys are no longer required, after the expiration ot two yeais from the calendar year in which they are ap- propriated. Opinion of March 30, 1831, 2 Op. 442. 42. Where moneys appropriated to the serv- ice of the War Department remain unexpended in the Treasury, and the obj ect of the appropria- tion has been effected,they may becaxriedtothe surplus fund within two years from the calen- dar year in which they were appropriated, upon receiving such report from the Secretary of War. Ibid. 43. So, where such moneys, under like cir- cumstances, are in the hands of the Treasurer as agent for that Department; in which case the Secretary of War is required to cause them to be repaid into the Treasury, and they are then subject to transfer to the surplus fund. Ibid. 44. When, after the expiration of two years from the date of the appropriation, such mon- eys are in the hands of such agent the Secre- tary of War is required to report the fact to the Secretary of the Treasury, whose duty it APPBOPRIATIONS, III. 31 I then becomes to cause them to be transferred to the surplus fund. IMd. 45. "Whensuch moneys.having remained un- expended in the hands of the Treasurer as agent, have been repaid into the Treasury after the appropriation from which they were drawn had been carried to the surplus fund, they must also be carried to that fund on being so repaid. IMd. 46. A transfer of the unexpended balance of the appropriation made by the act of July 2, 1836, chap. 267, for carrying into effect the treaty of December 29, 1835, with the Chero- kees, is not required by law; and, although two years have elapsed, Congress has shown no disposition to abandon the project of their removal, but, on the contrary, passed acts to promote the object. Wherefore it is compe- tent for the War Department to make a requi- sition for such unexpended balance. Opinion of Feb. 14, 1839. 3 Op. 415. 47. The act of March 3, 1839, chap. 231, for the relief of certain claimants, being for reim- bursement of a sum of money advanced on ac- count of the United States, comes within the equity of the exception in the sixteenth section of the act of March 3, 1795, chap. 45 — "reim- bursement, according to contract, of any loan made on account of the United States. ' ' Opin- ion of March 15, 1843, 4 Op. 148. 48. But if the practice of the Departmentre- specting the disposition to be made, after two years, of appropriations be settled, such prac- tice should be pursued. IMd. 49. Under the acts of March 3, 1795, chap. 45; May 1, 1820, chap. 52; and August 31, 1852, chap. 108, in general, a balance of appropria- tion remaining unexpended at the expiration of two years is carried to the "surplus fund," and can be withdrawn therefrom only by new appropriation — except in the case of appropria^ tions for objects to which a duration longer than two years is assigned by law ; as to which, and especially expenditures in the War and Navy Departments, the specific appropriations remain in charge of the latter until, on report therefrom of the object being consummated, the money is credited to the "surplus fund" at the .Treasury Department. Opinion of Oct. 9, 1854, 7 Op. 1. 50. In general, an appropriation or a balance thereof, made in any year for any continuous contract or other service of the Government, may be applied to the same service during the succeeding or any subsequent year, and does not lapse into the ' ' surplus fund ' ' until the particular object be consummated. IMd. 51. Conversely, whenever, in any given year, the appropriation for a particular service proves deficient, a balance remaining of the appropriation for the same service in a pre- vious year may be drawn upon to supply the deficit; or rather the balance of the preceding year commences the service of the new year, and' is expended before any question arises of the new appropriation; and thus, at the end of -each year, the true unexpended balance is only what remains unexpended of that single year's appropriation. IMd. 52. Where a contract or other claim on the Government is a continuous one, and still cur- rent, then the balance remaining of the ap- propriation made in one year for such service laps over into the following year, and is con- tinuously applicable to the same subject. Opinion of Nov. 2, 1854, 7 Op. 14. 53. Such is the legal effect, even though the appropriation be but annual in its terms. IMd. 54. It is proper, in such a case, to begin, in each successive year, by expending the bal- ance of the previous year before enteriog upon the appropriation for the current year. IMd. 55. The act of March 3, 1869, chap. 122, pro- viding ' ' for the completion of a custom-house, &c. , at Knox ville. East Tennessee, in addition to former appropriations, §5,000," does not re- appropriate any of the unexpended balances of such former appropriations which had pre- viously been carried to the surplus fund under the requirements of law. Opinion of Jan. 5, 1870, 13 Op. 181. 56. Under the provisions of the act of July 12, 1870, chap. 251, balances of appropriations made for the year 1869-'70, of any description, may be applied to the service of the year 1870- '71, so far as, first, to pay in the latter year expenses properly incurred in the former year; and, second, to pay dues upon contracts prop- erly made within the former year, though such contracts be not performed till within the latter year. Opinion of July 27, 1870, 13 Op. 289. ■ 57. Neither the fifth nor the seventh section of that act places any restriction upon the use of balances, first, where they are from appro- priations not made in annual appropriation bills; second, where they are from appropria- 22 ARKANSAS; ARMY, I. tions not made especially for a particular fiscal year; third, wheretheyare from appropriations known as permanent; and, fourth, where they are from appropriations known as indefinite. Ibid. 58. The Secretary of the Interior is author- ized to apply certain unexpended balances of appropriations to defray certain charges in- curred by his Department in connection with the Centennial Exhibition. Opinion of March 3, 1877, 15 Op. 204. 59. The provision in the act of August 15, 1876, chap. 289, making appropriations for the Indian Department for the year ending June 30, 1877, namely, "That amounts now due employes for year ending June 30, 1876, may be paid out of unexpended balance of the in- cidental fund of said year-, ' ' considered in con- nection with sec. 3682 Eev. Stat.; and held that under that provision amounts due for cler- ical or of&cial services in the Indian service for the year ending June 30, 1876, may be paid out of the unexpended balance of the inci- dental fund of the Indian service for the same year. Opinion of Jan. 21, 1878, 15 Op. 434. 60. The term "employfe," as used in the same provision, was meant to include all those ■who performed services in any capacity in the Indian service during the year ending June 30, 1876, whose employment was authorized by law, and v^hose compensation remained unpaid at the date of the act of August 15, 1876. Ibid. ARKANSAS. 1. The State of Arkansas, on the 11th of May, 1864, was in a condition of insurrection against the United States; and an act of as- sembly of the State, passed on that day, was not a valid acceptance by the legislature of the State of the act of Congress of July 2, 1862, chap. 130, known as the agricultural college grant. Opinion of Aug. 16, 1866, 12 Op. 11. 2. The act of December 13, 1872, chap. 2, does not require interest on overdue coupons of the bonds of the State of Arkansas, then held by the United States as Indian trust funds, to be exacted by the Secretary of the Interior in the ' ' arrangement " to be made by the State mentioned in the proviso of the first section of that act. Opinion'of May 26, 1873, 14 Op. 611. ARMY. See also Allotment Checks; Militia and volunteees; invalid and disabled Soldiers. As to Pay of Army, see Compensation, III. I. Generally. II. Appointment and Promotion. III. Brevets. IV. Rank. V. Relative Bank. VI Transfer of Officer. VII. Resignation. VIII. Holding Civil Office. IX. Dismissal or Removal of Officer X. Restoration to Lost Rank. XI. Allowances to Officers. XII. Pay Accounts of Officers. XIII. Longevity. XIV. Examining Board. XV. Retired List. XVI. Enlistment. XVII. Minors. XVIII. Stoppage of Pay. XIX. Money of Enlisted Persons. XX. Furlough. XXI. Discharge. XXII. Regulations. XXIII. Civil Authorities. I. Generally. 1. The term "major" in the provision of the third section of the act of April 24, 1816, chap. 69, regulating the pay of battalion and regimental paymasters, and providing that they shall receive the pay and emoluments of a major, may be taken to mean a major of in- fantry. Opinion of Feb. 17, 1825, 1 Op. 704. 2. The oflace of Paymaster-General was within the policy of the act of May 15, 1820, chap. 102, and is not affected by the subse- quent act of the 2d of March, 1821, chap. 13. Opinion of April 20, 1826, 2 Op. 27. 3. The Adj utant-General of the Army, under the act of March 2, 1821, chap. 13, may hold at the same time the office of Adj utant-G eneral, with the rank of colonel of cavalry, and that 23 •of major of the Second Regiment of Artillery. Opinion of April 28, 1834, 2 OiD. 644. 4. Soldiers in the military service of the United States may bring actions to recover damages in State courts for assaults and batter- ies committed on them by non-commissioned officers within the limits of a fort. Opinion of Feb. 18, 1840, 3 Op. 498. 5. Military storekeepers are all of one grade, and alike subject, as to their place of duty, to the orders of the Secretary of "War. Opinion of March 27, 1853, 6 Op. 7. 6. The cadets of the Military Academy at West Point appertain by law to the Corps of Engineers, are therefore a part of the land force ■of the United States, and as such are subject to the rules and articles of war. But they are not ' ' non-commissioned ' ' officers of the acts of Congress and the general regulations, which expression means ' ' sergeants and corporals, ' ' and is inapplicable to the cadets. They are inchoate officers of the Army, and subject by statute and regulation to no discipline incom- patible with that character. Opinion of July 11, 1855, 7 Op. 323. 7. The undergraduate cadets, in their in- ternal academic organization as officers, non- commissioned officers, and privates, are not subject to the articles of war as respects their relation to one another, but only as respects their relation to commissioned officers of the Army on duty as such in the academy. Ihid. 8. Army sutlers are not subject to a license in the State of California on sales made by them to officers or soldiers of the Army, nor to tax on goods kept by them at a military post for that purpose; but sutlers may be com- pelled to pay license if they enter into general trade within the State. Opinion of Oct. 27, 1855, 7 Op. 578. 9. Brigadier-General Saxton had no power under the order of the War Department of June 16,1862, assigning him " to duty in the Depart- ment of the South, ' ' to erect at Port Royal, S. C. , ajudicial tribunal with authority to determine civil causes between citizens of the United States temporarily within that department. Opinion of Jan. 30, 1865, 11 Op. 149. 10. The military forces of the United States can have nothing to do with the redress of private grievances or prosecutions for public wrongs committed during the riots in Mem- phis, Tenn., in filay, 1866. Opinion of July 13, 1866, 11 Op. 531. 11. A post chaplain in the Army is an "offi- cer" within the meaning of the thirty-first section of the act of March 3, 1863, chap. 75. Opinion of Oct. 26, 1868, 13 Op. 519. 12. The present incumbents of the office of judge-advocate are officers of the regular Army of the United States, lawfully appointed and commissioned. Opinion of June 14, 1869, 13 Op. 96. 13. Provisions of the act of July 17, 1862, chap. 201, and subsequent statutes relating to these officers, considered. Ibid. 14. Regimental quartermasters are not offi- cers of the Quartermaster's Department; they ^re properly staff officers of their respectiveregi- nients, who, besides other duties, are charged with the custody and issuing of supplies. Opin- ion of Sept. 2, 1870, 13 Op. 315. 15. Where an Army officer was mustered out of service with one year's payand allowances, under the third sectioli of the act of July 15, 1870, chap. 294, and in about two years after- ward was reappointed to an office in the Army : Held that there was no authority to compel him to refund such pay and allowances, and that the same could not be legally retained out of his pay. Opinion of May 6, 1873, 14 Op. 230. 16. One complete annual return of ordnance and ordnance stores, with quarterly reports noting all intermediate changes since last re- turn, if sanctioned by the Chief of Ordnance and approved by the Secretary of War, is suffi- cient under the provisions of the acts of March 3, 1813, chap. 48, and February 8, 1815, chap. 38. Opinion of Aug. 2, 1873, 14 Op. 289. 17. Act of June 23, 1874, chap. 499, direct- ing the Secretary of War ' ' to amend the record of the said A. H. Von Luettwitz so that he shall appear on the rolls and records of the Army for rank as if he had been continuously in service, ' ' construed. And lield that it is the duty of the Secretary, under the act, to erase from the rolls and records any entry or state- ment showing that Von Luettwitz was cash- iered ; but this will not ipso facto restore the latter to the office from which be was dis- missed. Opinion of Aug. 13, 1874, 14 Op. 448. 18. Considering the intent of the act, how- ever: Advised that the President is authorized 24 ARMY, H. thereby to immediately appoint Von Luett- witz a first lieutenant in the usual way, with pay to commence from the date of the act. lUd. 19. Under the act of March 3, 1857, chap. 106, Brevet Lieutenant-General Scott was en- titled, when exercising eommaud according to that rank, and then only, to the staff to which he had appointed General Hamilton ; and upon the retirement of the former from active serv- ice, and consequent withdrawal from com- mand, to wit, on the 1st of November, 1861, the appointment of the latter was ipso jure re- voked. Opinion of Nov. 38, 1874, 14 Op. 506. 20. On the 15th of December, 1870, P., a captain of cavalry, was discharged from service, at his own request, under section 3 of the act of July 15, 1870, chap. 294, receiving a year's pay and allowances. On the 19th of May, 1876, he was appointed a second lieutenant of in- fantry. Held, that the provisions of the second section of the act of March 3, 1875, chap. 159, do not apply ; and accor(Jingly that P. is not re- quired to refund the pay and allowances men- tioned. That section is limited to those who were mustered out as "supernumerary offi- cers ' ' under section 12 of the act of 1870, and who subsequently to the act of 1875 are re- appointed. Opinion of Nov. 15, 1876, 15 Op. 177. 21. Congress adjourned March 3, 1877, with- out providing for the payment of the Army subsequent to June 30 of that year. Inquiry being made whether, if the necessary funds can be furnished by individual contribution, they can properly be used for that purpose, and the Army thus supported until the next session of Congress: Advised (after reviewing the consti- tutional and legislative provisions bearing on the subject) that this means of paying the Army cannot properly be employed by the President. Opinion of March 21, 1877, 15 Op. 209. 22. A certificate of merit cannot be issued, under section 121G Rev. Stat., to a soldier who applies for the same after his discharge. It is contemplated by that section that the applicant shall continue to be, at the time of the issuance of the certificate, a soldier ofthe United States. Opinion of May 9, 1878, 16 Op. 9. 23. The provisions of section 8 of the act of June 18, 1878, chap. 263, giving to Army offi- cers the privilege of purchasing fuel at the rate of §3 per cord for standard oak wood, do not extend to retired officers of the Army. Opinion of July 18, 1878, 16 Op. 93. 24. The words in that section "or an equiv- alent rate for other kinds of fuel, according to the regulations now in existence," are to be understood as only authorizing a sale of the quantity of other fuel for §3 (viz, 1,500 pounds of anthracite coal or 30 bushels of bituminous coal) which, by the regulations, is made the equivalent of a cord of standard oak wood. Ibid. 25. The number and rank of the officers au- thorized by law to be permanently maintained in the Inspector-General's Department in the Army are fixed by the acts of June 23, 1874, chap. 458, and December 12, 1878, chap. 2, as follows: One brigadier-general, two lieutenant- colonels, and two majors. Opinion of Oct. 2, 1879, 16 Op. 638. II. Appointment and Promotion. 26. Undertheactsof February 11, 1847, chap. 8, and July 19, 1848, chap. 104, no promotion in the Quartermaster's Department can be made from the grade of assistant quartermaster to that of quartermaster until the number of ofiacers in the latter shall be reduced by va- cancies occurring, so that the sum total of the grade shall not exceed the statute standard of the peace establishment of the United States. Opinion of April 21, 1855, 7 Op. 108. 27. An assistant surgeon in the Army was dismissed by the sentence of a court-martial. He was subsequently nominated as assistant surgeon, and confirmed by the Senate, with a recommendation that he should take rank ac- cording to the date of his original commission. This rank would entitle him, according to the usual rules of promotion, to be appointed a iull surgeon. But while he was out of the Army all the places of full surgeon had been filled by the promotion of his juniors. Held that the promotion of the juniors was legal, and that the only benefit which the officer in question could derive from his rank was the right to be appointed a full surgeon upon the happening of the next vacancy. Opinion of April 22, 1857, 9 Op. 20. 28. The two regiments of cavalry raised under the act of March 3, 1855, chap. 169 are a distinct arm of the service, and as such reg- 25 ulate promotions therein. Opinion of March 16, 1859, -9 Op. 293. 29. Tile appointment of a commissioned of- ficer is not perfected, and is entirely within the power of the President, until a commission is issued. Opinion of March 17, 1859, 9 Op. 297. 30. By force of the act of August 6, 1861, chap. 58, Capt. Howard Stansbury, of the To- pographical Engineers, became entitled to pro- motion to the rank of major in that corps, and should receive such promotion as of a date im- mediately following that act. Opinion of Oct. 14, 1861, 10 Op. 144. 31. The third section of the act of August 3, 1861, chap. 42, providing for the better or- ganization of the military establishment, which authorizes the promotion of captains of the Army in the Quartermaster's Department to the rank of major after fourteen years' contin- uous service, only applies to captains who have served fourteen years continuously in the Quar- termaster's Department. Opinion of Jan. 10, 1862, 10 Op. 166. 32. The President made appointments of chaplains to Army hospitals before the passage of any law authorizing them; subsequently he made known the fact to Congress, and by the act of July 17, 1862, chap. 200, section 9, the appointments of chaplains to Army hos- pitals theretofore made by the President were confirmed: Held that it was not necessary that the persons so appointed by the President and confirmed by statute should be again nomi- nated to the Senate for its advice and consent. Opinion of Feb. 3, 1863, 10 Op. 449. 33. The statutes prescribing the qualifica- tions of chaplains in the Army do not preclude the appointment of a Christian minister to the office of chaplain because he may be a person of African descent. Opinion of April 23, 1864, 11 Op. 37. 34. By the laws and regulations of the mili- tary service in force at the passage of the act of March 3, 1869, chap. 124, vacancies in es- tablished regiments and corps, to the rank of colonel, were required to be filled bypromotion according to seniority, except in case of disa- bility or other incompetency. Opinion of April 5, 1869, 13 Op. 13. 35. But these laws and regulations do not confer upon the officer next in the order of suc- cession any right to the vacant place; this he can acquire only by virtue of a new commis- sion. Hid. 36. The second and sixth sections of said act operate to prevent the nomination for promo- tion of infantry and staff officers who were eligible to promotion prior to March 3, 1869, except as therein provided. Ibid. 37. The right of an individual to an office in the Army to which he has been nominated and confirmed is not a vested one until his commis- sion has been signed by the President. Opin- ion of May 8, 1869, 13 Op. 44. 38. Until the commission has been signed it is within the discretionary power of the Presi- dent to withhold it. Ibid. 39. Vacancies which, under section 12 of the act of July 15, 1870, chap. 294, were intended by Congress to be filled from officers placed on the supernumerary list in pursuance of the provisions of that section, comprised only such vacancies as should occur prior to January 1, 1871; hence a vacancy occurring on or after that date was excluded from the operation of the above-mentioned enactment. Held, accord- ingly, that where S. , a colonel of infantry, wa& at his own request honorably discharged from the service, the discharge to take effect Janu- ary 1, 1871, E., a lieutenant-colonel on th& supernumerary list, was not entitled to the place thus made vacant, and was lawfully mus- tered out of service under an order dated Jan- uary 2, 1871. Opinion of Feb. 11, 1871, 13 Op. 380. 40. Vacancies created in the Quartermaster's Department by the act of July 28, 1866, chap. 299, from above the rank of assistant qiiarter- master to that of colonel, were required to be filled by promotion according to seniority, ex- cept in case of disability or other incompetency. Opinion of Jan. 22, 1872, 14 Op. 2. 41. The Army Regulations of 1863, in regard to promotions in the Army, have, by virtue of section 37 of the said act, the force of law. Ibid. 42. The words ' ' all vacancies, ' ' used therein , .cannot be rightfully construed to apply to va- cancies occurring in a particular way only, but they include a vacancy that arises on the crea- tion of a new oiflce as well as one that happens by the resignation or death of an incumbent. Ibid. 43. By section 17 of the act of July 28, 1866, chap. 299, there were allowed in the Medical 26 ARMY, II. Department of tlie Army one chief medical purveyor and four assistant medical purveyors, each with the rank and pay of a lieutenant- colonel of cavalry; and the sixth section of the act of March 3, 18G9, chap. 124, prohibited any new appointments or promotions in that de- partment until otherwise directed by law. A vacancy in the office of chief medical purveyor having occurred subsequent to the date of the last-mentioned act: Held that the provisions thereof forbid the filling of the vacancy by the appointment of one of the assistant medical purveyors thereto; that such an appointment would constitute a promotion, in view of the relative superiority of the position, and come within the statute, though it involved no in- crease of pay. Opinion of Feb. 24, 1872, 14 Op. 10. 44. The purpose of the act of June 8, 1872, chap. 351, is to put Nelson H. Davis in the same grade in the Inspector-General's Depart- ment, and in the same place relatively in that grade, which he would now hold and occupy had he been regularly promoted to fill the va- cancy in that Department caused by the death of Inspector-General Henry Van Rensselaer on the 23d of March, 1864. Opinion of Sept. 16, 1872, 14 Op. 117. 45. That purpose will be effected by ap- pointing him to the office of Inspector-Gen- eral, to take rank next after Colonel Schriver; -and this would necessarily make him (as by the statute he is entitled to be) senior in rank to Colonel Hardie. Ibid. 46. The claim of Maj. Absalom Baird to .fill the vacancy in the Inspector-General's De- partment caused by the advancement of Lieut. Col. Nelson H. Davis, under the act of June 8, 1872, chap. 351, is inadmissible; the author- ity to appoint conferred by that act being ex- hausted by the appointment of the last-named officer, and the filling of the vacancy accord- ingly being precluded by force of the sixth sec- tion of the act of March 3, 1869, chap. 124. ■Opinion of Jan. 9, 1873, 14 Op. 164. 47. Review of the laws and regulations per- taining to appointments and promotions in the military service. Jbid. 48. It may now be considered to be defi- nitely settled by the practice of the Govern- ment, that the regulation and government of the Army include, as being properly within their scope, the regulation of the appointment and promotion of officers therein. Ibid. 49. Hence, as the Constitution expressly confers upon Congress authority ' ' to make rules for the government and regulation of " the Army, that body may impose such restric- tions and limitations upon the appointing power as it deems proper in regard to promo- tions or appointments to any and all vacancies in the Army, provided the restrictions and limitations be not incompatible with the exer- cise of the appointing power. Ibid. 50. Previous to the act of July 28, 1866, chap. 299, the Secretary of War, with the ap- proval of the President, might, by virtue of the act of April 24, 1816, chap. 69, at discre- tion, adopt alterations in the regulations for the Army ; and the regulations thus modified had the sanction of Congress under the latter act, so far at least as they came not in confiict with the provisions of any later statute; but by the said act of 1866 this authority of the Executive to alter or modify was taken away. Accordingly, the rules which existed at the date of the act of 1866 concerning the subject of ap- pointment and promotion in the Army became, as it were, fixed; and, havingthe force of law, they must be taken to control the appointing power in regard to that subject until Congress shall otherwise direct. Ibid. 51. Where an officer in a regiment has re- signed, or is lawfully dismissed from the serv- ice, and his connection with the Army has thus ended, he cannot afterward be legally restored by reappointment to his former grade and po- sition, if he would thereby be made to outrank other officers then already holding commissions in the regiment, unless such reappointment is specially authorized by Congress. Opinion of Nov. 20, 1874, 14 Op. 500. 52. The reappointment in the above case is precluded by the Army Regulations, which have the force and effect of law, and which re- quire, as a general rule, all vacancies in the regimental offices to be filled by promotion ac- 'cording to seniority. Ibid. 53. H., an assistant quartermaster (whose commission is junior to the commissions of twenty-two other assistant quartermasters) having served as an assistant quartermaster of volunteers from June 9, 1862, to March 22 1867, and from the latter date as an assistant 27 ■quartermaster in the regular Army under his present commission, claimed to be entitled to promotion to the grade of major in the Quar- termaster's Department on account of fourteen years' continuous service. An obstacle to im- mediate promotion being presented by section 4 of the act of March ' 3, 1875, chap. 126, the question is whether H. is entitled to be pro- moted upon the next happening of a vacancy in said grade, the provisions of thill section not being in the way: Held (1) that he is not so entitled on the ground of continuous service; (2) that under existing law the right to promo- Ttion, in case of such vacancy, would be gov- erned by seniority of commission, irrespective of the past service of the ofScwl Opinion of .July 6, 1877, 15 Op. 330. 54. C. and T., each of whom had previously served as a medical ofacer in the volunteer forces during the late war, were appointed to £11 original vacancies in the grade of assistant surgeon in the Army, created by section 17 of the act of July 28, 1866, chap. 299, the appoint- ment of the latter having been made in May, 1867, and that of the former in October, 1867. Held that neither C. nor T. is entitled (in the .absence of a statutory provision authorizing it) ■to have his commission dated as of the date of the act creating the vacancies, viz, July 28, 1866. Opinion of Sept. 27, 1878, 16 Op. 614. 55. In applying section 1219 Eev. Stat, to -the case of assistant surgeons who are entitled to rank as captains it is not necessary to issue commissions to such assistant surgeons as cap- tains. The office to which they are already commissioned is that of assistant surgeon; and promotion therein (from the rank of first lieu- tenant to that of "captain), consequent upon duration of service, results by mere operation of law, and does not require any action by the appointing power to effect it. Opinion of Jan. .24, 1880, 16 Op. 652. 56. S., an officer in the Quartermaster's De- partment, standing number four in the grade of lieutenant-colonel, claims that he was over- slaughed by the promotion, in 1866, of the three officers who stand above him in the same grade, under an erroneous execution of the act ■of July 28, 1866, chap. 299 (whereby certain original vacancies in the grades of major, lieu- tenant-colonel, and colonel, created by that act, were filled by selection instead of by pro- motion according to seniority), and he asks that the error be now rectified by the President by appointing him to fill the next vacancy oc- curring in the grade of colonel in the same corps over the three officers referred to. Ad- vised that (upon considerations stated in the opinion) the President should treat the com- missions issued to these officers by his prede- cessors as conclusive of their right to, the rank conferred thereby; that while those commis- sions stand he should have regard to them in making promotions by seniority in said corps; and that if S. has sustained a wrong in this Giatl«'(. C-ongress alone can remedy it. Opinion oj htt. 9, 1880, 16 Op. 583. III. Brevets. 57. Brevet rank takes effect whenever by special assignment the brevet officer is invested with a separate command, comprising troops of different corps at a particular post. Opinion of March 27, 1823, 1 Op. 604. 58. The act of July 6, 1812, chap. 137, au- thorizing the President to confer brevet rank on such officers of the Army as shall have served ten years in any one grade, applies to brevet officers generally, and such as have been bre- vetted for gallant services. Opinion of April 5, 1824, 1 Op. 653. 59. The service actually rendered for ten years in any one grade being the ground of pro- motion, any officer performing it for thatterm, whether he holds the grade by commission or by brevet, is entitled to promotion. lUd. 60. The ten years' service in one grade men- tioned in the act of July 6, 1812, chap. 137, as given for one of the meritorious grounds for a brevet (if there be no practice to the contrary) must be a service for ten continuous years. Opinion ofFeh. 20, 1828, 2 Op. 71. 61. The act authorizing the President to con- fer brevets is not mandatory; it is not imper- ative; but merely authorizes him to confer brevet rank in certain cases ; and the cases are within his sound discretion to say whether the gallant actions, meritorious conduct, and the service in one grade of ten years have been suf- ficiently important to deserve the mark of dis- tinction. Ibid. 62. The brevet commissions issued by the President on the 28th of June, 1848, to certain persons who had distinguished themselves in the late war with Mexico, on the recommenda- 28 ARMY, IV, T. tion of the commanding officer of their regi- ment, are valid, though such persons were not non-commissioned officers at that date. Opin- ion of Sept. 4, 1848, 5 Op. 22. 63. The act of March 3, 1847, chap. 61, in- vested the President with authority to issue such brevets as a reward for the distinguislred services of that class of ofdoers, rendered in that capacity, upon certain evidence that they had thus served, whether they should retain the same rank when the reward should be bestowed , or should be transferred elsewhere to act in an humbler capacity. Ibid. 64. Under the act of April 16, 1818, chap. 64, an officer of the Army cannot get the pay of his brevet rank without showing both that he was on duty and that he had a correspond- ingcommand. Opinion of Sept. 29, 1857, 9 Op. 114. 65. Although Congress, by the act of March 3, 1839, chap. 85, declared that the act of April 16, 1818, chap. 64, should thereafter "be so construed as to include the case of the Adju- tant-Greneral of the United States," it was held that an officer who, after the passage of the said act of 1839, was Adjutant- General of the United States with the rank of brigadier- general by brevet, and afterward a major-gen- eral by brevet, and who had no command ac- cording to such ranks, was not entitled to receive the pay and emoluments of his respect- ive brevet ranks. Ibid. 66. Where nominations of Army officers for promotion by brevet had been pending before the Senate prior to the date of the act of March 1, 1869, chap. 53, but were not coniirmed by that body until the 3d of March, 1869: JSeld that, under the operation of the second section of that act, if the ofSoers were not nominated by reason of "distinguished conduct and public service in the presence of the enemy, ' ' they could not be commissioned. . Opinion of April 24, 1869, 13 Op. 31. 67. A nomination for brevet promotion, by reason of meritorious service in engagement^ with the Indians, is within the statute, and, consistently with its provisions, commissions might be issued to any of the officers referred to who may have been thus nominated. Ibid. 68. Such promotion, when made during the existence of Indian hostilities, is to be viewed as conferred "in time of war, ' ' within the meaning of the act mentioned. Ibid. IV. Rank. 69. Adnised that the construction of the law as given by Judge-Ad voeate-General Holt, and since acquiesced in and followed in several in- stances by the War Department, be adhered to, namely: that the rank conferred by sec- tion 1096 Eev. Stat, upon the aids selected by the General of the Army thereunder entitles such aids to the precedence, when serving upon courts-martial, courts of inquiry, military boards, and the like, to which the same rank would entitle an officer of the line or staff (in- dependent of the office of aid) when thus serv- ing. Opinion of Aug. 11, 1880, 16 Op. 552. ^f. Relative Rank. 70. The period of service during which those paymasters in the Army who were selected and appointed pursuant to the provisions of the eighteenth section of the act of July 28, 1866, chap. 299, from the " additional paymasters " created under the twenty-fifth section of the a- poiutment, had served three or more years in the volunteer medical department (all of which is discussed in opinions of June 6 and July 2, 1878, 16 Op. 56, 605), reviewed, and the doc- trine of those opinions reaffirmed. Opinion of Jan. 24, 1880, 16 Op. 652. VI. Transfer of Officer. 80. Lieutenants in the artUlery and Marine Corps may be exchanged, with their own assent, where the ranks oif other officers will not be interfered with or prejudiced; but such ex- changes can be effected only by the action of the appointing power of the President, by and with the advice and consent of the Senate; and will not he made unless the good of the service requires it. Opinion of June 28, 1830, 2 Op. 355. 81. G., while holding a commission as sec- ond lieutenant of infantry, dated March 7, 1867, and being on the list of unassigned offi- cers created under the provisions of the act of March 3, 1869, chap. 124 (which affected in- fantry regiments and the officers thereof only), received and accepted a commission as second lieutenant in the Fifth Cavalry, to rank from July 14, 1869, the date of his transfer to that regiment, and has since been promoted in ordinary course to a first lieutenancy therein. Before accepting his first commission in the cavalry he remonstrated against the refusal of the War Departmant to rank him according to the date of his commission in the infantry. Held that, on being transferred to the cavalry, G-. was not entitled to take rank from the date of his commission in the infantry, but from the date of his transfer, and that the action of the War Department in giving his new commis- sion thelatter date was correct; Iield, further, that his commission as an infantry officer was necessarily vacated by his acceptance of a com- mission in the cavalry. Opinion of March 22, 1879, 16 Op. 290. 30 ARMY, VII, Till. VII. Resignation. 82. A valid resignation of a military officer, followed by an unconditional acceptance of it. operates to remove the incumbent, and a new appointment is required to restore him to the office. Opinion of Feb. 10, 1869, 12 Op. 555. 83. The opinions of Attorney-General Gush- ing and Attorney-General Bates (see 6 Op. 456, and 10 Op. 229) to the effect that, on, general principles of law, the resignation of an officer while insane is to be deemed void, and that, although it may have been accepted with- out knowledge of the insanity, the acceptance can be recalled and the officer reinstated with- out a new appointment, reaffirmed; subject, however, to the following qualifications, viz, that the Executive Department, after having accepted the resignation, has done no act which prevents the restoration of the statu quo with- out impairing or prejudicing the rights of other officers acquired in consequence of such act. Opinion of March 22, 1878, 15 Op. 470. 84. Where a resignation of an Army officer has been tendered and accepted without any- thing more, and a question of insanity after- wards arises, it is competent to the War De- partment to hear and consider evidence upon the question, and decide and act accordingly. Ibid. 85. But where, after acceptance of the resig- nation and without knowledge of the insanity, the place of the officer has been filled by ap- pointment of another thereto, the resignation must be regarded as effective. Ibid. VIII. Holding Civil Office. 86. The provisions of section 18 of the act of July 15, 1870, chap. 294, prohibiting Army officers on the active list from holding any civil office, extend to State offices as well as to offices under the United States, and to those offices for which no compensation is provided as well as to those for which compensation is allowed. Opinion of Aug. 10, 1870, 13 Op. 310. 87. In view of the eighteentli section of the act of July 15, 1870, chap. 294: JTeM that Gen- eral William T. Sherman cannot act as Secre- tary of War without vacating his commission as General of the Army. Opinion of March 24, 1873, 14 Op. 200. 88. The position of trustee of the Cincinnati Southern Railway — the duties which apper- tain to it being defined by certain acts of the Ohio legislature, and appointments thereto and removals therefrom being made by the judges, of the superior court of the city of Cincinnati, by which court the compensation of the trustee is also fixed — is a civil office within the meaning^ of section 1222 Rev. Stat., and, therefore, upon acceptance of an appointment to such trustee- ship by an officer of the Army his commission in the Army would become vacated. Opinion of March 25, 1876, 15 Op. 551. 89. A retired officer of the Army does not vacate his commission by accepting a civil office, unless it be an office in the diplomatic or con- sular service, in which latter case he is to be regarded as having resigned his place in the Army. From the general law applicable to such case (contained in section 1223 Rev. Stat. ) , a certain class of retired officers described in the act of March 3, 1875, chap. 178, are ex- cepted. Opinion of June 11, 1877, 15 Op. 306. 90. He is not precluded from holding a civil office that does not belong to the diplomatic or consular service. And when he performs the duties of a civil office which he may lawfully hold, under and by virtue of an appointment to such' office, he is entitled to draw his pay as a retired officer and also the salary provided for the civil office during the period of his in- cumbency of the latter office. Ibid. 91. In 1870, B. , a retired officer of the Army, was appointed to and accepted the office of con- sul-general at London. Since his appointment his name has been borne on the Army Register as a retired officer, but he has not received pay as such. He is not of the class of retired officers described in the first proviso of section 2 of the act of March 3, 1875, chap. 178: Held, upon consideration of the provisions of sections 1094 and 1223 Rev. Stat, (the latter section embody- ing so much of section 2, act of March 30, 1868, chap. 38, as related to officers of the Army), together with section 2 of the act of 1875 afore- said, that B. has ceased to be a retired officer of the Army by effect of the statutory provision embodied in said section 1223, and that his name cannot legally be continued on the re- tired list. Opinion of Dee. 11 , 1877, 1 5 Op. 407. 92. Section 1222 Rev. Stat, does not forbid the detail by the Secretary of War of an officer of the Army on the active list for duty on the Geological Survey, under the Interior Depart- ment. But such detaU would come within the ARMY, IX, X. 31 prohibition of section 1224 Rev. Stat., should it require the officer to be separated from his company, regiment, or corps, or should it other- wise interfere ■with the performance of his mili- tary duties proper. Opinion of May 21, 1880, 16 Op. 499. IX. Dismissal or Removal of an OfGcer. 93. A paymaster having been reported by the Paymaster-General to have failed in mak- ing quarterly reports accoiliing to the act of 31st of January, 1823, chap. 9, and having been dismissed from ofiBoe by an order from the office of the Adjutant-General, purporting to have been issued by order of the President, and his place having been filled by another, is ef- fectually and legally dismissed from the Army as paymaster, although the President has not issued any order of dismissal under his sign manual. Opinion of Feb. 17, 1828, 2 Op. 67. 94. The proviso to the third section of the act of 31st of January, 1823, chap. 9, concerning restorations in certain cases, does not reach the case of an officer who has been actually dis- mis.sed, but is confined to those who, being in default, shall, before their dismission, account therefor to the satisfaction of the President. Ibid. 95. The President may cause a military or naval officer to be stricken from the rolls with- out a trial by a court-martial, notwithstand- ing a decision in his favor by a court of inquiry ordered for the investigation of his conduct. Opinion of Feb. 11, 1842, 4 Op. 1. 96. An officer in default cannot save himself from dismissal by rendering quarterly accounts. He is required not only to account, but to pay, and a default in either subjects him to dis- missal. The decision of the President in such cases is final. Opinion of April 8, 1850, 5 Op. 234. 97. Military storekeepers are subject to re- moval from office at ihe discretion of the Presi- dent of the United States. Opinion of March 26, 1853, 6 Op. 4. 98. The President of the United States pos- sesses t«nstitutional power to dismiss officers of the Army or Navy coextensive with his power to dismiss executive or administrative officers in the civil service of the Government. Opinion of Dec. 10, 1856, 8 Op. 223. 99. In the case of Colonel Belger: HeJd that that officer was effectually dismissed from the military service by the general order issued from the Adjutant-General's office on Novem- ber 30, 1863. Opinion of June 16, 1868, 12 Op. 421. 100. Semhle that section 17, act of July 17, 1862, chap. 200, in so far as it authorized dis- missals by the President from the military service, was declaratory only of long-estab- lished law, and that the force of the provision is found iu the word ' ' requested, ' ' by which it was intended to re-enforce strongly this power iu the hands of the President at a great crisis. Opinion of Jan. 8, 1878, 15 Op. 421. 101. In January, 1863, M., then colonel of a regiment of Wisconsin volunteers in the mili- tary service of the United States, was by order of the President dismissed the service without, trial. In October, 1883, the President issued, the following instructions : ' ' Let theorderdis- missing Colonel M. be revoked, and he ordered to report to General Grant, as above advised, with the modification that the ordering a court- martial be in the discretion of General Grant. ' ' In November, 1863, these instructions were returned to the President by the Secretary of War with the information that the restoration of M. to the command of the regiment, his suc- cessor having already been appointed and mus- tered in, was impracticable; and the President took no further action in the case: Advised that it is not now competent to the Secretary of War to publish the said instructions of the President, and, in execution thereof, to grant M. an honorable discharge as of the date of the^ muster-in of his successor. Opinion of Feb. 12, 1878, 15 Op. 659. 102. H., a major of infantry, was dismissed from the Army, without trial by court-martial, in July, 1863, by order of the President. In April, 1878, he made application for trial by court-martial under the provisions of section 1230 Eev. Stat. jffeM that the phrase in that sec- tion, ' ' any officer dismissed, ' ' is prospective only in its meaning, and that H. is not en- titled to a court-martial. Opinion of Mutj 29, 1878, 16 Op. 599. X. Restoration of Lost Rank. 103. The President, by and with the advice and consent of the Senate, may, by reappoint- ment and commission, restore lost rank, in- 32 ARMY, XI. eluding seniority, to an ofiSeer of the Army or Kavy. Opinion of Bee. 10, 1856, 8 Op. 223. XI. Allo'wances to Officers. 104. The act of April 24, 1816, chap. 69, authorizing certain charges for forage for horses, and also for pay, rations, and clothing for serv- ants, to be made by certain ofBcors, is prospect- ive in its operation, and refers only to the act of 3d March, 1813, chap. 52, for a standard to govern the subject in future. Opinion of April 30, 1821, 1 Op. 468. 105. The allowance of fuel and quarters to of&oers of the Army is founded on a regulation of the Department of War, sanctioned by an appropriation by Congress. The Surgeon-Gen- eral is entitled to the same allowance. Opin- ion of June 30, 1821, lOp. 475. 106. A judge-advocate is entitled to com- pensation for extra expenses in traveling and sitting as j udge-advocate, and to special com- pensation ibr clerical services, under the twenty- first and twenty-second sections of the act of 16th March, 1802, chap. 9. Opinion of Aug. 20, 1823, 1 Op. 618. 107. The per diem allowance made to officers for traveling expenses by section 22 of the act of 16th March, 1802, chap. 9, is confined to officers traveling to and from courts-martial, and cannot be paid to those who are traveling on other business. Opinion of March 23, 1825, 1 Op. 708. 108. A lieutenant, being a subaltern in the Army, and not in the performance of any staff duty, is entitled, by the act of 2d March, 1827, chap. 42, to an additional ration. Opinion of June 30, 1829, 2 Op. 213. 109. Extra rations are properly issuable to officers commanding at posts, in the ordinary military acceptation of that term, and to those to whom, by special order of the President, they have been or may be directed to be issued. Opinion of July 18, 1829, 2 Op. 223. , 110. Both the Surgeon-General and Paymas- ter-General are entitled equally to allowances for fuel and quarters. Ihiil. 111. A general officer of the Army cannot draw a back allowance for fuel and quarters, ■where, during the time for which he seeks such allowance, be received double rations in lieu thereof Opinion of Dec. 4, 1829, 2 Op. 303. 112. Lieutenants in the receipt of extra pay for staff duties are not entitled to the addi- tional ration allowed by the act of March 2, . 1837, chap. 42. They are entitled to only three rations per day when in the performance of ordinary duties, and six when in command of a post, with a right to double rations. Opinion of April 17, 1834, 2 Op. 638. 113. Officers of the Army acting as Indian agents, who shall be employed in the removal of Indians, may, notwithstanding the act of March 3, 1835, chap. 26, be allowed their actual traveling expenses. Opinion of 3Iareh 7, 1835, 2 Op. 702. 114. Certain acts of Congress, when con- strued together, authorize the continuance of allowances for quarters, fuel, and transporta- tion, agreeably to estimates and the former usage. IMd. 115. The practice of commuting for quarters and fuel is only a particular mode of ascertain- ing the amount of the proper allowances for these objects, adopted from a regard to con- venience and economy; and, as it is still au- thorized by law, there is no objection to the continuance of this method of settling it. Ibid. 116. The extra compensation and allowances given by the regulations in force at the time of the passage of the act of the 3d of March, 1835, chap. 26, were authorized by law. Opinion nf April 16, 1836, 3 Op. 84. 117. The eighth section of the act of 2d March, 1821, chap. 13, was enacted as a per- manent provision ; and, as it has never been repealed nor abrogated, is yet in force. Ibid. 118. The payment of Army contingencies is authorized by law; and, as Congress has not defined in the law itself what those contingen- cies are, the Secretary of War must be admit- ted to possess a very liberal discretion on the subject. Ibid. 119. If allowances made by the Secretary of War prior to the 3d March, 1835, to officers of the Army, from the appropriation for Army contingencies, were really for contingencies, they were authorized by law. Ibid. 120. The fifth section of the act of 4th July, • 1836, chap. 350, does not include the double rations heretofore allowed by the regulations. The word "compensation" is synonymous with "pay," and does not include rations. Opinion of Oct. 24, 1836, 3 Op. 152. 121. Regimental quartermasters of the dia- AEMY, XII. 33 goons, artillery, infantry, and riflemen, respect- ively, are entitled to forage for two horses, by section 4 of the act of 11th February, 1847, ehap. 8. Opinion of Oct. 27, 1851, 5 Op. 406. 122. An oificer on the duty of awaiting fur- ther orders is to be regarded as under orders, in the line of duty, and is entitled to commu- tation for quarters and fuel under the general Army regulations. Opinion of July 27, 1859, 9 Op. 376. 123. The War Department erred in disal- lowing the claim of Colonel Gates for servants and forage for the months of August, Septem- ber, October, and November, 1861, under the twentieth section of the actof August 3, 1861, chap. 42. Opinion of Aug. 26, 1864, 11 Op. 70. 124. Under the act of July 15, 1870, chap. 294, the allowance to officers in the Army of fuel and quarters in kind for their servants is still authorized to be made. Opinion of May 6, 1871, 13 Op. 417. 125. The same act, however, does not au- thorize transportation in kind for such servants to be furnished at the expense of the United States, or reimbursement in money to the offi- cers for the cost thereof. Ibid. 126. An officer of the Army, while on leave of absence from his command, in October, 1870, was ordered to serve and did serve on a court- martial; and the conrt, having adjourned sine die before the expiration of his leave, he imme- diately returned to his command: Held, first, that the officer is not entitled to per diem, com- pensation for his service on the court-martial, such allowance being prohibited by the act of July 15, 1870, chap. 294; and, second, that he is not entitled to mileage from the place where the court met to the place where his command was stationed, as at the time he was not ' ' an officer traveling under orders," and not within the provisions of the twenty-fourth section of that act allowing mileage. Opinion of Sept. 9, 1871, 13 Op. 526. 127. Paragraph 900 of the Army Regulations of 1863 applies to officers who, at the adjourn- ment of the court, should beat post or duty but for the engagement at court, and not to officers who, for the time being (as is the case with offi- cers on leave), have no such post or duty. Md. • 128. The additional allowances for subsist- ence provided for by section 4688 Eev. Stat, can legally be made to officers of the Army or Navy while employed on coast-survey service. Such allowances are not within the prohibition made by the final clause of section 4684 Eev. Stat. Opinion of May 23, 1877, 15 Op. 283. 129. A military post or station, where there are public quartersfor officers, but such quar- ters are insufficient for the accommodation of all the officers there, is, in regard to those officers who are necessarily excluded from the public quarters, a place where there are no ' ' public quarters" within the meaning of the proviso in section 9 of said act, and commutation for quarters may be allowed to the officers thus ex- cluded. Opinion of Aurj. 7, 1878, 16 Op. 611. 130. The act of July 29, 1876, chap. 239, taken in connection with section 24 of the act of July 15, 1870, chap. 294, continued to Army officers on leave of absence (during the period for which such leave may be granted to them thereunder ' ' without deduction of pay or al- lowance") quarters in Jcind, but it did not au- thorize an allowance of commutation therefor. Opinion of Jan. 16, 1879, 16 Op. 619. 131. "Where commutation for quarters is al- lowable to Army officers under section 9 of the act of June 18, 1878, chap. 363, it may include commutation for quarters for their servants, agreeably to the existing Army regulations. Ibid. 132. Where an officer of the Army, to wnom leave of absence "without deduction of pay or allowance " has been granted under the act of July 29, 187G, chap. 239, is af the time he takes his leave entitled to an allowance of com- mutation for quarters under section 9 of the act of June 18, 1878, chap. 263, such allow- ance is, by force of the former act, continued to him whilst he is absent on leave for a period not exceeding that for which the leave was granted thereunder. Opinion of January 16, 1879 (16 Op. 619), explained. Opinion of Nov. 15, 1880, 16 Op. 577. XII. Pay Accounts of Officers. 133. The Secretaijy of War may properly issue an order authorizing paymasters of the Army to make a certificate upon the pay ac- counts of officers in the following form: ' ' The within account is believed to be correct, and would be paid by me if I had public funds available for that purpose." Such certificate would not come under the prohibition of sec- DIG- 34 ARMY, Xiri-XT. tion 3679 Rev. Stat. 02]i.mon of Slaij 17, 1877, 15 Op. 271. 134. Section 3477 Rev. Stat, does not forbid the transferor assignment of their pay accounts by Army oflficers after the same become due. Such accounts may be lawfully transferred or assigned when due, the regulations of the Army relating to this subject (par. 1349, Art. XLV, Regulations of 1863) being complied with. Ibid. XIII. Longevity. 135. The phrase "during the vrar of the rebellion," in section 7 of the act of June 18, 1878, chap. 263, is a limitation upon the pro- visions thereof only vpith respect to ofBcers of the Army who have served as officers in the volunteer forces. It does not apply to those officers of the Army who have served as enlisted men in either the volunteer or regular forces. Hence, in computing the service of officers of the latter description for longevity-pay and re- tirement, service performed by them as en- listed men previous to the war of the rebellion must be taken into account. Opinion of Aug. 7, 1878, 16 Op. 611. 136. Cadets at the Military Academy at West Point are not "enlisted men" within the meaning of that section. Ihid. XIV. Examining Board. 137. Section 17 of the act of August 3, 1861, chap. 42, does not authorize the Secretary of War or the Secretary of the Navy to assemble a mixed board of Army and Marine officers for inquiry into the cases of disabled officers of the Army and of the Marine Corps. Opinion of Sept. 13, 1861, 10 Op. 116. 138. The proceedings of a board constituted without authority and in violation of that act would be open to future question as to their validity. Ibid. XV. Retired List. 139. A retired officer of the Army is not en- titled to the full pay and emoluments of his grade whilst not assigned to duty. Opinion of J"«/2/9, 1866, llOp. 524. 140. An officer of the Army retired under the thirty-second section of the act of July 28, 1866, chap. 299, is entitled to the full pay and allowances of the rank upon which he is retired when assigned to duty. Opinion of April 14, 1868, 12 Op. 382. 141. Army officers who have been retired from active service by the President under the twelfth section of the act of July 17, 1862, chap. 200, cannot be reinstated on the active list, except by a new appointment with the advice and consent of the Senate, and where vacancies on the active list exist which maj' lawfully be filled. Opinion of June 14, 1869, 13 Op. 99. 142. Such officers can, however, under that section, be assigned by the President to any appropriate duty in any department of the service, and while' so assigned and employed they will be entitled to the full pay and emol- uments of their respective grades. Ibid. 143. An officer of the Army, who has been retired from active service in accordance with law, cannot be reinstated in his former place by an order of the President, though the vacancy caused by his retirement may not have been filled. Opinion of Feb. 5, 1870, 13 Op. 209. 144. The claim of General Schuyler Hamil- ton to be placed on the retired list of the Army, based on his appointment to the staff of Brevet Lieutenant-General Scott as a military secre- tary, is inadmissible under the laws in force, he not being now an ofiicer on the active list by virtue of that appointment. Opinion of Nov^ 28, 1874, 14 Op. 506. 145. The proviso in section 2 of the act of March 3, 1875, chap. 178, namely, "That no part of the foregoing act shall apply to those oiificers ' ' [t. e. , officers of the Army theretofore retired by reason of disability arising from wounds received in action] "who * * * has an arm or leg permanently disabled by reason of resection, on account of wounds, ' ' &c. , con- strued. Opinion ofllarch 22, 1876, 15 Op. 83- 146. The word "resection" is a surgical term, signifying the removal by excision of dead or diseased bone — more especially the re- moval of such bone, in that way, from the ar- ticular extremities or the unconsolidated ex- tremities of fractured bones. Ihid. 147. In order to bring a case within theterms of so much of the proviso as is a hove quoted the essential circumstances required are: (1) a pre- vious wound, causing some portion of the bone to become diseased or dead; (2) thereby neces- sitating a cutting off and removal of the dead or diseased part, which is accomplished; (3) ARMY, XVI 35 whereby the limb is permanently disabled. lUd. 148. It is sufficient if the disability is in part approximately attributable to the resection, though this be proportionately less than what is due to other contributory causes. Ibid. 149. Where an officer was permanently disa- bled of a limb mainly from the effects of a wound received in battle, and a doubt exists whether part of the disability, at least, was not caused by a resection on account of the wound: Held that the officer is entitled to the benefit of the doubt, upon the ground that the law of 1875, operating as it does to take away rights pre- viously granted by law, should not be made to affect thoseas to whom its application is doubt- ful. Ihid. 150. A partial resection of au arm or leg on account of wounds received in battle, where the operation is followed by permanent dis- ability of the limb, and the disabUity is partly owing to such operation, suffices to bring a case within the proviso of the second section of the act of March 3, 1875, chap. 178. Opinion of Feb. 13, 1877, 15 Op. 199. 151. The words " every such officer," asused in the first proviso of section 2 of the act of March 3, 1875, chap. 178, cover all retired offi- cers who are included within the preceding part of the same proviso, but do not apply to othera. Opinion of Dec. 11, 1877, 15 Op. 407. 152. The officers who were placed upon the retired list of the Army under the authority given by the acts of May 10, 1872, chap. 153; March 3, 1875, chap. 187; and June 26, 1876, chap. 144, are to be enumerated as a part of the three hundred to which, by section 1258 Rev. Stat. , the number upon the retired list is limited. Opinion of June 1, 1878, 16 Op. 26. 153. The act of March, 3, 1879, chap. 201, authorized the President "to reinstate Maj. Joseph B. Collins, late of the United States Army, and to retire him in that grade as of the date he was previously mustered out, charging him with all extra pay and allow- ances paid him at that time. ' ' Held, first, that under that enactment the proper mode of rein- stating Major Collins is by an appointment after nomination to and confirmation by the Senate (but see, contra, the Note in 16 Op. 626) ; second, that upon reinstatement in the re- tired service he becomes entitled to pay, by virtue of the same enactment, from the date when he was previously mustered out. Opin- ion of April 10, 1879, 16 Op. 624. XVI. Enlistment. 154. Until the passage of an act by Congress authorizing the enlistment of aliens into the military service of the United States, such en- listments must be regarded as invalid. Opin- ion of Oct. 22, 1841, 3 Op. 671. 155. By section 16 of the act of July 5, 1838, chap. 162, and the act of May 13, 1846, chap. 17, all enlistments in the regular Army are re- quired to be for the term of five years; and no discretion has been conferred to contract for such service either conditionally or for a shorter term. Opinion of Nov. 24, 1846, 4 Op. 537. 156. It is the settled policy of the Govern- ment to encourage' -re-enlistments; and where under the act of 3d of March, 1847, chap. 61, soldiers have received certificates of merit which entitle them to additional pay of |2 per month, such pay does not cease at the expira- tion of the term during which they received the certificates, but continues through succes- sive enlistments. Opinion of Oct. 10, 1851, 5 Op. 400. 157. Soldiers who re-enlist in the Army within two months before or one mouth after the expiration of the term are entitled to the bounty provided by the act of July 5, 1838, chap. 162, and also to that provided by the act of June 17, 1850, chap. 20, where the re-en- listment takes place in the vicinity of the mil- itary posts on the Western frontier and at re- mote stations. Opinion of Oct. 25, 1853, 6 Op. 187. 158. Enlistments into the Army made under the inducements held out by the laws of the United States are contracts; and although the Government be a party, still the contracts ought to be construed according to those well- established principles which regulate contracts generally. Ibid. 159. Officers of the Army employed in re- cruiting may lawfully enlist persons not natu- ralized as citizens of the United States. Opin- ion of May 30, 1854, 6 Op. 474. 160. Prior to the act of May 15, 1872, chap. 162, the law as to the enlistment of minors in the Army stood thus: 1. Minors above the age of eighteen might lawfully be enlisted with- out the consent of parents or guardians. 2. 36 AEMY, XVII. They might lawfully be mustered into service between the ages of sixteen and eighteen with the consent of parents or guardians. 3. They could not be mustered into service under the age of sixteen. 4. The oath of enlistment was conclusive as to the age of the recruit. Opin- ion of April 5, 1873, 14 Op. 210. 161. That act only so far modified the pre- vious law as to prohibit the enlistment of per- sons under the age of twenty-one, who have parents or guardians entitled to their custody and control, without the written consent of such parents or guardians, leaving in full force the provision making the oath of enlistment conclusive as to the age of the recruit. Ibid. 162. However, in executing the provisions of the twentieth section of the act of February 24, 1864, chap. 13, and the fifth section of the act of July 4, 1864, chap. 237, the Secretary of War, upon whom that duty devolves, is not concluded by the oath of enlistment on the question of age. Ihid. 10 J. Semhle that where a recruit, in taking the oath of enlistment, "knowingly and will- ingly ' ' swears falsely, he is indictable for per- jury under the thirteenth section of the act of March 3, 1825, chap. 65. Ibid. 164. Enlistments are required to be " for the term of five years. ' ' By his engagement the soldier is bound for a specific term of service, the last day of which is as much fixed by the contract as the first. With the last day of the term his engagement expires, and with the ex- piration of his engagement the obligation to serve thereby imposed is 'at an end. This re- sults notwithstanding there has been an infrac- tion of the conljact by desertion or otherwise, unless the soldier, before the term is up, con- sents to an extension. Opinion of Sept. 1, 1876, 15 Op. 152. 105. The provision in the forty-eighth ar- ticle of war, that a deserter ' ' shall he liable to serve for such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment," is a penal provision. It does not, by its own force simply, work a prolongation of the term origi- nally contracted. It operates only after a con- viction. Ibid. 166. The Secretary of War can release a sol- dier from his contract of enlistment by a dis- charge, but has no power to suspend it, even with the soldier's consent. Opinion of Sept. 4, 1877, 15 Op. 362. 167. The men composing a certain volunteer regiment had, in December, lh03, been enlisted ' ' for three years or during the wm. ' ' In June, 1865, the regiment was ordered to New Mexico to quell an Indian outbreak, and while en route, during that and the following month, about two hundred of the men deserted, and did not return. In connection with these tacts the fol- lowing questions have arisen: 1, whether the retention of theregiment in service until March, 1866, was legal ; 2, whether or not, under the terms of their enlistment, the men could be ordered to quell the outbreak mentioned; 3, whether or not the men who deserted com- mitted, in point of law, the offense of desertion. Upon consideration: Held (1) that the term of service of the said regiment covered the months of June and July, 1865, and its retention in service until March, 1866, was legal, the war not having ended until August 20, 1866; (2) that the point at which, and the forces against which, the regiment might be called upon to serve during the war were matters exclusively for the political and military authorities of the Government to pass upon, and hence the order sending the regiment to New Mexico to quell the Indian outbreak was legal; (3) that the men who deserted as aforesaid thereby committed in point of law the offense of desertion. Opin- ion of 3Iay 6, 1880, 16 Op. 675. XVII. Minors. 168. The enlistment of minors over eighteen years of age into the military service, without the consentof parents or guardians, having been authorized by the act of 10th December, 1814, chap. 10, which repealed so much of the fifth section of the act of 20th Jafiuary, 1813, chap. 12, as required the previous consent in writing of parents, guardians, or masters, &c. , the Sec- retary of War is not required to discharge minors who at the time of enlistment had no parents or guardians. Opinion of Ifarch 28, 1851, 5 Op. 313. 169. In order to effect the discharge of mi- nors who, having parents or guardians, en- listed without their consent, it is necessary that such parents or guardians concur in the application. Therefore, minors having par- AKBiY, xvm_ XSl. 37 ents or guardians and enlisting without their consent are not entitled during their minority to make proof and claim their own discharge. Ibid. 170. The Secretary of War is not under obli- gation by law to discharge minors from the Army on the aj)plication of alleged parents or guardians not domiciled in the United States. Opinion of July 19, 1854, 6 Op. 607. 171. If a minor enlist in the Army without the consent of his parent, guardian, or master, an application of one or other for his discharge cannot he successfully resisted under existing laws. Opinion of Oct. 16, 1861, 10 Op. 146. XVIII. Stoppage of Pay. 172. The amount of the reward paid for the apprehension of a deserter who upon trial by a court-martial for desertion has been convicted only of the offense of absence without leave cannot lawfully be stopped against his pay in a case where the sentence of the court does not impose such stoppage. OpbdoH of March 24, 1880, 16 Op. 475. 173. Under paragraph 160, Army Eegula- tions, to warrant the stoppage there must be either a cotiviction of the offense of desertion or a restoration to duty without trial on condi- tions involving the stoppage. A conviction of the offense of absence without leave is not suffi- cient. Ibid. 174. Stoppage of pay against a soldier is un- authorized unless made in execution of the sentence of a court-martial, or in pursuance of a statute, or in conformity to the Eegulations of the Army, which have the force of law. lUd. XIX. Money of Enlisted Persons. 175. There is no regulation, or statute, or principle of law, which renders forfeitable to the United States moneys belonging to soldiers found in their possession at the time of enlist- ment, and taken from them under a general order issued as a military police measure. Opinion of Feb. 8, 1870, 13 Op. 210. 176. Such moneys taken from enlisted men who are entered on the muster-rolls as desert- ers, but have never been convicted of desertion, are not payable to the Board of Managers of the National Asylum for Disabled Volunteer Sol- diers as moneys forfeited on account of deser- tion. Ibid. 177. By enlisting or drafting a soldier the United States acquire no right over his prop- erty not accruing to him in consideration of his enlistment or military service, and cannot rightfully deprive him of it permanently ex- cept as a punishment for crime. Ibid. 178. The right to take money or other prop- erty from his possession while in the service which would be likely to interfere with the requirements of discipline is entirely different in principle from the right wholly to divest him of it. Ibid. 179. Certain enlisted persons, having re- ceived bounty-money from the localities to which they were credited, delivered the same to the recruiting officer in compliance with a regulation of the service, and subsequently, on their arrival at the regimental depot, they underwent a re-examination, were rejected on account of disabilities existing prior to their enlistment, and were discharged; afterwards, in pursuance of a general order, the money was deposited by the officer in the Treasury to the credit of an aj)propriation under the control of the War Department. Claim being now made for the money : Held that the Department can- not lawfully retain it, after deducting there- from any sums due the United States from the persons referred to. Opinion of June 7, 1870, , 13 Op. 257. XX. Furlough. 180. An order which relieves a soldier from duty in his company, but requires him to im- mediately report for duty in another branch of the military service, is not a furlough (though it be so styled in the order), but is essentially a detail for other duty, and must be treated as such. Opinion of Sept. 4, 1877, 15 Op. 362. XXI. Discharge. 181. Eegularly, an officer or soldier, upon his discharge from the military service, is entitled to an honorable discharge, unless he is under 38 AKMY, XXir-XXIII. sentence of dishonorable dismissal, or unless he has been convicted of an infamous olfense and is sentenced to punishment therefor during the remainder of his term of service, or of conduct reflecting upon his military career, such as cowardice, &c., with either of which conditions an honorable discharge would be incompati- ble. Opinion of April 10, 1869, 13 Op. 16. 182. Where an honorable discharge from the military service has in fact been received, and was given by competent authority, the subse- quent cancellation of the discharge certificate, which is only evidence of such discharge, can- not avoid the latter, nor make it capable of modification to the prejudice of the person dis- charged. lUd. 183. The War Department has power to cor- rect mistakes made in granting discharges to soldiers. Opinion of Jan. 19,1870, 13 Op. 201. 184. A party having enlisted as a volunteer soldier in the year 1863, was, on the 18th of January, 1866, before the expiration of his term of enlistment, mustered out of service with his company at Fortress Monroe, Va., but was not paid off, nor was his discharge cer- tificate delivered to him until he reached Au- gusta, Me., on the 25th of January, 1866, to which latter place he had been transported with his company under the orders and control of the military authorities: Seld that he was not discharged from the service within the meaning of section 2 of the act of August 4, 1854, chap. 247, until the 25th of January. Opinion of July 6, 1870, 13 Op. 278. 185. The ''muster-out" of a volunteer sol- dier cannot be viewed as in itself or by itself a discharge from service; and he is not to be re- garded as discharged until he is released from military control and from subjection to the or- ders of his superior officers. Ibid. 186. The act of July 15, 1870, chap. 294, authorized any officer to be reported under its provisions as unfit fOr the proper discharge of his duties, either by the General of the Army, or by the commaiukmi of the department in which the ofScer was at the time serving; and it was within the competency of the board consti- tuted under that act, in either case, to enter- tain and pass upon the report so made. Any officer so reported was legallj' before the board, and was legally mustered out of the service by the President upon the board's recommenda- tion. Opinion of April 15, 1871 , 13 Op. 412. XXII. Regulations, 187. The regulations of the Army have the force and effect of law so fer as they are con- sistent with the statutes. Those at present in force (regulations of 1863) have been adopted by the act of July 28, 1866, chap. 299, which provided (section 37) that the then existing reg- ulations should remain in force until further action by Congress. Opinion of June 8, 1878, 16 Op. 38. XXIII. Civil Authorities. 188. Although the subordination of the mil- itary to the civil authorities of the country is an axiom of our Government, it was never intended to place the military entirely at the mercy of any individual who might choose to call for their surrender. Opinion of Oct. 5, 1825, 2 Op. 11. 189. If this were the case, the military op- erations of the Government might be weak- ened, impeded, or obstructed whenever an individual, from private resentment, political intrigue, or worse motives, should choose to interfere with their operations. Ibid. 190. As it rests in the discretion of the Pres- ident in what cases he will exercise his mili- tary authority to constrain those composing the Army to surrender themselves to the civil authority of the States, it would seem proper to adopt by analogy the principle of the Con- stitution relative to the surrender of fugitives by the governors of the States, applying the details of the act of Congress of the 12th of February, 1793, chap. 7, respecting fugitives from justice. Ibid. 191. Where a demand by a civil magistrate .stated that certain ofiicers, naming them, "are charged on oath before me with having vio- lated the known laws of the land, and espe- cially of the State of New Jersey," &c.: SeU that such a demand ivas not suflSciently specific, and ought not to be acceded to, under the thirty-third article of the rules and articles of war established by the act of April 10, 1806, chap. 20. Ibid. AEMS FOK THE MILITIA; AEEEST. 39 ARMS FOR THE MILITIA. See Militia and Volunteehs, III. ARREST. See also Process; Diplomatic and Consu- LAE Officers. 1. The arrest of the domestic servant of a public miuister is declared illegal by the act of April 3U, 179LI, chap. 9; all process for the pur- pose IS auuulled, aud the persons concerned in iiny such process made liable to fine and im- prisonment. But if the domestic be a citizen or inhabitant of the United States, and shall have contracted, prior to his entering into the service of the miuister, debts still unpaid, he shall not take the benefit of the act, nor shall any pereon be proceeded against under the act for such arrest unless the name of the domestic be registered in the Secretary of State's oifice, and transmitted to the marshal of the district in which Congress shall reside. Opinion of Jane 'M, 1792, 1 Op. 27. 2. The entering a public minister's house to serve an execution will either be absorbed in the arrest, as being necessarily associated with it, if that should be found criminal; or, if the arrest be admissible under the said act, such entering must be punished, if at all, under the law of nations, as being left untouched by the act. Ibid. 3. Arrest lor trial is a proceeding belonging to the judiciary, not to the executive branch of the Government, and the warrant of arrest mustbefounded on information on oath. Opin- ion of Sept. 8, 1818, 1 Op. 229. 4. The President cannot order an arrest either by proclamation or by instructions to marshals, as such proclamation or instructions would be, in effect, a warrant to arrest, and a violation of the sixth article of the amendments of the Constitution. But he may issue his proclama- tion against an offender who has once been regu- larly arrested and has made his escape ; for the regularity of the arrest implies that the proba- ble cause has been furnished on oath or affirma- tion according to the requirement of the Con- stitution, and that the warrant of arrest has been duly issued and has had its effect. Iliid. 5. Every citizen of the United States is se- cured by the Constitution againt an unreason- able arrest; and, to provide against the same, magistrates are forbidden to issue warrants except upon probable cause, supported by oath or aflSrmation. Opinion of Sept. 10, 1839, 2 Op. 267. 6. The communication of the British minis- ter charging that a master of an American ves- sel had murdered a British subject on the high seas, together with copies of depositions taken before a, justice of the peace of the island of Antigua, are not evidence sufficient to author- ize the President to order the arrest of the ac- cused and his confinement for trial. Ibid. 7. A judge of the Supreme Court residing in the fifth district, or a district judge of one of the districts of Virginia, may issue a war- rant to arrest R. B. Eandolph for the assault committed by him in the District of Columbia on the President of the United States, the said Eandolph being in Virginia. Opinion of May 14, 1833, 2 Op. 564. 8. The powerto arrest for any offense against the United States is given by the act of Con- gress in general terms; and so far as respects a j udge or j ustice of the United States, it is not confined to his district or circuit, hut his war- rant will run throughout the United States. Ibid. 9. Midshipmen are not exempt from arrest. Though they are officers and not commissioned, yet they are not "non-commissioned officers" within the usual and technical signification of that phrase ; nor are they ' ' enlisted into the service ; ' ' and a proper construction of the act of 11th July, 1798, chap. 72, for the organization of the Marine Corps, fails to include them in the exemptions made. Opinion of 3Iay 16, 1836, 3 Op. 119. 10. In a time of great and dangerous insur- rection the President has the lawful discretion- ary power to arrest and hold in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable cause for suspicion of such criminal complicity. Opinionof Juhj'y, 1861, 10 Op. 74. 11. In such a case of arrest the President is justified in refusing to obey a writ of habean corpu.'i issued byacourt or judge requiring him or his agent to produce the body of the pris- oner and show the cause of his capture and detention, to be adjudged and disposed of by such court or judge. Ibid. 40 ASSIGNMENT — ATTUENKY-GENEEAL. ASSIGNMENT. See also Claims, XX; Contkact, V; Pat- ents FOB Inventions, VIII. Where the attorney of a stockholder in the Maryland and New York Iron and Coal Com- pany had assigned all his interest therein to the Government sometime previous to the de- livery of a certificate to another, it is not de- cided but that, notwithstanding the defects in the transaction, equity would protect the trans- fer made to the Government. Opinion of Dec. 12, 1842, 4 Op. 134. ATTACHMENT. 1. The Treasurer of the United States is not subject to execution against his person, goods, or chattels, nor to any other process, as against agarnishee uuderthelawsof Maryland. "Where such process shall have issued, the district at- torney may be instructed to move to dismiss it. Opinion of April i, 1823, 1 Op. 605. 2. Payment of the mariners in Norfolk, by the purser of the United States ship Constitu- tion, should be made notwithstanding the at- tachment issued for their wages. Opinion of Nov. 29, 1841, 3 Op. 718. 3. Money due to an employ^ of the Govern- ment cannot be attached, by the process of a State court, in the hands of a disbursing offi- cer. Opinion of Sept. 13, 1861, 10 Op. 120. 4. An attachment issued by a State court against money due a contractor with the Post- OCfice Department, in the hands of a postmas- ter, should not prevent the latter from paying the contractor in accordance with the directions given by the Department. Opinion of Jan. 7, 1872, 13 Op. 567. 5. It is settled that money in the hands of a disbursing agent of the Government is not subject to attachment at the suit of creditors of the parties to whom such money is due. Ihid. 6. Personal property situated within the limits of a national cemetery, and belonging to a contractor with itho (ioverument, may be attached on mesne process issued by a court of the State, if in the cession of jurisdiction by the State o\ er the land ol' the cemetery, or in the consent of the State to its purchase by the United States, there was a reservation of the right to serve civil process on said land. Opin- ion ofJulj/ 29, 1874, 14 Op. 427. ATTORNEY-GENERAL. 1. The Attorney-General cannot act as an arbitrator between the Government and an in- dividual, and therefore can render no award in the sense in which this phrase is generally understood. Opinion of Jan. 23, 1818, 1 Op. 209. 2. He is not authorized to give an official opinion in any case except on the call of the President or some one of the heads of Depart- ments. Opinion of June 12, 1818, 1 Op. 211. 3. Subordinate officers of the Goveroment who desire an official opinion of the Attorney- General must seek it through the head of the Department to which they are accountable. Ibid. 4. It is the duty of the Attorney-General to give his advice on questions of law only where required by the President and heads of De- partments; not to Investigate the truth of any allegation of a fraudulent collusion to obtain money from the Treasury. Opinion of Dee. 22, 1818, 1 Op. 253. 5. It is not his duty to give an official opm- \ ion to the House of Eepresentatives. Opinion of Feb. 3, 1820, 1 Op. 335. 6. The Attorney-General does not perceive that it is his official duty to conduct a suit in the Supreme Court brought by a private citi- zen against the Serg^ant-at-Arms of the House of Eepresentatives. Opinion of Feb. 3, 1820, 5 Op. 720. 7. It is his duty to give opinions on ques- tions of law; he has nothing to do with the settlement of controverted questions of fact. Opinion of April 3, 1820, 1 Op. 346. 8. It is not his duty to give an opinion con- cerning infringements of the rights of patentees by dealers in the patented articles of manufact- ure; it not bclnj;- required of the officers in charge of the Patent Office to decide upon the legal effect of patents issued in eontbrmity to the laws, nor to inform patentees of their rights. Opinion of yov. 5, 1822, 1 Op. 575. 9. Nor to instruct district attorneys In the discharge of their duties; nor to drawpleas at ' the request of the heads of Departments • nor ATTOKNEY-GENERAL. 41 to indicate the course to be pursued in particu- lar suits depending in the district and circuit courts; nor to interfere at all with suits until they reach the Supreme Court. Opinion of April 11, 1823, 1 Op. 608. 10. Nor to give opinions on questions in which the United States have no interest. Opinion of Jan. 19, 1830, 2 Op. 311. 11. Nor to express an opinion to Congress as to their power to review the sentence of a, gen- eral court-martial. Opinion of Feb. 1, 1832, 2 Op. 499. 12. Nor to give opinions except in cases that fall within the scope of his duties as marked out by law. Opinion of July 23, 1832, 2 Op. 531. 13. Nor to revise the decision of an Execu- tive Department deliberately made and en- tirely satisfactory to the Secretary thereof; nor will he give opinions at the instance of parties where no further action is to be had in the premises. Opinion of Feb. 12, 1836, 3 Op. 39. 14. He has no authority to settle questions of fact, nor to give advice on questions of law, except for the assistance of the officer calling for his opinion on points stated. He takes the facts as they are stated to him, and predicates his opinion thereon. Opinion of March 10, 1838, 3 Op. 309. 15. The Attorney-General having no power to give an official opinion at the request of the head of a Department, except on matters that concern the of6.oial powers and duties thereof, all opinions given by him in respect to claims under the Cherokee treaty have been extra- official and unauthorized. Opinion of Aug. 27, 1838, 3 Op. 368. 16. Although the acts prescribing the duties of Attorneys-General do not declare the effect of their advice, it has been the practice of the Departments to heed it. It has been found greatly advantageous, if not absolutely neces- sary, to have uniformity of action upon analo- gous questions and cases; and that result is more likely to be attained under the guidance of a single Department constituted for the pur- pose than by a disregard of its opinions and advice. Opinion of May 8, 1849, 5 Op. 97. 17. It is not within the province of the At- torney-General to advise a committee of Con- gress as to the validity of a claim pending be- fore that body. Opinion of June 15, 1852, 5 Op. 561. 18. It is not the duty of the Attorney-Gen- eral to give opinions on questions of fact, nor to review the proceedings of a court-martial in search of questions of law. Opinion of Sept. 11 , 1852, 5 Op. 626. 19. It is not the duty of the Attorney-Gen- eral to give advice to local officers of the Gov- ernment in the Department of the Secretary of the Treasury. Opinion of April 20, 1853, 6 Op. 21. 20. The Attorney-General is by designation of person a member of the Smithsonian Insti- tution; but it is not his duty individually, and as Attorney-General, to give advice to the Regents of that Institution. Opinion of April 21, 1853, 6 Op. 24. 21. The Attorney-Genesal has no lawful right to give advice to individuals on matters affect- ing the Government, or to entertain appeals from parties on questions of law decided by the Departmen ts ; but only to give advice on public matters when required by the President, or re- quested by any head of Department or by the Solicitor. Opinion of Oct. 12, 1853, 6 Op. 147. 22. No appeal lies from the decision of the Commissioner of Pensions or other officer of the Government to the Attorney-General. Opin- ion of Feb. 11, 1854, 6 Op. 289. 23. Exposition of the constitu tion of the office of Attorney-General as a branch of the execu- tive administration of the United States. Let- ter of March 8, 1854, 6 Op. 326. 24. In giving his advice and opinion on ques- tions of law to the Presiden;t and heads of De- partments, the action of the Attorney-General is quasi-j udicial. His opinions officially define the law, in a multitude of coses, where his de- cision is in practice final and conclusive; not only as respects the action of public officers in administrative matters, who are thus relieved from the responsibility which would otherwise attach to their acts, but also in questions ot private right, inasmuch as parties having con- cerns with the Government possess in general no means of bringing a controverted matter be- fore the courts of law, and can obtain a purely legal decision of the controversy, as distin- guished from an administrative one, only by reference to the Attorney-General. Ibid. 25. Accordingly, the opinions of successive Attorneys-General, possessed of greater or less amount of legal acumen, acquirement, and ex- perience, have come to constitute a body of 42 ATTORNEY-GENERAL. legal precedents and exposition, having author- ity the same in kind, if not the same in degree, with decisions of the courts of justice. Ihid. 26. It frequently happens that questions of great importance, submitted to him for deter- mination, are elaborately argued by counsel; and whether it be so or not, he feels, in the performance of this part of his duty, that he is not a counsel giving advice to the Govern- ment as his client, but a public officer, acting .judicially, under all the solemn responsibilities of conscience and of legal obligation. Ibid. 27. It is the regular statute duty of the At- torney-General only to conduct in person the ■causes of the United States in the Supreme Court; but the President may undoubtedly, in the performance of his constitutional duty, instruct the Attorney-General to give his direct personal attention to legal concerns of the United States elsewhere, when the interests of the Government seem to the President to require this. Ibid. 28. The Attorney-General, in certifying the title of land purchased by the Government, must look at the question as one of pure law, and cannot relax the rules of law on account either of the desirableness of the object or the smallness of the value of the land. Opinion of April -21, 1854, 6. Op. 432. 29. It is not the duty of the Attorney-Gen- eral to determine the amount of compensation payable to counsel specially retained by the Secretary of State or other head of Depart- ment. Opinion ofjuh/ 31, 1854, 6 Op. 635. 30. The Attorney-General hao no direct rela- tion by statute, and without order of the Presi- dent, to suits instituted by either of the De- partments. Opinion of July 5, 1855, 8 Op. 465. 31. Questions of fact arising on a survey in the case of a private land claim in California are not for the determination of the Attorney- General. Opinion of Sept. 18, 1855, 7 Op. 491. 32. The relation of the Attorney-General to any one of the Departments in reference to law- suits in the business of the latter is that of counsel to client, determining matters of law, butletivingall considerations of mere adminis- trative expediency to the proper Department. Opinion of Orf. 25, 1855, 7 Op. 576. 33. The opinion of the Attorney-General for the time being is in terras advisorjf to the Secre- tary who calls for it; but it is obligatory as the law of the case, unless, on appeal by such Sec- retary to the common superior of himself and the Attorney-General, namely, the President of the United States, it be by the latter over- ruled. Opinion of May 29, 1856, 7 Op. 692. 34. A statute of private relief enacted that a certain account in the Post-Offioe Depart- ment, which had been rejected by the Sixth Auditor and on which appeal had been taken to the First Comptroller, should be finally ad- justed by the Second Comptroller and the Com- missioner of Customs, and, in case of their disagreement, by the Attorney-General. Held that the effect of this provision is to substitute another person or persons, pro !iac rice, to per- form one of the statute duties of the First Comptroller. Opinion of June 25, 1856, 7 Op. 724. 35. This may be lawfully done, in so far as respects the Second Comptroller and the Com- missioner of Customs, who will thus, in effect, control an auditing of the Sixth Auditor, and certify the same to the Postmaster-General. But the Attorney-General cannot lawfully be required to act as the substitute of the First Comptroller; and so far as regards him, the only effect is to require him to advise the Second Comptroller and the Commissioner of Customs on matters of law arising in the case. Ibid. 36. The opinion of the Attorney-General addressed to the Secretary of the Navy is merely advisory, and cannot be regarded as a determi- nation of the case to which it refers, unless it appears from the record that the Secretary has adopted the advice it contained. Opinion of June 4, 1857, 9 Op. 33. 37. It is the rule of the Attorney-General's Office to give advice to an Executive Department only in actual cases, where the special facts are set forth by the Department. Opinion of Sept. 5, 1857, 9 Op. 82. 38. The Attorney-General is not required to write abstract essays on any subject. Ibid. 39. It is not the duty of the Attorney-Gen- eral to give an opinion on a question touching the private business of individuals, and with which the Government has no present concern. Opinion of June 28, 1859, 9 Op. 355. 40. The Attorney-General will not give an opinion on an important legal question when it is not practically presented by an existing case before aDepartment. Opinion of April 8, 1860, 9 Op. 421. ATTOENEY-GENERAL. 43 41. The Attorney-General will not give an ■opinion on a case, submitted by the head of a Department, which is not depending in his De- partment and subject to his decision. Opinion of June 12, 1861, lU Op. 50. 42. The Attorney-General will not give opin- ions on legal questions submitted by persons not connected with the Government, through the head of a Department, when they do not concern the action of officers of the Govern- ment, and are properly questions for the decis- ion of courts of justice. Opinion of Sept. 17, 1861, 10 Op. 122. 43. In acknowledging the receipt of a resolu- tion of the Senate, that a certain petition be referred to the Attorney-General, and that he be requested to inquire into the facts and the law of the case and report his opinion to the Senate at its next session, the Attorney-Gen- eral stated that he doubted whether, in the absence of statutory authority to give official opinions to the legislative department of the Government, the assumption of such a power would not be in violation of his oath of office, and of dangerous example; and further, that, as he was not provided by law with the means of ■obtaining the information desired, he was com- pelled to decline the commission of the Senate. Opinion of Dec. 14, 1861, 10 Op. 164. 44. The Attorney-General is not authorized to give an official opinion, at the request of the head of a Department, upon a question the solution of which is not necessary to the dis- charge of any duty properly belonging to the Department. Opinion of April 2, 1862, 10 Op. 220. 45. The Attorney-General will only give offi- cial opinions on questions of law arising on facts which are authoritatively stated by a head of Department. Opinion of June 2, 1862, 10 Op. 267. 46. The political department of the Govern- ment has no legal power to annul or alter the judgmentof acourtof law; and, therefore, the Attorney-General will not, atthe request of the Secretary of State, give an opinion as to the sufficiency of the grounds on which such a j udgment was based. Opinion of Sept. 19, 1862, 10 Op. 347. 47. The consideration and discussion of re- monstrances and reclamations on behalf of the subjects of friendly foreign governments against the operation of our laws and the judgments of our courts are within the peculiar province of the Secretary of State, and will not be as- sumed by the Attorney-General. Ihicl. 48. The Attorney-General will only give an official opinion in a matter concerning a De- partment at the request of the head of the De- partment, and not at the request of a subor- dinate officer thereof. Opinion of Feb. 18, 1863, 10 Op. 458. 49. The executive holds no such relation to the judicial department of the Government as would render it proper for the Attorney-Gen- eral to request a United States district judge to furnish him with an explanation of his ju- dicial action in a case of which he had lawful jurisdiction. Opinion of July 6, 1863, 10 Op. 501. 50. The Attorney-General has no power to give an official opinion on questions referred to him by the Secretary of the Treasury, at the request of the Third Auditor, for the guid- ance not of the Secretary, but of the Third Auditor, in a case under the act of March 3, 1849, chap. 129, which cannot come before the Secretary. Opinion of Nov. 10, 1863, 11 Op. 4. 51. The Attorney-General will not give a speculative opinion on an abstract question of law which does not arise in any case presented for the action of an Executive Department. Opinion of April 11, 1865, 11 Op. 189. 52. Nor will he review an opinion of a former Attorney-General, unless a proper case is presented therefor, and submitted by the head of a Department. Ibid. 53. The Attorney-General will not give an opinion as to the validity of any exercise of jurisdiction by a court of the United States without a full record of the case; and when a Department doubts the validity of such an exercise of jurisdiction, the Attorney-General will advise the head of the Department to raise the question before the court. Opinion of Noo. 27, 1865, 11 Op. 407. 54. The Attorney-General declines to give an opinion on the right of the Union Pacific Railroad Company to issue mortgage bonds at the request of the president of that company. Opinion of Feb. 28, 1866, 11 Op. 431. 55. It is not within the province of the At- torney-General to settle a controversy involv- ing matters of fact. He can only give his opin- ion on questions of law. Opinion of July 10, 1867, 12 Op. 206. 44 ATTORNEY-GENERAL. 56. Where a question of law arises upon facts submitted to the Attorney-General, suoli facts must be agreed and stated as facts established. Ihid. 57. The Attorney-General will not give an opinion on a question of law determined by a Department in a case no longer before it. Opinion of July 20, 1868, 12 Op. 433. 58. The Attorney-General has no power to give opinions concerning any matters pending in Congress upon request of eitherof the Houses or of any committee. Opinion of Jan. 20, 1869, 12 Op. 544. 59. It is Hot within the ofiicial authority of the Attorney-General to impart advice in any form to either House of Congress or its com- mittees respecting any matter of legislation. Opinion of Jan. 20, 1869, 12 Op. 546. 60. The act of July 20, 1868, section 102, does not require that the Attorney-General should approve the action of the Commissioner of Internal Revenue where he directs the un- conditional dismissal of a j udicial proceeding under the internal-revenue laws. Opinion of Feb. 6, 1869, 12 Op. 552. 61. Where the question proposed related to a matter pending before a court and might be raised there, and was not asked in reference to any action contemplated by the Department which submitted it, the Attorney-General re- quested to be excused from expressing an opin- ion thereon. Opinion of Oct. 23, 1869, 13 Op. 160. 62. The opinion of the Attorney-General may be required on questions of law arising in the actual administration of the Departments, but not upon hypothetical cases merely. Opin- ion of Sepi. 9, 1871, 13 Op. 531. 63. The Attorney-General is not authorized to give an official opinion upon a question con- cerning the board of health of the District of Columbia, such question not arising in the ad- ministration of any of the Executive Depart- ments. Opinion of Nov. 21, 1871, 13 Op. 535. 64. It is not the duty or the practice of the Attorney-General to officially answer abstract or hypothetical questions of law. Opinion of Jan. 8, 1872, 13 i p. 568. 65. A committee of the House of Eepresent- atives having referred the papers in certain claims to the Attorney-General, with a request for an official opinion thereon, the papers were returned unaccompanied by an opinion, the Attorney-General holdmg (in accordance with the views of several of his predecessors on the same point) that it is not within his province to advise committees of Congress upon ques- tions of law occurring in matters before them. Opinion of March 22, 1872, 14 Op. 17. 66. The act of June 22, 1870, chap. 150, es- tablishing the Department of Justice, made no change in the law as to the duty of the Attor- ney-General in giving official opinions, accord- ing to which, as it has been repeatedly held, he is authorized to give an opinion upon a question of la.w only on the submission thereof by the President or by the head of an Execu- tive Department. Opinion of March 26, 1872, 14 Op. 21. 67. The Assistant Attorney-General attached to the Interior Department having prepared an opinion upon a case previously referred to him by the Secretary of the Interior for examina^ tion, and having submitted the same to the Attorney-General for approval: Held that the approval or disapproval of the said opinion by the Attorney-General would in effect be giving his official opinion where it is not called for by the President or by the head of a Department, and, therefore, where it is not authorized by law to be given. Ibid. 68. The papers in the claim of Capt. E. H. Wyman for prize-money, presenting, in impor- tant particulars, inconsistent and contradictory statements, were returned by the Acting' At- torney-General without an opinion, to the end that the facts upon which the claim is based may be more definitely ascertained before pass- ing upon its merits. Letter of May 1, 1672, 14 Oi3. 36. 69. Where different statements of facts ap- pear in any case that has been submitted by the head of a Department to the Attorney-Gen- eral, the latter will not undertake to reconcile the differences between them, but in giving an opinion upon the questions presented will con- sider only such facts as are set forth or admitted by the head of the Department. Opinion of May 18, 1872, 14 Op. 45. 70. The Attorney-General is not authorized to give an official opinion upon a question in- volving the estimation of the weight and credi- bility of testimony offered in support of a claim, this being mere matter of fact, which appropriately belongs to the officers charged with the adjustment and settlement of the BANKS AND BANKBES. 45 claim to determine. Opinion of June 18, 1872, 14 Op. 55. 71. Where, atthesolioitationof a committee of the Senate, an opinion from the Attorney- General was requested by the Acting Secre- tary of the Interior upon a matter which had been previously submitted by the latter to Congress, and which was then under the con- sideration 01 said committee, for whose infor- mation solely the opinion was desired: Held that the Attorney-General is not authorized to give his official opinion in such case, the request being virtually an application from the com- mittee for counsel in a matter of legislation. Opinion of Jan. 20, 1873, 14 Op. 177. 72. The decisions of former Attorneys-Gen- eral, to the effect that it is not the duty of the Attorney-General to advise either House of Congress, or any committee thereof, upon any matter pending before the same, cited and af- firmed. Ibid. 73. Where the question presented was very indefinite and vague, and partook of a specu- lative character, it was deemed inadvisable by the Attorney-General to give his official opin- ion thereon. Letter of Feb. 27, 1873, 14 Op. 191. 74. Where an official opinion from the At- torney-General is desired on questions of law arising on any case, the request should be ac- companied with a statement of the material facts of the case, and also the precise questions on which advice is wanted. Opinion of Feb. 16, 1874, 14 Op. 367. 75. The Attorney-General has no authority to stipulate to pay an attorney at law, under the name of a fee, a sum which, as is under- stood beforehand, is much larger than the pro- fessional services involved can be worth, and is Intended to cover, in addition thereto, services not professional. Opinion of June 10, 1874, 14 Op. 655. 76. Nor has he any authority to contract for the collection of claims of the United States, stipulating to pay for such service a part of the , money recovered. Ibid. 77. Semhle that, to enable any Department to make a valid contract for the prosecution of such claims, the power must be specially con- ferred by Congress. Ibid. 78. The question proposed in the case of George M. Giddings — which has special ref- erence to the provision in section 3480 of the Eevised Statutes, prohibiting the payment of certain claims which existed prior to April 13, 1861, and is in substance whether the claimant's demand "accrued or existed" prior to that date — being regarded as purely a question of fact, to be made out from the evidence pre- sented, and not in any aspect a question of law, the Attorney- General declined giving an opin- ion thereon. Letter of Feb. 16, 1875, 14 Op. 526. 79. An impressment of property is simply a conclusion of fact, to be deduced from other facts established by the evidence submitted; and hence it is not within the province of the Attorney-General to determine the question whether there was or was not an impressment in a particular case. Opinion of March 5, 1875, 14 Op. 536. 80. The Attorney-General is not authorized to give an official opinion in response to a call from the head of a Department, though the call is made at the request of a committee of Congress, where the question proposed does not arise in the administration of such Depart- ment. Opinion of July 7, 1876, 15 Op. 133. 81. The Attorney-General cannot with pro- priety give an official opinion to the head of a Department upon the question whether it is expedient for him to prosecute an appeal in -a, matter of public interest pending before another Department. Opinion of July 24, 1876, 15 Op. 574. 82. The Attorney-General is not authorized by the law creating and defining his office to give legal opinions at the call of either House of Congi'essorof Congress itself. His duty to ren der such opinions is limited to calls from the President and heads of Departments. Opinion of March 27, 1878, 15 Op. 475. 83. In order that the Attorney-General may advise the Treasury Department, as contem- plated in the act of March 3, 1875, chap. 136, all the facts upon which the question turns should be stated and presented for his consider- ation. Opinion of July 18, 1878, 16 Op. 94. BANKS AND BANKERS. See INTEESTAL Ebvbnue, IV; National Banking Associations; United States Bank. 46 BANKRUPT — BLOCKADE. BANKRUPT. 1. The payment of a debt to, and the dis- charge of the demand, by two of three assignees of a bankrupt's estate, is not strictly a valid discharge. Opinion of Dec. 1, 1804, 5 Op. 693. 2. "Where a payment is made by a debtor to a creditor who has committed an act of bank- ruptcy, and against whom proceedings in bank- ruptcy have been instituted and are pending, but who has not yet been adjudged a bank- rupt, it will not be a valid satisfaction of the debt, in the event of an adjudication of bank- ruptcy in such proceedings, if the payment transpired subsequent to the filing of the pe- tition therein. Opinion of Nov. 18, 1873, 14 Op. 331. 3. But a payment made by a debtor to a creditor who is known to have committed an act of bankruptcy, but against whom proceed- ings have not at the time been taken, is valid, so far at least as the present bankrupt law is concerned. Jhid. 4. All debts and liabilities subsisting in favor of the bankrupt at the period when the petition was filed, or then constituting a part of his es- tate, together with the right to receive or sue for and recover the same, become upon the ex- ecution of the assignment completely and ex- clusively vested in the assignee by relation to that period. Ibid. 5. Hence a payment to the bankrupt of any such debt or liability after that date would be no satisfaction of the demand as against the claim of the assignee, unless the payment is pro- tected by some exception made by Congress which covers the particular case. Ibid. 6. Neither the bankrupt act of March 2, 1867, chap. 176, nor its supplements, contain any ex- ception, express or implied, in favor of a debtor who has paid his debt to the bankrupt after the time of filing the petition against the latter. Ibid. 7. It follows that the claim of the assignee, duly appointed, must prevail against the debt- or, notwithstanding such payment, though it was made bona fide and without knowledge of the bankruptcy proceeding. Ibid. 8. Bankruptcy proceedings against members of a partnership individually do not affect re- lations between such partnership and its cred- itors or debtors. Opinion of Aug. 3, 1875, 15 Op. 28. BEQUEST OF JAMES SMITHSON. 1. The entire legacy bequeathed to the "United States by James Smithsfin, for the purpose of founding an establishment in the city of "Wash- ington for the increase and diffusion of knowl- edge, should be kept entire for effectuating the purposes of the testator. Opinion of Nov. 16, 1838, 3 Op. 383. 2. The expenses of prosecuting for the said legacy, and of receiving and transporting it to this country, including additional expenses in- curred, ought, therefore, to be defrayed out of the appropriation made by the act of July 1, 1836, chap. 252. Ibid. 3. The personal effects, other than cash and stocks, which have been transferred to the United States should be disposed of as Con- gress may direct. Ibid. BELLIGERENTS. See Civil "Wae; International La-w;. Neutrality: Neuteal TEEEiTOSTi. BIDS AND BIDDERS. See CoNTEAOT, III; Postal Sekvice, II. BILL OF EXCHANGE. See also Drafts op Foeeign Goveenmenti Negotiable Papee. Bills of exchange may be indorsed under an authority derived from a power of attorney. Opinion of April 27, 1816, 1 Op. 188. BLOCKADE. 1. Property found on the persons of individ- uals captured by tl\e Potomac flotilla in the act of violating the blockade should be re- ported to the district attorney for examination into the facts of the capture, with a view tO' BOND, I, II. 47 the institution of the appropriate proceedings for confiscation, if there be reasonable cause for judicial investigation of the case. Opinion of March 9, 1863, 10 Op. 467. 2. The Secretary of the Treasury has no power, under the eighth section of the act of July 13, 1861, chap. 3, to remit the forfeiture of a vessel or cargo incurred under the law of war on account of a breach of blockade. Ojrin- ion of March 15, 1865, 11 Op. 430. BOND. See also Customs Laws, VI; Internal Eev- BNUE, VI, VII; Postal Seevice, III. I. Generally. II. Official Bonds. III. Other Bonds. I. Generally. 1. Bonds must be sealed; and for abundant caution they should be sealed with wax, or wafer and paper cap, which are everywhere acknowledged to be seals; although scrolls or any other sealing would be valid which is a good sealing in the place where they are exe- cuted. Opinion of June 24, 1828, 2 Op. 93. 2. No attestation is necessary to their valid- ity, although witnesses may be useful and con- venient to make proof of handwriting in case of necessity. Ibid. 3. The bonds of the deposit banks are anal- ogous to the bonds given by public officers on their appointment, and should be retained in the public archives,unless Congress shall other- wise determine. Opinion of Nov. 20, 1837, 3 Op. 292. 4. A ))ond, to be accepted by the Govern- ment, ought to be executed by the obligees, and not by their attorney. Opinion of Nov. 5, 1857, 9 Op. 128. II. Official Bonds. 5. The assayer, chief coiner, and treasurer of the mint cannot execute their offices legally unless they have given bonds for the faithful performance of their duties. Opinion of Dec. 6, 1793, 5 Op. 687. 6. Pursers who have neglected to give bond on or before the 1st day of May, 1817, except those who may be then on ' ' distant service, ' ' are, under the operatioii of the act of March 1, 1817, chap. 24, out of office by the neglect. Opinion ofMatj 14, 1817, 5 Op. 706. 7. Where a commissary-general of the Army had omitted to sign his official bond, but had delivered it to the proper Department signed only by the sureties: Advised that it be now signed by him, and •'attested specially in the form prescribed by the Attorney- General. Opinion of Oct. 5, 1819, 5 Op. 718. 8. If the paymasters retained in the service under the act of March 2,' 1821, chap. 13, are charged with duties other and different from those which previously devolved upon them, they ought to give new official bonds. Opin- ion of April 27, 1821, 5 Op. 733. 9. The bond of a purser is required to be approved by the judge or attorney for the United States of the district in which he shall reside; and to save the necessity of proof on this subject the residence should be expressed in the body of the instrument. Opinion of June 24, 1828, 2 Op. 93. 10. The certificate of the district attorney approving the sureties is, to all substantial purposes, an approval of the bond. Ibid. 11. The law recognizes but one Christian, name; hence the bond, with sureties, and the oath of office of a receiver of public moneys, subscribed "Benjamin F. Edwards," where the commission had issued to "Benjamin Ed- wards, ' ' are valid. Opinion of March 28, 1830, 2 Op. 332. 12. The bond given by a Navy agent under his first commission, which was issued upon a temporary appointment made during the re- cess of the Senate, ceases to have effect after the acceptance of a new commission under an appointment made with the consent of the Senate. Opinion of April 2, 1830, 2 Op. 333. 13. Deputy postmasters who shall be re- quired to execute the functions of depositaries- under the eighth section of the act of July 4, 1840, chap. 41, ought to give new bonds, with sureties, to be approved by the Solicitor of the Treasury. Instructions respecting the form and penalty of the bonds should be given through the Post-Ofl&ce Department. Opinion of July 18, 1840, 3 Op. 575. 14. Collectors who are made depositaries of the public moneys under the act of 4th July, 48 1840, cliap. 41, are required to execute a new bond, with sureties, cODditioned for the per- formance of the new duties required by said act, as' well as tliose before required. Opinion of July 31, 1840, 3 Op. 584. 15. Collectors are not required to give bonds in a larger amount than before, under the act of July 4, 1840, chap. 41, unless it shall be deemed necessary by the proper officers of the Department; butthey are required to give new bonds, with new conditions, embracing the new duties devolved upon them as well as those previously required. OplnLmofAng. 24, 1840, 3 Op. oSu. 16. If the proper Department shall deem it expedient, it may, in lieu of a new bond (un- der the actof July 4, 1840, chap. 41), embrac- ing all the duties of the collector, take a new bond, in a suitable penalty, embracing the new duties only, leaving the old one outstand- ing. Opinion of Dec. 7, 1840, 3 Op. GOO; see also Opinion of Jan. 7. 1841, ibid. 610. 17. It is not material whether bonds taken under the provisions of the thirty-seventh sec- tion of the act of July 2, 1836, chap. 270, are accepted in the mode suggested by the Auditor in his communication of the 10th of May, 1843, or in that which, for greater convenience, has been adopted by the Postmaster-General, no form being prescribed by the act. Opinion of July 12, 1843, 4 Op. 187. 18. For the security of the sureties bound in the previous obligation, the date of the ac- ceptance should be indorsed on the bond; yet the parties to the new bond are bound by the acceptance, in fact, of their bond by the Post- master-General, and this acceptance may be shown as any other fact is required to be. Ihid. 19. The validity of the bond of a receiver is not affected by his discharge as a bank- rupt, nor are his sureties discharged or re- leased thereby. Opinion of Sept. 23, 1813, 4 Op. 253. 20. It is a sound regulation, conformable to law, for the Secretary of the Treasury not to give up to the collectors their original bonds on the execution of new ones. Opinion of April 2, 1844, 4 Op. 312. 21. Neither the act requiring bonds of col- lectors to be deposited in the ofiace of the Comptroller, nor any other, authorizes a with- drawal of them, except for the purposes of suit. Ibid. 22. Pursers are liable upon their bonds for public stores committed to their charge, even though such stores are destroyed by inevitable accident. Opinion of Feb. 11, 184.J, 4 Op. 355. 23. It is in the discretion of the President whether or not to require bonds of an officer of the Engineer Corps employed as disbursing agent of the Government. Opinion of April 20, 1853, 6 Op. 24. 24. The President has no authority to release the sureties on a bond given to the United States by a marshal for the faithful discharge of the duties of his office. Opinion of 3Iarch 12, 1855, 7 Op. 62. 25. Where a temporary appointment of United States marshal has been made by the President the recital in the official bond should be in conformity with the nature of the appoint- ment. Opinion of Aug. 14, 1857, 9 Op. 53. 26. When the legal eifect of an official bond is questionable it should be rejected. Opinion of Dec. 9, 1858, 9 Op. 263. * 27. The marshals of the several Territories of the United States are required to give bond for the faithful discbarge of their duties, in the manner prescribed by the twenty-seventh section of the act of September 24, 1789, chap. 20. The opinion of Attorney-General Black, of June 9, 1860, that said act does not apply to a marshal of a Territory, dissented from. Oinnion of June 15, 1861, 10 Op. 68. 28. A consul'sbond, given under the thir- teenth section of the act of August 18, 1856, chap. 127, speaks and takes effect not from its date, but from the time of its approval by the Secretary of State. Opinion of Feb. 1, 1872, 14 Op. 7. 29. Accordingly, where an appointee to a consulship was commissioned on the 18th of January, and his bond, though dated on the 13th of same month, was not approved by the Secretary until the 27th: Held that the bond was val id and sufficient under said act. IbiiK 30. The liability of sureties upon the official bond of a collector of customs is limited to acts done by him during his term of office. They are not responsible for del'aults committed in relation to public moneys received by him after the term for which he was appointed. Opinion of April 5, 1877, 15 Op. 214. BOND, TIT — BONDS OF THE UNITED STATES. 49 III. Other Bonds. 31. A clerical error in a contractor's bond should not operate to his prejudice. Opinion ofiLaij 11, 1852, 5 Op. 547. 33. The reference to the "fares and tolls allowed to Northern railroads" in the bond given by the Mobile and Ohio Railroad Com- pany to the United States, dated November 1, 1865, for rolling-stock, &o., purchased from the Government, is to be understood as mean- ing the liires and tolls allowed by the general regulations of the Quartermaster's Department to railroads in what were known as the " North- ern States' ' in contradistinction to the Southern ■or former slave States; it does not include rail- roads in what were called the " border States." Opinion of 3Iay 3, 1872, 14 Op. 592. 33. Pending the execution of an order for a reappraisement of an importation of gloves, the importers, anxious to get their goods, pro- posed to leave samples on which to make the appraisement, and give a bond to pay ' ' all du- ties and charges" finally assessed upon the importation, waiving all objections that might he made on the ground that the goods were not retained by the United States until final ap- praisement; and this arrangement was entered into by permission of the Secretary of the Treasury. The final appraisement resulted in an addition of more than 10 per cent, be- yond the invoice and entered values ; so that, under ordinary circumstances, the goods would be liable to the additional duty of 20 per cent, imposed by the seventh section of the act of March '3, 1835, chap. HO. Held that by the terms of the bond it included the payment of such additional duty, and that the importers are liable therefor. Opinion of June 23, 1874, 14 Op. 658. 34. A bond which accompanies a proposal for carrying the mail, though actually signed hy the parties thereto in one of the States, is to be regarded as made at Washington, the in- tended place of delivery. Opinioniof Starch 22, 1878, 15 Op. 472. 35. Hence, where a married woman is on Such a bond as a surety for her husband, her capacity to enter into the contract for surety- ship, and thereby to subject her separate prop- erty to liability, must be determined by the laws of the District of Columbia. lUd. 36. Under the laws of the District a married woman cannot thus hind her separate prop- erty. Ibid. BONDS FOR PACIFIC RAILROAD COMPANY. 1. Authority of the several attorneys and agents of the Pacific Eailroad Company to re- ceive and assign the bonds deliverable to the company under acts of July 1, 1862, chap. 120, and July 2, 1864, chap. 216. Opinion of April 1, 1865, 11 Op. 183. 2. Opinion of April 1, 1865 (11 Op. 183), reaffirmed. Opinion of April 11, 1865, 11 Op. 188. BONDS OF THE UNITED STATES. See also Bonds foe Pacipio Eaileoad Com- pany; Funded Debt; Public Loans. 1. Coupons of the loan authorized by act of April 15, 1842, chap. 26, should be signed by a person acting under the direction of the Sec- retary of the Treasury. Opinion of Jan. 31, 1843, 4 Op. 143. 2. On questions suggested as to the deliv- ery of the reserved stock, arising upon the act of September 9, 1850, chap. 49, which di- rected the delivery by the United States of ten millions of dollars in stock to the State of Texas, provided that no more than five millions of said stock be issued until certain creditors of the State should have filed in the Treasury releases of all claims against the United States: S;W that the Secretary of the Treasury cannot make delivery of the reserved five millions by apportionment, but must withhold all payments until evidence be pre- sented to him of the complete discharge of the United States in the premises. Opinion of Sept. 26, 1853, 6 Op. 130. 3. By the Treasury regulations transfer of public stocks held by foreign decedents may be made on satisfactory proof that the party claiming the right in such stocks is entitled as devisee, distributee, or otherwise, according to law. Opinion of 3Iay 31, 1855, 7 Op. 240. 4. Bonds of the United States issued under the act of April 15, 1842, chap. 26, and held at and before the commencement of therebell- DI&- 5.0 BOOTY. ion by a citizen of Virginia who never took any active part in tlie rebellion, and whose property is not liable to seizure under the con- iiscation acts, are, in the year 1866, valid obli- gations of the United States in the hands of the holder, and may be lawfully paid to him. Opinion of Aug. 28, 1866, 12 Op. 19. 5. On the 24th of June, 1862, Messrs. Pea- body & Co. , of London, purchased in England, for full value, of a regular broker, accustomed to deal in American securities, a number of the bonds issued to the State of Texas by the United States under the act of September 9, 1850, chap. 49. These bonds had been turned over by the rebel authorities of Texas to the military board (so called) ; had been placed by that board in the hands of an agent for sale in Europe, for the purpose of raising supplies for the rebel forces; and had been placed by said agent in the hands of a broker in London, of whom they were purchased by Messrs. Peabody & Co., without notice of the actual ownership of the bonds, or of any fact to "excite suspicion of their invalidity. Held that the said bonds were existing valid obligations against the United States in the hands of the purchasers. Opinion of Dot. 15, 1866, 12 Op. 72. 6. The twenty-five Texas indemnity bonds held by Messrs. E. and D. G. Mills, of Galves- ton, are valid obligations in their hands against the United States, upon the principles stated in the opinion in the-case of Messrs. Peabody & Co., of London. Opinion of Oct. 29, 1866, 12 Op. 78. 7. The joint resolution of March 2, 1867, prohibiting payment to any person not known to have been opposed to the rebellion, does not aiJect the payment of certificates of funded stock issued underthe act of January 28, 1847, chap 5. Opinion of May 8, 1868, 12 Op. 407. 8. By the act of March 2, 1861, chap. 85, authority was given to the Secretary of the Treasury to issue to the proper authorities of the Choctaw tribe of Indians, on their requisi- tion, bonds of the United States to the amount of ^250, 000 on account of a claim of said tribe against the Government. This authority was, by subsequent legislation, withdrawn from the Secretary before any requisition for- the bonds had been made by the tribe; but, by the act of March 3, 1871, chap. 120, Congress author- ized the Secretary to issue to the tribe bonds to the amount of $250,000, as directed by the first-mentioned act. The tribe has since re- quested the Secretary to issue the bonds, and also to pay interest on the same from March 2, 1861. Meld that the bonds, being issuable only in virtue of the authority given by the act of 1871, must bear date subsequent to the jjassage of that act, and that they cannot be made to bear interest from a period anterior to their date; Iield, further, that the Secretary is not authorized to pay interest upon the said amount of $250, 000 prior to the date of th e bond* which may be issued under that act. Opinion of April 17, 1872, 14 Op. 29. 9. The provision in the act of July 14, 1870, chap. 256, requiring bonds issued thereunder to be made ' ' redeemable in coin of the present standard value," does not authorize the Sec- retary of the Treasury to stipulate in the body of the bond that it shall be redeemed in coin of the standard value existing at the date of the issue of the bond. Opinion of April 26, 1877, 15 Op. 23.3. 10. The word "present" in that provision refers to the date of the act; and the bond can- not be made otherwise redeemable than in coin of standard value at the date of the act. Ibid. 11. Section 3702 Rev. Stat, does not author- ize relief to be given in the case of coupons de- stroyed or defaced after their separation from the bonds to which they were attached. Its provisions apply solely to destroyed or defaced interest-bearing bonds. Ojpinion of Jan. 29, 1878, 15 Op. 439. 12. Coupons, whilst remaining attached tO' the bonds with which they were issued, are tO' be regarded as parts thereof, and, if then de- faced or destroyed, the case would fall within the section as one of partial defacement or de- struction of the bond. But they lose that character after being detached. Ibid. 13. Where satisfactory proof is furnished that a registered bond, called in for redemp- tion, has been lost, payment thereof may be made upon a bond of indemnity being given by the owner, in conformity with the require- ments of section 3705 Rev. Stat. Opinion of March 20, 1878, 15 Op. 468. BOOTY. During the rebellion certain barges were im- pressed into the military service of the insur- 51 gent States, and continued in that service until their capture by the Army of the United States, after which they were retained for the use of the Quartermaster's Department: Advised that the barges are military booty, and belong wholly to the United States; that the War De- partment has the same right to dispose of them as of other property of the United States in its possession of a similar kind. Opinion of June 19, 1869, 13 Op. 105. BOSTON POST-OFFICE. After the date of the act of March 3, 1859, chap. 82, and the removal of the post-of&ce at Boston from State street, the Postmaster-Gen- eral had no authority to restore the oflS.ce to State street until the indemnity provided for in the proviso to the seventh section of that act was furnished. Opinion of March 24, 1859, 9 Op. 315. BOUNDARIES. When a river is the line of arcifinious bound- ary between two nations, its natural channel so continues, notwithstanding any changes of its course by accretion or decretion of either hank; but if the course be changed abruptly into a new bed by irruption or avulsion, then the river-bed becomes the boundary. Opinion of Nov. 11,1856, 8 Op. 175. BOUNTY. See also Bounty Land; Pishing Bounties; Head Money. I. Generally. II. Colored Soldiers. III. Indian Troops. TV. Forfeiture of. I. Generally. 1. The Second Auditor of the Treasury has lawful jurisdiction of the claims for bounty, under the act of July 22, 1861, chap. 9, and not the Commissioner of Pensions. Opinion of Nov. 13, 1862, 10 Op. 371. 2. It is not the duty of the Commissioner of Pensions to famish blank forms for applica- tions for such bounties, nor is he authorized to- prescribe forms for such applications. Ibid. 3. The enlisted men of the Marine Corps are not entitled to the bounty provided by the fifth section of the act of July 29, 1861, chap. 24, for the men "enlisted in the regular forces." Opinion of Sept. 29, 1864, 11 Op. 100. 4. The regulations of the War Department in reference to the payment of bounties to veterans mustered out of service before the expiration of their term of enlistdient, by rea- son of their service being no longer required, have the force of law, by effect of joint reso- lutions of January 13, 1864, and March 3, 1864. Opinion of May 6, 1865, 11 Op. 224. 5. A volunteer mustered into service under act of July 4, 1864, chap. 237, is entitled, if mustered out for the above reason before the expiration of his period of service, to receive only the proportion of the bounty allowed by the act which had actually accrued before the date of his discharge. Ibid. 6. Drafted men and substitutes are entitled to the bounty provided by the act of July 28, 1866, chap. 296. Opinion of Sept. 7, 1866, 12 Op. 24. 7. Soldiers enlisted in the regular Army be- tween the 19th of April and the 1st of July, 1861, are entitled to the bounty provided by that act. Ibid. 8. Non-resident parents of deceased soldiers are entitled to the bounty. Ibid. 9. The fourteenth section of the said act of 1866 does not cover the case of a sale or trans- fer by the heir of a soldier of his final discharge papers, &c. ; it is confined to a sale or transfer by the soldier himself Ibid. 10. If a soldier brings himself within all the qualifications specified in the act, of enlistment, service, and honorable discharge, he is entitled to the bounty; and he cannot be required to make an affidavit that he was not a deserter from the service during the term of his enlist- ment. Ibid. 11. The Secretary of War has no legal au- thority to exclude authorized attorneys and agents from collecting the bounties granted by the act of July 28, 1866, chap. 296. Opinion of Oct. 8, 1866, 12 Op. 66. 12. The provisions of the first section of the act of March 3, 1869, chap. 133, extend to the 52 BOUNTY, II. claims I'or bounty of soldiers who enlisted un- (^r the act of July 4, 1864, chap. 237. Omn- ionofJan. 19, 1870, 13 Op. 201. 13. Under the various bouuty acts passed from time to time previous to the act of March 3, 1869, chap. 133, soldiers vrere not in gen- eral entitled to receive the whole of the bounty provided for the term of their enlistment until they had actually served out the full term; and the effect of the first section of that act is to make an exception in favor of those whose dis- charges state that they were discharged by reason of the expiration of their term of serv- ice, although in fact they did not serve out the full term of their enlistment. Ibid. 14. What the term of enlistment was, in any case, must be ascertained from the enlistment papers, or rolls, or documents, or from any other sources of information which, by law, are evidence of the contract of service ; and the sol- dier should be paid the bouuty allowed by law for that period of service, whatever in such case it may be. Ibid. 15. Soldiers who enlisted for three years or during the war, and were discharged by reason of the termination of the war, are to be re- garded as having served out the period of their enlistment, and are entitled to the additional bounty granted by the twelfth section of the act of July 28, 1866, chap. 296; and their dis- charges need not state that they were dis- charged by reason of the expiration of their term of service to entitle them to be paid that bounty. Ibid. 16. Where a person, in October, 1864, had enlisted for a term of three years under the act of July 4, 1864, chap. 237, and was discharged in July, 1867, agreeably to the provisions of a general order from the War Department au- thorizing discharges prior to the expiration of the term of enlistment in certain circumstances in which the soldier would be greatly incom- moded by remaining the full term: Held, first, that if he was discharged with his own con- sent, his discharge not stating that it was granted by reason of the expiration of his term, he is not entitled to the last installment of bounty provided by the said act of July 4, 1864; second, if he was discharged withouthis consent he is entitled to that installment; third, if his discharge states that he is discharged by reason of expiration of term of service, he is entitled to the installment by force of section 1 of the act of March 3, 1869, chap. 133. Opinion of Jan. 6, 1872, 13 Op. 562. 17. Where asoldier was enlisted in the Army as a volunteer in December, 1861, for three years, but afterward, and before the expiration of his term of enlistment, was voluntarily transferred to the naval service, in which he served out the remainder of his term: Held that he is not entitled to the additional bounty provided by the act of July28, 1866, chap. 296. Opinion of April 23, 1873, 14 Op. 223. 18. Enrollment before the proclamation and orders mentioned in the act of April 22, 1872, chap. 114, were issued does not preclude a claim for bounty under that act, where the company or regiment was mustered into the military service of the United States prior to July 22, 1861, under the said proclamation and orders. Opinion of May 11, 1875, 14 Op. 581. 19. Where the discharge certificate of a sol- dier who belonged to a company or regiment thus mustered is in the usual form of one given upon an honorable discharge from the military service, the character of his discharge from service must be deemed to be (what his dis- charge certificate represents it to be) honor- able, and to entitle him to bouuty under said act, whatever may have been the circumstances under which his company or regiment was dis- banded. Ibid. II. Colored Soldiers. 20. The classes of colored persons enfran- chised after April 19, 1861, by operation of acts of Congress and the emancipation procla- mation, and enlisted into the military service, who are entitled to bounty, indicated. Opin- ion of Oct. 17, 1865, 11 Op. 365. 21. Colored soldiers who were slaves at the time of entering the military service are en- titled to the bounty provided for in the twelfth and thirteenth sections of the act of July 28, 1866, chap. 296. Opinion of Nov. 13, 1866, 12 Op. 91. 22. The heirs or legal representatives of de- ceased colored soldiers enlisted during the re- bellion, and borne on the rolls as slaves, are, by virtue of the act of March 3, 1873 chap. 262 (section 4723 Rev. Stat. ), entitled to bounty ; the effect of that statute being to extend the provisions of the bounty acts alike to all col- ored soldiers, whatever their former status BOUNTY, III — BOUNTY LAND. 53 might have been. Opinion of March 26, 1878, 15 Op. 474. 23. Bounty can lawfully be paid, under act of July 11, 1862, chap. 144, to one who claims as father of a colored soldier, without other proof of heirship than that the claimant and the soldier's mother lived together as man and wife; assuming that the claimant, mother, and soldier were all slaves at the time of the sol- dier's enlistment, that there is no sufficient rebutting evidence in the case, and that the living together was at the proper time. In de- fault of father and mother, the bounty can be paid, under like circumstances, to one claiming as brother or sister who was not born of the soldier's mother. The distinction made by statute between colored and other soldiers in pension cases, &c. , in regard to proof of mar- riage (sections 2037 and 4705 Rev. Stat. ) ex- tends only to' the marriage of ihe soldier, and does not affect that of his parents or other rel- atives. Opinion of May 9, 1879, 16 Op. 630. III. Indian Troops. 24. The soldiers of the First, Second, and Third Indian Regiments, recruited by authority of the War Department iu May and August, 1861, under the act of July 22, 1861, chap. 9, are entitled to bounty under the act of July 28, 1866, chap. 296. Opinion of Sept. 21, 1867, 12 Op. 246. 25. The opinion of the Attorney- General of September 21, 1867 (12 Op. 246), in favor of the right of the Indian regiments to the bounty provided by the act of July 28, 1866, chap. 296, affirmed. Opinion of July 24, 1868, 12 Op. 137. IV. Forfeiture of. 26. Upon the question presented by the Sec- retary of "War, viz, as to the right of a de- serter, whether tried and convicted by a court- martial or not (if, when so tried and convicted, forfeiture of bounty or a dishonorable discharge is no part of the sentence), on being returned to service and making up the time lost by his de- sertion, to receive the same bounty as if he had not deserted, or any bounty at all under the various statutes relating to bounty, the Attor- ney-General, in view of the fact that eases are pending in the Court of Claims in -vs'hich sub- stantially the same question must be consid- ered and decided, and which may be ultimately carried before the Supreme Court, gives no opin- ion, but advises that the e.-cistiug practice of the War Department iu executing the bounty acts be contiuued until the question is judi- cially determined. [SeeNoTE, 130p. 188;also the case of United States v. Kelley, 15 Wall., 34. J Opinion of Jan. 13, 1870, 13 Op. 185. 27. The installments of bounty provided by the act of July 4, 1864, chap. 237, which are not already due and payable to a soldier at the time he deserts never become due and paya- ble in case he does not return or is not returned to service, and are not forfeited in the legal sense of that word. Opinion of Jan. 18, 1870, 13 Op. 189. 28. Nor, in case the deserter returns or is apprehended and put back into service, are such installments forfeited on account of deser- tion within the meaning of those words in the act of March 21, 1866, chap. 21; because either the soldier, on serving out his term, is entitled to receive them, or they never become due and payable by reason of his desertion. Ibid. 29. But the installments of bounty due and payable at the time of desertion are forfeited thereby in both those cases, and become paya- ble to the Board of Managers of the National Asylum for Disabled Volunteer Soldiers under the said act of March 21, 1866. Ibid. 30. The various statutes relating to bounty reviewed and considered in connection with the Army regulations relating to forfeiture for desertion. Ibid. BOUNTY LAND. See also Public Lands, VI. 1. Non-commissioned officers and soldiers, whether minors or not, enlisted after 10th De- cember, 1814, are entitled to a bounty of 320 acres of land, when discharged from service, ou presenting the proper certificates of faithful per- formance of duty while in service. Opinion of Aug. 1, 1815, 1 Op. 185. 2. The fact of minority does not create any incapacity to take land bounty any more than bounty in money or pay. The minor who brings himself within all the other requisites is entitled to his land- warrant in like manner with persons of full age. Ibid. 54 BOTTNa?Y LAND. 3. Under the act of 16th April, 1816, chap. 65, a child must have been sixteen years of age at the death of the non-commissioned offi- cer, musician, or private in order to invest the guardian with the right to commute the bounty laud for half-pay. Opinion of Dec. 24, 1816, 1 Op. 195. 4. A person vrho enlisted as a soldier in the war of 1812, and served as such until commis- sioned, but who resigned his commission before the close of the war, is entitled to bounty land, under the act of April 16, 1816, chap. 55, pro- vided the enlistmeutwas for five years or dur- ing the war. Opinion of July 29, 1819, 1 Op. 273. 5. Although in the acts under which troops were raised in the late war it was not the in- tention of Congress to incorporate negroes and people of color with the Army any more than with the militia of the United States, yet, as they were enlisted in the usual manner, and treated us a part of the Army by the Govern- ment officers, a practical construction had thus been given to those acts which entitles colored soldiers to the promised land bounty. Opin- ion of March 27, 1823, 1 Op. 603. 6. Soldiers enlisted to serve for the term of five years under the act of January 11, 1812, chap. 14, and who were honorably discharged before the expiration of their term of service in consequence of having furnished accepted substitutes, are entitled to 160 acres of land under that act, even though the substitutes may have deserted. Opinion of Nov. 4, 1831, 2 Op. 470. 7. Where B. , a citizen of Maryland, who was entitled to bounty laud, died intestate, leaving him surviving a widow and several children, and where, after the demise of the widow and children (the widow surviving the children), theheirsof the widow claimed the land: ffeld that the widow was not the heir of the surviving child of B. as its mother, except there was no representative of the child in the paternal line, and that, there being no evidence of this, the claim should not be allowed. Opinion of Sept. 5, 1833, 2 Op. 579. 8. Under the laws of Maryland a mother is not the heir of a child, unless there are no representatives of the child in the paternal line. Ibid. 9. Discharged soldiers entitled either to bounty land or Treasury scrip under the act of February 11, 1847, chap. 8, who hare once elected to take Treasury scrip instead of bounty land, and have obtained the requisite certifi- cate therefor from the Commissioner of Pen- sions, cannot afterwards be permitted to sur- render such scrip and obtain a warrant for lauds instead. Opinion of Oct. 30, 1847, 4 Op. 642. 10. Soldiers who enlisted during the war with Mexico for twelve months, but who, with- out having been wounded or sick, were honor- ably discharged before the expiration of their term of service, are not entitled to bounty lands under the act of 11th February, 1847, chap. S. Opinion of Marchll, 1848, 4 Op. 718. 11. A soldier who enlisted in the Army in 1846 for the term of five years and served until April, 1849, when, in consequence of the re- duction of the Army after the termination of the war with Mexico, he was honorably dis- charged, against his own wishes, is entitled to the bounty land provided by the ninth section of the act of February 11, 1847, chap. 8. Opin- ion of July 27, 1849, 5 Op. 147. 12. The ninth section of that act embraces those of the regular Army enlisted for twelve months or for a longer period ; volunteers regu- larly mustered into a volunteer company, who served during the war and have been honor- ably discharged; those killed, or who died of wounds received or by sickness incurred in the course of their service; and those who were dis- charged before the expiration of their term of service in consequence of wounds received or sickness incurred in the course of their service. Ihid. 13. The entire portion of the Marine Corps, whether they served on shipboard or on laud, on the Mexican coast or in the interior, in the Mexican war, are to be considered within the meaning of the joint resolution of the 10th of August, 1848, as having "served with the Army iu the war with Mexico," and entitled to the bounty laud and other remuneration which that resolution provides. Opinion of Sept. 17, 1849, 5 Op. 155. 14. Where a land- warrant was issued to the administrator (feftoms wow of a deceased colonel for the benefit of the devisees, scrip in exchange may issue in the same manner and for the same purposes. Opinion of March 24, 1851, 5 Op. 308. 15. The bounty-land provision of the act of March 3, 1855, chap. 207, section 1 embraces BKANCH MINT AT NEW ORLEANS — BRIDGES. 55 not only militia or volunteers whose military services were performed under tlie general com- mand of the United States and in time of war, bnt also such as rendered military service whether in war or not, and whether under the immediate authority of the United States or of a State or Territory, but who shall have been paid for such service by the United States. Opinion of Dec. 14, 1855, 7 Op. 606. 16. A land-warrant issued after the death of a claimant who left a widow and children inures to the widow's benefit aloue. Opinion of Oct. 28, 1858, 9 Op. 243. 17. Where the deceased claimant was a widow, with two sets of children, the warrant inures to the benefit of her heirs or legatees. Jbid. 18. Heirs are those who are so declared by the law of the claimant's domicile. Ibid. 19. Under the act of September 28, 1850, chap. 85, the date of the application is the one at which a person claiming as a minor must be shown to have been under full age; and where this is established the right of the claimant will not be defeated by obtaining his or her majority before the case is finally disposed of. Opinion of May 21, 1860, 9 Op. 427. 20. The act does not vest the right to the warrant for bounty land in the child of a minor before his or her claim is filed. Ibid. 21. Minor children born after the date of the act are included within its provisions. Ibid. BRANCH MINT AT NBW^ ORLEANS. 1. A sale or abandonment of the property on which th e branch mint at New Orleans is erected would cause the same to revert to the grantor. Opinion of April 2\, 1868, 12 Op. 389. 2. Any disposition or removal of the struct- ures now on the land inconsistent with the purposes of a branch mint thereon would en- able the grantors to avoid, by judicial proceed- ings, the right of the United States to the use and occupation of the premises. Ibid. BREVET. See Army, III; Makine Corps, II. BRIDGES. See also Foet Snelling; Eock Island Bridge. 1. The Government may permit the Daven- port and Saint Paul Railroad Company to use the bridge across the Mississippi River at Rock Island, upon the payment by that company of one- third of the cost thereof, one-half of which to be paid to the United States and the other half to the Chicago, Rock Island and Pacific Railroad Company (assuming that the latter company has complied with the requirements of the joint resolution of July 20, 1868). Opin- ion of April 18, 1872, 14 Op. 32. 2. The provision in the act of June 4, 1872, chap. 281, entitled "An act further regulating the construction of bridges across the Missis- sippi River," which requires the Secretary of War, in locating any such bridge, to ' ' have due regard to the * * * wants of all railways and highwaj's crossing said river, ' ' commented on and construed. Opinion of Aug. 7, 1872, 14 Op. 92. 3. Where abridgeistobe located under an act wherein only railway use is mentioned and provided for, the wants of railways only are to be considered. But it is otherwise where the bridge is to be located under an act pro- viding for both railways and wagon-ways. There the wants of both kinds of road are to be regarded, and the lo&ition should be made with a view to the accommodation of each. Ibid. 4. Provisions of the acts of April 1, 1872, chap. 73, and June 4, 1872, chap. 281, relative to the location and construction of railroad bridges across the Mississippi River, examined, and the authority of the Secretary of War in the premises stated and defined. Opinion of June 7, 1873, 14 Op. 254. 5. The act of June 20, 1878, chap. 359, ap- propriating $65,000 to aid in the construction of a bridge at Fort Snelling, Minn. , contem- plates a supervision of the work as it progresses by the Government, to determine whether it is done in accordance with the plan and speeifica- tionsapproved by the Secretary of War Opin- ion of Aug. 31, 1878, 16 Op. 125. 6. The incidental expenses of the officer or officers detailed for that purpose (there being no special provision made therefor) are to be 56 CADET — CESSION OP JURISDICTION defrayed in the manner that similar expenses in analogous cases are met. Hid. 7. It is not obligatory upon the United States, as proprietor of the line of water communica- tion between the Fok and Wisconsin Elvers formerly owned by the Green Bay and Missis- sippi Canal Company, to maintain the draw- bridge over the Portage Canal located at Wis- consin street, in the city of Portage, Wis., where that street crosses the canal and inter- sects De Witt street. Opinion of Jan. 21 , 1880, 16 Op. 424. CADET. See Army; Military Academy; Academy; Navy. Naval CANAL BOAT. See Commerce and Navigation, II, III; Marine Hospital Tax. CAPTURE. See also Blockade; Prize. 1. In deciding upon the fact whether a capt- ured vessel was taken in any place within the territory or protection of the United States some rules must be adopted for ascertaining the competency of the evidence offered, and none appear more proper than those which prevail in the courts of admiralty, and which, being founded on general and universal prin- ciples, are essential to a safe and pure admin- istration of justice. Opinion of Feb. 12, 1794, 1 Op. 40. 2. Ex parte afiSdavits of persons directly in- terested are not evidence; but the master of a vessel is a competent witness in the admiralty. Ibid. 3. General Gillmore, in command at Savan- nah, had authority in April, 1865, to stipulate for thepaymentof a just compensation to rebel deserters for the capture of a rebel vessel lying in an interior river, and the stipulated com- pensation should be paid by the War Depart- ment after the performance of the service and the delivery of the vessel into the possession of the United States. Opinion of July 28, 1865, 11 Op. 293. 4. Property which was sold to the rebel au- thorities and captured by the United States cannot be restored to the former owner on pay- ment to the Secretary of the Treasury of the consideration received from the rebel govern- ment. Opinion of Oct, 3, 1865, 11 Op. 363. 5. The steamer St. Mary, or its proceeds, should not be returned to the claimant under executive sanction and authority. Opinion of Jan. 6, 1866, 11 Op. 416. 6. Where asteamer was seized by a military force in an insurrectionary State, and remained in such custody till the termination of hostili- ties, without an adjudication of a court of prize, and without being turned over to a Treasury agent: Held thatthe President might lawfully restore the vessel to the owner. Opin- ion of May 15, 1866, 11 Op. 484. CAPTURED AND ABANDONED PROPERTY. See also Claims. Property in a rebel city, occupied by the military authorities for the accommodation of our troops in garrisoning the city, cannot be brought as captured property within the oper- ation of the captured and abandoned property acts. Opinion of March 6, 1867, 12 Op. 12.5. CAVEAT. Private or extrajudicial caveats lodged with the Commissioner of Loans, when founded on some specific claim or lieu on the stock created by the proprietor himself, ought to be respected. Opinion of Oct. 20, 1828, 2 Op. 173. CESSION OF JURISDICTION. See also Lands Acquired for Public Uses, II; Purchase of Land. 1 . The United States cannot accept a cession of jurisdiction from a, State coupled with a condition that crimes committed within the CHECKS — CITIZENSHIP. 57 limits of thejvirisdiction ceded shall continue to be punisliable by the courts of the State. Opinion of Feb. 27, 1857, 8 Op. 418. 2 The general act of Florida legislature, passed June 6, 1855, is a sufficient cession of jurisdiction over land purchased in that State by the Federal Grovernmeut for public works. Opinion of Sept. 24, 1857, 9 Op. 94. 3. An act of the legislature of a State which gives a complete and unequivocal consent to the purchase of laud therein by the United States for the erection of needful public build- ings is such a cession of jurisdiction as is con- templated by the joint resolution of September 11, 1841. Opinion of Dec. 9, 1858, 9 Op. 263. 4. A cession of jurisdiction over land pur- chased by the United States by a constitutional convention of a State is not a consent to the purchase by the legislature of the State within the sense of the Constitutionand the joint res- olution of September 11, 1841. Opinion of June 15, 1868, 12 Op. 428. 5. The provisions of section 4661 Eev. Stat. , viz, that ' ' no light-house, beacon, public piers, or land-marks shall be built or erected on any site until cession of jurisdiction over the same has been made to the United States, ' ' do not apply to a movable beacon or bug-light which is not designed to be permanently- fixed in any one place, but whose location is con- templated to be changed on the beach from time to time according to circumstances, these changes extending over a distance of half a mile. Those provisions are only intended to include structures whose location is of a fixed and permanent character. Opinion of May 16, 1879, 16 Op. 329. CHECKS. See also Disbuesement op Public Moneys. Checks given by paymasters are valid obliga- tions of the Government, although dishonored for want of funds to the credit of the officers who issue them. Opinion of April 22, 1865, 11 Op. 216. CHIRIQUI IMPROVEMENT COM- PANY. The Chiriqui Improvement Company, in es- tablishing the validity of their title to certain lands, coal mines, and privileges in the prov- inces of Chiriqui, under a proposal to sell the same to the United States, must show (a) that the company, as incorporated by the legislatureof Pennsylvania, is organized under its charter, and that the persons proposing to make the sale have a right to convey the prop- erty of the company; (6) the existence of the grant alleged to have been made by the prov- ince of Chiriqui by a properly authenticated copy of it; (c) that the provincial legisla- ture from whom the Company claim to have acquired title had power to make the grant from the supreme government, either through apro vision of the constitution of New Granada, or by a special concession of the particular lands- to the province; and [d) that the provincial legislature had clear authority to dispose of the mining rights claimed by the company, the presumption being that the sovereign authority over those rights is retained by the sovereign government. Opinion of March 14, 1859, 9 Op. 286. CITIZENSHIP. See also Expaieiation ; Passpoet. 1. Free negroes in Virginia are not citizens in the sense in which the term ' ' citizen ' ' is used in the acts regulating the foreign and coasting trade, so as to be qualified to com- mand vessels. Opinion of Nov. 7, 1821, 1 Op. 506. 2. Indians are not citizens of the United States, but domestic subjects. Opinion of July 5, 1856, 7 Op. 746. 3. The general statutes of naturalization do not apply to Indians, but they may be natu- ralized by special act of Congress or by treaty. Ibid. 4. Indians and half-breed Indians do not be- come citizens of the United States by being declared electors by any one of the States. Ibid. 5. Qusere, whether half-breed Indians may become citizens by voluntarily leaving their tribal connection, and without any special pro- vision of law in their behalf Ibid. 6. A free white person, born in this country of foreign parents, is a citizen of the United States. Opinion of July 18, 1859, 9 Op. 373. 7. A lady born in this country of American. ■58 CITIZENSHIP. parents married a Spanish subject residing here, but who was never naturalized, and with her husband and his child of three years of age, also born in this country, removed to Spain, where she lived till her husband's death: Held that the removal of the lady and her daughter to Spain, and their residence there, under the circumstances, were not evidence of an attempt on theirpart to expatriate themselves, and that they are still American citizens. Opinion of Aug. 6, 1862, 10 Op. 321. 8. A child born in the United States of alien parents, who have neverbeennaturalized, is, by the fact of birth, a native-born citizen of the United States, entitled to all the rights ■ and privileges of citizenship. Opinion of Sept. 1, 1862, 10 Op. 328. 9. Children bom abroad of aliens, who sub- sequently emigrated to this country with their families, and were naturalized here during the minority of their chijldren, are citizens of the United States. Opinion of Sept. 2, 1862, 10 Op. 329. 10. Children born here of alien subjects who have declared their intention of becoming citi- zens, are citizens of the United States. Ibid. 11. l^ree men of color, if born in the United States, are citizens of the United States, and if otherwise qualified are competent, according to the acts of Congress, to be masters of vessels engagedinthe coasting trade. OpinionofNov. 29, 1862, 10 Op. 382. 12. In the case of Madame Berthemyj the facts being that she was born in France, that her father at the time of her birth was a citizen of the United States, and that she married in France a French citizen, and continued after the death of her husband to reside in the coun- try of her nativity: Held that she is a citizen of France, and not of the United States. Opin- ion of Aug. 13, 1866, 12 Op. 7. 13. A question as to status or citizenship arising in the United States is determinable by our own law; or, if it arose on the high seas, or anywhere out of the territorial jurisdiction of another country, it would be a question either under our own law or the public law, according to the circumstances under which the right was asserted or denied. Opinion of Nov. 26, 1867, 12 Op. 320. 14. Children born abroad whose fathers were, at the time of their birth, citizens of the United States, and had at some time resided therein, are American citizens under the provisions of the act of February 10, 1855, chap. 71, and en- titled to all the privileges of citizenship which it is in the power of the United States Govern- ment to confer. Opinion of June 12, 1869, 13 Op. 90. 15. Butif by the laws of the country of their birth such children are subjects of its govern- ment, it is not competent to the United States, by legislation, to interfere with that relation while they continue within the territory of that country, or to change the relation to other for- eign nations which , by reason of their place of birth, may at any time exist. Ihid. 16. A woman born in the United States, but married to a citizen of France and domiciled there, is not ' ' a citizen of the United States re- siding abroad " within the meaning of those words in the one hundred and sixteenth sec- tion of the act of June 30, 1864, chap. 173, and the thirteenth section of the amendatory act of March 30, 1867, chap. 169, relating to in- ternal revenue. Opinion of July 12, 1869, 13 Op. 128. 17. All persons who were citizens of Texas at the date of annexation, viz, the date of the joint resolution of December 29, 1845, became citizens of the United States by virtue of the collective naturalization effected by that stat- ute. Opinion of ilarcli 28, 1871, 13 Op. 397. 18. Citizens of Texas thus adopted into the citizenship of the United States classified and described. Ibid. 19. Persons born abroad who seek passports as citizens of the United States, founded on an alleged Texan citizenship at the time of an- nexation, may be deemed citizens of the United States and entitled to passports as such, should they be found to belong to any of the classes of Texas citizens here described. Ibid. 20. Qusere, whether political duties or bur- dens, such as military service, might lawfully be imposed by Austria upon a person residiug there who by birth is an American citizen, but who under the laws of that country (by hav- ing been born of Austrian parents only tem- porarily residing here) is also an Austrian citizen, without the consent of that pereon, or without his signifying by some act or declara- tion his will to be a citizen of that country. Opinion of Dec. 21, 1872, 14 Op. 154. 21. If he has voluntarily assumed the char- acter of an Austrian citizen, however and has CITIZENSHIP. Tesided in Austria five years (see article 1 of -the convention of September 20, 1870, with the Austro-Hungarian monarchy), it cannot be rea- .sonably maintained by this Government that his Austrian citizenship, or the political obli- gations appertaining thereto, maybe cast aside by him at pleasure, so long as he continues to reside within the jurisdiction of that country. Jbid. 22. A naturalized citizen who resides abroad has the same right to the protection of the ■Government, and stands upon the same foot- ing in all other respects, as a citizen by birth residing abroad. Opinion of Aug. 20, 1873, 14 Op. 296. 23. Children born abroad of persons once ■citizens of the United States, but who have become citizens or subjects of a foreign power, are not citizens of the United States, nor, as ■such, entitled to their protection. Ibid. 24. A native-born citizen of the United States who has been naturalized in a foreign country, ■and thus become a citizen or subject thereof, is to be regarded as an alien; and he cannot re- acquire American nationality except in con- formitj' to the laws of the United States pro- viding for the admission of aliens to citizenship therein. Ibid. 25. Authorities upon the construction of the second section of the act of February 10, 1855, ■chap. 71, reviewed, and tlie following conclusion deduced therefrom, viz: That any free white woman, not an alien enemy, who is married to a, citizen of the United States is, by reason of her marriage, to be deemed a citizen of the United States, irrespective of the time or place of the marriage or the residence of the parties. Opinion of June 4, 1874, 14 Op. 403. 26. Held, accordingly, that an alien woman who has intermarried with a citizen of the United States residing abroad — the marriage havingbeensolemnized abroad, and the parties after the marriage continuing to reside abroad — is to be regarded as a citizen of the United States within the meaning of said act, though she may never have resided in the United States. Ibid. 27. By a copy of the registry of births at Hamburg, in G-ermany, it is shown that Ru- dolph Carl Levy was born in that place on the 22d of February, 1853; and on the 10th of July, 1873, he was admitted to citizenship in the United States, underthename of Charles Levy, by the court of hustings of the town of Staun- ton, in the State of Virginia, as shown by the record of that court. Upon the question whether Levy should be recognized by the United States as a citizen thereof: yid vised that the j udgmeut of said court (it appearing to have jurisdiction in the matter of admitting aliens to citizenship, and there being no appeal from its decisions in such matter) is to be regarded as final and conclusive upon the facts in the case of Levy, and consequently that he should be recognized by the Government as a citizen of the United States. Opinion of Dec. 3, 1874, 14 Op. 509. 28. S., a Prussian subject by birth, became naturalized in the United States in 1854. About five years afterward he returned to Ger- many with his family, in which was a son four years old, born in the United States, and be- came domiciled at Weisbaden, where both father and sou have since continuously resided. The son, who is now twenty years of age, hav- ing been called upon by the Germ'an Govern- ment to report for military duty, S. invokes the intervention of the United States legation at Berlin, on the ground that his son is by birth an American citizen, but declines, in be- half of the son, to give any assurance of inten- tion on the part of the latter to return to the United States within a reasonable timeand as- sume his duties as a citizen: Held (1) that, under article 4 of the treaty of 1868 with North Germany, the father must be deemed to have' abandoned his American citizenship and to have resumed the German nationality; (2) that the son, being a minor, acquired under the law of Germany the nationality of his father, but did not thereby lose his American nationality; (3) that upon attaining his ma- j orlty the son may, at his own election, return and take the nationality of his birth, or retain the German nationality acquired through his father; (4) yet that during his minority, and while domiciled with the father in Germany, he cannot rightfully claim exemption from military duty there. Advised, therefore, that the case presented does not , call for interfer- ence on the part of the American Government. Opinion of .Tune 26, 1875, 15 Op. 15. 29. While the Government of the United States with jealous care will protect its hum- blest citizen wherever found, yet it is not our duty to aid a young man of twenty years to es- GO CIVIL ENGINEER — CLAIM AGENT. cape from military service in a government whose protection he has enjoyed since four years old, and vrhere he has an acquired nation- ality vphich he does not propose to give up, and, "When interrogated by the envoy of the American Government, declines even to sug- gest thatheeverintendstoreturntothe United States arid reclaim the nationality and assume the duties of an American citizen. Protection from a government involves the reciprocal duty of allegiance and service from the citizen when needed. Ibid. 30. An alien woman married F., a natural- ized citizen and resident of the United States, who died in 1860. In 1862 she married D'A. , an alien who was domiciled in the United States, but who subsequently died without be- coming a citizen thereof: Held that, by virtue of the provision of the statute embodied in section 1994 Eev. Stat., the claimant upon her first marriage acquired a permanent status of citizenship, which could be lost only as in the case of other citizens, and that this status was not affected by her subsequent marriage. Opinion of Jan. 23, 1877, 15 Op. 600. CIVIL ENGINEER. See Navy, XI. 4. When, during the existenceof a civil war in Peru, American vessels found a port of that country and points on its coast where guano is deposited in the possession of one of the parties to the contest, and procured, under its author- ity and jurisdiction, clearances and licenses at the custom-house to load with guano, they were guilty of nothing — having acted fairly in pursuance of the licenses — for which the other party to the civil war could lawfully punish or molest them afterwards. lUd. CIVIL WAR. See also Captueb; Pbize; Eebellion. 1. Civil war is where the peopleof a country are divided into hostile parties who take up arms and oppose one another by military force. Opinion of May 15, 1858, 9 Op. 140. 2. A revolutionary party, like a foreign bel- ligerent power, is supreme over the country it conquers as far and as long as its arms can carry and maintain it. Ibid. 3. Although it has been doubted whether a mere body of rebellious men can claim all the rights of a separate ,power on the high seas without absolute or qualified recognition from foreiga governments, there is no authority for a doubt that the parties to a civil war have the right to conduct it, with all the incidents of lawful war, within the territory to which they both belong. Ibid. CLAIM AGENT. 1. It is competent to the head of a Depart- ment, as a measure for the protection of the public interests committed to his charge, to- decline to recognize, or to suspend the trans- action of business with, an agent or attorney for frauds and fraudulent practices attempted or committed by him in the prosecution of claims before the Department, and whose char- acter is such that a reasonable degree of con- fidence cannot be placed in his integrity and honesty in dealing with the Government. Opinion of Oct. 4, 1869, 13 Op. 151. 2. The authority to pursue this course under those circumstances rests upon the very neces- sity that exists for its adoption as a safeguard against fraud in administering the laws relat- ing to the settlement and payment of claims upon the United States. Ibid. 3. Besides, it is a just and necessary limita- tion upon the right of a party to be represented by an agent, and to select the agent by whom he will be represented, that he shall not em- ploy a person offensive or dangerous to the other party with whom he is to deal. Ibid. 4. The head of a Department, however, is not invested with any authority over the pro- fessional conduct of claim agents for the cor- rection of mere private grievances, correspond- ing with that possessed by the courts of law over attorneys practicing before them. Ibid. 5. Provisions of the eighth section of the act of March 2, 1861, chap. 88, conferring upon the Commissioner of Patents a similar power over the conduct of patent agents, considered. Ibid. 6. The head of a Department has authority to disbar (?'. e., decline to recognize or to trans- Gl act business with) attorneys practicing therein for misconduct. Opinion of Attorney-General on the same subject, in 13 Op. 151, approved. Opinion of May 13, 1880, 16 Op. 488. CLAIMS. See also Accounts; Damages; Payment. I. Generally. II. Against Foreign Oovernment. III. Under Treaties with Foreign Nations. IV. Under Indian Treaties. V. Under Special Acts. VI. Under Contracts. VII. For Damages. VIII. Services. IX. Army Supplies. X. Property Lost or Destroyed in the Mil- itary Service. XI. Proceeds of Cotton. Seized and Sold. XII. From States in Insurrection. XIII. Infringement of Patent. XIV. Reimbursement for Expenditures. XV. For Indian Depredations. XVI. Of Colored Soldiers and Sailors. XVII. OfStatts. XVIII. Oatlis in Support of. XIX. Transmission of, to Court^of Claims. XX. Assignment of. XXI. Settlement of . XXII. Reconsideration and Readjustment of. XXIII. Payment of. XXIV. Of the United States. I. Generally. 1. The Government is not bound to satisfy 41 judgment against its agent when it does not fully appear that he was such agent, and where the avails of the property sued for were re- tained by him and were sufficient to indemnily. OpirtioBo/Joft. 21, 18U2, 1 Op. 99. 2. The term expensis in the resolve of Con- gress of June 2U, 1780, in behalf of Bingham, means the money expended in and about the suit. Ibid. 3. A vessel, alleged to be Danish property, was seized by an American vessel as French property, on the south side of the island of St. Domingo. While awaiting examination under the American flag the vessel was again seized by a British ship: Held thatthe United States were not liable to indemnify the Danish owner. Opinion of March 11, 1802, 1 Op. 106. 4. The United States are not bound to make compensation to parties who have neglected to prosecute appeals in the courts invested with jurisdiction and power to administer relief. Opinion of Feb. 10, 1803, 5 Op. 692. 5. A receiver of captured property to be de- livered to the true owners as they should be ascertained by Congress, and who converted the j)roperty and had the means of indemni- fying hi mself. has no claim upon the United States for the payment of a j udgmentobtained against him, unless it expressly appears that such property came into his hands as agent for the United States. (See opinion of Jan. 21, 1802, 1 Op. 99.) Opinion of March 18, 1803, 1 Op. 127. 6. Where the Quartermaster-General agreed to pay $8,000 for a vessel to the owner on con- dition that the latter should deliver her in good condition at the mouth of the Apalachicjla by a specified time, and the latter agreed to do so, ' ' damages of the sea or being prevented by an enemy excepted," yet failed to deliver her in time, but, under a division order from General Jacksou directing the Quartermaster-General to purchase the vessel "if to be had at cost here," he took possession of her without any consultation with the owner or agent, and sent her up the river with supplies for the Army; Held that by virtue of the conversion the United States ought to pay for her, not the stipulated price, but quantum valebat. Opinion of Oct. 20, 1818, 1 Op. 245. 7. By the settlement of a disputed line be- tween New York and New Hampshire the owners of lands thrown into the latter State, and subsequently into Vermont, and the title being ultimately extinguished by a com promise lor a pecuniary consideration, have no valid claim to indemnity from the Government. Opinion of Oct. 20, 1819, 1 Op. 320. 8. Where a contractor with the Government for Array supplies transferred to a firm — of which he had before that time purchased ker- seys, which had been received into store in the United States arsenal — the Coramissary-Ueu- eral's negotiable certificate for the saiiie goods: Held that the firm is entitled to recover the amount of the certificate, notwithstanding the contractor may be upon his whole account a 02 defaulter to the Government. Opinion of May 4, 1821, 5 Op. 734. 9. Mrs. C. Thornton, of London, formerly of Northumberland, widow of Col. Presley Thorn- ton, and devisee under his will of an annuity charged upon his estate in Northumberland and Calpeper, -which estate subject thereto was de- vised to the testator's two sons in moieties, is entitled to certain arrears of such annuity, al- though she left this country in 1775 from po- litical hostility to the principles of the Revolu- tion; the estate having been partitioned among the heirs, and one moiety conveyed to another person or persons, and by him or them to the United States, and even though it may have been for the time suspended or extinguished hy the confiscating and sequestrating laws of Virginia. Opinion of Oct. 31, 1821, 1 Op. 495. 10. Although the annuity is charged on the profits of the estate, it was clearly the testator's intent that it should he paid in any event and be charged on the land ; and as the deed of the moiety of one of the two sons to the person from whom the United States derived their title refers to the will creating such annuity, the latter must be considered as taking title with notice that they were charged there- with. Ibid. 11. Such claimant is entitled to interest only from the time of filing her bill, it not appear- ing that she had an agent in this country to demand or receive payment prior thereto. Ibid. 12. The Isabella, having been condemned by the Supreme Court of the United States as a British vessel falsely and fraudulently cov- ered by Spanish documents, and consequently held to be good prize of war, and a claim be- ing made by Alonzo Benigno Munoz for reim- bursement by Congress: Held that his title to a claim can be founded only on the admission of such a degree of corruption in the tribunals through which the case has passed as would make it the duty of the committee which ad- mits his claim to direct their impeachment Opinion of April 24, 1822, 1 Op. 53G. 13. Where a sutler of the Army administered upon the estate of certain deceased soldiers: Held that he was entitled, not as administra- tor but as creditor of such soldiers, to have his accounts examined by the accounting officers of the Treasury, and to be paid the amounts respectively ascertained to be due, if the bal- ance due the soldier shall in each case be ade- quate. Opinion of June 24, 1829, 2 Op. 209. 14. Although the Government will pay for bringing home seamen who have been dis- charged in foreign ports, yet where a merchant- man received a seaman on board for the purpose of bringing him home, and brought him only half the way, when he voluntarily left, the- captain cannot j ustly claim full pay ibr the voy- age, but only a compensation for the distance he brought him. Opinion of Nov. 3, 1831, 2 Op. 468. 15. Where A. was employed to assist the dis- trict attorney of the District of Columbia, by the mayor of Washington and the said attor- ney, in a prosecution then pending against a partyfor murder: HeldVasA hehasa justclaim against the Government for compensation for his services. Opinion of Jan. 4, 1832, 2 Op. 495. 16. The half-pay allowed to officers who. served in the Virginia line during the Eevolu- tion, by act of July 5, 1832, chap. 173, cannot be given when the officer accepts the substitute of commutation. Opinion of March 21, 1833, 2.0p. 555. 17. Where the lessee of the lead mines at Galena and holder of a smelting license had become indebted to the United States in a cer- tain amount of lead for rent reserved to be paid to the superintendent, and deposited in a store or warehouse lor the use of the United States, and the account was placed in the hands of Major Campbell for collection, who, instead of confining himself to that duty, took an assign- ment of the mineral ashes, and proceeded to smelt them, under the belief that he would he- able to pay the rent due the Government and indemnify himself for a debt due him from the- lessee, from whom he subsequently took a con- veyance of the leased and smelting premises, and all his other property in trust, and then returned the account as paid, and thus became- himself accountable to the Government as re- ceiver, and afterwards delivered the lead, which was mingled with other lead in the warehouse;; and finally, apprehending loss from the trans- action, applies to have the loss refunded by the- superintendent: Held that there is no authority except in the legislative department which can. afford MajorCampbell relief. Opinion of March 8, 1834, 2 Op. 615. 18. If a third person receive a Treasury CLAIMS, I. 63 draft in due course of business for a valuable consideration, with proper indorsements, and ■without notice that the payee or any bearer thereof parted with it unlawfully or improp- erly, he has a claim upon the Government for its amount. Opinion of Jan. 18, 1836, 3 Op. 30. 19. Yet if such third person have any notice that the draft was issued for public purposes, and that it was intrusted to an individual to present at the bank and receive the money thereon for those purposes, but who had lost it by gambling, or some similar misconduct, such notice defeats his claim upon the Govern- ment. Ihid. 20. No allowance for horses or other prop- erty impressed into the service of the United States, nor for any special damage done to in- dividuals or their property by the troops of the United States, or the enemy, can be allowed hy the first section of' the act of 28th May, 1836, chap. 82. Opinion of Nov. 8, 1836, 3 Op. 162. 21. Ttiis act, does not extend to the pay and other allowances to be made to the militia or volunteers, which by the second section are placed on the same footing with those of mili- tia and volunteers ordered into service by orders from the War Department. Of ex- penses incurred and supplies furnished not of the like nature with those specially named in the abstract, only those are to be allowed which were known to the military service, having reference, in the cases both of expenses and supplies, to the character of each corjis. Ihid. 22. The claim of the city of Augusta for expenses incurred and supplies furnished on account of the public service for the defense of Florida comes within the act of May 28, 1836, chap. 82, and ought to be allowed. Opinion of Nov. 17, 1838, 3 Op. 388. 23. The board appointed (in execution of the provision of the act of March 3, 1839, chap. 93, making au appropriation " for paying the value of the horses and equipage of the Ten- nessee and other volunteers who have at any time been in the service of the United States in the Territory of Florida," &c.) to value the horses having also valued the equipage, and the same having been turned over to the United States with the horses, a portion of which were wanted by the commanding general for im- mediate service, the inference is warranted that the equipage was turned over with the horses within the meaning of the law. Opinion of 3Iarch 26, 1840, 3 Op. 503. 24. Where the delivery of cargo belonging to the Government and discharge of the vessel took place short of destination, without the mas- ter' s consent, in consequence of the interference of an assistant commissary-general, for which the Government was not responsible: Held that the claimant was only entitled to freight 2}ro rata. Opinion of Jan. 11, 1843, 4 Op. 143. 25. Commutations for five years' full pay are not included in and provided for by the third section of the act of July 5, 1832, chap. 173. Opinion of April 8, 1844, 4 Op. 313. 26. By that section the Secretary of the Treas- ury is only required to adjust and settle the- claims of certain regiments and corps for half- pay for life which had not been prosecuted to judgment against the State of Virginia, and for which the State is hound on the principles . decided in the supreme court of that State in other cases. Ibid. 27. The question, moreover, is regarded as . adjudicated, and therefore not properly open for examination except by Congress. Ibid. 28. The claim made in behalf of Virginia . by Thomas Green, agent of that State, is just, and falls within the provisions of the second section of the act of July 5, 1832, chap. 173; and the balance of the appropriations made by that act would be applicable to the pay- ment of it were it not that it has been carried to the surplus fund, from which it cannot be withdrawn except by act of Congress. Opin- ion of April 8, 1844, 4 Op. 315. 29. An invasion of the custom-house in Texas . by citizens of Arkansas, and the violent ab- straction therefrom of property, under a claim of title, however much to be disapproved and condemned, constitute no ground of claim against the United States. Opinion of July - 9, 1844, 4 Op. 332. 30. The General Government can in no wise be held responsible for the acts of private trespassers. They must be punished in the tribunals established by law, or he prosecuted _ for the recovery of or value of the goods, either in the State or Federal courts. Ibid. 31. Under the act of August 23, 1842, chap. 192, and the joint resolution of the 30th April, 1844, the Secretary of War cannot direct the ac- counting officers to allow claims for supplies, beyond the quantity to which the troops were 64: entitled under existing laws. The act and resolution must be read as in ixiri materia. Opinion of Jan. 4, 1845, 4 Op. 352. 32. The representatives of a lieutenant in a Virginia State regiment, afterwards transferred to the continental establishment, who in his lifetime obtained ajudgment against said State for commutation of five years' full pay in lieu of half-pay for life, and received payment thereof in 1793, are not entitled, under exist- ing laws, to be allowed a claim for further compensation for services rendered by their ancestor. Opinion of Jane 2, 1847, 4 Op. 590. 33. This claim was considered and rejected by the Department in 18.i3, on the ground that it had been paid. Ibid. 34. It is not provided for in the thirdsection of the act of July 5, 1832, chap. 173, and can- not be allowed except under special authority from Congress. Ibid. 35. Congress having resolved that the claim of the representatives of Churchill Gibbs was provided for by the act of July 5, 1832, chap. 173, and the House of Representatives having again resolved to that effect, after the Execu- tive Department had decided otherwise, it is now the duty of the Executive Department to liquidate it. Opinion of March 27, 1849, 5 Op. 82. 36. The acts of Congress of the 3d March, 1835, and 12th August, 1848, chap. 160, are legislative interpretations of the act of 5th July, 1832, chap. 173, and expressions of opinion that it was the purpose of the third section of the act of 1832 to provide for Virginia com- mutation claims for half-pay, as well as those for half-pay ; and those legislative interpreta- tions and opinions are binding on the Execu- tive, and require the allowance of the present claim. Opinion of Ila.rch 27, 1849, 5 Op. 83. 37. The Executive has no authority to allow the claim of Col. J. M. Cresey for disburse- ments made by him in organizing a regiment of volunteers during the war with Mexico, under the authority of Major-General Gaines; but the claim,being meritorious, is commended to the favorable consideration of Congress. Opinion of May 18, 1849, 5 Op. 102. 38. The .joint resolutions of July 16, 1846, and March 3, 1847, and the act of June 2, 1848, chap. 60, require the troops for which disburse- ments should be made to have been mustered and received into service. Ibid. 39. The representatives of Thomas Armstead, a captain who served in a Virginia regiment in the Revolutionary war prior to 21st May, 1782, when he became a supernumerary, to the 3d of April, 1783, and who died 1st September, 1809, to whom theVirginia legislature allowed §2,400 in 1826 as commutation, without interest, and to whom Congress subsequently allowed half- pay from 21st May, 1782, to said 3d April, 1783, are not now entitled to have the account re- opened and restated, so as to allow interest on the said commutation. Opinion of Oct. 31, 1849, 5 Op. 164. 40. The relatives of a deceased officer or sol- dier are not entitled, under the act of July 19, 1848, chap. 1 04, to receive three months' extra pay on account of services of the ancestor, un- less the ancestor were thus entitled at his de- mise. Opinion of Nov. 2, 1849, 5 Op. 168. 41. Such claims rest upon the ground that they are his statutory representatives; and, as such, they can only take that which the de- ceased himself could have taken had *he sur- vived. And as those who did not engage for the war, for five years, or for any other specific period, and who were never honorably dis- charged, were not themselves entitled, their representatives have no valid claim. Ibid. 42. A claimant representing himself to have been impressed into the British service after Ihe action between the Chesapeake and Leop- ard, in 1807, when Great Britain and the United States were at peace, and not stating what his conduct was during the aetiou to save i he ship, nor what was his behavior after- wards, does not bring his case within the pro- visions of the act of April 23, 1800, chap. 33. The claim of John Strahan, therefore, as the same now appears belbre the Execut i ve Depart- ment, is inadmissible. Opinion of Nov. 20, 1849, 5 Op. 185. 43. The account of the Chickasaw Nation is to be considered now as having been properly opened and restated, and the balance found due by the accounting officers is properly charge- able to the appropriation for the subsistence and removal of the Indians. The contract with William M. Gwin, assigned to Corcoran & Riggs, is valid, and should be paid out of the fund otherwise payable to the Chickasaws. Opinions of Jan. 3 and March 7, 1850, 5 Op. 226, 233. 44. The claim of the administrators of Com- CLAIMS. T. 65 modore James Barron, commander of tlie State navy of Virginia during the war of the Revolu- tion, for commutation-pay and interest, should he allowed. This opinion is founded upon the judicial decisions of the courts in Virginia that officers of the navy of that State, during the Revolutionary war, who served to its close, were equally entitled with officers of their line to commutation-pay under the Virginia act of 1790, and upon reasons stated in other similar rew Orleans, upon the capture of that city by the United States naval forces, turned over to the Army, and afterwards cap- tured by the rebels, is not within the jurisdic- tion conferred upon the Third Auditor by the- so act of March 3, 1849, cljap. 129. Opinion of Oct. 23, 1865, 11 Op. 378. 215. A barge used for transportation of mercliandise, and owned by a person not in the military service, is within the species of property enumerated in the fifth section of the act of March 3, 1849, chap. 129, as prop- erty to be paid for when lost in the military service of the United States. Opinion of Feb. 4, 1808, 12 Op. 362. 216. The act of Jaly4, 1864, chap. 240, "to restrict the j urisdiction of the Court of Claims, ' ' does not repeal the act of March 3, 1849. Ibid. 217. The award of the Third Auditor in the case of J. and K. H. Porter, made on the 10th of May, 1861, under the act of March 3, 1849, chap. 129, is no longer of any force. Opinion of March 27, 1869, 13 Op. 9. 218. Where the loss of a steamboat has been caused by the carelessness of anybody, a claim for its value does not fall within the provisions of the second section of the act of March 3, 1849, chap. 129, as amended by the fifth sec- tion of the act of March 3, 1863, chap. 78. Opinion of July 6, 1869, 13 Op. 120. 219. Where a steamboat, previously insured by her owners, was impressed into the military service of the United States, and while in such service was lost, after which the underwriters paid the amount of their policies to the own- ers, who subsequently filed a, claim against the United States for the value of the steamboat under the act of March 3, 1849, chap. 129, as amended by the act of March 3, 1863, chap. 78, and were allowed and paid the value thereof, less the amount received by them from the underwriters: Held that (the loss being .such as, had there been no insurance on the steam- boat, would have rendered the United States liable to pay her full value to the owners) the contract of insurance between the owners and the underwriters did not affect or diminish the liability of the Government; and that, as against the Government, the underwriters are entitled to be subrogated to the rights of the owners iox the amount paid on their policies. Opinion of Jan. 12, 1870, 13 Op. 182. 220. In a steaniljoat claim ander the second section of Ihe act of March 3, 1849, chap. 129, and 1 he fifth section of theact of March 3, 1863, chap. 78, the burden of proof rests on the claimant, and before he can become entitled to compensation for the loss of his property he must prove everything made essential by the act — the ownership, the military service, the destruction, the unavoidable character of the accident, and the entire absence of iault or neg- ligence on his part. Opinion of Feb. 18, 1871, 13 Op. 381. 221. The second section of the act of March 3, 1849, chap. 129, providing for payment for certain property lost or destroyed in the mili- tary service, is not repealed by the fourth sec- tion of the legislative, executive, and judicial appropriation act of July 12, 1870, chap. 251. The repealing clause of the latter section oper- ates exclusively on sections 1 and 7 of the former act. Opinion of Aug. 16, 1871 , 13 Op. 507. 222. The facts and circumstances presented in the claims of C. A. Perry & Co. failing to show that the claimant's property was de- stroyed while in the military service of the United States either by impressment or con- tract: Held that the claim is not within the provisions of the second section of the act of March 3, 1849, chap. 129. Opinion of Nov. 19, 1872, 14 Op. 137. 223. The first and second sections of the act of March 3, 1849, chap. 129, provide respect- ively for a separate and distinct class of claims. The two classes distinguished from each other. Opinion of Feb. 5, 1874, 14 Op. 360. 224. Claims of officers and soldiers for horses lost in the military service, where their horses were in service simply as a part of the equip- ment belonging to and furnished by them, are allowable only under the provisions of the first section. Ibid. 225. But where the property was in service by impressment or contract, and not merely by being a part of the equipment furnished by the oflicer or soldier, such claims are allowable under the provisions of the second section, which contains no restrictions as to persons. Ibid. 226. Horses which constitute a part of the equipment of officers and soldiers, furnished by themselves, are not in the military service by ''contract," much less by "impressment," within the meaning of the term as employed in the latter section. Ibid. 227. Lieutenant Mansur went on an expe- dition up the Red River, leaving his horse and saddle behind with the regiment to which he CLAIMS, XI. 81 belonged. During his absence the horse and saddle were, by order of the colonel of his reg- iment, taken and used in the military service without his knowledge and consent, and while soinsuch service were lest. Claim being made by him for the value of the property under the act of March 3, 1849, chap. 129: Held that the case tails within the second section, and not the iirst section, of that act. Opinion of Feb. 16, 1874, 14 Op. 367. 228. To bring a claim for the loss of a steam- boat within section 3483 of the Revised Stat- utes it must be shown, iirst, that the boat was in the military service either by impressment or contract; second, tliat the loss occurred while the boat was actually employed in such service; third, that it was caused by an una- voidable accident, and not through any fault or negligence onthepartof the owner; fourth, that the case is not one wherein the risk was agreed to he incurred by the owner. Opinion of March 5, 1875, 14 Op. 536. 229. Where the question in such a claim is whether the boat was or was not in the mili- tary service by contract, the distinction be- tween a contract which imports the letting of the boat for hire {locatio ret), and one import- ing merely the carriage of goods for hire [luca- iio operis mercium vehendarum), is material; contracts of the former kind only being within the statute. Ibid. 230. To make an impressment binding upon the Government it is essential that there be shown to have existed such an emergency as justified the oflicer in taking the property ; but this, together with an actual taking, or what isequivalentthereto, being satisfactorily estab- lished by the claimant, nothing more remains to be proven by him under that head. Ibid. 231. In June, 1805, a steamboat was char- tered by the Government to run on the Chat- tahoochee and Appalachicola Rivers, the man- agement of the cralt being left in charge of the owners. While under charter it was accident- ally lost by fire: Held that the boat was not in the military service within the meaning of section 2 of the act of March 3, 1849, chap. 129, as amended by section 5 of the act of March 3, 1863, chap. 78, and that the United States incurred no liability for the loss. Opin- ion of March 8, 1877, 15 Op. 205. 232. A vessel was chartered by the Quar- termaster's Department at New York, October 17, 1861, for a voyage of fifteen days, at a cer- tain sum for the voyage, and a certain per diem for detention of the vessel beyond that period. The owner covenanted to keep the vessel sea- worthy, and to victual, man, coal, and furnish her for the voyage; bat the charter was silent with respect to the risks of the voyage. The vessel was to be laden with such cargo as might be desired by the Government officer, and as soon as her cargo was on board she was to pro- ceed direct to Old Point Comfort and be placed under the orders of the quartermaster there as to her future destination, and on arrival at her final destination she was to deliver her cargo and then return to New York. The vessel having arrived with a cargo at Old Point Com- fort and reported to the quartermaster at that port, by orders from the Quartermaster's De- partment joined the transport division of the military and naval expedition there organizing against Port Royal, S. C. The expedition put to sea October 29, 1861, and on November 3, 1861, the vessel was lost in a storm without fault or negligence on the part of her owner. The vessel was, while with the expedition, under the absolute cqntrol of the ofScers of the expedition as respects her course and rate of speed: Held (1) that the vessel was, by her charter, in the military service of the United States within the meaning of section 3483 Rev. Stat. ; (2) that the owner not having expressly agreed to incur the risks of the voyage, the case does not fall within the exception contained in that section. Opinion of Jan. 11, 1879, 16 Op. 242. XI. Proceeds of Cotton Seized and Sold. 233. The executive department of the Gov- ernment has no power to appoint a commission and confer upon it j urisdiction to examine the claims for the cotton captured at Savannah by the military authorities in December, 1864, and turned over by them to the Treasury agents appointed under the provisions of the act of March 12, 1863, chap. 120, with a view to the restoration of the proceeds of so much of the cotton as may belong to loyal claimants; but the proceeds of the saleof all such cotton should be paid into the Treasury to await the action of the Court of Claims and of Congress. Opin- ion of July 5, 1865, 11 Op. 273. 234. There is no legal distinction between the case of the cotton claimed by David Bar- DIG- 82 CLAIMS, XII. row and the case of the- Savannah cotton. Opinion of Aug. 14, 1865, 11 Op. 319. 235. The criterion of a case of "captured" property -within the meaning of the act of March 12, 1863, chap. 120, is the fact of actual and hostile seizure. Ibid. 236. The words "lawful owners," as em- ployed in the fifth section of the act of May 18, 1872, chap. 172, signify such persons as have a legal interest in the proceeds of the cotton or in any portion thereof ; that is to say, first, the holders of the absolute legal title to the cotton at the time of its seizure; and, second, those who had possession in a representative capacity, with a lien for services or for advances and ex- penses. Opinion of Jan. 21, 1875, 140p. 515. 237. The claimant of a purely equitable interest (». e. , one who can only claim through a trustee, the legal title being in the latter) cannot, in general, be deemed the lawful owner within the meaning of the act. Exceptions hereto indicated. Ibid. 238. The executors or administrators of de- ceased lawfnl owners are their legal represent- atives ; but these may also, under some circum- stances, be the heirs or next of kin of such owners. Ibid. 239. It is not the duty of the Secretary, un- der said act, to decide between conflicting claims on equitable grounds alone; and in a contest between a trustee and a beneficiary the former is entitled to possession where the trust remains unexecuted and possession is necessary to en- able him to execute it. Ibid. 240. In May, 1863, one H., a resident of Arkansas, being the owner of certain bales of cotton, sold and delivered the same to the Bank of Chattanooga, Tenn, , receiving therefor the price agreed upon. Afterward these bales (the name of the cashier of the bank being marked thereon), while in his possession, were unlawfully seized by the agents of the United States, sold, and the proceeds turned into the Treasury. By a law of Tennessee, in force at the time of the sale, banks of that State were prohibited from using oremployingany of their moneys in trade or commerce: Held that, not- withstanding said law, the purchase was valid as between H. and the bank, and consequently that, as between them, the latter was lawful owner of the cotton when seized. Ibid. 241. However, assuming that the purchase in that case, although in the name of the bank, was in fact made by the bank not with its own funds, but with the funds of a third party, or with funds belonging to the estate of a decedent, the ownership of the cotton was in the estate or party with whose money it was bought. Ibid. 242. The seizure of cotton by an authorized agent of the Treasury Department does not raise a conclusive presumption that the pro- ceeds thereof went into the Treasury. Ibid. 243. In the determination of questions, whether of law or fact, arising upon claims filed under the fifth section of the act of May 18, 1872, chap. 172, the judgment of the Sec- retary of the Treasury is not subject to direc- tion or control; he acts independently, even of the Executive. Opinion of Jan. 11, 1878, 15 Op. 423. XII. Prom States in Insurrection. 244. The act of February 21, 1867, chap. 57, "to declare the sense " of the act of July 4, 1864, chap. 240, was intended to take away all authority to settle claims for the destruction or appropriation of personal property by the military authorities, if they originated during the rebellion and in an insurrectionary State. Opinion of Feb. 4, 1868, 12 Op. 362. 245. The Third Auditor and Second Comp- troller have no power, since the passage of the act of February 21, 1867, to settle a claim for the value of a barge owned by residents of New Orleans, which was lost in 1864, in the Mississippi River, while under impressment by the military authorities. Ibid. 246. A claim for the use and occupation of real estate in Tennessee seized and used by the Army in January, 1863, cannot be settled by the executive department of the Government under the act of July 4, 1864, chap. 240, and the act of February 21 , 1867, chap. 57. Opinion of Sept. 7, 1868, 12 Op. 486. 247. The act of February 21, 1867, chap. 57, prohibits the payment of compensation for the services of a steamboat under military impress- ment in Louisiana in 1862 and 1863, though owned in Ohio and licensed to trade at New Orleans after the port was opened to commerce. Opinion of Sept. 30, 1868, 12 Op. 497. 248. The joint resolution of March 2, 1867, prohibiting the payment of claims in favor of parties who promoted, encouraged, or sustained the rebellion, &c. , which accrued prior to the CLAIMS, XII. 83 13th of April, 1861, does not apply to claims in favor of corporations aggregate. Hence the claim of a railroad corporation in one of the Sonthern States for transportation of the mails from April 1 to May 31, 1861, is not in any part within the prohibition. Opinion of March 29, 1871, 13 Op. 398. 249. But unless there remains an unexpended halance not covered into the Treasury, suf&cieut in amount for the purpose, of moneys appro- priated for the postal service for the fiscal year 1860-'61, it would seem that paj'ment of such claim cannot now be made without a special appropriation therefor. Ibid. 250. The act of March 3, 1871, chap. 116, providing for a board of commissioners to re- ceive, examine, ahd report to Congress upon claims of loyal citizens of the insurrectionary States for supplies taken or furnished for the use of the Army during the rebellion, repeals the act of July 4, 1864, chap. 240, and the j oint resolutions of June 18 and July 28, 1866, so far as Tennessee and the counties of Berkeley and Jefferson, West Virginia, are concerned, and places that State and those counties upon the same footing in respect to claims as other in- surrectionary States. Opinion of Aprils, 1871, 13 Op. 401. 251. None of these acts, however, are appli- cable to, or forbid the settlement by the Ex- ecutive Departments of, accounts founded upon express contract for the purchase of such supplies made by officers or agents of the Gov- ernment acting under competent authority. Ibid. 252. Gideon J. Pillow, of Tennessee, having been pardoned by the President for his par- ticipation in the rebellion, filed in the War Department a claim against the Government for mules alleged to have been taken from his plantation in Arkansas, in the year 1862, by the military forces of the United States; Ad- vised that the allowance of the claim by the War Department is prohibited by the act of February 21, 1867, chap. 57. Opinion of Aug. 14, 1872, 14 Op. 103. 253. The act of February 21, 1867, chap. 57, does not forbid the settlement of a claim for the use and occupation of real estate by the military authorities or troops of the United States after the termination of the war, though such use and occupation may have commenced during the war and continued down to the period covered by the claim. Opinion of July 22, 1876, 15 Op. 572. 254. An alien woman married F. , a natural- ized citizen and resident of the United States, who died in 1860. In 1862 she married D'A., an alien, who was domiciled in the United States, but who subsequently died without becoming a citizen thereof She claims, under section 2 of the act of March 3, 1871, chap. 116, compensation for her separate property taken during the lifetime of her second hus- band : Seld that she is a citizen of the United States within the meaning of section 2 of said act. Opinion of Jan. 23, 1877, 15 Op. 600. 255. In February, 1861, and previously, G. had a contract (with the usual provision for one month's pay where service is discontinued) for carrying the mail on route 8076, from San Antonio to Los Angeles, via El Paso, which was, by an order of the Postmaster-General issued on the 16th of March, 1861, in pur- suance of the act of February 27, 1861, chap. 57, extended until June, 1865. Subsequently, on the 30th of May, 1861, the Postmaster- General issued an order (under the act of Feb- ruary 28, 1861, chap. 61) discontinuing the service between San Antonio and El Paso un- tiJ it could be safely restored. In -1863 the Post^OfSoe Department declined to make an allowance for discontinuance of service on this part of the route, for the reason that it "stands in the same category with the mass of Southern mail contracts, and must await whatever action is taken on them. Held (1) that this was not a final adjudication upon the claim for one month's pay for said discon- tinuance, but amounted only to a postpone- ment of its consideration, and that the De- partment is not precluded thereby from now passing upon the claim; (2) that though the action of the Postmaster-General in discontin- uing the service was taken under the act of February 28, 1861, the contractor is neverthe- less entitled to the one month's pay by virtue of his contract, agreeably to the law as laid . down in the case of Beeaide v. United States (8 Wall., 38). Opinion of Sept. 5, 1877, 15 Op. 365. 256. In August, 1864, a commissary of sub- sistence received from P., at Barrancas, Fla., sixteen head of beef-cattle for the use of the Army, and gave him a receipt therefor, which concluded as follows: "The owner of said 84 CLAIMS, XIII-XV. stores will be entitled to be paid for the same after the suppression of the rebellion, upon proof that he has from this date conducted himself as a loyal citizen of the United States, and has not given aid or comfort to the rebels. ' ' Held that the accounting officers of the Treas- ury have no authority to audit and settle a claim for said cattle Claims of this character are cognizable only by the Southern Claims Commission created under the act of March 3, 1871, chap. 116. Opinion of Aug. 1, 1878, 16 Op. 110. XIII. Infringement of Patent. 257. The Department under whose direction a machine for which a patent was issued was made and used may legally allow the patentee the amount claimed by him as damages for such use, if it is satisfied that the claimant's exclusive right as patentee is good, and that the sura demanded be fair jand reasonable, provided there be any fund under the control of the Department which is appropriated to that purpose. Opinion of March 18, 1858, 9 Op. 135. 258. Where claims presented to the Secre- tary of "War for the use of certain patents were not based upon contracts, and involved ques- tions proper for judicial rather than executive determination: Advised that he ought not to act upon them ofB.cially until the questions referred to are settled. Opinion of Sept. 22, 1873, 14 Op. 301. XIV. Reimbursement for Expenditure. 259. The claim of Lieutenant Hunter for re- imbursement on account of expenditures in- curred in making experiments for propelling war steamers by horizontal wheels is within the act of September 11, 1841, chap. 21, and the act of March 3, 1841, chap. 34, mailing appropriations for the naval service for the year 1841. Opinion of Oct. 1, 1841, 3 Op. 659. 260. When an officer of the United States is sued for the performance of his duty the Gov- ernment is bo\ind to protect him by paying the costs of his defense. If he defends himself, and proves upon his trial that he was executing the law or the orders of his superior, his ex- penses ought to be reimbursed td him. Opin- ion of June 14, 1857, 9 Op. 51. 261. The claim of J. D. Hoover, late mar- shal of the District of Columbia, for reimburse- ment for certain expenses in suits brought against him, should be allowed. Opinion of March 1, 1861, 10 Op. 7. 262. C. and F. borrowed from W. a flat- boat, to use in repairing a dredge-boat belong- ing to the United States, employed in improv- ing the Ohio River. By direction of a subor- dinate officer of engineers the flat-boat was used iu removing a wreck, the removal of which had been ordered by the engineer officer in charge of the Ohio River improvement, who, however, did not direct the flat-boat to be so used. W. subsequently brought suit against C. and F. for this unauthorized use of his prop- erty, and recovered judgment against C, the amount of which F. (being on the bail-bond of C.) was ultimately compelled to pay. F. claims reimbursement of the amount from the Government. Held that the payment by F. was in satisfaction of damages recovered for a private boat, in respect to which the United States was under no liability whatever; and that, even if it were a valid claim, it is not within the scope of the appropriation for the Ohio River improvement. Opinion of April 15, 1878, 15 Op. 487. 263. The clause in the sundry civil act of June 20, 1878, chap. 359, namely, "To pay Charles P. Birkett the sum of 132,505.71, to reimburse the said Birkett, late United States Indian agent, for money expended by him for the benefit of the Indians at Ponca agency, Dakota, ' ' does not amount to a determination by Congress that such sum is actually due to Birkett. It contemplates that there will be an examination by the proper officers of the amount so expended. Accordingly, it is the duty of the auditing officers to ascertain whether the amounts expended by Mr. Bir- kett for the benefit of said Indians equal the sum appropriated, and, if not, to allow him out of the appropriation only that which is found to be due him upon settlement of his ac- counts for such expenditures. Opinion of July 12, 1878, 16 Op. 67. XV. For Indian Depredations. 264. The seventeenth section of the act of June 30, 1834, chap. 161, relative to Indian depredations, applies only to tortious and vio- lent if not to a felonious taking. Opinion of July 13, 1842, 4 Op. 72. 265. The United States undertook to guar- CLAIMS, XVr, XVII. 83 anteeagainstviolence on both sides ; but differ- ences in matters of contract do not come within the sixteenth and seventeenth sections of that act. Provision is made for such controversies In the ' twenty-second section, and the ■ pre- sumption of law is against the whites. Ihid. 266. The claim of Colonel Thomas does net come within any fair interpretation of the sixth article of his contract with the Government. The district court having passed upon the claim, it is doubtful whether the Executive can go beyond what was thus decided. Ojnn- ion of Aug. 13, 1842, 4 Op. 81. 267. Indians at peace w\th the United States are in no received sense of the word ' ' an enemy," and cannot be judicially considered as embraced within it. Ihid. 268. The case of Colonel Thomas being re- considered, it is held that a judgment of the circuit court of New York does not preclude the accounting officers from going beyond the items actually proven by way of offset in the case. Opinion of Aug. 18, 1842, 4 Op. 87. 269. The Secretary of War is at liberty to take up the case on the footing of equity and justice — the basis of chancery jurisdiction. Ibid. 270. If the evidence brings the case within the act of March 30, 1802, chap. 13, there is an equitable obligation on the part of the United States to indemnify against loss; for by that act the United States agree to guarahtee event- ually all persons against depredations com- mitted by Indians residing in the Indian coun- try. ■ But in that case it must be proved, or at least rendered probable, that the robbers in question were Indians residing in the Indian country. Ihid. 271. If this cannot be made out, then it must be shown that the United States were guilty of some laches, delay, &c., exposing the claimant to a loss which he would not other- wise have encountered. lUd. XVI. Of Colored Soldiers and Sailors. 272. Provisions of the act of December 15, 1877, chap. 3, relative to the collection and payment of bounty, prize-money, and other claims of colored soldiers and sailors, consid- ered and construed. Opinion of Dec. 30, 1878, 16 Op. 237. ■ 273. All papers connected with the payment of such claims, after the Bureau referred to in the said provisions is closed, should be turned over to the Second Auditor of the Treasury Department, that officer "having charge of the payment of bounties due to white sol- diers. ' ' Ihid. 274. In regard to the money in the hands of the Secretary of War for the payment of such claims: Admsed that it be paid to the Treas- urer of the United States, with whom it will remain appropriated for the purposes to which it is now devoted until Congress shall other- wise dispose of it. Ihid. 275. As by the provisions of said act the Bureau referred to therein is to be closed, all administrative machinery peculiar to that in- stitution will thereupon cease to exist. Ibid. 276. Those provisions do not require that adj usted cases for the payment of which money is now in the hands of the Secretary of War shall, after the 1st day of January, 1879, un- dergo resettlement by the accounting officers of the Treasury ; yet if any substantial reason exists for resettling such cases there is nothing in the statute to prevent it. Ihid. XVII. Of states. 277. The Secretary of the Treasury cannot legally pay to the State of Illinois the 3 per cent, of the proceeds arising from the sales of public lands within the same, reserved under the acts of April 18, 1818, chap, 67, and De- cember 12, 1820, chap. 2, unless the account required by the last-mentioned act indicated that the moneys heretofore paid have been ap- plied to the encouragement of learning within the State of Illinois. Opinion of Sept. 11, 1829, 2 Op. 269. 278. The claim of the State of Alabama, under the act of March 2, 1819, chap. 47, to be allowed 5 per cent, of the net proceeds of the lands of the United States lying within her limits, received on sales made before as well as after the 1st September, 1819, is admissible on the construction given to similar acts relating to Ohio, Indiana, and Illinois. Opinion of Nov. 21, 1849, 5 Op. 187. 279. The State is, therefore, entitled to have all the moneys received from sales after the 1st September, 1819, brought into her account, whether such sales were made before or after that date. Ibid. 280. The Sta,te of Florida is not entitled, under the act of February 27, 1851, chap. 12, 86 CLAIMS, XTIII. to be reimbursed out of the national Treasury for tbe expense of adjusting her accounts for advances, &c. , for the militia called into serv- ice in 1849. Opinion of May 27, 1852, 5 Op. 552. 281. The State of Nebraska is not entitled, under section 12 of the act of April 19, 1864, chap. 59 (which provides that 5 per cent, of .the proceeds of the sales of all public lands lying within said States which have been or shall be sold by the United States prior or sub- sequent to the admission of said State into the Union, &c., shall be paid to said State for the support of common schools), to 5percent. upon the value of the lands within that State which have been reserved by the United States for the occupancy of Indian tribes. Opinion of July 1, 1874, 14 Op. 666. 282. The thirteenth section of the same act, declaring that "the laws of the United States not locally inapplicable shall have the same force and effect in said State as else- where in the United States," does not extend the provisions of the second section of the act of March 3, 1857, chap. 104, to that State; nor, as it would seem, do the provisions of the lat- ter section extend to that State propria vigore. But even assuming the contrary of this, and that the State of Nebraska (in one or other of the modes indicated) is entitled to participate in the benefits of said act of 1857, it nevertheless has no right to an account of lands within its boundary which are included in reservations to Indian tribes. Ibid. 283. Distinction between the meaning and applicability of the term '''permanent reserva- tions" as used in the act of 1857, and the meaning and applicability of the term ' ' reser- vations ' ' as used in the act of March 2, 1855, chap. 139, pointed out. Ibid. 284. The act of March 3, 1877, chap. 106, made an appropriation in these terms: "For payment of amounts certified to be due by the accounting officers of the Treasury Department for transportation of the Army, being for the serviceof the fiscal year 1871 and prior years, " &c. Among the ' ' amounts certified' ' was an amount found due on settlement of a claim of the State of Kentucky " for the use and occu- pation by the Army of the United States of the slackwater navigation of the Green and Big Barren Rivers from November 1, 1861, to June 60, 1865:" Held (1) that the claim of the State is within said appropriation; (2) that it is not transmissible to the Court of Claims under section 1063 Rev. Stat. ; (3) that the Sec- retary of War, to whom the amount was certi- fied.is bound under section 191 Rev. Stat, to issue his requisition for payment thereof, with- out regard to his own view of the merits, unless there be ' ' any facts ' ' which in his j udgment affect the correctness of the balance; in this case he is authorized, before signing the requi- sition, to submit the facts to the Comptroller; (4) upon such submission the decision of the Comptroller is "finaland conclusive." Opin- ion of May 5, 1877, 15 Op. 626. 285. The limitation prescribed by section 3489 Eev. Stat, for auditing and paying cer- tain claims against the United States does not apply to war claims in behalf of States for which provision was made by the act of July 27, 1861, chap. 21. Opinion of March 14. 1879, 16 Op. 284. 286. The words in that section "for collect- ing, drilling, or organizing volunteers" must be understood, in view of the construction which they had received in previous legisla- tion, as meant to be descriptive of and as ap- plying to that class of war claims only which had theretofore been provided for by the acts of Augusts, 1861, chap. 51; July 5, 1862, chap. 133; Feb. 9, 1863, chap. 25; and June 15, 1864, chap. 124 ; the provisions of these acts, to which reference* is made, being construed to cover claims of individuals, and not those of States, for the subjects therein designated. Ibid. 287. The act of July 12, 1870, chap. 251, section 4, which repealed the appropriation (indefinite in amount) made by the aforesaid act of July 27, 1861, contemplated that the duty of auditing the claims of States presented under the last-mentioned act should continue to be performed by the accounting officers, and that in future Congress would provide for their payment by appropriations based upon esti- mates submitted. Ibid. 288. It is the duty of the administrative officers of the War Department and the account- ing officers of the Treasury Department to pro- ceed with the examination and auditing of these claims, that proper estimates may be sub- mitted to Congress therefor. Ibid. XVIII. Oaths in Support of. 289. Semble that whenever the law makes it CLAIMS, XIX-XXI. 87 the duty of an officer to examine, adjust, and settle claims against the Government, he is impliedly given authority to require such claims to be supported hy the oaths of wit- nesses, vfhere the facts necessary to establish them rest on testimony. Opinion of July 23, 1874, 14 Op. 420. 290. The act of February 14, 1871, chap. 61, assumes the existence of authority in heads of Departments and Bureaus to require oaths in cases of claims against the Grovernment, and provides them with a very efficient means for enforcing it. Ihid. XIX. Transmission of to Court of Claims. 291. Wherea claim against the UnitedStates for the value of property lost in the military service, filed under the provisions of the act of March 3, 1849, chap. 129, had been adjusted by the accounting officers of the Treasury, and the amount found due the claimant certified to the Secretary of War for the issue of a requisi- tion for payment : Held that it was competent to the Secretary of War, if it should appear that this claim belonged to the class described in the seventh section of the act of June 25, 1868, chap. 71, to withhold his requisition and cause the claim to be transmitted to the Court of Claims for adj udication, notwithstand- ing the amount found due thereon had been certified to him as aforesaid. Opinidn of Oct. 29, 1869, 13 Op. 164. 292. Provisions of the acts of March 30, 1868, chap. 36, and June 25, 1868, chap. 71, com- pared. Jbid. 293. It should distinctly appear on the rec- ords or in the proceedings of a Department, when a claim is thus caused to be transmitted to the Court of Claims by the head of that De- partment, that disputed facts or controverted questions of law are involved in it, and that either the amount in controversy exceeds $3,000, or (without regard to the amount in- volved in the particular case) that the decision will affect a class of cases, or furnish a prece- dent for the future action of the Department in the adjustment of a class of cases, or that an authority, right, privilege, or exemption is claimed or denied under the Constitution ; and, furthermore, what the facts disputed or questions of law controverted are. Jbid. 294. The head of a Department should also transmit to the court such a certificate as will show that the claim is one "of the character, amount, or class limited" in the said seventh section, that it may appear upon the face of the papers transmitted that the court has ju- risdiction of the case. Ibid. XX. Assignment of. 295. Sundry parties having conflicting claims against the Government under a stat- ute making provision to defray the expenses of removing the Choctaw Indians from the State of Mississippi, an arrangement between them was made to refer the matter to the arbitration of J. M. C. and P. E. F., with power of attor- ney to receive the money on their behalf and receipt for the same to the United States: Seld that this is not a case of the transfer or assignment of a claim, or of agency thereof, forbidden by acta of July 29, 1846, chap. 66, and February 26, 1853, chap. 81. Opinion of June 29, 1853, 6 Op. 60. 296. A debt settled by judgment in the Court of Claims, and due from the United States, does not come within the purview and operation of the first section of the act of Feb- ruary 26, 1853, chap. 81, relative to the assign- ment of claims against the United States. Opinion of July 25, 1867, 12 Op. 216. XXI. Settlement of. 297. The acts of former Secretaries of War are sufficient, until reversed or countermanded, to authorize and require the accounting officers to settle and audit the claim of General Parker for an allowance to the amount of $2,416, in lieu of quarters and fuel. Opinion of May 17, 1834, 2 Op. 652. 298. Where by the act of August 23, 1842, chap. 200, the Third Auditor of the Treasury was required, under the direction of the At- torney-General, to ascertain the actual damages which a claimant (Charles P. Sibbald) had sus- tained, and would be likely to recover, upon principles of law applicable to similar cases, by reason of the interference of any agent or agents of the United States, acting under their authority, with the use and enjoyment of his lands in East Florida, and under such instruc- tions examined, and, in 1844, reported the same at an amount which was accepted ; and the matter was, in 1847, reopened, pursuant to a resolution of Congress of August 10, 1846, by 88 CLAIMS, XXII. direction of the Secretary of the Treasury, who, after causing some of the items reported by the Comptroller to be reduced and others to be in- creased, made a final award of an additional amount, which was also subsequently received by the claimant, who, being dissatisfied there- with, desires the matter to be again reopened: Held that the decisions, awards, and payment were a final disposition of the claim, and to be esteemed in law a full execution of the act and resolution. Opinion of June 27, 1849, 5 Op. 122. 299. The receiving the sum allowed by the decisions and awards estops the claimant from questioning that such allowance and payment constituted a full and final satisfaction of his entire claim. Ihid. 300. The award for an amount in addition to the sum formerly allowed upon the claim of Charles F. Sibbald must be regarded as a full and final execution of the act of August 23, 1842, and the joint resolution of August 10, 1846; and, if it were not, the claimant is con- cluded by his receipt of the award. Opinion of Nov. 14, 1849, 5 Op. 176. 301. Good faith demanded that the money should not be taken except (as it was awarded) as a perfect acquittance and discharge of the claim. Ibid. 302. The claim "having been thus disposed of, it is not competent for the present Secre- tary to re-examine it to correct errors, nor to receive other evidence in relation to it. The whole matter is res judicata and terminated, and can never be reviewed except under some future act or resolution of Congress. Ihid. 303. The act of July 9, 1798, chap. 69, bars the payment to representatives of moneys which have remained in the Treasury to the credit of their deceased ancestor unclaimed since 1781. Opinion of Sept. 13, 1850, 5 Op. 251. 304. Moreover, the legal presumption aris- ing from the lapse of so great a period of time renders it improper for the Secretary of the Treasury to pay claims of this character with- out special authority from Congress. Ibid. 305. Where a claim against the Pottawato- mies had been adjudicated and allowed by a former Secretary of the Interior, and certifi- cates therefor issued by the Commissioner of Indian Affairs to the original claimants, paya- ble from the annuities of that tribe iu three annual installments, which were subsequently transferred to Suydam, Sage & Co., and by them to the Merchants' Bank in ISTew York, whose attorney claims payment; but before the same was made, a rehearing was demanded on behalf of the Indians, on the allegation that they were not originally liable to the Ewings for the amount adjudicated to them by the said Secretary; and a question having contem- poraneously arisen between the Ewings and the said bank concerning the terms and pur- poses of their transfer of the said certificates: Held that the present Secretary of the Inte- rior ought to regard the decision of his prede- cessor as to the amount due from the Indians as conclusive; and that payments of the cer-' tiflcates should be withheld until the conflict- ing claimsof the Ewingsand Merchants' Bank shall also be settled by the judiciary. Opin- ion of Jan. 8, 1851, 5 Op. 285. 306. It is doubtful whether Indian annui- ties granted by the Government ought to be regarded as legally assignable unless made so by law. Ibid. 307. The act of May 9, 1860, chap. 46, au- thorizing the Third Auditor to cause the ac- count of George Stealey to be settled on jirin- ciples of equity and justice gives exclusive jurisdiction over the subject-matter to that oifi- cer without any appeal to the Secretary of the Treasury. Opinion of June 11, 1860, 9 Op. 430. 308. The requirement that the settlement should be made upon satisfactory ''vouchers " does not preclude the introduction of any kind of evidence showing that the party is entitled to the credit he demands. Ibid. 309. "Justice" in a statute means legal justice, and"equity " means that naodification of rigid legal rules which a chancellor would apply to the matter. Ihid. XXII. Reconsideration and Readjust- ment of. 310. As a general rule, a decision upon a claim made by the head of a Department can- not be disturbed by his successor; but where a claim has been referred by Congress to the head of a Department, and the Department gives such a construction to the statute as de- feats the claim in whole or in part, and Con- gress afterwards, by reports of the appropriate committees or otherwise, indicates its opinion to be against the decision of the Department CLAIMS, XXIII, the case may be opened, though a change in the mean time has taken place in the head of the Department. Opinion of Aug. 25, 1859, 9 Op. 387. 311. Such indications of opinion from the legislature are not binding on the Depart- ment, but are to be regarded merely as ground for the reconsideratioh of the case. JMd. 312. Where a contract was declared to be forfeited by a Secretary of War, and the action of that officer was subsequently declared to have been illegal by the Court of Claims, a suc- ceeding Secretary was held to have the right . to open the case for another hearing, to be de- cided in the way which on such henring should seem to him to be right and proper. Opinion of April 9, 1860, 9 Op. 422. 313. It is within the power of the he-id of an Executive Department to allow a claim which has been rejected by one of his prede- cessors, without new evidence. But the decis- ions of the head of a Department ought only to be reversed on clear evidence of mistake or wrong. Opinion of June 12, 1861, 10 Op. 56. 314. Where Congress (byjoint resolution of May 2, 1866) referred the claim of certain parties for an increase of prices, under a con- tract with the Government, to the Attorney- General for his opinion as to the construction of the contract, and the Attorney-General gave his opinion againstthe construction contended for by the claimants, it was held that this was a decision of the case, and not merely of the question, and that his successor in office had no right to reconsider the matter. Opinion of June 25, 1867, 12 Op. 169. 315. The cases defined in which the head of a Department is authorized to reopen the final decision of a predecessor. Opinion of Jan. 27, 1868, 12 Op. 356. 316. Where the Postmaster-General was au- thorized and required by act of Congress (that of March 3, 1857, chap. 176) to adjust a par- ticular claim, nothing but a, new authority, emanating from Congress, will enable one of his successors to open his adjustment upon the ground that he adopted an erroneous basis of settlement. Ihid. 317. The fact that, since the settlement, the committees of the two Houses recommended by reports a different basis of settlement will not authorize a reopening of the case. IMd. 318. Semile that the President would have no power, in such a case, to order the reopen- ing of the claim. Ibid. 319. The Secretary of War (in execution of the act of March 3, 1877, chap. 119, which au- thorized him " to open and readjust the settle- ment made by the United States Government with the Western and Atlantic Railroad oi Geor- gia") made an award, upon which a settlement was effected with the State of Georgia. Subse- quently it was claimed that an important item of credit, which should have been allowed the State in the settlement, had been ignored, and application was made in behalf of the State for a revision of the award and settlement. The Secretary declined to reopen the award and settlement for the purpose of revising the same in connection with such claim ; but he de- cided to revise the award for the purpose of making an additional allowance of a certain sum found to he due after correcting an ac- countant's error againstthe United States, and also a mistake against the State in the compu- tation of interest. A renewed application for revision of the award and settlement was after- wards made by the governor of Georgia, but, without taking ahy action thereon, the Secre- tary resigned and went out of oflace. Seld that the succeeding Secretary of War has not power to reopen the award and settlement made by his predecessor in office with a view to the rectification thereof in any respect other than that which had already been directed by his predecessor, the act having been fully executed by the latter. Opinion of Jan. 29, 1880, 16- Op. 452. XXIII. Payment. 320. Payment under the act of 24th May, 1824, chap. 144, "forrelief of the assignees and legal representatives of John H. Piatt, " may be made to the assignees to the amount of their assignment ; and as the amount for which the claim was assigned was not fixed in the assign- ment, it having been given for advances "made and to be made, " the accounting officers must examine into and ascertain the amount actu- ally due the assignees thereon. Opinion of Aug. 13, 1824, 1 Op. 692. 321. Notes of the assignor exhibited by the assignees are prima facie evidence of the debt; yet the administrators have the right to con- trovert it. Ibid. 332. A payment to a person acting under a so CLAIMS, XXIII. power of attorney from one of several execu- tors is valid, coexecutors being regarded in law as an individual person, and the act of any one of them, in respect to the administration of the effects, as the act of all. Opinion of Dec. 8, 1827, 2 Op. 66. 323. Lapse of time, whilst it furnishes strong presumptive evidence against the justice of claims, is no bar to payment. The delay may be accounted for. Oinnion of Sept. 10, 1831, 2 Op. 463. 324. Payment of the claims of the citizens of Georgia, under the Creek tre&,ty of 1821, and the law concerning them, viz, act of June 30, 1834, chap. 145, may be made by thePresi- ■dent to the State of Georgia for the use of the claimants. Opinion of Dee. 20, 1834, 2 Op. 691. 325. Where there is a conflict of claims be- tween an executor and his assignees for an award of moneys by the Third Auditor to the decedent, the Treasury officers should pay the same to the executor, who is the legal repre- sentative. Opinion of Dec. 7, 1835, 3 Op. 29. 326. Where assignments in due form are pre- sented, and no objection is made to the right of the assignee, it may be paid to him. Ibid. 327. The resolution of the legislature of the State of Missouri authorizing the governor of that State to receive her distributive share of the funds arising under the provisions of the act of Congress of September 4, 1841, chap. 16, not having been signed by the president of the senate, is not a sufficient authority to sanction the payment. Opinion of March 16, 1848, 4 Op. 716. 328. Where a claimant executed a power of attorney to another, authorizing him to prose- cute a claim before Congress and to appoint a third person to assist him, and therein assigned to each of them one-fourth of what might be recovered, authorizing them to receive the same; and the claim being subsequently al- lowed by Congress (by act of March 3, 1849, chap. 164) , and demand of payment of one-half thereof, pursuant to said assignment, being made at the Treasury by the two attorneys, it was objected to by the administrators of the claimant, and refused on account of non-com- pliance with the act of July 29, 1846, chap. 66. Held that the latter act clearly prohibits pay- ment to the attorneys, except they produce a warrant of attorney executed subsequent to the passage of the act allowing the claim, reciting the amount, properly executed, attested, and acknowledged. Opinion nf April 13, 1849, 5 Op. 85. 329. As the act of July 29, 1846, was passed prior to the execution of the power of attorney and assignment produced, this construction impairs no previous contract obligations, nor infringes any vested right. Hid. 330. Where an act of Congress was passed, approved, and enrolled, requiring payment of money out of the Treasury to a citizen, such payment cannot be refused on the ground that the law as it passed was coupled with a condi- tion which by accident or design was left out of the enrolled bill. Opinion of March 24, 1857, 9 Op. 1. 331. Where the Secretary of the Treasury suspended the execution of a law for that rea- son, and the party entitled to the money made an abortive attempt to comply with the alleged condition, he was not thereby prevented from afterward demanding his rights according to the law as it stood enrolled. Ibid. 332. Where the expressed object of suspend- ing the law was to give Congress an opportu- nity to correct the supposed error or fraud, and three sessions of Congress passed without such correction after the facts were communicated to both Houses, the law ought to be executed without further delay. Ihid. 333. Where an act of Congress required the Second Auditor to adjust a claim, and directed its payment out of the Treasury, and subse- quent acts authorized further examination and readjustment of the claim, but contained no authority for the payment of the further amount found due on such readj ustment: Held that the direction for payment in the first act applied only to the amount ascertained to be due on the first adjustment, and that the offi- cers of the Treasury had no power to pay the additional amount so found due without spe- cific legislative authority for that purpose. Opinion of April 29, 1862, 10 Op. 238. 334. The joint resolution of February 21, 1861, repealing the joint resolution of June 15, 1860, for the relief of William H. De Groot, is valid, and his claim cannot be paid in the face of that resolution. Opinion of June 6, 1862, 10 Op. 270. 335. In May, 1861, Simeon Hart, then a resi- dent of New Mexico, delivered commissary stores to the Government at certain military CLAIMS, XXIII. 91 posts in that Territory, for wliioh he received a voucher from the proper officer, but payment thereof was -withheld in consequence of an order issued from the War Department during the same month. Hart subsequently took an active part in the rebellion, but was pardoned by the President in November, 1865. He after- ward assigned said voucher to two creditors, loyal persons, by whom payment of the same is now demanded. On a question whether payment is prohibited by the joint resolution of March 2, 1867 (No. 46): Held that the case presented is not within the prohibition of that resolution, theclaim having accrued after April 13, 1861. Opinion of Dec. 5, 1872, 14 Op. 145. 336. The proviso in that resolution was in- tended only to make an exception in favor of ■claims existing prior to April 13, 1861, which had been assigned or agreed to be assigned to loyal citizens of loyal States prior to April 1, 1861, in payment of debts incurred prior to March 1, 1861. It does not relate to claims ad- ditional to those mentioned in the preceding words of the resolution. Hid. 337. Where the payment of a claim against the Government would otherwise come with- in the prohibition of the joint resolution of March 2, 1867 (No. 46), the fact that the po- litical disabilities of the claimant imposed by the third section of the fourteenth amend- ment of the Constitution have since been re- moved by Congress does not free the claim from the operation of that resolution ; the pro- hibition of payment still continues. Opinion ■of Nov. 15, 1873, 14 Op. 329. 338. An approved account or voucher for transportation performed for the Navy Depart- ment by F. & C, contractors, was issued by the chief of the Bureau of Steam-Engineering in favor of and delivered to H. & Son, who were brokers for F. & C. The 1 atter claim that the amount appropriated by the act of June 14, 1878, chap. 191, to pay for the transporta- tion, should be paid to them, and not to H. & Son. Meld that the account or voucherissued as aforesaid is not a negotiable paper; that a transfer or assignment thereof would be void under section 3477 Eev. Stat. ; that the ap- propriation was made for the purpose of paying F. & C, and not any alleged claim of H. & Son ; a;nd that the Navy Department may treat such approved account or voucher as a nuUity, and issue an approved account in favor of F. & C. and transmit it to them directly. Opin- ion of Oct. 23, 1878, 16 Op. 191. 339. A claim was presented to the Southern Claims Commissioners, under the act of March 3, 1871, chap. 116, the claimant describing himself in his application as ' 'Alexander An- derson, of Augusta County, Virginia." The commissioners made favorable report thereon, finding the amount due claimant to be $175. Their report was adopted by Congress, and by act of March 3, 1873, chap. 339, the Sec- retary of the Treasury was authorized to pay §175, " out of any moneys in the Treasury not otherwise appropriated," to "Alexander Anderson, of Virginia." In the mean time a claim had also been presented to the CommLs- sionera in the name of Alexander Anderson, of Amelia County, Virginia, which was not allowed. The latter claimant, in March, 1873, gave F. a power of attorney to receive for him the $175 allowed by said act to "Alex- ander Anderson, of Virginia, ' ' describing him- self as ' 'Alexander Anderson, of Amelia Court- House, of the county of Amelia, in the State of Virginia. ' ' The money was paid to F. on filing said power, who had acted in good faith, and was not informed of the mistake until after he turned over the money to his princi- pal. Held (1) that F. is under no legal lia- bility for the money; (2) that his principal is liable, either at the suit of the rightful claim- ant or of the United States; (3) that the offi- cer of the Treasury through whose negligence the mistake was made is legally chargeable with the amount, to be passed to his credit on the recovery of the money; (4) the right- ful claimant does not, in consequence of the mistake, lose his right to be paid out of any money remaining in the Treasury not other- wise appropriated; (5) a second appropriation warrant may legally issue to again place the amount due the rightful claimant to the credit of the Secretary of War, that he may draw a new requisition on which a new warrant can issue in payment of the claim. Opinion of Oct. 23, 1878, 16 Op. 193. ' 340. By act of March 3, 1879, chap. 182, an appropriation of a certain amount was made "to pay George H. Giddings, late contractor, for one month's extra pay on discontinuance of a portion of route No. 8076, Texas, which went into effect July 1, 1861, in accordance with the opinion of the Attorney-General. ' ' 92 -COASTING TRADE. Subsequently one D., claiming a right to si portion of the fund thus appropriated, filed a bill in the supreme court of the District of Columbia against the said Giddings, upon which an order was issued by the court for- bidding him to meddle with the fund, and ap- pointing a receiver to obtain and hold the same subject to the order of the court. A warrant having been issued for the payment of the amount to Giddings, pursuant to the terms of the statute, the receiver made application to the Postmaster-General for the delivery of the warrant to him. Advised that the payment cannot properly be made to any other than the person designated by Congress to receive it; that after such action by Congress the Execu- tive Departments ought not to submit to the courts, upon any ground of comity, the ques- tion as to who should receive the fund; and that the application should be denied. Opin- ion of July 11, 1879, 16 Op. 367. XXIV. Claims of the United States. 341. The Government has a valid claim against the vendors of the bark Florida under their bond of indemnity and the covenant of warranty in the bill of sale. Opinion of Sept. 10, 1862, 10 Op. 340. 342. The Government has a legal claim for damages against N. Kingsbury & Co. on ac- count of their failure to fulfill their contract with the Navy Department for the delivery of blankets and blue flannel. Opinion of June 30, 1865, 11 Op. 263. 343. The Secretary of the Navy is not bound to compel the payment of damages if he is of opinion that their default was the result of the failure of the Government to pay their accounts, and it could not have been avoided by the proper efibrts of the parties. Ibid. 344. By act of June 22, 1874, chap. 388, an appropriation was made to reimburse the Sol- diers' and Sailors' Orphans' Home for certain moneys (the balance of a deposit of moneys theretolbre appropriated for the Home by Con- gress) involved in the bankruptcy of Jay Cooke & Co. An offer having been made to the Sec- retary of the Treasury to purchase the claim against that firm for the amount due on ac- count of said deposit: Held that this claim must now be treated as a claim belonging to the United States, and that the Secretary has no power to sell the same or to do more than receive for the United States whatever may be paid by the debtor, or his a.«signee, in dis- charge of the debt. Opinion of Dec. 15, 1879, 16 Op. 407. CLERKS OF COURTS. See also Compensation, II; Disteict of Co- lumbia, I; Fees and Costs. 1. The clerk of the circuit court of the Dis- trict of Columbia, who is also clerk of the criminal court of the District, is bound to ac- count to the Treasury for the fees which he receives in the latter capacity. Opinion of Mareh 22, 1854, 6 Op. 388. 2. The clerks of the district courts of the United States in California are bound to ren- der to the Treasury an emolument account equally with clerks of other districts. Opin- ion of May 1, 1854, 6 Op. 433. 3. The Secretary of the Interior is empow- ered by law to judge of the necessity of ex- penses of clerk-hire and other expenses in the offices of clerks of circuit and district courts where there is a surplus of fees above the stat- ute allowance for salary, and to regulate the same in advance, subject to such modificar tions of amount, either by enlargement ordimi- nution, and either periodical or occasional, as the satisfactory administration of justice in the several circuits or districts may require. Opinion of Oct. 13, 1855, 7 Op. 543. 4. The clerk of the courts of the United States in the District of Columbia is a collect- ing agent of the Government, and is held to account for all the fees of his office received or receivable, deducting therefrom the maximum allowed him by law. Opinion of Dec. 19, 1855, 7 Op. 610. 5. The clerks of the courts of the United States in the Territories of Minnesota, New Mexico, and Utah are not embraced by the provisions of the act of February 26, 1853, chap. 80, giving augmented fees to those offi- cers in the Territory of Oregon. Opinion of March 8, 1856, 7 Op. 648. COASTING TRADE. See COMMEKCB AND NAVIGATION IV. COAST SURVEY — COMMERCE AND NAVIGATION, I. 93 COAST SURVEY. 1. The costs of repairs and supplies fur- nished to certain vessels employed by the Presi- dent in prosecuting the coast survey must fall upon the appropriation made by Congress for the survey of the coast. Opinion of Oct. 12, 1839, 3 Op. 479. 2. Yet if vessels are detailed from the Navy or from the revenue service for temporary service in tlie coast survey, they may be re- paired from funds provided by Congress foi- the branch of the public service to which such vessels properly belong. lOid. COLLECTOR OF CUSTOMS. See Customs Laws, II. COMMERCE AND NAVIGATION. See also Rivers and Haeboks; Shipping; Shores and Beds of Navigable Wa- ters ; South Pass of the Mississippi ElVEK. I. Registry of Vessels. II. Enrulliiteut and License of Vessels. III. Tonnage Duties. IV. Foreign, and Coanting Trade. V. Fees Collected from Vessels. VI. Officers of Steam- Vessels. VII. Inspection of Steam- Vessels. VIII. Obstruction to Narigntion. IX. Improvement of Aaiiigable Waters. I. Registry of Vessels. 1. The benefit of the registry of an Ameri- can vessel is lost to the owner during his resi- dence in a foreign country; but upon his re- turn to this country the disaliility ceases. Opinion of Nov. 24, 1821, 1 Op. 523. 2. The fact that during the foreign residence of the American owner the vessel carried a foreign flag does not worlc any divestiture of title, nor render the disability perpetual. Ibid. 3. The Spanish schooner Ainistad having been condemned (not for any breach of the laws of the United Staties) and sold by order of the district court of the United States, and the purchaser having applied for a register: Held that he is not entitled to a register, but that documents showing the order of sale, its execu- tion by the proper of&cer of the United States, and the purchase and title of the present owner, ought to be issued to him. Opinion of Dec. 14, 1840, 3 Op. 606. 4. Masters of American vessels entering for- eign ports where there shall be an American consul, and remaining so long as that, by the local regulations, they are required to enter and afterwards to clear in regular form, are re- quired to deposit their registers, &c. , with such consul, irrespective of the purpose for which the port shall have been entered. Opinion of Sept. 26, 1849, 5 Op. 161. 5. A registered or enrolled American vessel voluntarily sold by her owner to a foreigner, and thus denationalized, is, equally with a for- eign-built ship, incapable of receiving a new register or enrollment, although afterwards purchased and wholly owned by a ciiiizen of the United States. Opinion of March 16, 1854, 6 Op. 383. 6. Uudertheactof December23, 1852, chap. 4, a vessel built in the United States, but trans- ferred to a foreign owner, and afterwards wrecked in the waters of the United States, may be allowed an American register by the Secretary of the Treasury. Opinion of April 16, 1860, 9 Op. 424. 7. Under tlie provisions of the first and fourth sections of the act of December 31, 1792, chap. 1, no vessel in which a foreigner is directly or indirectly interested can lawluUy be registered as a vessel of the United States, nor can it be deemed a vessel of the United States or entitled to the benefits or privileges appertaining to a vessel of that description. Opinion of Dee. 17, 1873, U Op. 340. 8. So where a vessel has been registered, but the registry was obtained by a false oath as to its ownership, the vessel being at the time owned in whole or in part by foreigners, it can- not be deemed a vessel of the United States. Ibid. 9. Semble that the Virginius, though regis- tered as an American vessel, was in fact owned by foreigners, and that the registry thereof was fraudulently obtained; and hence, at the time of her capture; by the Spanish man-ol-war Tornado, she had no right, by virtue of that 94 COMMERCE AND NAVIGATION, II, III. registry, as against the United States, to carry the American flag. Ihid. 10. Yet while upon the high seas, actually bearing an American register and carrying an American flag, she was as much exempt from interference by another power as though she had been lawfully registered; the question whether or not her register was fraudulently obtained, or whether or not she was sailing in violation of any law of the United States, being one over which such power could not then and there rightfully exercise jurisdiction. Ibid. 11. Theword "wrecked," as used in section 4136 Eev. Stat. , is applicable to a vessel which is disabled and rendered unfit for navigation, whether this condition of the vessel has been caused by the winds or the waves, by strand- ing, by fire, by explosion of boilers, or by any other casualty. Opinion of Deo. 5, 1877, 15 Op. 402. 12. To authorize the issue of a register under that section, it is sufficient if the cost of repair- ing the vessel — as well where, in so doing, the original plan of the vessel is departed from and changes in her construction and internal arrangement are made, new machinery, new appliances for her navigation, and other im- provements introduced, as where the vessel is simply restored to what she originally was — equals three-fourths of her value when repaired. Ibid. II. Enrollment and License of Vessels. 13. Steamboats owned by citizens of the United States may be enrolled and licensed, although they may have been employed in the rebel service under papers issued by the rebel authorities. Opinion of Oct. 2, 1865, 11 Op. 359. 14. Under section 4371 Rev. Stat., and the act of April 18, 1874, chap. 110, vessels usu- ally called canal-boats, of more than five tons burden, trading from place to place in a dis- trict, or between different districts, on naviga- ble waters of the United States (except such as are provided with sails or propelling ma- chinery of their own adapted to lake or coast- wise navigation, and also such as are employed in trade with the Canadas), are exempt from license or enroUmentas well where in the trade in which they are engaged they do not enter a canal of a State as where their voyages are partly on such navigable waters and partly on a State canal. Opinion of Oct. 19, 1875, 15 Op. 52. 15. The act of 1874 does not contemplate boats employed exclusively on the "internal waters" of a State where the same are not also navigable waters of the United States, nor boats employed exclusively on the "canals of a State." It contemplates boats which are employed on navigable waters of the United States as well as on the canals or internal waters of a State. Ibid. 16. The rule as to exemption from enroll- ment or license provided by that act is not con- fined in its operation to waters within the in- terior of each State, but extends to any waters coming under the denomination of navigable waters of the United States, irrespective of their geographical location. Ibid. 17. The act of April 18, 1874, chap. 110, does not exempt from the license required by section 4371 Rev. Stat, a vessel of more than five tons burden, answering to the description of a canal-boat, which is engaged in trade be- tween different ports or districts on navigable waters of the United States, and which has never been used on a canal, was not intended to be used there, and does not in its present employment enter a canal. Opinion of Oc- tober 19, 1875 (15 Op. 52), to that extent overruled. (See Note, 16 Op. 248. ) Opinion of Jan. 13, 1879, 16 Op. 247. 18. It is the use made of the vessel, not its me- chanical structure, which determines whether it is or is not entitled to the exemption allowed by that act. Ibid. 1 9. The provision in the act of June 30, 1879, chap. 54, which exempts from enrollment, registration, or license ' ' any flat-boat, barge, or like craft for the carriage of freight, not propelled by saQ or by internal motive power of its own, on the rivers or lakes of the United States," has reference solely to vessels of that description built within the United States and owned by citizens thereof It does not extend to foreign-built craft. Opinion of Sept. 16, 1880, 16 Op. 563. III. Tonnage Duties. 20. Neither the President nor Secretary of the Treasury has power to remit the tonnage duty assessed with reference to the character COMMEECE AND NAVIGATION, IV, V. 95 of the vessel, officers, and crew, nor to remit the penalty of a bond to return seamen. Opin- ion of Nov. 3, 1843, 4 Op. 273. 21. Vessels belonginp; to citizens of the Brit- ish North American provinces entering other- wise than by sea at any ports of the United States on our northern, northwestern, and northeastern frontiers, are not liable to the tonnage duty imposed by section 15 of the act of July 14, 1862, chap. 163, if that duty is in excess of the tonnage duty on vessels entering otherwise than by sea at any of the ports of the British possessions on the same frontiers. Opinion of 3Iay 16, 1863, 10 Op. 482. 22. Section 2 of thb act of March 2, 1831, chap. 98, is not repealed or affected by section 15 of the act of July 14, 1862, chap. 163, im- posing an additional tonnage duty on vessels entering at the custom-houses of the United States. Ibid. 23. The Revised Statutes have made no change in the law respecting tonnage duties upon vessels engaged in foreign commerce. The substance of that law is correctly expressed in the Treasury circular of June 6, 1874, and no reason is perceived for changing the directions therein given. Opinion of Aug. 17, 1874, 14 Op. 450. 24. Under sections 4219, 4225, and 4371 Eev. Stat. , certain foreign vessels, when found trading between district and district, &c., are liable to tonnage dues (including light-money) amounting to 3)1.30 per ton. Opinion of Aug. 19, 1875, 15 Op. 35. 25. Barges for the carriage of freight, not propelled by sail or by internal motive power of their own, of twenty tons burden or upward, which were built in Canada but are owned by American citizens, are liable to the payment of tonnage as prescribed by section 4371 Eev. Stat, when found trading between district and district. Opinion of Sept. 16, 1880, 16 Op. 563. IV. Foreign and Coasting Trade. 26. The third section of the act of 20th July, 1790, chap. 30, is not now in force, in conse- ■ qnence of the operation of the act of March 1, 1817, chap. 31. But the act of 1817 does not repeal the twenty-fourth section' of the act of 18th February, 1793, chap. 8. Opinion of Nov. 1, 1830, 2 Op. 392. 27. The reciprocity act of March 1, 1817, chap. 31, does not permit even an indirect carrying trade by foreign ships. Belgian ves- sels carrying hides and wool from Buenos Ayres to Boston come within the prohibition of and are subject to the forfeitures denounced by it. Opinion of June. 30, 1842, 4 Op. 69. 28. Foreign vessels owned wholly by citi- zens of the United States may be lawfully engaged in the coasting trade; but the cargoes, must consist of domestic goods other than dis- tilled spirits. Opinion of July 20, 1843, 4 Op. 189. 29. Subjects of foreign powers are, by the act of March 1, 1817, chap. 31, incompetent to import any goods, wares, or merchandise from one port of the United States to another in any vessel of which they may be the own- ers in whole or in part; yet citizens of the United States are untouched by the act, and left to the enjoyment of the privileges con- ferred by the acts of December 31, 1792, chap. 1, and February 18, 1793, chap. 8. Ibid. 30. The only liability incurred by foreign- built vessels wholly owned by citizens em- ployed in trade from port to port in the United States is that of paying the tonnage duties chargeable upon foreign vessels. Ibid. 31. The owners of registered vessels engaged in the coasting trade are subject to the payment of hospital-money by the act of 1st March,. 1843, chap. 49, and collectors are required to- collect it from the seamen, masters, and own- ers. Opinion of Aug. 15, 1843, 4 Op. 233. 32. Foreign vessels, except steamboats em- ployed on rivers or bays, &c., may carry pas- sengers from port to port in the United States, subject to the conditions as to fees, tonnage duties, &c., prescribed by the act of February 18, 1793, chap. 8, and other laws of the United States. Opinion of Nov. 2, 1843, 4 Op. 270. V. Fees Collected from Vessels. 33. In view of the absence of anything in the Eevised Statutes indicative of an intent to change the purpose for which the fees enu- merated in section 4381 were originally estab- lished, or to introduce a new rule of distribu- tion: Held that notwithstanding the revisal omits the provision of the act of 1793 regu- lating the distribution of such fees, they should be distributed, as they have heretofore been, under the rule prescribed by that act. (See 90 COMMERCE AND NAVIGATION, TI-TIII. Note, 15 Op. 45.) Opinion of Sept. 11, 1875, 15 Op. 44. VI. Officers of Steam- Vessels. 34. A naval of&cer cannot lawfully serve as master of aprivate steam- vessel in the merchant service without having previously obtained the license required by section 4438 of the Revised Statutes, although he may be eligible by virtue of his commission to take command of a steam- vessel of the United States in the naval service. Opinion of Oct. 26, 1875, 15 Op. 61. VII. Inspection of S'ceam-Vessels. 35. Where a steam-tug was owned by the Government and used by the War Department in towing dredging-machines and scows, and for other like purposes: Held that it vyas not subject to the inspection laws of the United States relating to steam-vessels, and that un- licensed pilots and engineers might lawfully be employed upon her. Opinion of June 1, 1870, 13 Op. 249. 36. Public vessels, within the meaning of the inspection and navigation laws, are vessels owned by the United States and used by them for public purposes. Ibid. 37. Those laws do not vrarrant any distinc- tion between public vessels under the control of the Navy Department and public vessels under the control of any other Department of the Government. Ibid. 38. By act of May 2, 1878, chap. 80, an American register or enroll ment was authorized to be issued to the Canadian-built propeller East, by the name of The Kent. The vessel ■was dismantled as a steamer, and subsequently enrolled under that act as a barge. Afterwards the machinery was replaced in her; but the in- spectors of steamboats declined to give her a certificate of inspection, the boiler not being constructed oi stamped iron, as required by sec- tion 4428 Rev. Stat. Held that the act of 1878 was executed by the enrollment of the vessel as a barge; and that the boiler, being then no part of the vessel, was not nationalized under that act, nor entitled to pass inspection with- out being stamped. Opinion of Dec. 22, 1880, 16 Op. 680. VIII. Obstruction to Navigation. 39. Obstructions to navigation in the navi- gable waters of the United States, whether by States or by individuals, constitute acts of pur- presture, and there is remedy in such case by ex officio information in the name of the At- torney-General of the United States. Opinion of Oct. 19, 1853, 6 Op. 172. 40. Where Cdngress (by act of July 25, 1868, chap. 233) appropriated a sum of money, to be expended under the direction of the Secretary of War, for the removal of a wreck near the harbor of New York, and the Secretary of War contracted with a company to remove the wreck : Heid that the contractors had the ri^ht to proceed with the work as against any per- sons employed by the owners, and that the Secretary of War had power to aid them with all the necessary force to enable them to re- move the obstruction. Opinion of Sept. 21, 1868, 12 Op. 494. 41. In view of the practical ditBonlties of preventing the obstructions to navigation men- tioned in the case considered by a resort to legal proceedings: Advised that the attention of the proper committee of Congress be called to the subject, and penal legislation recom- mended. Opinion of Nov. 17, 1870, 13 Op. 342. 42. In the absence of legislation by Congress upon the subject of the improvement of the harbor of Saint Louis, or of the navigation of the Mississippi River at that point, no one is authorized to institute judicial proceedings in behalf of the United States against the city of Saint Louis for the abatement as a nuisance of the Bryan street dike, constructed by that city in said river. The anticipation that, should such legislation hereafter be adopted, the dike will be an obstacle, is no ground lor interference. Opinion of Oct. 11, 1875, 15 Op. 515. 43. Where a vessel put into harbor "in a furious storm," and, leaking badly, was run ashore, thereupon becoming a wreck, which forms an obstruction to navigation: Hdd that (the wreck appearing to have been caused liy stress of weather, and not through any lault or misconducton the part of the master and crew) the owners of the vessel are under no legal ob- ligation to remove it, and that the case does not vrarrant the institution of proceedings to that end against them. Opinion of Jan. 4, 1876, 15 Op. 71. 44. Where a dike was being constructed by an iron company in the Ohio River, leading COMMETICE AND NAVIGATION, IX. 97 from the shore to deep water, which it was ap- prehended by persons engaged in navigating that river would obstruct its navigation, and application was made by the latter to the en- gineer officers of the United States to interfere: Held that in the absence of Congressional leg- islation the public authorities of the United States have no power to deal with such a mat- ter. Opinion of Jan. 12, 1876, 15 Op. 526. 45. Congress having made an appropriation for the improvement of the Connecticut River, to be expended under the direction of the Sec- retary of War, the latter has power, under this legislation, to remove a wrecked vessel lying in that river, without waiting until it is abandoned, if in his judgment it constitutes an obstruction to navigation. Opinion of May 24, 1877, 15 Op. 285. IS. Improvement of Navigable Waters. 46. Under the act of March 3, 1875, chap. 166, to aid in the improvement of the Fox and ■Wisconsin Hi\ers, the officers in charge of that work cannot acquire land needed therefor by purchase directly from the owner, but must have recourt-e to condemnation. Opinion of April 11, 1H79, 15 Op. 31. 47. The War Depart ment has not authority, under the provisions of the acts of March 3, 1879, chap. 181, and June 10, 1879, chap. 15, relating to the improvement of the Kentiicky Eiver, to enter upon the locks and dams be- longing to the State of Kentucky for the pur- pose of putting tbem in repair until the State shall have ceded title to and jurisdiction over them, so as to vest these in the United States, or until, alter proper proceedings for condemna- tion had, the title shall be acquired by, and the jurisdiction shall by act of the State be transferred to, the United States. Opinion of Dec. 15, 1879, 16 Op. 40j. 48. The property of an individual in a bar or other part o*' the bed of a navigable river is subject to the public right of navigation, and to the right of the public to regulate, control, and divert the flow of the water therein in the interests of navigation; and where the stream is a navigable river of the United States the right thus to regulate, control, and divert the flow of water belongs to Congress. Damage resulting to the individual proprietor from the exercise of that right is not a proper subject of compensation. Opinion of April 27, 1880, 16 Op. 480. 49. Accordingly, where it was proposed to construct a dike in the Ohio Eiver to improve its navigation (under an appropriation by Con- gress for the improvement of that river), ex- tending from the shore on the south side of the river into the middle of the stream, crossing a sand-bar at the outer extremity, which is un- der water at all times except when the river is at its low- water level or within a few ,feet thereof : Advised that the United States would incur no liability to the owner of the sand-bar by reason of any washing away of the same, or other damage thereto resulting from the con- struction of the dike; that the right of the United States thus to occupy the bar for the improvement of navigation is paramount to the right of the owner, and must prevail over the claims of the latter. Ibid. 50. Where certain parties claiming the land formed by accretion along the line of the piers erected by the United States at the mouth of Grand River, Ohio, proposed to sell the same, with the river frontage bordering thereon, for railroad purposes, the design of the party pro- posing to purchase being to build on the prem- ises substantial docks upon such lines as the Government shall indicate: Advised that such river frontage is affected by the rights of the United States only so far as the navigation of the river and the maintenance of works con- structed for the improvement thereof are con- cerned; that those rights do not preclude the owner from making any use of his property which does not obstruct the oue or interfere with the other of these objects; and that the intended use of the river frontage by the pur- chaser (in view of the report of the engineer officer in charge) would not conflict with any right of the United States in the premises. Opinion of May 10, 1880, 16 Op. 487. 51. By the act of June 14, 1880, chap. 211, Congress made an appropriation for the im- provement of Oakland harbor, in California, and provided that the same should not be avail- able ''until the right of the United States to the bed of the estuary and training-walls of this work is secured, free of expense to the Government, in a manner satisfactory to the Secretary of War." The estuary here referred to is a navigable water of the United States, DIG- 98 COMMISSIONER OF INTERNAL REVENUE— COMPENSATION, I, U. and the traming-wails of the work are located on the shore below high-water mark. Seld (1) that the statute does not contemplate that the United States shall have necessarily an abso- lute title to the bed of the estuary and to such portions of the shore as are occupied by the training- walls; (2) that under the power to regulate commerce, a power which includes that of regulating and improving navigable waters, the United States now have a right (which is deemed sufficient in this case) to use the bed and shore of the estuary for the pur- poses of said improvement by erecting training- walls or any other appropriate structure there- on, and that the proprietor of the soil can make no complaint of such use. Opinion of June 28, 1880, 16 Op. 535. 52. On examination of the provisions of the act of the Georgia legislature approved Octo- ber 8, 1879, and upon considerations stated in the opinion : Held that payment of the $1,000 awarded under that act to the owner of the point on Fig Island, which is contemplated to be removed by the United States in the worft of improving the Savannah River, cannot be paid out of the amount appropriated for the continuance of that work; and advised that special legislation by Congress, providing for the payment, should not be had until the ex- press assent of the State of Georgia to the ac- quisition and removal of the land by the United States is obtained. Opinion of July 10, 1880, 16 Op. 541. COMMISSIONER OF INTERNAL REVENUE. See also Intemstal Revenue. 1. The Commissioner of Internal Revenue is not authorized by law to take charge of lands acquired by the United States in satisfaction of judgments recovered on the oiScial bonds of collectors of internal revenue, and, with the ap- proval of the Secretary of the Treasury, to dis- pose of the same by sale or otherwise. Opin- ion of Sept. 25, 1878, 16 Op. 144. 2. Section 3208 Rev. Stat, does not devolve uijon the Commissioner of Internal Revenue the charge of real estate forfeited under the in- ternal-revenue laws where the forfeiture is en- forced by proceedings in rem. Opinion of Oct. 18, 1878, 16 Op. 186. 3. But the custody of real estate acquired in satisfaction of a pecuniary forfeiture arising under those laws is by that section devolved upon the Comiiiiseioner. Ibid. COMMISSIONER OF PENSIONS. See also Pensions. There is no appeal from the Commissioner to the President. Opinion of Aug. 4, 1846, 4 Op. 515. COMPENSATION. See also Fees and Costs. I. Generally. II. Officers, &c. , in the Civil Service. III. Officers, <&c. , in the iliUtnry Service. IV. Officers, &e. , in the Naval Service. V. Officers, cfcc. , in the Marine Corps. VI. Counsel Employed by Scad of DepaHment. VII. Where Officer Holds more than One Office^ VIII. Extra Pay. IX. Withholding Pay. ' I. Generally. 1. In the absenceof constitutional restrictioB the fnture compensation of a public officer may be altered at pleasure by the legislature dur- ing his incumbency, without violating any legal right vested in him by virtue of his ap- pointment. Opinion of June 18, 1877, 15 Op. 317. II. Oflacers, &c., in the Civil Service. 2. A marshal is not entitled to the commis- sion of 1} per cent, under act of 28th Feb- ruary, 1799, chap. 19, upon specie captured, as in cases where he sells vessels and other property. Opinion of July 26, 1814, 1 Op. 178. 3. Navy agents may be allowed 52,000 a year over and above office-rent, clerk-hire, fuel, &c., under act of 3d March, 1809, chap. 28. Opinion of June 20, 1816, 1 Op. 188. COMPENSATION, II. 99 4. The district attorney of New Jersey is en- titled to special compensation for attending a State court in behalf of the United States, and for attending the taking of depositions, and for disbursements in the suit; but if the cause be removed to the circuit court of the United States and be there attended to by him, his compensation is that which district attorneys are entitled to under the act of February 28, 1799, chap. 19, being the highest fees which are allowed by the laws of New Jersey for similar services in the supreme court of that State. Opinion of July 31, 1820, 1 Op. 385. 5. The surveyor of Petersburg is entitled to the salary iixed by law, he having been duly commissioned as a surveyor, having been called on to perform, and havingfaithfuUy performed, the duties of the office, even though he did not reside there, no residence being prescribed in the commission. Opinion of Aug. 10, 1824, 1 Op. 686. 6. Compensation to a register or receiver of a land office for clerk-hire is not legal unless there shall have been an actual expenditure for clerk-hire by them. Opinion of March 20, 1828, 2 Op. 81. 7. Where the register or receiver performs the whole duty himself his compensation is the fees given by the act of March 2, 1821, chap. 12, and the half per cent, given by the act of May 22, 1826, chap. 152. Ihid. 8. The President may, in his discretion, ad- vance money to a minister going abroad over and above his outfit. Opinion of June 15, 1829, 2 Op. 204. 9. As there are no fees preswibed for attend- ance by districtattorneys on State courts, they should receive a reasonable compensation for such service. Opinion of Feb. 18, 1830, 2 Op. 319. 10. The act of March 23, 1830, chap. 40, pro- viding for the taking of the fifth census, per- mits the marshals to assign to themselves parts of their respective districts, but does not make any provisions under which they can lawfully receive any part of the compensation allowed to assistants. Opinion of April 21, 1830, 2 Op. 339. 11. Assistants of marshals have a perfect claim on the Government for the payment of the compensation to which they are entitled, as soon as they have complied with the requi- sitions of the law. Opinion of March 21, 1831, 2 Op. 416. 12. No higher allowance can be made to clerks employed in the Patent Office than is authorized by the act of 20th April, 1818, chap, 87. Opinion of Aug. 7, 1831, 2 Op. 455. 13. There is no act of Congress which makes the United States liable for the marshal's fees in the case of the discharge of a debtor from imprisonment, and the Treasury Department, therefore, is not authorized to pay a claim made for them. Opinion of Aug. 19, 1831, 2 Op. 459. 14. There is no act of Congress warranting the practice of the Government in paying for- eign ministers and consuls to whom salaries are given a quarter's salary after they have presented their letters of recall. Ojnnion of Nov. 30, 1831, 2 Op. 470. 15. The present surveyor of the city of Washington having been appointed by the Com- missioner of Public Buildings, with the under- standing that no salary was to be claimed, he is entitled to no part of the fund appropriated for the District. Opinion of Dec. 1, 1831, 2 Op. 471. 16. By the act of 20th April, 1818, chap. 87, the number and compensation of the clerks to be employed by the Navy Commissioners is fixed ; and the same law provides that no higher or other allowance shall be made to any clerk in the Departments and offices mentioned therein than is thereby authorized. Where- fore, such of the clerks as have been overpaid should refund the excess to the Treasury. Opinion of Sept. 12, 1833, 2 Op. 582. 17. It is improper to allow salaries to clerks absent from the country and not actually em- ployed in the duties of the office. Jiid. 18. The sanction of the Navy Commission- ers to the excessive salaries erroneously given does not give the clerks who have received the excess a right to retain it. Ibid. 19. Where the Navy Commissioners had em- ployed a clerk at a stipulated sum, less than the maximum allowed by the act of April 20, 1818, chap. 87, and the difference between the maximum and the amount actually paid was drawn in his name and paid over to other per- sons, who have since been required to refund it to the Treasury, and the said clerk comes forward to demand it: Held that he has no 10) COMPENSATION, IT. claim to the moneys thus refunded. Opinion of Jan. 6, 1834, 2 Op. 591. 20. District attorneys not being required by the laws defining their general duties to attend State courts, nor upon judges out of court, if their services are called for therein, or on other special occasions, and the fees taxed by them in such State courts cannot be recovered, or are inadequate, they should be paid a fair com- pensation out of any moneys appropriated to the special objects in reference to v?hich the services were rendered, or, in some cases, out of the judiciary fund usually provided in the general appropriation bill. Opinion of March 7, 183G, 3 Op. 45. 21. The snlaries of judicial and other oflfi- cers appointed for the Territory of Michigan are to be paid until the State shall have been actually admitted into the Union by the proc- lamation of the President. Opinion of Bee. 29, 1836, 3 Op. 170. 22. The clerks and messengers of the Pension Olfice, authorized by the act of 9th May, 1836, chap. 60, are entitled to the increase of salaries provided by the enacting clause of the third section of the act of 3d March, 1837, chap. 33. Opinion of March 25, 1837, 3 Op. 181. 23. The salaries of three clerks only in the General Land Office were fi.'ced in the act reor- ganizing it. All the residue, including the messengers, are entitled to the percentage granted by the act of 3d March, 1837, chap. 33. Opinion of March 31, 1837, 3 Op. 193. 21. The reference to the fees of the State courts contained in the acts of September 24, 1789, chap. 20, and February 28, 1799, chap. 19, does not apply to the courts nor to the dis- trict attorneys of States where there are no fees by law, but refers to those where the laws give taxable fees. Opinion of July 5, 1837, 3 Op. 252. 25. The United States should, in such cases, make a reasonable allowance to their attorneys in the States where the latter can look only to their employers for compensation. Ibid. 26. The secretary of the commander of the surveying and exploring expedition has no le- gal right to compensation forservices rendered, anterior to the appointment of the commander and the receipt of formal notice of his appoint- ment as secretary ; yet if he actually rendered services in respect to that expedition before, and, in the judgment of the President, has an equitable claim, he may be paid out of the ap- propriation made by the act of May 14, 1836, chap. 62, for the expedition, without sending the claim to Congress. Opinion of Aug. 13, 1838, 3 Op. 357. 27. By the acquiescence of the Government and the construction given in several judicial decisions entitled to respect, the act of the 7th of May, 1822, chap. 107, in relation to the compensation of officers of the customs, is not deemed to work a repeal of the act of the 2d of March, 1799, chap. 23, in relation to the .same subject. Opinion of April 11, 1839, 3 Op. 449. 28. Agents for paying pensions are entitled to have their necessary contingent expenses allowed, notwithstanding the act of April 20, 1836, chap. 55, as the prohibition of that act may be well satisfied by stopping payment of the 2 per cent, commissions which bad been theretofore allowed for disbursing pension- moneys. Opinion of Oct. 12, 1839, 3 Op. 481. 29. Where a marshal received, in the due course of law, processes of summons and sub- poena for the same witnesses (it being the usual mode of procuring the attendance of witnesses in the court from which they issued) and served the same as required, he is entitled to his fees for both services, on their being allowed and certified by the district judge. Opinion of Feb. 14, 1840, 3 Op. 497. 30. The same individual having been ap- pointed, under the act of 30th of June, 1834, chap. 161, a superintendent of Indian emigra- tion, at a stipulated salary, and afterwards a commissioner to negotiate a treaty with the Miamies, at a per diem compensation, can, under the thirtieth section of said act, receive but one compensation during the same period. Opinion of April 15, 1840, 3 Op. 511. 31. Where, under special instructions, dis- trict attorneys render services of various sorts, necessary to discover criminals, and in procur- ing adequate evidence, they maybe allowed an adequate compensation by the proper Depart- ment. Opinion of April n, 1840, 3 Op. 515. 32. Where it is the settled practice of the court to procure the attendance of witnesses by the service both of the process of summons and of subpoena, and an order issues to the marshal to summon witnesses, that officer is entitled, for performing the order, to the com- pensation escribed for actually summoning COMPENSATION. II. 101 the witness, and also to the compensation pre- scrihed for serving the subpoena. The marshal cannot disregard the orders or process issued by the court, even though they are super- fluous, but must execute such as shall be is- sued to him in the ordinary practice, and for vphich he is entitled to the prescribed fees at the hands of the Government. Opinion of May 16, 1840, 3 Op. 536. 33. The taxation of the court and the allow- ance and certificateof the judge are conclusive upon the accounting officers when the service or purpose is enumerated in the act of Con- gress, and the sum allowed therefor is not exceeded. IMd. 34. The marshal cannot be allowed more for the service of a summons, where asubposna and summons shall have been directed to him in order to obtain the attendance of a single witness, than the sum prescribed for summon- ing a single witness. Ihid. 35. Where collectors, naval officers, and sur- veyors are required by the Secretary of the Treasury to perform services which are uncon- nected with their official duties, the necessary expenses actually incurred in the performance of those extra duties may be allowed them. Opinion of Jnbj 7, 1840, 3 Op. 563. 36. The compensation of officers of the cus- toms is to be regulated and graduated by the importations of the present (1840) year, the act of July 21, 1840, chap. 99, merely substi- tuting the present for the year 1838. Opinion of Aug. 26, 1840, 3 Op. 587. 37. The district attorney for the District of Columbia is entitled to a reasonable compen- sation, over and above his salary and stated fees, for attending, on the part of the United States, during the taking of certain depositions in saia District in a case pending before the circuit court of Missouri. Opinion of Dec. 5, 1840, 3 Op. 599. 38. The district attorney of Vermont is en- titled to an allowance for expenses incurred in numerous journeys, undertaken, with the ap- probation of the Solicitor of the Treasury, for the purpose of securing certain payments due to the United States, and a further allowance for compensation in superintending the sale of certain real estate in Vermont. Opinion of Jan. 21, 1841, 3 Op. 612. 39. Under the proviso of the act of 3d March, 1841, chap. 35, relating to the compensation of clerks, attorneys, counsel, and marshals in the district courts of the United States, those officers are required to ascertain, as far as prac- ticable, whether all the fees, emoluments, and receipts of their office, as allowed under an- terior laws, will make their entire compensa- tion exceed the sum of $1,500 per annum; and if it be reasonably certain that they will, the officer must be confined in his charges to the rates of fees prescribed by the proviso. If they will not, or if the question be fairly doubtful, the old rule may be adhered to. Opinion of April 13, 1841, 3 Op. 627. 40. So it is therein provided that those offi- cers shall receive the same fees that may be allowed by the laws of the State where such district courts are held to the clerks, &c., in the highest courts of the said State in which the like services are rendered; but for services the like of which are not rendered in the ' ' highest ' ' court, his fees must be the same as are allowed in the highest court in which they are rendered. Ibid. 41. A clerk of court ought not to be held ac- countable to the Treasury for any amount of his fees which he may have failed to collect after using, with ordinary diligence, the means of collection that are usually employed by clerks for the collection of fees for their bene- fit. Ihid. 42. The act of 3d of March, 1841, chap. 35, making appropriations for the civil and diplo- matic expenses of the Government for the year 1841, was intended to restrain the incomes or annual emoluments of the officers therein men- tioned as such, from all sources whatever con- nected with the performance of the duties of their office, to the sums therein mentioned. Opinion of Sept. 29, 1841, 3 Op. 658. 43. Whether the allowance for agency of ma- rine hospitals, superintendence of light-houses, and certificates for wines and teas are fairly included within the purview of the statute depends on the question whether these objects come within the sphere of the collector's duty. Ibid. 44. The word "rate" of compensation, as the same is employed in the act and resolution of 1812 to define the compensation of the su- perintendinsc clerk of the census, construed to mean the sum paid; and a claim for a greater 102 COMPENSATION, II. amount, on the ground of an increase of typo- graphical matter, rejected. Opinion of Feb. 17, 1842, 4 Op. 3. 45. The person appointed Secretary of the Treasury ad interim has a claim upon the Gov- ernment for the usual, or, if there he no usual, for a reasonable, compensation for his services in that capacity; hut an appropriation is nec- essary. Opinion of Nov. 26, 1842, 4 Op. 122. 46. A person filling the offices of clerk of a circuit court and clerk of a district court is en- titled, under the act of May 18, 1842, chap. 29, to the salaries of hoth offices. Opinion of ilarch 1.5, 1843, 4 Op. 145. 47. 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. Ihid. 48. ilileage fees to district marshals whilst in pursuit of a person for the purpose of service of process upon him have been passed at the Department; and as it seems equitable, al- though not within a rigid construction of the law (actof February 28, 1799, chap. 19), it may be well to adhere to the practice. Opinion of April 3, 1843, 4 Op. 168. 49. The act of March 2, 1799, chap. 23, giv- ing authority to collectors to employ occasional inspectors and others in aid of the revenue, did not authorize them to employ persons to perform clerical duties in custom-houses, and to pay them out of the revenue. Opinion of Aug. 15, 1843, 4 Op. 230.. 50. The expense of clerk-hire in the custom- houses cannot be charged upon the Treasury, except in the cases provided for by the act of July 7, 1838, chap. 169. Ibid. 51. The act 7th July, 1838, does not change the aspect of the case of clerks as provided by act 7th May, 1822, chap. 107, its object only being to allow them, to a certain extent, the fees and emoluments which, but for the operation of the acts of July 14, 1832, chap. 227, and March 2, 1833, chap. 54, they would have received, and limiting allowances accord- ing to the importations of the year. Ibid. 52. In the absence of any statute regulation concerning the compensation of commission- ers of circuit courts, the courts themselves may fix the rate. "Where rates have not been fixed, the amount may be ascertained by a reference to the local law of the State provid- ing for similar services by local magistrates. Opinion of Aug. 16, 1843, 4 Op. 233. 53. Proceedings under the several acts of Congress before these commissioners in behalf of the United States are properly chargeable to the United States, and should be paid. Ibid. 54. Collectors of customs, acting as superin- tendents of light-houses, are entitled to com- missions upon disbursements made by them in that capacity, subject to the limitation im- posed by the eighteenth section of the act 7th May, 1822, chap. 107. Opinion of Sept. 22, 1843, 4 Op. 249. 55. Where an officer of the General Govern- ment employs an auctioneer of a Territory to make sales therein which such officer was re- quired himself to make, such auctioneer has the right to the percentage which the laws of the Territory allow him to retain. Opinion of Oct. 3, 1843, 4 Op. 257. 56. The compensation of collectors, naval officers, and surveyors depends on the amount received from the sources enumerated in the acts of May 7, 1822, chap. 107, and March 3, 1841, chap. 35, read together— to the maxi- mum of $4,000, ^3,000, and $2,500, for com- missions upon duties, and to ?2,000 from the sources enumerated in the fifth section of the said actof 1841^and is in each case dependent on the fund derived from such sources, re- spectively. Opinion of Oct. 20, 1843, 4 Op. 261. 57. Collectors of customs who are made su- perintendents of light-houses may receive com- missions on their disbursements. Opinion of Nov. 3, 1843, 4 Op. 272. 58. The chief clerks of the Bureaus of Yards and Docks and of Construction, Equipment, and Repair are entitled to the pay of the chiefs of those bureaus whilst acting as such under the authority of the President; but they can- not receive the pay of chiefs and clerks at the same time. Opinion of April 23, 1844, 4 Op. 320. 59. In the case of William M. Blackford, charged 'affaires to Bogota, who was superseded in office whilst within the United States on leave of absence, and who, on settlement of his account with the Executive Department, asked to be credited the usual infit of three months' COMPENSATION, II. 103 salary: Held that such infit cannot he properly allowed him ■without special authority from Congress. Opinion of Sept. 29, 1845, 4 Op. 443. 60. District attorney s in Louisiana and other States whose legislatures have omitted to pro- vide any rate or scale of fees for legal services in their supreme courts are, nevertheless, en- titled to a reasonahle compensation for their ■ofi&cial services ; and a« it has heen the practice of the Treasury in such cases to allow bills of costs according to the rates certified and taxed by the judges for district attorneys in neigh- boring States as reasonable, when certified by one or more prominent members of the bar, such usage may be continued until Congress shall otherwise determine. OpinionofNov. 10,1845, 4 Op. 44S. 61. A. clerk in the Pension Office ordered to perform the duties of secretary to commission- ers appointed to treat with a delegation of In- dians is not entitled to extra compensation therefor, but must be limited to the compen- sation provided by law for his services as a clerk in the Pension Office. Opinion of Jan. 10, 1846, 4 Op. 464. 62. The compensation of receivers of public moneys for lands, including the provision for > > which a contractor could make in six months, not to exceed six thousand, to be inspected, approved, and delivered, as provided in the agreement), upon the facts submitted the United States are not considered legally bound to accept the arms and pay for them, or to pay damages for not accepting them. Opinion of May 15, 1869, 13 Op. 46. 56. By the terms of a contract with B., for the transportation of military supplies from Fort Leavenworth to Salt Lake City, it was agreed that in case any of the trains of the con- tractor were stopped at any time or place en route over two days, by an yact of the Govern- ment, he should be allowed demurrage at a certain rate; and that all orders from officers of the Government to halt trains should be in writing, &c. : Held that for the stoppage of a train made by order of an oflBcer of the Gov- ernment, issued at the request or solicitation of, or in pursuance of an agreement with, a servant of the contractor in charge of the train, the United States would incur no lia- bility under the contract; but that mere acqui- escence, without protest, on the part of the servant, in an order given by such officer to stop the train, would not prejudice the rights of the contractor. Opinion of June 14, 1869, 13 Op. 92. 57. By an arrangement made between the Secretary of War and the governor-of Massa- chusetts, it was agreed that the expense of transporting certain companies of cavalry, raised and mustered into the United States service in California, from the latter State to Massachusetts, where they were to form part of a Massachusetts regiment and be sent to the field as such, should be paid by Massa- chusetts; subsequently the men were mustered out of service in Virginia: Held that there was no legal obligation on the part of Massachu- chusetts to defray the expense of returning the men to the place of muster. This expense primarily devolved upon the United States, in whose service the troops were employed, and was not assumed by Massachusetts by the agreement referred to. Opinion of June 15, 1869, 13 Op. 101. 58. By the terms of a charter-party, the United States agree to make compensation to the owner of the chartered boat in case of her injury or destruction "by any event not inci- dent to the navigation of the river or rivers on which she may be employed": Held that the loss of the boat by sinking, in consequence of carelessness on the part .pf somebody or olher, is not a loss by an event "incident to the nav- igation of the river," within the meaning of that agreement; that those "words have sub- stantially the same signification as the words "perils of navigation," or "dangers of the seas," or "dangers of navigation." Opinion of July 6, 1869, 13 Op. 120. 59. If the boat was lost through the negli- gence or carelessness of the employ^ or ser- vants of the owner, the United States are not liable; but it would be otherwise if the loss occurred solely through the carelessness or neg- ligence of the officers or agents of the Govern- ment. Ibid. 60. B, the owner of land, leased it to H, with the privilege of purchasing an interest therein at a certain price during the term, and also with the privilege of letting it to the Govern- ment for a reasonable time beyond the term; the lease contained a provision that if the lessee should not elect to purchase during the term, his contract with the Government, in case the land were let thereto, should be transferred to the lessor; the land was let to the Government for such period as it might be required thereby ; and the term of the original lease having sub- sequently expired, and it being a disputed fact whether the lessee had elected to purchase within the term or not: Advised that if a new lease of the premises is desired by the Govern- ment it should be entered into with B, and not with H; but that the rent due under the existing contract between the Government and the latter, which has accrued since the expira- tion of the original lease, cannot, under the circumstances, safely be paid to the former. Ojiinion of July 12, 1869, 13 Op. 124. 61. In August, 1864, the Postmaster-Gen- eral, after previous advertisement for propo- sals, made a contract with one N. for furnish- ing the Government with stamped envelopes and newspaper wrappers, the term of which extended from September 12 to December 31, 1864; the advertisement did not provide for any extension of the contract beyond that term, but the contract contained a provision that it might be extended or modified by mutual 140 agreement; the contract was subsequently modified and extended to April 1, 1866, again to April 1, 1867, again to April 1, 1868, and finally to April 1, 1871: Seld, 1st, that section 17 of the act of August 26, 1842, chap. 202, applied to the contract; 2d, that the provision in the contract for its extension was unauthor- ized by law ; and 3d, that the Postmaster-Gen- eral may terminate the contract, on reasonable notice to the contractor, without reference to any I'ailure on the part of the latter to perform it. Any extension of such a contract, unless for a period fixed as an alternative in the pro- posals, is unwarranted. Opinion of Dec. 4, 1869, 13 Op. 174. 62. The provisions of the acts of March 3, 1851, chap. 20, sec. 3, and August 31, 1852, chap. 113, sec. 88, imposing certain duties on the Postmaster-General ^•elative to furnishing stamped envelopes, do not interfere with the general provision contained in the act of 1842, regulating the manner in which he shall pro- vide such articles, viz, by advertisement for proposals and contract made in pursuance thereof. Ibid. 63. Where a contract is entered into with a land-grant railroad company for the trans- portation of troops or military supplies over its road at certain rates, the Quartermaster- General cannot, without such company's con- sent, make any deduction from those rates as a composition for the relinquishment of any right which the Government may have, under the conditions of the land-grant, to use the road itself for the purpose of transporting the troops and supplies ' ' free from toll or other charge. ' ' Opinion of May 3, 1872, 14 Op. 592. 64. Where an alleged oral agreement be- tween a quartermaster and the Danville, Lan- caster and Nicholasville Turnpike Company, concerning the use of the road of the latter for military transportation during the late rebel- lion, was set up by said company as the basis of a rate of compensation above what had already been allowed by the Government for the use of the road : Held that, under the oper- ation of the 1st section of the act of June 2, 1862, chap. 93, such agreement was not ob- ligatory upon the Government, and could not be admitted as the foundation of a claim upon it. Opinion of Hay 5, 1873, 14 Op. 228. 65. In July, 1872, M. contracted to furnish all the dimension stone required.for the cus- tom-house building at Chicago, 111. , to be de- livered at its site, and to be " of uniform color, free from flaws, stains, or discoloring matter." By a subsequent contract he agreed to cut such stone in such manner and at such place as might be required by the agent of the United States: Held (1) that the two contracts are not merged into one by the fact that M. is con- tractor in each ; (2) that his obligations under the first contract are not affected by his engage- ment under the second, nor are his rights under the latter affected by the fact that he had fur- nished the stone upon which the work was to be done. Opinion of Jan. 17, 1876, 15 Op. 531. 66. The undertaking of M. in the first con- tract that the stone should be free from dis- coloring matter, stains, &c. (it being under- stood that such stone needed to be cut before being used), was in effect an undertaking that when cut the stone should be free from discolor- ing matter, stains, &c. IMd. 67. Under the second contract he fulfills his obligation if he skUlfally cuts the stone fur- nished by the United States, though it has only been provisionally accepted by the latter, and is not responsible for the stock. Ihid. 68. The exception contained in section 3732, Eev. Stat. , in favor of contrajcts or purchases in the War and Navy Departments for cloth- ing, subsistence, tbrage, fuel, &c., withdraws such contracts or purchases from the operation of the prohibition in section 3679, Eev. Stat. Opinion of June 19, 1876, 15 Op. 124. 69. Held, accordingly, that contracts and purchases in those Departments for clothing, subsistence, &c. , may be made, though there is no appropriation adequate to their fulfill- ment, provided such contracts and purchases do not exceed the necessities of the current year. Ihid. 70. By act of March 3, 1871, chap. 113, sec- tion 2, Congress appropriated 5500,000 for the construction, under the direction of the Secre- tary of State, of the south wing of a building designed for the accommodation of the State, War, and Navy Departments. Appropriations were subsequently made for continuing and completing that wing and also for the con- struction of other wings of the same building, the expenditure of the latter of these appropri- ations being placed under the direction of the Secretary of War. On the 16th of November, 1871, a contract, with the approval of the Sec- 141. retary of State, was made with O., by which the latter was to farnish from certain quar- ries and deliver at the site of the building all the granite required for the south wing, and also all the granite which might be re- quired for the entire building or any additional part thereof, when the construction of the same should be authorized. The contractor, O. , was also to furnish all the labor, tools, and mate- rials necessary to cut, dress, and box at the quarries all the granite; in consideration of which he was to be paid the full cost of said labor, tools, and materials, together with the insurance on the granite, increased by 15 per centum of such cost: Held that the contract is not binding upon the United States as to the appropriations made subsequently to the act of March 3, 1871, except so far as it has been adopted iind acted upon by those to whom the expenditure of such appropriations was con- fided, and that the present Secretary of War is not bound to adopt and carry it out as to appropriations intrusted to him. Opinion of April 27, 1877, 15 Op. 236. 71. The aforesaid contract with 0., as re- gards the cutting and dressing of the stone, is not a contract for ' ' personal services, ' ' within section 10 of the act of March 2, 1861, chap. 84. But in view of the action of Congress since its date and other circumstances (though not amounting to a ratification of the con- tract) : Advised that, whatever may have been the irregularity in its inception by reason of insufficient advertisement, the Secretary of War is justified in proceeding with the con- tract as it now exists to the extent of the appropriations in his hands, or as it may be modified, should he deem it proper to do so. Ibid. 72. The contract- made with C. P. Dixon, October 10, 1873, for granite, and for cutting and dressing the same, for the Philadelphia post-office building, is not obligatory upon the United States so far as it now remains execu- tory and unperformed, and the Secretary of the Treasury need not proceed with it under the appropriations in his hands, unless he deems it for the interests of the Government to do so. Opinion of 3Imj 3, 1877, 15 Op. 254. 73. Advertisement for proposals having been made for the rough stone from the quarry, but not for the cutting and dressing of it, before letting the said contract: Held that the cutting and dressing were not within the exception of ' ' personal services ' ' in section 3709, Rev . Stat. , and that such advertisement did not meet the requirements of said section as regards the con- tract actually entered into. Ihid. 74. The proposed modification of one of the contracts for furnishing and dressing stone, known as the "15 per cent, contracts," may be made, and the performance of the contract as modified proceeded with, without further advertisement, if the modification would ren- der the contract less onerous upon the United States than it is in the form in which it was originally made. Opinion of May 17, 1877, 15 Op. 270. 75. In September, 1876, L. contracted to de- liver beef cattle at the Pawnee and several other Indian agencies, and by article 5 of the contract "not over one-lburth at each delivery were to be cows." On February 5, 1877, said article was modified as fol lows : " In the requirements of three-fourths of each delivery to be steers and one-fourth cows, so that the restriction as to the proportion of steers and cows is removed, but for all cows delivered in excess of the one- fourth provided for in the contract a deduction of 6 per cent, shall be made from the net price of $3.56 per one hundred pounds at the Paw- nee, and $3.73} at the other agencies : " Held that under the modification the contractor is permitted to deliver cows in excess of one-fourth of the number of steers delivered, and that upon the cows delivered in excess of the one- fourth he is subjected to a deduction of 6 per cent., but that he is not entitled to full pay- ment for one-fourth of all the cattle delivered where all the cattle delivered are cows. Thus, if he delivered one hundred cattle, of which three were steers and the rest cows, he would be entitled to receive on the three steers and one cow full payment, and on the remaining ninety-six cows he would be subjected to the 6 per cent, deduction. If the one hundred cat- tle delivered had been all cows, he would be subjected to the 6 per cent, deduction on the whole delivery. Opinion of July 15, 1878, 16 Op. 76. 76. A contract was made by the Subsistence Department with H. & B., by the terms of which the latter were to furnish 1 00, 000 pounds of tobacco of a certain quality between August 20 and November 30, 1878, in such quantities as might be required ; they further agreeing 142 CONTRACT, II. "that if the Subsistence Depaxtment shall re- quire more tobacco during the continuance of this contract and prior to the 30th of November, 1878, than the 100,000 pounds above stated, they will furnish, subject to the same condi- tions and at the same price, an additional 100,000 pounds, or any less amount, provided that due notice is given them prior to the 30th of November, 1878, aforesaid : ' ' Held that, as to the additional quantity of 150,000 pounds, an option exists in favor of the Subsistence Department to receive such additional quan- tity or not ; and that the Department is not, by the provisions in the contract above quoted, precluded from advertising for new proposals, and awarding a new contract for tobacco of a quality superior to that furnished by H. & B. under their contract. Opinion of Oct. 18, 1878, 16 Op. 184. 77. Under the provisions of the contract of Messrs. Coyle & Co. with the Commissioners of the District of Columbia to construct a sewer running from the Potomac River across the White Lot and then along the line of certain streets, &c., in Washington, D. C, the con- tractors are entitled to the surplus earth (ex- cavated along the line of the sewer) which re- mains after the sewer is laid and the trench has been filled so as to restore the original level. Opinion of Aug. 1, 1879, 16 Op. 372. II. Authority to make. — Parties. 78. A contract made by the proper officers of the Government with a person who, during the existence of the same, is elected a member of Congress, is not, under the act of April 21, 1808, chap. 48, atfected by such election. Opinion of Aug. 9, 1809, 5 Op. 697. 79. It is competent for the Government to assent to the substitution of new parties to contract with the United States in order that the original stipulations may be carried out. Opinion of Sept. 20, 1821, 5 Op. 738. 80. But it is not competent for contractors to make transfers without the consent of the Government. Ihid. 81 . Although the employment of members of Congress as assistant counsel to the district attorneys of the United States was not within the view of Congress at the passage of the act of 21st April, 1808, chap. 48, yet the language of the act is so broad as to include and forbid a contract for professional services in such a case. The policy of the law is to prevent the exercise of Executive influence over members of Congress by means of contracts ; and whether the contract be for the services of a lawyer, a physician, a mail- carrier, or a purveyor, it is equally within the mischief to be prevented. Opinion of July 18, 1826, 2 Op. 39. 8*. All contracts and purchases entered into and made by the Navy Department must be entered into and made by or under the direc- tion of the Secretary. Opinion of Aug. 29, 1829; 2 Op. 257. 83. The Secretary of the Navy, under the act of May 1, 1820, chap. 52, may contract for clothing and subsistence of the Navy; and when these supplies are to be furnished in places where there is no permanent agent, he must, of necessity, have the power to appoint a special agent to perform the duty. Opinion of March 10, 1830, 2 Op. 320. 84. The Norfolk Draw-Bridge Company have not the power to execute a contract or convey- ance to the United States, except with the con- sent of the legislature of Virginia, expressed in a law, conferring the right to remove the bridge over the southern branch of Elizabeth River and to inclose the road leading thereto; nor can said company otherwise extinguish the rights of the public thereto. Opinion of May 16, 1832, 2 Op. 512. 85. By the act of February 8, 1815, chap. 38, which repeals all other acts coming within its purview, the colonel or senior officer of the Ordnance Department, under direction of the Secretary of War, may make contracts for the supply of ordnance without previously advertising for proposals. Opinion of Nov. 22, 1837, 3 Op. 293. 86. A partnership of which a member of Congress is a member cannot, under the act of April 21, 1808, chap. 48, enter into a con- tract with the Government; but, if he withdraw from it, the contract may be concluded with the other partners. Opinion of June 1, 1842, 4 Op. 47. 87. Contracts entered into by infants with the officers of the Government are voidable only at the instance of the infant himself, and not absolutely void. Opinion of Sept. 4, 1844, 4 Op. 334. 88. The contract of the Navy agent at New York with B. for piles for the dry-dock at Brooklyn, to be delivered after Congress should 343 make further appropriations, being in advance of any appropriation for sucli object, is con- trary to section 6 of the act of 1st of May, 1820, chap. 52, and not binding on the Depart- ment. Opinion of April 25, 1846, 4 Op. 490. 89. Neither the Secretary of the Navy nor the head ot any other Executive Department can lawfully contract for the United States, except under a law authorizing it or making an appropriation adequate to fulfill the engage- ment (section 6 of act of May 1, 1820, chap. 52). Opinion of July 12, 1847, 4 Op. 600. 90. Wherefore the Secretary of the Navy cannot lawfully contract for the construction of dry-docks at Kittery, Philadelphia, and Pensacola, and bind the Government to pay therefor an amount exceeding the appropria- tions already made for that object, as the same has not been specially authorized. JKd. 91. But as the works for which the appro- priations are made are important, and as it is expedient that the construction thereof should progress as far forth as may be practicable, the Secretary of the Navy may expend so much of the appropriation as may be necessary in purchasing sites and materials, with a view to their completion under the future direction of Congress. Ibid. 92. In general, where the Constitution or an act of Congress requires the President to do a thing which requires the expenditure of money, he may lawfully do it, or contract to have it done, in the absence of any adequate appro- priation for the object ; and the cost of the thing becomes a lawful charge on the Government. Opinion of May 6, 1853, 6 Op. 27. 93. "Where, by the special provision for a particular work commenced and in progress, it was provided that nothing in the act should be so construed as to authorize any officer of the Government to bind the United States by con- tract beyond the amount of existing appropri- ation : Held, that if the public interest required the President to make a contract for the work exceeding such amount, he might lawfully do so, subject to the chance of future appropri- ations for the object, without which the con- tract would not bind the United States. Ihid. 94. A provision of statute empowered the Secretary of the Navy to make a contract on time for the supply of American water-rotted hemp, but the power was not executed. A sub- sequent provision contained appropriation for the object, but required purchase in open mar- ket : Held, that the latter provision so far re- pealed the former that a contract on time for this object, afterwards made by the Secretary of the Navy, was void for want of power. Opinion of June 3, 1853, 6 Op. 40; also Opinion of Sept. 5, 1853, ibid., 99. 95. The Topographical Bureau, in charge of the pier and breakwater constructed by the United States for the improvement of the harbor of Cleveland, may lawfully enter into contract for the use of the same by railway companies. Opinion of Oct. 26, 1853, 6 Op. 199. 96. When n commissioned oflficer or other agent of the United States makes a contract with any person for their use and benefit, and with due authority of law, such officer or other public agent is not responsible to the parly, whose only remedy is against the Government. Opinion of April 10, 1855, 7 Op. 88. 97. But in making contracts with any one claiming to act for the Government it is the duty of the party contracting to inquire as to the authority of such agent or officer ; without which it is doubtful whether the contract af- fects the Government. Ibid. 98. If a public officer, however, make a Government contract without authority and which therefore does not bind the Government, such officer is himself personally responsible to the contracting party. Ibid. 99. But a public officer or other agent, though contracting for the Government, may, if he see fit, make himself the responsible party, either exclusively or in addition to the Government. Ibid. 100. By the act of May 1, 1820, chap. 52, the power of the Executive Departments is so limited that they can bind the Government by contract only in two cases : where the contract is expressly authorized by law, and where there is an appropriation already made large enough to fulfill it. Opinion of April 16, 1857, 9 Op. 18. 101. In the first place, there is an express power to contract for the work ; in the second, there is an implied power to contract for so much work as the appropriation will pay for. Ibid. 102. If, therefore, Congress appropriates a certain sum to be expended by the Secretary of War for the improvement of a river, the Sec- retary exceeds his power when he makes a con- 144 CONTEACT, II. tract for more work than the appropriation will pay. Ibid. 103. In such case, after the appropriation is exhausted, the contract is at an end. Ibid. 104. If another appropriation is made, there must be a new contract for its expenditure. Ibid. 105. The act of May 1, 1820, chap. 52, sec- tion 6, absolutely prohibits the making of a contract by the Secretary of the Treasury, un- less a law or an appropriation authorizes it. Opinion of May 13, 1861, 10 Op. 41. lOG. The acceptances by Mr. Floyd, Secretary of War, of the drafts drawn upon him by Rus- sell, Majors & Waddell, and held by Pierce & Bacon, are not legal contracts of the Govern- ment, and the United States are not legally bound to pay any money on account thereof. Opinion of June 20, 1862, 10 Op. 288. 107. The question whether the United States are equitably bound to pay those drafts is not for the consideration of the Attorney-General, but for the determination of the judiciary and of Congress. Ibid. 108. The Secretary of War is advised not to enter into a proposed agreement with the Mo- line Water-Power Company, at Rock Island, without authority of Congress. Opinion of March 1, 1867, 12 Cp. 120. 109. Under the joint resolution of June 21, 1870, the Secretary of the Treasury has power to enter into contracts for the recovery of real estate alleged to have been conveyed to the so- called Confederate States, but which is now in the occupancy of private individuals. Opinion of April II, 1870, 13 Op. 569. 110. In such contracts the Secretary may stipulate to allow as compensation for the serv- ice a portion of the proceeds realized from the property recovered. Ibid. 111. No person can make a valid contract in behalf of the United States unless expressly or impliedly authorized by statute so to do; but, if so authorized, the right to make such con- tract is not necessarily limited to contracts with persons who are not enemies of the United States. Opinion of Sept. 2, 1870, 13 Op. 315. 112. Whether the right to make the con- tract is a right to make it with an enemy de- pends upon the true construction of the stat- utes authorizing the making of the contract, and not upon any general principles of public law. Ibid. 113. An express contract made in behalf of the United States, during the rebellion, with a citizen and resident of an insurrectionary State, forquartermaster'ssupplies, if the officer making it acted under competent authority, is valid. The settlement of a claim arising under such a contract is not barred by the actsof July 4, 1864, chap. 240, and February 21, 1867, chap. 57. Ibid. 114. Review of the statutes relative to the making of contracts in behalf of the United States for quartermaster's stores down to and including the act of July 4, 1864, chap. 253 ; Irom which it appears that, under the law as it stood after the passage of that act. Congress has not authorized purchases or contracts lor such stores to be made except in the following manner: 1. By or under the direction of the chief ofiicer of the Department of War (act of July 16, 1798, chap. 85). 2. By the oflcers of the Quartermaster's Department, under the di- rection of the Secretary of War (acts of March 28, 1812, chap. 46, and August 23, 1842, chap. 186 j, or under the direction of th« Quarter- master-General, or, in cases of. emergency, by the chief quartermaster of an army or detach- ment under the order of the commanding offi- cer (act of July 4, 1864, chap. 253). 3. All contracts to be made after previous advertise- ment for proposals respecting the same, except in casesof emergency (act of July 4, 1864, chap. 253). Ibid. 115. The 170th section of the act of June8, 1872, chap. 335, authorizing the Postmaster- General to furnish and issue to the public postal cards, does not empower him to enter into any contract for the future payment of money to persons supplying them, in the ab- sence of any appropriation by Congress which is applicable to the subject. Opinion of Aug. 23, 1872, 14 Op. 107. 116. A collector of customs is under no dis- ability, by reason of his office, to contract with the Government for carrying the mail in steam- boats between two or more ports within the United States. Opinion of April 22, 1874, 14 Op. 389. 117. Sections 1781 and 1782 of the Revised Statutes make it illegal for an officer of the United States to have that sort of connection with a Government contract which an agent, attorney, or solicitor assumes when he pro- cures, or aids in procuring, such contract for 14C another, or when he prosecutes for another any claim against the Government founded there on. Opinion of Oct. 29, 1874, 14 Op. 483. 118. But there is in the statutes no general provision whereby officers of the executive hranch of the Governuient are forbidden to contract directly with the Government as prin- cipals, in matters separate from their offices and in no way connected with the performance of their official duties; nor are those officers forbidden to be connected with such contracts, after they are procured, by acquiring an in- terest therein. Ihid. 119. There is no prohibition against i>ension agents contracting directly with the Govern- ment, or becoming connected with Government contracts, in the manner just adverted to. Ibid. 120. To be "authorized by law," within the meaning of section 10 of the act of March 2, 1861, chap. 84 (section 3732 Rev. Stat.), a contract must appear to have been made either in pursuance of express authority given by statute, or of authority necessarily inferable from some duty imposed upon, or from some power given to, the person assuming to con- tract on behalf of the Government. Opinion of April 27, 1877, 15 Op. 236. 121. Authority to contract for the comple- tion of an entire structure, the plan of which has been determined on, cannot be inferred from the mere fact that an appropriation of a certain sum to be expended on the structure has been made. Hence a contract, though it might be good to the extent of such appropri. ation, could not he made to affix itself to fu- ture appropriations and control their expendi- ture. A contract of this character would be in violation of the spirit of section 3, act of July 25, 1868, chap. 233 (section 3733 Rev. Stat.), if not of its express terms. Ibid. III. Advertisement. — Proposals. — Bid- ders, &c. 122. In purchases or contracts made by the Navy Department, where the' public exigen- cies do iiot require the immediate delivery of the articles, or performance of the service, it is necessary to advertise previously for proposals respecting the same. Opinion of Aug. 29, 1829, 2 Op. 257. 123. Where immediate delivery is necessary to the wants of the public service, the article required must be obtained by open purchase, i. e., at places where articles of the description wanted are usually bought and sold, and in the mode in which purchases are ordinarily made between individuals. Ibid. 124. In contracts with the Navy Department, where the public exigencies do not require the immediate delivery of the article purchased, or the performance of the service contracted for, it is necessary to previously advertise for pro- posals respecting the same ; unless the article be a steamboat or some similar stnicture. Opinion of March 25, 1839, 3 Op. 437. 125. Where immediate delivery is necessary to the wants of the public service, the article required must be obtained by open purchase. Ibid. 126. Since the act of March 3, 1843, chap. 83, the Secretary of the Navy is not authorized to renew a contract which has expired, with- out advertising, as is required by the first sec- tion of that act ; nor is it competent for the Department to pay to the contractors, upon forfeited contracts, the 10 per cent, reserved as collateral security, whether the same has been reserved on original or renewed contracts. Opinion of Nov. 11, 1843, 4 Op. 283. 127. The Navy Department has not the right, under the act of March 3, 1843, chap. 83, in awarding the contract to the lowest bidder, to modify its terms in regard to the time of de- livery, or any other of its material elements. Opinion of Sept. 24, 1844, 4 Op. 334. 128. The Secretary of the Navy, in contract ing for water-rotted hemp for the u,se of the Navy, is restricted, in the manner of purchase, by the act of March 3, 1843, chap. 83, which requires him to advertise for the articles, to re- ceive bids, and to award the contract for it to the lowest bidder. Opinion of April 1, 1846, 4 Op. 475. 129. Purchases in open market cannot be resorted to, except in cases of, and in refer- ence to, such articles as are wanted for use so immediate as not to permit of contracts by advertisement. Ibid. 130. The j oint resolution of Congress of May 9, 1848, providing the manner of obtaining American water-rotted hemp for the use of the Navy, and the advertisement of the Secretary of the Navy pursuant thereto, alike require pro- posals to be submitted, which shall state t.he DIG- -10 146 CONTRACT, III. price at which the bidder will furnish the stipu- lated quantity per year for the entire five years. Opinion of Sept. 25, 1849, 5 Op. 158. 131. Bidders who propose different prices for different years, and reducing the price for the last year to occasion a lower average than the bids of competitors, might, if their contracts were accepted, have opportunities for the exer- cise of bad faith with the Government, which a different method of contracting might pre- vent. Ibid. 132. If, however, such bids shall be accepted , the lowest bids should be charged with the in- terest of the excess of bids over other competi- tors for the years where there may be an ex- cess, and the average be struck from the aggre- gate found. Ibid. 133. The import and intent of the act of March 3, 1851, chap. 34, in relation to the floating dry-dock in California, is, that if the individuals who were parties to the original contract are willing to enter into a contract modified as required by the act, and will agree to do the work at the estimates made by the Navy Department, and if the Secretary con- siders those estimates to be fair and reason- able, then the Secretary is required to close the contract upon the terms specified ; and, in that case, it will not be necessary to advertise. Opinion of llarch 24, 1851, 5 Op. 311. 134. But if either the designated contractors shall refuse to agree to do the work at the esti- mates referred to, or if the Secretary shall con- sider those estimates as unfair or unreasonable, the subject is to be thrown open to the com- petition of bidders by an advertised notice of sixty days. Ibid. 135. The law requires that executory con- tracts for supplies and materials for the De- partments shall be duly advertised. Opinion of Sept. 5, 1853, 6 Op. 99. 136. A head of Department, advertising ac- cording to law for proposals for stationery, is the competent and only judge of the matters of fact involved in the acceptance or rejection of any of the proposals. Opinion of Nov. 23, 1853, G Op. 226. 137. In a matter which the law confides to the pure discretion of the Executive, the de- cision by the President, or proper head of De- partment, of any question of fact involved, is conclusive, and is not subject to revision by any other authority in the United States. Ibid. 138. Semble, if the provisions of law which re- quire certain contracts to be advertised are dis- regarded, that the contracts, while they remain executory, and without commencement of per- formance, are subject to be rescinded. Opin- ion of March 24, 1854, 6 Op. 406. 139. Where an advertisement for proposals to furnish coal for the use of the Navy Depart- ment announced that ' ' the price stated must be for the coal delivered on board vessels in the port of Philadelphia," a party whose pro- posal was accepted is not bound to sign a con- tract binding him to deliver the coal "on board of such vessels, or in stick places, in the port of Philadelphia, as the Department may name or indicate, ' ' although the advertisement further declared that ' ' it will be stipulated in the contractthat if default be made in deliver- ing the coal at the place and time directed by the Department, then and in that case the con- tractor," etc., "will forfeit and pay," etc. Opinion of July 16, 1859, 9 Op. 371. 140. In the execution of a statute author- izing the President to erect a court-house in the city of Baltimore, it was held to be the duty of the President to invite general com- petition for the contract by an advertisement to be published for at least sixty days, under the provision in the act of August 31, 18.52, chap. 108, requiring all contracts to be adver- tised for that length of time before letting. Opinion of Jan. 17, 1860, 9 Op. 407. 141. The Secretary of War authorized a contract with an individual to be executed for- rifling one-half of the guns or cannon at the forts and arsenals of the United States, and the contract was made without any advertise- ments for proposals respecting the service. It appeared that the execution of the contract would involve an expenditure of nearly $200,- 000, and would require several years for its fulfillment. The contract was made before the passage of the act of March 2, 1861, chap. 84: HeJd that the contract was made in violation of the provision of section 3 of the act of June 23, 1860, chap. 205, requiring all contracts for supplies or services in any of the Departments, when the public exigencies do not require the immediate delivery of the articles or perform- ance of the service, to be made by advertising for proposals respecting the same. Opinion of April 29, 1861, 10 Op. 28. 142. The only part of section 3 of said act of CONTKACT, III. 147 Juii« 23, 1860, which has ceased to be law since the passage of the act of February 21, 1861, chap. 49 (section 5), and said act of March 2, 1861 (section 10), is that part which refers to the purchase of patented inventions. Ibid. 143. Where the Secretary of the Navy has advertised for proposals to furnish naval sup- plies, under the provisions of the acts of Mai-ch 3, 1843, chap. 83, and August 10, 1846, chap. 176, he may consider the proposal of the lowest bidder, where the bid is in substantial compli- ance with the law, although it names a time for the completion of the contract five days be- yond that fixed in the advertisement. Opinion of Oct. 7, 1861, 10 Op. 140. 144. A contract for surveying the reserva- tions, under the treaty with the Pottawatomie Indians, of April 15, 1862, is a contract for "personal services,'' and therefore may be made without previous advertisement for pro- posals under the tenth section of the act of March 2, 1861, chap. 84. Opinion of May 23, 1862, 10 Op. 261. 145. It is a sufficient objection to a naked unexecuted contract, made by an officer of the Government, that he has neglected to comply with an act of Congress requiring that pro- posals shall precede the letting of the contract. Opinion of Dec. 24, 1862, 10 Op. 416. 146. But after a party has entered into a contract wi th the Government in good faith, and has so far performed his part of the same that to rescind it, or declare it illegal, and so inca- pable of execution, would subject him to loss and injury, whils't the Government would yet enjoy the benefits of his labor or expenditures, the contract cannot be avoided, or changed to the injury of the other party, by the Govern- ment, on the ground that it was made without advertising for proposals. Jbid. 147. Where the engineer in charge, being re- quired by law to invite proposals by circulars and advertisement for furnishing pipes for a water-main from the Washington Aqueduct in the District of Columbia, and to give the con- tract to the lowest responsible bidder, issued instructions stating that " no bid will be con- sidered which does not comply with" certain directions, and the lowest bid afterward re- ceived failed to comply with those directions in material points : Seld, that the bid cannot be considered. Opinion of Aug. 23, 1871, 13 Op. 510. 148. When the law under which the engi- neer acts authorizes him to solicit bids by circu- lar, &c. , and then requires the contract to be' given to the lowest responsible bidder, it must- be construed to mean that the lowest responsi-- blebidder who conforms to the terms prescribed in the circular shall have the contract. Ilid, 149. Where proposals were received by the Chief Signal Officer from different parties to supply certain manifold forms, at rates greatly varying in amount, and that officer, before awarding the contract, was notified by the party making the highest bid that the manufacture of the manifold forms is covered by a patent owned by himself, and that no other bidder could supply them without infringing his pat- ent — some of the other bidders, however, deny- ing the validity of the patent, and claiming that they are not thereby precluded from sup- plying the article : Advised that, under the cir- cumstances presented, the contract should not be given to the lowest or any other bidder, if the article to be supplied is covered by the terms of a patent, unless the Chief Signal Offi- cer is satisfied that the bidder has authority from the patentee to manufacture and sell it. Opinion of July 23, 1875, 15 Op. 26. 150. In July, 1872, the Commissioner of Patents, without previous advertisement, con- tracted with P. to furnish certain photolitho- graphic copies of patent drawings of date an- terior to July 1, 1870, and of such other dates as the Commissioner might designate, the con- tract (which was subsequently modified) to run until July 1, 1875. Appropriations were made for continuing the work in 1873, 1874, and 1875. On the 27th of March, 1875, the Com- missioner (without advertising) and P. ex- tended the contract so as to cover so much of the appropriation of $100,000 made by the act of March 3, 1875, chap. 129, for producing copies of drawings of current and back issues, as should be used for producing such copies by photolithographing. P. thereupon made, in good faith, large expenditures to enable him to execute the contract thus extended. The Joint Congressional Committee on Printing were consulted with reference to the original contract and also the extension, and approved both : fibidthat the contract of March 27, 1875 148 CONTEACT, IT. (extension of original contract), having been made without due advertisement, is not valid and binding upon the Government ; and that the fact that the contractor made, in good faith, expenditures to enable him to perform the same does not give it validity. Opinion of March 20, 1876, 15 Op. 539. 151. An officer who, in giving out a contract, has. failed to comply with the statutory pro- vision requiring advertisement previous to letting the contract, cannot, by permitting performance thereunder to proceed to any ex- tent, make such contract obligatory upon the Government. Ihid. 152. Opinion of Attorney-General Bates (10 Op. 416) that, although a statute containing that requirement has been disregarded, yet if the contract has been partially peribrmed it cannot be deemed void, but must be executed according to its terms, disapproved. The pres- ent case, however, distinguished from the one there considered. IMd. 153. Sections 490, 491, and 492 Rev. Stat. do not apply to and regulate the production of back issues described in the contract of July, 1872, as of date anterior to July 1, 1870. The authority to make contracts for the work pro- vided for by the appropriation of March 3, 1875, is vested in the Commissioner of Pat- ents. Ibid. 154. The Committee on Printing have, by section 492 Eev. Stat. , no povrer to waive an advertisement, except in case of an exigency of the public service. Such power is not im- plied in their power to prescribe rules for the action of the Commissioner of Patents. Ihid. 155. An advertisement for proposals (under section 3709 Eev. Stat.) for furnishing the Post-Office Department with postage stamps may, in the discretion of the Postmaster- General, be limited to " steel-plate engravers and plate printers ; " the purpose of the limi- tation being to confine the submission of pro- posals to such persons only as can satisfactorily furnish the articles needed. Opinion of April 17, 1877, 15 Op. 226. 156. Where the advertisement requires the proposals to be made on blank forms furnished by the Department, the omission or erasure of immaterial words in the proposal of a bidder does not affect the validity of his bid. Ihid. 157. An award of contract, by the issuance of an order of the Postmaster-General in the usual way and its transmittal to the bidder, thus indicating the acceptance of his proposal, is sufficient, and, when received by the latter, the award thus made is beyond recall, and the agreement is complete and binding upon the Government. It makes no difference in such case that a more formal contract was contem- plated to be entered into, but has not been executed by the bidder, if the failure be not attributable to his default. Ihid. 158. Quiere, whether the provision in section 10 of the act of March 2, 1861, chap. 84, for the advertisement of purchases and contracts is directory merely, or whether the failure to make such advertisement avoids the contract. Opinion of April 27, 1877, 15 Op. 236. 159. Under the actof August 14, 1876, chap. 267, advertisement was made for proposals to build certain locks on the Muscle Shoals Canal. Proposals having been received from several bidders in response thereto, these were opened May 15, 1877, when it appeared that S. was the lowest bidder. Afterwards, on the same day, a telegram was received from him with- drawing his bid; and again, on the 18th of June, his bid was withdrawn by letter. On the 27th of July, S. was formally notified that the contract for building the locks had been awarded to him , but he, by letter dated July 30, declined to enter into it : Held that S. had a locus pceniientix until acceptance of his bid, during which period he was at liberty to withdraw it; and that, the withdrawal of his bid having taken place prior to its acceptance, neither he nor his sureties are liable upon the guaranty which accompanied the bid. Section 3944 Eev. Stat, has no application to this case. Held, further, that the other bidders are not released, and that the contract may be awarded to the one whose bid is lowest. Opinion of Aug. 28, 1877, 15 Op. 649. IV. Condition. 160. The Secretary of the Treasury pur- chased the site of a custom-house at Ogdens- burg; but, under the erroneous impression that the duties were less than the expenses, inserted in the contract a condition that the contract should be void unless Congress should after- wards legalize it: Held that, inasmuch as no act of Congress was necessary to legalize it, the contract was binding as it stood and the CONTRACT, V. 149 condition nugatory. Opinion of Aug. 27, 1857, 9 Op. 77. 161. A letter from the Secretary of the Treasury, notifying him of the intention of the Government to accept the property and consummate the contract when the legal diffi- culty erroneously supposed to exist should be removed, is to be construed as an unconditioual acceptance. Ibid. V. Assignment of. — Annulment. 162. Contractors with the Government may transfer with the assent of Government, and when such transfers are made and assented to the assignees take the place of the original party. Opinion of Jan. 24, 1823, 5 Op. 747. 163. A contract with the Government is not assignable. A fortiori an assignee, under an invalid contract, has no claim upon the United States. Opinion of Dec. 27, 1851, 5 Op. 502. 164. On a contract between the United States and A. G. Sloo, which contract is now performed by the co-assignees of said Sloo: Held that the United States may pay for the mail service under said contract and assign- ment to any two of the co-assignees. Opinion of April 8, 1856, 7 Op. 676. 165. The contracts of Eussell, Maj.ors & Waddell, for transportation of Army supplies, are not assignable without the approval of the Secretary of War. Opinion of Feb. 21, 3861, 10 Op. 4. 166. A contract transferred by the parties in violation of the fourteenth section of the act of July 17, 1862, chap. 200, is absolutely an- nulled so far as the United States are concerned. Opinion of Sept. 23, 1863, 10 Op. 523. 167. Where a person contracted with the United States to remove certain rock from the harbor of San Francisco, and whilst engaged in the work was enjoined by a court of the State from receiving an installment of pay due thereupon, whereby he was hindered from go- ing on with the contract: Held that process issued under the authority of a State cannot legally obstruct, directly or indirectly, the operations of the United States Government; yet advised, under the circumstances here pre- sented, that the contract be declared forfeited. Opinion of Jan. 3, 1876, 15 Opin. 524. 168. O. having given a power of attorney to S., coupled with an interest in the performance of the contract, by which power S. was to ^ign and receipt for all moneys due under the con- tract: Held that this was a transfer of the con- tract within section 14 of the act of July 17, 1862, chap. 200; yet that, although the Gov- ernment may avail itself of such transfer to annul the contract under the provisions of that section, it is not compelled to do so. Opinion of April 27, 1877, 15 Op. 236. 169. S., having a contract with the Engineer Department for dredging in the Occoquan Eiver, by the terms of which the compensation named therein was to be paid to him from time to time, gave to I. a power of attorney (de- clared in the instrument to be irrevocable) ' ' to demand, receive, and receipt for, to the proper disbursing officer of the United States, all moneys, warrants, drafts, vouchers, and checks that may become due and payable to me (S. ) from the United States for work," &c. : Held that the instrument does not amount to a trans- fer of an interest in the contract so as to author- ize the annulment thereof under section 3737 Rev. Stat. Opinion of Feb. 7, 1879, 16 Op, 261. 170. S. , having a contract with the Engineer Department to perform certain dredging, en- tered into an agreement with G. , by which it was stipulated that S. should furnish two- thirds and G. one-third of the money, mate- rial, or labor necessary forthe execution of the contract; that in case of loss by reason of such execution the loss should be borne in the pro- portion of two-thirds thereof by S. and one- third by G., and that the net proceeds should be divided between them in the same propor- tion: Held that such agreement is an assign- ment of an interest in the contract, and falls within the provision of section 3737 Rev. Stat. , declaring that ' ' no contract or order, or any in- terest therein, shall be transferred by the party to whom such contract or order is given to any other party," &c. Opinion of ilarcTi 7, 1879, 16 Op. 278. 171. Thatprovision is intended only for the protection of the United States. The Govern- ment may avail itself of the assignment or transfer to annul the contract, but is not com- pelled so to do. (Reaffirming opinion on this subject, of April 27, 1877— see 15 Op. 236.) Ibid. 150 CONTRACT. TI. VI. Error. — Rescission. — Forfeiture. — Damages. 172. The Secretary of War may rlcclare the contract with Hawkins, for the completion of the public works at Mobile, forfeited, and prosecute for a breach of it. Opinion of Oct. 27, 1821, 5 Op. 742. 173. Where a contractor with the Govern- ment to deliver a certain quantity of timber by a time specified failed in respect to time, and suffered a forfeiture of ten per cent, there- by, which the Fourth Auditor and Second Comptroller retained from his account, it can- not be refunded to him except by authority of Congress. Opinion of Dec. 14, 1831, 2 Op. 481. 174. When such contracts have been made the rights of the parties under thera become at once vested, and it is not in the power of the agents to modify or release them. Ibid. 175. In settling the accounts and ascertain- ing the balance, the accounting officers must be guided by the instrument itself. Neither the Auditor nor the Comptroller can absolve contractors from any of the stipulations con- tained in their contracts, however severely they may be supposed to bear upon them. md. 176. Neglect of the officers and agents of Government to give a contractor for rations, to be furnished the Creek Indians, due notice of an unexpected large number of them to be removed, and supplied with rations at an un- seasonable period of the year, is sufficient to excuse the non-performance of the contract, and to protect the contractor from damages. Payment for rations furnished before the con- tract was abandoned by the contractor ought not to be withheld by the Government on ac- count of such non-performance. Opinion of June 8, 1841, 3 Op. 633. ' 177. An admitted clerical error in a contract- or's bond should not operate to his prejudice. Opinion of May 11, 1852, 5 Op. 547. 178. A special provision of law (in act of Aug. 31, 1852, chap. 108) enacted that "all contracts now existing ' ' in relation to a given object, "not made according to law, are here- by canceled": Held that under this law the I'resident is to judge whether such contracts were made " not according to law" ; that the law does not determine this point; and, quxre, whether it could be determined by act of Con- gress. Opinion of May 6, 1853, 6 Op. 27. 179. In case a contract for services be re- scinded by the United States, without mal- feasance by the other party, and alter the services have been partly performed by him, if he claim unliquidated damages as for breach of contract, the case is beyond the powers of the accounting officers of the Treasury; but if he waive all other claims, and elect to take payment as for part performance in discharge of the contract, it is a mere question of account to be passed by the proper Auditor and Comp- troller. Opinion of June 1, 1854, 6 Op. 496. 180. In the case of a contract with the Gov- ernment rescinded for lawful cause, but with- out fault on the part of the contractor, the lat- ter has no right to vindictive damages, or to any collateral or consequential damages; nor is he entitled to damages in the rate of the con- tract as if completely performed by him; but the true measure of damages, whether in equity or law, is the actual value of the contract jjer se, and the actual loss of its non-performance. Opinion of June 7, 1854, 6 Op. 516. 181 . Damages on the rescission of a mail con- tract by the Postmaster-General cannot be allowed beyond the actual loss to the party. Opinion of June 19, 1855, 7 Op. 286. 182. In the case of a post-office contract, u- celed by the Postmaster-General, it is in the option of the other party to take the one month's extra allowance prdvided by the con- tract, or to claim damages at large; but if he elect to accept the former, that is a legal waiver of the latter. Opinion of Sept. 8, 1855, 7 Op. 487. 183. Where a mail steamship company was bound by law, out of sums of money coming due to it from the Government for mail serv- ice, to refund, with interest, certain advances made to the company, and by reason of the failure of Congress to make appropriations for the service, the Government was in default to the company: Held that the latter was not bound to pay interest during the period of such default. Opinion of Sept. 27, 1855, 7 Op. 535. 184. The acceptance by a mail contractor, on the rescission of his contract by the Post- master-General, of the month's extra compen- sation stipulated for such case in the contract, CONTEAOT, VT. 151 is a waiver of all claim for other damages. Opinion of 3Iarch 3, 1856, 7 Op. 644. 185. Where the claim of a mail contractor is referred by an act of Congress to the Comp- troller of the Treasury for an adj ustment of the damages which he alleges have been occasioned by the abrogation of the contract, the Post- master-General has a right to be heard before the Comf)troller in vindication of the acts of his Department. Opinion of April 7, 1857, 9 Op. 11. 186. Having such right to be heard the Postmaster-General may take the advice of the Attorney-General upon any question of law in- volved in the case. Ibid. 187. Where an act of Congress requires the Comptroller to adjust the damages due on ac- count of the abrogation of a contract, those ■words do not require him to regard the contract as having been abrogated or violated, when in point of fact it was faithfully kept, and all its conditions performed by the Post-Ofiice De- partment. Ibid. 188. Such a law authorizes the Comptroller to award damages exclusively for the abroga- tion of the contract, and if it never was abro- gated no damages at all can be allowed. Ibid. 189. Where the Secretary of the Treasury has made a contract for the site of a court- house, and afterwards refused to take the prop- erty for a supposed defect of title, the contract is at an end. Opinion of Sept. 26, 1857, 9 Op. 100. 190. A succeeding Secretary cannot recon- sider the subject, unless upon the discovery of new evidence not produced to his predecessor, nor known to the party at the time of the first decision. Ibid. 191. The fact thatthe former Secretary made his decision immediately previous to his retir- ing from office will not take the case out of the general rule, or make his determination less binding. Ibid. 192. Where, by a contract to deliver iron pipes to the Government, it was stipulated that the delivery should be completed on March 1, 1858 ; that 10 per cent, of the price should be retained until the completion of the contract, and that the Government might at any time, for delay or non-compliance with the agree- ment, declare it forfeited, it was held that the failure >.f the contractors to deliver all the pipes by the time indicated did not work a for- feiture of the money reserved, when the Gov- ernment continued to receive the pipes after the time limited for the completion of the de- livery. Opinion of Oct. 25, 1858, 9 Op. 210. 193. Damages for the violation of a contract ought to be such as put the injured party in as good a condition as if the covenant had been kept by the other. O^nnion of July 20, 1860, 9 Op. 450. 194. The measure of damages in the case of a contract of which the party was deprived by the Government is the profits which the con- tractor would have derived naturally, directly, and immediately out of the contract itself, had it been fully performed by him. Ibid. 195. Where a contractor bound himself to deliver grain at or near Camp Floyd, as might be desired, between July 1, 1859, and June 1, 1860, and after the delivery of a portion of the grain, the deputy quartermaster-general re- fused to receive the remainder within the time specified, it was held that such refusal was a breach of the contract on the part of the Gov- ernment, for which the contractor might claim damages. But the contractor and the deputy quartermaster-general having agreed to extend the time for the delivery of the grain to the 30th of June, 1861, it was admsed that the Secretary of War might permit the execution of the agreement as extended. Opinion of Nov. 24, 1860, 9 Op. 510. 196. Where a contractor had entered into two contracts with the Navy Department, and had fulfilled one of them but lailed to perform the other : Held that the Department, in set- tling with him, might lawfully deduct from the moneys due on the first or executed con- tract the amount of the forfeiture stipulated to be paid in the second contract in the event of a failure on the part of the contractor to per- form it. Opinion of Oct. 25, 1864, 11 Op. 120. 197. But where moneys were due to several joint contractors, Tield that the Navy Depart- ment could not deduct from those moneys the amount of the forfeiture due to the United States under an unfulfilled contract between the Government and one of the said joint con- tractors. Ibid. 198. The Secretary of the Navy may waive a forfeiture stipulated in a contract with his Department, in a case of good faith, where the forfeiture occurred through misfortune. Opin- ion of Feb. 5, 1867, 12 Op. 112. 152 CONTRACT, VII, VIII. 199. A contractor with the War Department agreed to complete a certain work within a definite time, and in default thereof to forfeit |50 a day during each' and every day's delay thereafter in its completion ; the amount thus forfeited ''to be deducted from the amount which may be due * * * on the final com- pletion of the work, as liquidated damages." 'The work was not completed by the time fixed, but it was faithfully performed, agreeably to the specifications of the contract, and the Gov- ernment sustained no damage whatsoever in consequence of the delay : Held that the per diem forfeiture, according to the intention of the parties here (which is to be ascertained from a view of the whole contract, the use of the words ' ' liquidated damages ' ' not being, in itself, conclusive of such intention), must be regarded as a penalty, the object of which was to secure the Government against actual loss or damage arising from delay in the completion of the work. Opinion of Dee. 20, 1877, 15 Op. 418. 200. The work having been completed, and no damage sustained by the delay, the conditions necessary to warrant the exaction of the pen- alty do not exist, and the Department is ac- cordingly at liberty to relieve the contractor therefrom. IMd. VII. Release of Contractor. 201. The Secretary of the Treasury has no legal authority to relieve a contractor on the Washington Aqueduct from a bad bargain, either by rescinding the contract or by paying him a higher price for his labor than what he agreed to take. Opinioi of Sept. 5, 1857, 9 Op. 81. 202. The power vested in the head of an executive department to make contracts for work or materials does not imply the power to rescind or alter such contracts when made. Ibid. 203. The second contract between the United States and Dakin, Moody, and others, relative to the construction of a dry-dock in the Bay of San Francisco, does not release the con- tractors from the covenant contained in the first contract to complete the work and deliver it within two years from its date. Opinion of May 5, 1832, 10 Op. 245. 204. The Secretary of the Navy has not power, under the circumstances stated, to release u, contractor from his undertaking to furnish (among other enumerated articles) "a saw, futtock, for boat-bailders' use, Knowlton's patent, " to the several navy-yards. The effect of such release would be to give the contract to the highest bidder as to all supplies fur- nished under it. Opinion of April 12, 1878, 15 Op. 481. VIII. Payment. 205. The terms of the specific appropriation of the act of March 3, 1829, chap. 51, control the general provisions of the act of January 31, 1823, chap. 9, concerning the disburse- ments of public money, so that the President may fulfill the contract of the late President with Persico. Opinion of March 13, 1829, 2 Op. 197. 206. Contracts for bricks and masonry at Fort Monroe ought to have been deposited with the Comptroller, and accounts arising therefrom oiight to be adjusted at the Treas- ury Department; until that shall be done, the Secretary of War cannot be called on to order payment. Opinion of May 31, 1832, 2 Op. 518. 207. The contractor for parchments for land patents delivered a portion of them in printed form, and received payment therefor, aug- mented by the price of the printing. Held that the amount thus erroneously paid may be deducted from other sums yet due him. Opinion of May 20, 1840, 3 Op. 539. 208. The contractors for the printing of parchments cannot be paid for such printing; nor are they entitled to the amount thus over- paid to the contractor for parchment. Ibid. 209. Contractors for the removal of the Chickasaws to their new homes must be paid from the appropriation of the Chickasaw fund, made by the act of the 20th of April, 1836, chap. 53, even though some of the Indians did not avail themselves of the means furnished to remove them. Opinion of July 2, 1840,, 3 Op. 5G1. 210. The provision of the act of March 3, 1855, chap. 201, allowing additional compen- sation to Giddingson a mail contract, does not require payment to him individually unless due to him; it is additional on the contract only so far as performed. Opinion of Jan. 16, 1856, 7 Op. 617. 211. That addition does not afl'ect any pre- vious contract with other parties on the same CONVEYANCE — CORPORATIONS. 15S route. They are to be paid according to the general law. Ibid. 212. The Secretary of the Navy cannot prop- erly pay the moneys due upon the contracts of the United States with the Stover Machine "Works to either of the claimants thereof, Stover or Cheever. Opinion of Feb. 19, 1868, 12 Op. 370. 213. The facts stated in the case submitted showing tliat a certain sum was due to a mail- contractor under his contract which, by mis- take and misapprehension, the Department has paid to another: Advised that the con- tractor, notwithstanding such payment, is en- titled to the money due under his contract, and accordingly that, if there is any fund in the hands of the Postmaster-General available for the purpose, the latter should pay it. Opinion of May 5, 1870, 13 Op. 226. 214. If, however, the case, upon the same state of facts, has already been considered and finally decided by any of that officer's prede- cessors, it would foil within the principle that the final decision of a case before a head of De- partment is binding upon his successors in the same Department. Ihid. 215. The Biddle Manufacturing Company contracted with the Government to manufact- ure a gun, payment therefor to be made in installments as the work progressed, and after- ward subcontracted with the South Boston Company for the performance of the work ; the latter also to be paid by installments as the work progressed. The former company was in fact an individual only, who subsequently became insolvent and against whom a petition in bankruptcy was then filed. An installment is due from the Government to the Biddle Company, and likewise one from the latter to the Boston Company, this last debt being a lien on the gun. Adoised that payment to the Biddle Company be reserved until the ques- tions'before the bankruptcy court on said peti- tion are determined ; but that the Government can safely and with propriety discharge any lien which has arisen or which may arise in favor of the Boston Company in connection with the fabrication of the gun, until its com- pletion. Opinion of July 27, 1874, 14 Op. 424. CONVEYANCE. See Deed: Gkant to the United States. COOLIES. The coolie trade is not within the acts of Congress prohibiting the slave trade. Opinion of March 11, 1859, 9 Op. 282. COPYRIGHT. 1. A copy of a book may be deposited with the Secretary of State after six months from the time of its publication, if not done before, and it will avail from the time of such deposit. Opinion of Jan. 15, 1822, 1 Op. 532. 2. An artist, employed by the United States to engrave a chart prepared by an officer of the Army, has no pretense of right of copy in the engraved plates or impressions. Opinion of March 14, 1856, 7 Op. 656. CORPORATIONS. See also National Banking Associations; Pacific Railroads; United States Bank. 1. Judgments by default against corporate bodies are regulated by the practice of the several States in such cases. Opinion of Jan. 15, 1819, 1 Op. 258. 2. The provisions in the act of Congress relative to public debtors do not reach the case of corporate bodies. Hid. 3. It is not competent for a bank with an ordinary charter to set apart by deed, not under seal, lauds, so as to exempt them from execution for the debts of the bank. The principle that a corporation can grant only by its seal is of universal application, and applies as well to the case of a grant to the United States as to an individual. Opinion of Oct. 2, 1822, 1 Op. 572. 4. A legal quorum of the trustees of Colum- bia College being present for the transaction of business, and it being announced in order to proceed to the election to fill a vacancy in the board, and the majority of the quorum voting for an individual who was thereupon declared elected, the election is valid. Opinion of Jan. 29, 1827, 2 Op. 46. 5. The resolutions of the Bank of Vincennes, by which the debtors of the bank were per- mitted to discharge their debts by a transfer 154 COSTS; COUNSEL. -of the stock of the bank, render sucli transfers a nullity, and leave such debts still due, and a part of the fund to which the creditors of the bank have yet a right to look for satisfaction of their claims. Opinion of Dec. 7, 1827, 2 Op. 58. 6. Where a large amount of public money •which had been deposited in the Bank of Vin- cennes was placed in jeopardy through the gross negligence of its officers: Held that the best remedy was a bill in equity, to be filed in the name of the United States against the in- dividuals who were the president and directors of the bank in the years 1819, 1820, and 1821, and such of the stockholders during these years as appear to have had any instrumen- tality in perpetuating this wrong on the United States, or who have benefited by the wrong of others; and, also, against such debtors of the Bank of Vincennes as may have taken advan- tage of the resolution to pay off their debts in the stock of the bank. Ibid. 7. The release of the Norfolk Drawbridge Company to the United States, in order to ex- tinguish the legal title of the corporation, must be a grant of their title under the corporate seal. Opinion of Jan. 5, 1833, 2 Op. 549. 8. It is a familiar rule in the law of corpo- rations that those bodies have no other powers than such as are either expressly granted or necessarily implied in the acts creating them. Opinion of Nov. 28, 1834, 2 Op. 663. 9. Where a corporation, created by any State, proposes to sell its corporate property to the United States, and so extinguish the public uses thereof, there must be special consent of the State. Opinion of Sept. 22, 1856, 8 Op. 104. 10. A corporation which is not empowered "by general or special law to convey its prop- erty discharged of corporate uses, directly by its own act, cannot do so indirectly by granting a mortgage and suffering the same to run to foreclosure. Opinion of Oct. 25, 1856, 8 Op. 118. 11. A corporation which holds property spec- ially affected to certain public uses cannot of itself sell the same. Opinion of Nov. 13, 1856, S Op. 181. COSTS. See Febs and Costs. COUNSEL. See also Compensation, VI; Couet-mae- TIAL, VIII. 1. Any head of Department may, in his dis- cretion, employ special counsel in behalf of the Government. Opinion fif May 11, 1855, 7 Op. 141. 2. In a question of conflict of jurisdiction between a district court of the United States and the supreme court of a State, which ques- tion arises on a writ of habeas corjms ad subji- ciendum issued by the latter to inquire into the legality of the detention of a prisoner by the marshal on the order of the former, it is proper for the Executive of the United States to allow counsel to the marshal, leaving the case other- wise to the regular course of judicial determi- nation until the question be duly determined by the Supreme Court of the United States. Opinion of Sept. 7, 1855, 7 Op. 482. 3. Counsel retained by the United States for a given professional duty may be lawfully paid therefor, in whole or in part, before or during its performance and in anticipation of its abso- lute completion. Opinion of May 19, 3856, 7 Op. 686. 4. The services of counsel specially retained by any head of Department are in general chargeable to the funds of that Department. Opinion of Feb. 19, 1857, 8 Op. 398. 5. The power of the Secretary of the Interior to employ special counsel on behalf of the Government in the case of a private claim for public lands is undoubted, under the act of February 26, 1853, chap. 80. Opinion of May 9, 1861, 10 Op. 48. 6. The power given by the act of February 26, 1853, chap. 80, to the head of a Department to employ and pay counsel is limited to the employment of counsel for services which are professional, services which require legal skill and learning. Opinion of 3Iay 13, 1861, 10 Op. 41. 7. The Secretary of War has powe. to em- ploy and pay special counsel to represent a military ofiicer against whom a writ of habeas corpus has been issued by a circuit court in the case of a prisoner held in custody by him. Opinion of Feb. 7, 1868, 12 Op. 368. 8. He has also the right to employ and pay special counsel to examine the title to lands OOTIIITS, I. 155 ■nrchased under the direction of the War De- partment. Opinion of June 12, 1868, 12 Op. 416. COURTS. See also CoNSULAE Couet; Couet-maktial; CouET OF Claims; Couet of Inquiry; ■Court of Recoed; District Couet of THE United States; Supeeme Couet. I. Jurisdiction. II. Bemoval of Causes. III. Foreign. I. Jurisdiction. 1. The refusal of a district judge to issue a -warrant under the ninth article of the conven- tion of November 14, 1788, between France and the United States, cannot be interfered with by the Supreme Court; the power of the dis- trict judge In such case being discretionary. Opinion of March 21, 1795, 1 Op. 55. 2. District judges are not the exclusive judges of their own jurisdiction. If the Su- preme Court be of the opinion that they have jurisdiction, they must conform to its judg- ment. Opinion of May 9, 1795, 1 Op. 56. 3. The high seas are within the jurisdiction of the district and circuit courts of the United States; and if American citizens violate the neutrality laws thereon, such courts will take notice of the offense in any district where the ■offenders may be found. Opinion of July 6, 1795, 1 Op. 58. 4. Such offense being committed out of the territories of the United States, cannot be no- ticed by our courts; the offenders must be dealt with abroad, and, after proclamation by the President, will have forfeited all protection from the American Government. Ibid. 5. The treaty with Spain does not extend the jurisdiction of our courts to offenses com- mitted in Spain, nor vice versa; and, according to the common law, the commandant of the island of Amelia is not liable to any public prosecution before any of our courts for his transactions in Florida. Opinion of Jan. 26, 1797, 1 Op. 68. 6. Pirates are to be prosecuted in the circuit court of the United States without regard to the nation they belong to. Opinion of Sept. 20, 1798, 1 Op. 85. 7. There is no provision of law concerning intercourse with the Indian tribes, or con- ferring jurisdiction upon courts, which can enable the United States to maintain a civil action against a debtor residing in the Indian country, upon a contract or indebtedness cre- ated in the States. Opinion of April 17, 1840, 3 Op. 514. 8. The circuit courts of the United States have not the power to enjoin the Auditor of the Post-Ofiice Department from paying a con- tractor for carrying the mails, nor to enjoin the contractor from making collections from post- masters, according to his contract with the Government. Opinion of Oct. 21, 1841, 3 Op. 667. 9. The district court of Iowa has jurisdiction over Fort Atkinson, in the Indian country; and it will require a very clear case to justify the military authorities in resisting the man- date of the judiciary. Opinion of Nov. 23, 1842, 4 Op. 119. 10. Where a person having Cherokee Indian blood in his veins, and living as a trader, by per- mission, within the limits of the Cherokee Na- tion, west of the Mississippi Eiver, who is at the same time recognized by law as a citizen of the State of Georgia, commits a crime, he is amenable to the laws of the United States, and entitled to a trial under them, instead of the laws enacted by the councils of the Cherokees. Opinion of Oct. 9, 1843, 4 Op. 258. 11. The courts of the United States have no authority to try a captain of a Georgia battalion of infantry on the charge of murder, alleged to have been committed by him on the person of Lieutenant Goff, of the Pennsylvania volun- teers, at Perote, in Mexico, whilst that place was occupied by American troops, and under the authority of a military governor appointed by General Scott. Opinion of Nov. 15, 1848, 5 Op. 55. 12. The United States have no common law respecting crimes ; no unwritten criminal code ; nor have their courts jurisdiction except that conferred by acts of Congress, which do not confer jurisdiction over crimes committed in Mexico. Ibid. 13. The courts of the United States are the rightful judges of their own jurisdiction. Opin- ion of Sept. 9, 1853, 6 Op. 103. 156 COURTS, II, III. 14. The separation of an existing judicial district of the United States into paits does not talie away the right to try offenses previously coiuniitted in either subdivision of the district. Ibid. 15. A judicial tribunal of the United States may have j urisdiction of crimes committed be- fore its organization by Congress. Ibid. 16. Laws which only reorganize or other- wise mod ify the j udicial tribunals of the United States are not ex pout facto laws within the scope of the prohibitory clause of the Consti- tution. Ibid. 17. A person having been indicted and con- victed on trial beibre the district court of the United States for the State of Wisconsin, for the forcible rescue of a fugitive from service in another State, who had been arrested by due process preparatory to extradition ; and he hav- ing, after conviction, been released by the su- preme court of the State on habeas corpus: Held that the action of the tribunals of the State was unlawful, and should be brought for review, by writ of error, before the Supreme Court of the United States. Opinion of Feb. 23, 1855, 7 Op. 52. 18. Eafael and Manuel Armijo sued out, in the territorial court of New Mexico, process of iuj unction and mandamus against the governor, as superintendent of Indian affairs, to compel liim, out of the general moneys of the Govern- ment in his hands, as such to pay to the peti- tioners indemnity for losses suffered by them through the depredations of the Apaches: Held that the courts have no j urisdiction or authority over such moneys of the Government in the hands of the superintendent, either by injunc- tion, mandamus, or any other process of law. Opinion of March 29, 1855, 7 Op. 80. 19. A white man, although he may have been adopted by Chickasaws or Choctaws, does not become subject in criminal matters to the .lurisdiction of the courts ol the Choctaw Na- tion. Opinion of 3Iay 23, 1855, 7 Op. 175. 20. But, in matters of civil jurisdiction, arising within the nation, its courts have juris- diction over a white man who has voluntarily made himself a Chickasaw by intermarriage and exercise of all the rights of a Chickasaw, and where tlie question concerns property the proceeds of a head-right granted to him as a Chicliasaw. Ihid. II. Removal of Causes. 21. Alexander, a post-ofSce agent, was sued in Georgia for damages for a malicious prose- cution, and sought to have the cause removed to the federal courts, on the ground that he was a federal officer: HAd that his being an agent in the employment of the Post-Office Department did not give the right; but if he - were a citizen of a State other than Georgia, his case would have been provided for by acts of Congress. Opinion of Dec. 30, 1843, 4 Op. 300. 22. Under section 12 of the judiciary act of September 24, 1789, chap. 20, causes may be removed from State courts to the courts of the United States, where the matter in dispute exceeds five hundred dollars, and the suit is brought against an alien, or by a citizen of a State in which the suit is brought against the citizen of another State. Opinion of Dec. 31, 1851, 5 Op. 504. 23. If in the action, commenced in the State court of Virginia against the officer at Ftrt Monroe, the ad damnum be less than ^500, and the officer himself be a citizen of Virginia, where the plaintiff resides, then, inasmuch as great interests are depending, an amendment to the act of 1789 is recommended, so that a removal of the suit may be had to the United States court. Ibid. 24. The provisions of section 67 of the act of July 13, 1866, chap. 184, for the removal of suits against internal-revenue officers, have no application to suits brought against such officers in the Territories. Opinion of Aug. 28, 1871, 13 Op. 584. III. Foreign. 25. It has grown into a rule that a nation ought not to interfere in the causes of its citi- zens brought before foreign tribunals, except- ing in the case of a refusal of justice — palpa- ble and evident injustice — and when a suitor applies to a foreign tribunal for justice he must of necessity submit to the rules by which such tribunal is governed. Opinion of Nov. 4, 1794, 1 Op. 53. 26. It is upon a definitive sentence alone that a complaint of injustice can regularly be founded. The opinion of a foreign judge at COURT MARTIAL, I. 157 nisi prius can not, with propriety, be made the subject of discussion/ If the plaintiff be not satisfied with the justice of his opinion it is his duty to put the cause in such a situation that its merits may be examined in the court of last resort. Ibid. 27. For the recovery of their property in the Spanish province of Florida, and for redress of injuries done there, our citizens should apply to the tribunals of that province. Opinion of Jan. 26, 1797, 1 Op.. 68. COURT-MARTIAL. See also Military Law; Limitation, II. I. OeneraUy. II. Jurisdiction. III. Accuser or Prosecutor. IV. Proceedings. Y. Sentence. VI. Beconsideration of Judgment. VII. Disapproval of Proceedings. — New Trial. VIII. Employment of Counsel. I. Generally. 1. The thirty-fifth of the Articles of War (act of April 10, 1806, chap. 20) makes it im- perative on the commanding officer of a regi- ment, when complaint is made by an inferior officer or soldier, to summon a regimental court-martial to inquire into the truth or false- hood of the complaint, and decide thereon. But as its authority extends no further than fli court of inquiry, the rules and practice of the latter should in general govern its pro- ceedings. Opinion of MarchlQ, 1811, 1 Op. 166. 2. Under section 15 of the act of June 26, 1812, chap. 107, punishment by court-martial of offenses committed on board of vessels having letters-of-marque is contemplated only when such offenses are committed without the jurisdiction of the United States. Opinion of May 2i, 1814,-1 Op. 177. 3. The jurisdiction of military tribunals is not to be stretched by implication. Jbid. 4. A court-martial can take no cognizance of the validity of a contract. Ibid. 5. Chaplains, surgeons, and pursers, being non-combatant officers, are not competent to officiate as members of naval courts-martial. Opinion of Nov. 6, 1829, 2 Op. 297. 6. By the sixty-third of the Articles of War (act of April 10, 1806, chap. 20) a court-mar- tial to try an officer of the Marine Corps per- forming duty on shore should be composed of officers of the Army and of the Marine Corps. Opinion of Jan. 21, 1830, 2 Op. 311. 7. The discretion vested in officers appoint- ing courts-martial being merely directory to the officers appointing the court, their determi- nations whether more than five members can be convened without manifest injury to the service are conclusive. Opinion of Oct. 25, 1832, 2 Op. 534. 8. Specifications of a charge known to the Secretary of the Navy when former charges against the accused were prepared by him be- fore another and a distinct court, upon a dif- ferent and distinct matter, and which charge, so known, was then deferred for further con- sideration by the Department at the special request of the accused, may be tried before a subsequent court-martial, together with other charges not previously known. Opinion of July 25, 1845, 4 Op. 411. 9. The inhibitions contained in the thirty- eighth article of the Eules and Regulations for the government of the Navy, (act of April 23, 1800, chap. 33) apply only to courts-mar- tial ordered on the application of persons other than the Secretary himself. Ibid. 10. The number of persons detailed to con- stitute a court-martial, provided it do not flill below the minimum of five prescribed by statute, is a matter of discretion within the lawful authority of the officers appointing the court. Opinion of June 5, 1854, 6 Op. 506. 11. The under-graduate cadets of the Mili- tary Academy at West Point are not commis- sioned officers, and therefore are not competent to sit on a court-martial, and are triable by a regimental or garrison court-martial. Opinion of July n, 1855, 7 Op. 323. 12. The graduated cadets, assigned to serv- ice as supernumerary officers, are brevet second lieutenants, and as such commissioned officers, and therefore subject to all the duties and en- titled to exercise all the powers of that grade, including the legal capacity to sit on courts- martial as commissioned officers, and be tried only as such, according to the ArUcles of War. Ibid. 158 COURT-MARTIAL, II. 13. There is no law authorizing a court- martial to compel the attendance of witnesses •who are not in the military service. Opinion of March 22, 1859, 9 Op. 311. 14. Witnesses who are not in the military service cannot he compelled to make deposi- tions to be used in evidence before courts-mar- tial on the trial of cases not capital. Hid. 15. Under the seventeenth section of the act of August 3, 1861, chap. 42, the Secretary of the Navy has discretionary power to select for the trial of officers of the Marine Corps such commipsioned officers, subject to his control and orders, as he may deem proper. Opinion of Sept. 23, 1861, 10 Op. 129. 16. Volunteer naval officers appointed under the act of July 24, 1861, chap. 13, are "com- missioned officers, ' ' and competent to serve on general courts-martial. Opinion of Sept. 17, 1863, 10 Op. 522. 17. The twenty-fifth section of the act of March 3, 1863, chap. 79, authorizes compul- sory process to be issued by judge-advocates for the attendance of civilians as witnesses be- fore courts-martial, and such process may be directed to the officers who by the practice of the service are ordinarily charged with the duty of performing the executive business of those courts. Opinion of Oct. 2, 1868, 12 Op. 501. 18. Concerning the power of the President to appoint general courts-martial, see jSfOTE, 15 Op. 297. 19. P., a midshipman, was nominated and confirmed in March, 1868, to be ensign, the promotion being made "subject to examina- tion. ' ' In July, 1868, having never been ex- amined, he was tried by a naval court-martial as a midshipman and sentenced to dismissal from the service: Held that, under the circum- stances, he was properly tried as a midship- man. Opinion of Aug. 7, 1880, 16 Op. 550. 20. In the absence of legislation, or of or- ders from competent authority, forbidding it, personal presence within the territorial limits of his command is not essential to the validity of an order given by a department commander appointing a court-martial within such limits. He may appoint general courts-martial, and act upon the record of proceedings of the same, when outside the territorial limits of his com- mand. Opinion of Aug. 28, 1880, 16 Op. 679. II. Jurisdiction. 21. Naval courts-martial may not try and punish murder which they suppose to have been committed on board a frigate at Norfolk. Jurisdiction in such cases belongs to the civil tribunals. Opinion of Jan. 23, 18 12, 5 Op. 698. 22. Courts-martial of marine officers sta- tioned on shore and convened under the Arti- cles of War may try and sentence to suffer cor- poral punishment marines who have deserted from the public ships. Opinion of March 28, 1816, 1 Op. 187. 23. A sergeant of marines being accused of larceny at Gosport, Virginia, and doiibt aris- ing as to the jurisdiction of the civil courts over the offense, proceedings by court-martial are recommended. Opinion of Nov. 28, 1816, 5 Op. 705. 24. Whether a naval court-martial may try a lieutenant-colonel of the Marine Corps, qusere. Opinion of Aug. 17, 1817, 5 Op. 706. 25. It is the right of an officer of the Marine Corps to be tried according to the true direc- tions of the law, and he may raise objections to the jurisdiction of the court appointed to try him. Ibid. 26. Cadets at West Point form a part of the land forces of the United States, and have been constitutionally subjected by Congress to trial by court-martial. Opinion of Aug. 21, 1819, 1 Op. 276. 27. Courts-martial did not have jurisdiction over cases of disobedience of the governor of New York concerning the quota of ninety- three thousand men which he was invited to raise by the circular from the War Department of July 4, 1814, for the reason that it was no violation of any existing law of the United States, nor of the orders of the President. Opinion of June 19, 1821, 1 Op. 473. 28. It is wholly inadmissible under our Gov- ernment to place the military above the civil authority, and therefore whilst an officer of the Nr.vy remains in the custody of the latter for the purpose of prosecution for a homicide, he cannot legally be made amenable to a court- martial. Opinion of May 15, 1839, 3 Op. 466. 29. Whether, under the eightj'-eightli of the Articles of War (act of April 10, 1806, chap. 20), the accused can be brought to trial before the court-martial which two years before had COURT MARTIAL, II. 15& issued an order for his trial and suspended its execution under peculiar circumstances, qusere. Opinion of Feb. 10, 1842, 3 Op. 749. 30. In 1832 an officer ol' the Marine Corps was tried by a court-martial and sentenced to. be cashiered, but the sentence was commuted to suspension for a limited period. In 1833 he was appointed a lieutenant in the Army: Held that after the lapse of sixteen years his case cannot be examined with reference to the com- petency of the court-martial by which he was tried. Opinion of June 23, 1851, 5 Op. 384. 31. According to the eighty-eighth of the Articles of War (act of April 10, 1806,' chap. 20) no person is liable to be tried and pun- ished by a general court-martial for any offense which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by rea- son of having absented himself or some other manifest impediment, shall not have been amenable to justice within that period. Oijin- ion of Bee. 30, 1853, 6 Op. 239. 32. This limitation cannot be waived by the accused, nor can he, even with his consent, be tried by a general court-martial ordered after the time prescribed by statute. Ibid. 33. An officer may be tried by court-martial for the military relation of an act after having been tried by the civil authorities for the civil relations of the same act. Opinion of June 5, 1854, 6 Op. 506. 34. Whether, when an officer of the Army, while under charge of any military offense, is dismissed from the service by the President, he may afterwards be arrested and tried by court-martial for the offense, duMtatur. Opin- ion of Jan. 20, 1857, 8 Op. 328. 35. Where charges were preferred against an officer in the Army for disobedience of or- ders in June, 1856, and in September ibllow- ing, for other reasons, he was dismissed the service by the President, no court-martial hav- ing been ordered to investigate the charges against him, it was held that, on his being restored to the Army, he could not be tried on the charges pending against him at tlie time of his dismissal alter the lapse of two years since the commission of the alleged offenses. Opin- ion of Aug. 16, 1858, 9 Op. 181. 36. The question whether an officer who has been dismissed the service is liable to be tried by a court-martial for offenses previously committed examined, but no ojjinion given thereon. Ibid. 37. One T. was apprehended in April, 1871, on the charge of having deserted from the Army in October, 1865, and was detained for trial by a court-martial for that offense. He had en- listed in August, 1865, for the term of three- years ; from the time of the alleged desertion to the time of the arrest more than five 3 ears had expired, and from the expiration of the term of enlistment to the arrest more than two years: Advised that the court-martial has no jurisdiction to try the case, because of the bar presented by the eighty-eighth Article of War.. Opinion of June 23, 18n, 13 Op. 462. 38. Civilian employes serving with the Army, in the Indian country, during offensive or de- fensive operations against the Indians, are sub- ject to military jurisdiction and trial by court- martial, under the provisions of the sixtieth Article of -War (act of April 10, 1806, chap. 20). Opinion of April 1, 1872, 14 Op. 22. 39. Where a military officer detailed for duty in the Freedmen's Bureau has been guilty of misappropriation of money, or any violation of the rules and regulations governing disbursing officers of the Army, he may be tried by court- martial in the same manner as any other such Army officer. Opinion of July 3, 1873, 14 Op. 269. 40. Civil engineers in the Navy are subject to the jurisdiction of naval courts-martial- Opinion of Aug. 19, 1876, 15 Op. 597. 41. A quartermaster's clerk (i. e. , a civilian- employed in that capacity) is not amenable to- court-martial jurisdiction. Opinion of May 15, 1878, 16 Op. 13. 42. Nor are superintendents of national cem- eteries appointed under sections 4873 and 4874 Rev. Stat, amenable to such jurisdiction. Ibid. 43. The statutes of the United States, in so far as they declare what persons or classes of persons are thereby made liable to military law and subjected to the jurisdiction of mili- tary courts, reviewed. Ibid. 44. Where a quartermaster's civilian clerk was under arrest by the military autliorities, at a post in the State of Nebraska, on a charge of conspiring to defraud the Government : Held that the accused was not subject to court-mar- tial jurisdiction. Opinion of June 15, 1878, 16 Op. 48. 100 OOUET-MAETIAL, III, IV. 45. A soldier was sentenced by a court-mar- tial to be dishonorably discharged from the service and to be imprisoned in the military prison at Fort Leavenworth for two years. While in confinement under this sentence he committed offenses punishable by the Articles of War, for which he was a second time tried by court-martial and sentenced to imprison- ment in the same prison for an additional term of three years, which he is now serving out : Beld that under section 1361 Rev. Stat, valid authority exists for the trial by court-martial of prisoners in the military prisons who while serving out the term of their imprisonment commit offenses punishable by military law, although they have been discharged from the Army by the sentence under which they are imprisoned. Opinion of March 26, 1879, 16 Op. 293. 46. Such prisoners are to be regarded as still connected with the military service and sub- ject to military government for the purposes of discipline and punishment; and the sentence, part of which is dismissal from the service, must be understood to not do away with that relation during their imprisonment. Ibid. 47. Where an assault was committed on board a steamer belonging to the Navy (the vessel being at the time under way in the Thames Eiver, opposite the city of New Lou- don, Conn.), by a coal-heaver in the nav^l serv- ice upon a second-class fireman in the same service, from the effects of which the latter subsequently died: Held that a naval general court-martial can, under article 22 of section 1624 Rev. Stat., take jurisdiction of the offense as manslaughter. Opinion of Nov. 15, 1880, 16 Op. 579. 48. That article is not intended to confer upon a court-martial general criminal jurisdic- tion, but only jurisdiction over those offenses (not specified in the preceding articles of said section) which are injurious to the order and discipline of the Navy, the jurisdiction being given lor the purpose of preserving that order and discipline. Ibid. III. Accuser or Prosecutor. 49. Where the record of a trial before a court- martial is defective, in failing to show who was the originator or signer of the charges against the accused, and who is to be treated legally as the accuser or prosecutor, evidence aliunde is admissible to supply the information. Opinion of Aug. 1, 1878, 16 Op. 107. 50. A commander of division who, upon in- formation laid before him of grave misconduct .on the part of a regimental ofi&cer in his com- mand, directed the colonel of the regiment (from whom the information was received) to prefer charges against the alleged offender, and who saw that the charges were put in proper form, and to that extent superintended their preparation, cannot be deemed the accuser or prosecutor of such alleged offender in the sense of the act of December 24, 1861, chap. 3 (sec- tion 1342 Rev. Stat., article 73). lUd. IV. Proceedings. 51. The provision in the eighty-seventh of the Articles of War (act of April 10, 1806, chap. 20) that " no ofiScer, &c. , shall be tried a second time for the same offense," is bor- rowed from the common law, and is not held, either in civil or military tribunals, to preclude the accused from having a second trial on his own motion. Opinion of Sept. 14, 1818, 1 Op. 233. 52. It is error for a court-martial to refuse a second trial to the accused when the same has been ordered by the President. Ibid. 53. The plea of autrefois acquit, or convict, is the privilege of the accused, which he may use or waive at pleasure; if he does not choose to use it, courts will not take notice of it so as to bar a trial. Ibid. 54. A plea before a court-martial of a former arrest and discharge is bad ; a former trial only is a defense un^er the eighty-seventh of the Articles of War (act of April 10, 1806, chap. 20). Opinion of April 29, 1819, 1 Op. 294. 55. As to the perspicuity and precision of the charges, if the description of the offense is sufaciently clear to inform the accused of the military offense for which he is to be tried, and to enable him to prepare his defense, it is suf- ficient. Ibid. 56. Where a court-martial has been ordered and the nqpies of the officers and supernumer- aries to compose it are set forth in the warrant, and by reason of the non-attendance of one of the officers on the first day a supernumerary takes his place, and the court thus organized proceeds to business, the absent member can- not properly thereafter be added to the court, upon his arrival, until the case on trial has COURT-MARTIAL, IV. 161 "been disposed of, if at all ; yet if the practice has been otherwise, and has been acquiesced in, it may he safely followed. Opinion of Nov. 18, 1824, 1 Op. 698. 57. The j udge-advocate has the right of a re- ply in a military trial, and so has the accuser ■when acting as prosecutor ; but such reply ought to be a commentary on the evidence in- troduced by the prisoner, and on his remarks in enforcing it. No new matter should be in- troduced at this stage of the trial without special leave ; and then the prisoner should also have leave to rejoin. Opinion of Nov. 3, 1829, 2 Op. 287. 58. AVhere the warrant of a naval court- martial, though general, is accompanied with a specification of persons to be tried, with a reference to the charges to be exhibited against them, the court need not be resworn on the trial of each successive case. Opinion of Nov. 6, 1829, 2 Op. 297. 59. Jt is not proper to introduce depositions in courts-martial, except under certain restric- tions, in cases not capital. Such courts should adhere to the rules of evidence established in common law courts of criminal jurisdiction. Opinion of June 4, 1830, 2 Op. 344. 60. It is irregular for a member of a court- martial who has been absent during a portion of the trial, and who therefore did not hear the witnesses testily, to take part in sentencing the accused. Opinion of March^, 1831, 2 Op. 414. 61. If it has been the usage in cases like that considered in the opinion given Novem- ber 6, 1829 (2 Op. 297), for members of naval courts-martial to take the oath but once, and this practice has been sanctioned by the Gov- ernment, such usage and practice are a sufiB- cient evidence of the construction given to the law (act of April 23, 1800, chap. 33, art. 36 of sec. 1) by the competent aiithorities, and that the oath so taken was held by them to apply to all the cases that should come'before the court. Opinion of Sept. 1, 1831, 2 Op. 460. 62. Courts-martial may receive testimony after a plea of guilty, showing the degree and character of the offense, if the punishment is discretionary. Opinion of April 11, 1834, 2 Op. 636. 63. The judge-advocate of a court-martial is required to be sworn ; and if the proceedings of the court do not show that he was sworn, it is to be presumed that he was not, and the proceedings may be regarded as irregular and void. Opinion of Dec. 24, 1838, 3 Op. 397. 64. In such cases the accused may be put upon another trial ; but not before the same officers who constituted the first court. Ibid. 65. It is a fatal error in proceedings before courts- martial for the president of the court to omit to administer an oath or affirmation to the judge-advocate before proceeding to trial. Opinion of June 9, 1840, 3 Op. 544. 66. It is error in proceedings before courts- martial to receive evidence after the court has been cleared for deliberation. Opinion of June 23, 1840, 3 Op. 545. 67. In the case under consideration, where the jurisdiction of the court was called into question on account of the early date of the enlistment, the record ought to have contained authentic evidence of the terms and period of the enlistment, that the revising ofiicer might judge whether or not the court had jurisdic- tion. Ibid. 68. It is not sufficient to return the infer- ences or conclusions of courts-martial, nor mere statements of the evidence, or booljs or papers in.spected ; but the evidence itself on which they based judgment must be returned. IMd. 69. Where a naval court-martial tried a mas- ter-at-arms for desertion, on a charge headed with a caption styling the accused "master- at-arms," and discharged him on the ground that since his arrest he had not been borne on the ship's books as such, and that the charge could not at that stage of the trial be revised : Held that the decision was erroneous, there be- ing no ground for the court to refuse to proceed to judgment on the merits. Opinion of June 24, 1840, 3 Op. 548. 70. The plea of autrefois acquit, averring a former trial and acquittal for manslaughter in the supreme court of a State upon the same evidence as must be used to sustain the charge of unofficer-like or ungentleman-like conduct under the eighty-third of the Articles of War (act of April 10, 1800, chap. 20), is not a bar to proceedings in a court-martial for the trial of an officer on such charge. Opinion of Feb. 10, 1842, 3 Op. 749. 71. Whether a member of a court-martial who participated in the proceedings of the same at the commencement of its sitting, but who, from sickness, had been unable to attend dur- DIG- -11 162 ing the trial of thewhole case, could afterwards, on recovering his health, resume his seat again as a member of the court without a new precept issued, should be decided according to the set- tled practice in such cases. Opinion of March 16, 1842, 4 Op. 7. 72. If, during the pendency of a trial be- fore a court-martial, one of its members fall sick and be thereby disabled from sitting with the court for several days, the remaining mem- bers may adjourn the court from day to day until he is able to attend with them again to complete the trial. Opinion of April 15, 1842, 4 Op. 17. 73. Commodore Barron was tried by a com- petent court, whose sentence was approved by the President. After the lapse of thirty-five years the Executive will not look into the particulars of the trial on an allegation that it was irregular. If there were irregularities in the trial they should have been alleged be- fore the sentence was confirmed. Opinion of April 3, 1843, 4 Op. 170. 74. Objection to a naval court-martial be- cause consisting of only nine members, must be taken during the trial, as only involving the question of fact whether a greater num- ber of oificers could have been detailed with- out injury to the service, and not being a ground of nullity. Opinion of March 13, 1854, 6 Op. 369. 75. Where a prosecution of an officer before a court-martial was instituted, and he was arraigned within the two years requried by law, and pleaded the pendency of civil pro- ceedings arising in the matter, whereupon the proceedings of the court-martial were sus- pended until a period after the lapse of the two years: Held that the statute of limitation could not then be pleaded in the case. Opin- ion of June 5, 1854, 6 Op. 506. 76. Upon certain charges Capt. S. "W. Down- ing, of the Navy, was tried by court-martial and sentenced to be dismissed; which sentence was approved by the President and 'duly car- ried into effect hj the Secretary of the Navy. After this. Captain Downing, in a communi- cation to the Secretary of the Navy, claimed that the proceedings in the case were illegal and void because of the following facts; The court was composed of thirteen members, six of whom were junior in rank to Captain Down- ing, and six of them senior to him, exclusive of the president, who was also his senior. During the trial Captain Forrest, one of the members of the court, was absent two days by reason of sickness. On his reappearing to re- sume his seat, it was decided by the court that he could not do so, and the case proceeded to conclusion without the further presence of Captain Forrest: Held that the dismis.'ial is a consummated fact, whether the sentence was- lawful or not, and if the party be restored to the service it can only be by renomination to the Senate and reappointment; and, further, that in the present stage of the ease no ques- tion on the proceedings of the court can he raised save that of nullity of sentence for want of jurisdiction. Opinion of April 11, 1855, 7 Op. 99. 77. It is doubtful whether the court had lawful authority to exclude Captain Forrest under the circumstances stated. But his ex- clusion does not affect the proceedings of the court with nullity, and if it were an irregu- larity, should have been taken advantage of before the sentence, or at least before the ap- proval of the sentence by the President. Ibid, 78. A specification of charge is good, and will support the finding and sentence upon it, with or without descriptive designation of the quality of the imputed criminal act, provided it appear that the facts alleged and proved constitute, in any point of view, the offense charged. Opinion of Dec. 1, 1855, 7 Op. 601. 79. Any person having an interest in the record of a naval court-martial on file in the Navy Department is entitled to have an ex- emplified copy of it after the proceedings are consummated by the action of the proper re- visory authority. Opinion of Jan. 3, 1865, 11 Op. 137. 80. Public justice and private right require that the Secretary of the Navy and his sub- ordinate officers should not withhold their tes- timony in regard to the contents of such a record when required to give it by the sum- mons of a State court. IhiC. 81. Where, at the organization of a naval court- martial, each member of the court was first sworn by the judge-advocate, who was then sworn by the president of the court, instead of the oath being first administered by the president to the judge-advocate, and then by the latter to each member of the court, as prescribed by the act of July 17, COURT-MARTIAL, V. 163 1862, chap. 204: Held that, notwiths-tauding the irregularity in the order of administering the 'Oaths, the proceedings of the court must now be held valid. Opinion of Jan. 20, 1871, 'l3>0p. 37-4. 82. Where the accused was tried and con- victed by a general court-martial on three dis- tinct charges, one of which had been preferred by a member of the court, who testified as a witness in support of the same and afterwards sat upon the trial, no objection being made thereto by the accused, and the sentence of the court was duly confirmed: Held that the fact that a member of the court sat upon the trial aiter testifying did not render its proceedings invalid or make its sentence void and inopera- tive. Opinion of Jan. 19, 1878, 15 Op. 432. 83. The objection, where it is not distinctly waived by the accused, goes to the propriety of the member sitting after he had testified, not to his legal capacity thus to sit; and, if sea- sonably made, it would afford good ground for disapproval of the proceedings by the review- ing officer, though not of itself sufficient to in- validate them. Ibid. 84. The minority of some of the members of the court-martial is not available as an ob- jection to the validity of its proceedings. Opinion of Aug. 7, 1880, 16 Op. 550. V. Sentence. 85. No sentence of a naval court-martial held within the United States can be executed until confirmed by the commander of the fleet in which the offense occurred, or by the officer ordering the court. Opinion of Sept. 23, 1819, 1 Op. 309. 86. The power of the President over a sen- tence is a power over the whole of it; and he may approve, reject, or mitigate the same at pleasure. Opinion of Nov. 3, 1829, 2 Op. 287. 87. A sentence of "dismissal" is legal. IKd. 88. Dismission from theUnited Statessquad- Ton is a legitimate punishment for a court-mar- tial to pronounce. Opinion of Nov. 6, 1829, 2 Op. 297. 89. Sentences of naval courts-martial which are organized with only five members are not on that account invalid. Opinion of Oct. 25, 1832, 5 Op. 534. 90. The sentence to be cashiered, pronounced by the court-martial in the case of Lieutenant Whitney, is not illegal nor unconstitutional, though it is, under the circumstances of the case, severe and harsh. Opinion of June 1, 1841, 3 Op. 631. 91. A sentence of dismissal from service, approved by the President, cannot be annulled. The-ofiScer dismissed can be restored only by a new nomination by the President, the con- firmation of the Senate, and all the requisites to coustitute an original appointment to office. Opinion of Nov. 6, 1843, 4 Op. 274. 92. Even though the proceedings of the court-martial were irregular, if the sentence of dismissal were pronounced, approved, and car- ried into effect, there is no means of reviewing it. Ibid. 93. The President has power to mitigate sentences of courts-martial by commuting sen- tences of dismission from service to suspen- sion, without pay or emoluments, for a limited time. Hence an assistant surgeon in the Navy, who was dismissed by a court-martial for dis- obedience, neglect of duty, and disrespect to his commanding officer, but whose sentence was commuted to suspension for twelve months without pay, is not entitled to pay during the period of such suspension. As dismission de- prived the offiser of his pay forever, the sus- pension of his office and his pay for one year only is an inferior and milder degree of the punishment decreed by the court. Opinion of Oct. 12, 1848, 5 Op. 43. 94. The Secretary of the Navy has power to approve the sentence of a court-martial con- vened by him where the sentence of the court does not extend to loss of life, or to the dis- missal of a commissioned or warrant officer. The Secretary is an " officer ' ' within the mean- ing of the act of 23d April, 1800, chap. 33. Opinion of Feb. 10, 1852, 5 Op. 508. 95. A general commanding the forces of the United States in the field does not possess power to commute the sentence of cashiering pronounced by a court-martial, but only the power to execute the sentence, or to suspend it and take the direction of the President. Opin- ion of Sept. 20, 1853, .6 Op. 123. 96. A sentence of suspension merely by a naval court-martial does not deprive the party of pay and emoluments. Opinion of Oct. 27, 1853, 6 Op. 200. 97. After the sentence of a court-martial dis- missing an officer has been approved and acted 164 COTJET MABTIAL, V. on by the President it cannot he revised ex- cept for suggestion of absolute nullity in the proceedings. Opinion of March 13, 1854, 6 Op. 369. * 98. After sentence of an officer of the Army by a court having jurisdiction has been ap- proved and executed by one President it can- not be revised by his successor. Opinion of June 5, 1854, 6 Op. 5U6. 99. A naval court-martial may lawfully sen- tence a seaman to the penitentiary in the Dis- trict of Columbia to be confined at hard labor for three years, to be deprived of his pay, and to be marked with the letter D on his right hip. Opinion of Sept. 5, 1857, 9 Op. 80. 100. It is well settled that it is beyond the power of the President to annul or revoke the sentence of a court-martial which has been ap- proved and executed under a former President. Opinion of June 13, 1861, 10 Op. 64. 101. The rule is not confined to cases in which, by the Articles of War, the sentence of the court is required to be approved by the Presi- dent. Hid. 102. For an offense against article 12 of sec- tion 1 of the act of April 23, 1800, chap. 33, for the government of the Navy, a marine general court-martial may legally sentence the prisoner to imprisonment in the penitentiary of the Dis- trict of Columbia at hard labor for a term of years, that punishment not being against the usages of the service. Opinion of Nov. 8, 1861, -10 Op. 158. 103. Courts-martial, in cases within their lawful jurisdiction, may condemn persons to imprisonment at hard labor in the penitentiary of the District of Columbia, in punishment of crime. Opinion of 3Iay 8, 1862, 10 Op. 248. 104. After the trial and conviction of an offi- cer of the Navy by a court-martial having j uris- diction of the case, and the approval of tlie sen- tence dismissing him from the service by the President, and such sentence has been carried into execution, the President cannot reconsider his approval and revoke the sentence of the court. Opinion of March 12, 1864,' 11 Op. 19. 105. But while the judgment entered by the President upon such a sentence is, after it has been executed, irrevocable, he may remove the guilt of the dismissed officer by pardon. Ihid. 106. Thesentenceof anactingmaster'smate, dismissing him from the service, bj^ a court- martial convened by the commander of a fleet, may be lawfully carried into execution on the confirmation of the officer ordering the court. Opinion of June 20, 1865, 11 Op. 251. 107. Neither the President nor Secretary of the Navy has lawful authority to approve or disapprove the sentence in such case. Udd. 108. If a sentence in such a case was in fact approved by the Secretary of the Navy, the President has no power, after the sentence has been carried into execution, to set aside the order of the Secretary and restore the party to the service. IMd. 109. A naval court-martial, upon conviction for an offense not capital under section 1, arti- cles 7 and 8 of the act of July 17, 1862, chap. 204, may sentence to imprisonment at hard labor. Opinion of Oct. 9, 1868, 12 Op. 510. 1 10. A sentence of permanent disability from dealing with the Government in matters of naval supplies, in the case of a contractor con- victed by a court-martial, is unwarranted by the usage of the service, and is therefore ille- gal. Opinion'of Nov. 24, 1868, 12 Op. 528. 111. Where forfeiture or loss of pay is made a part of the sentence of a court-martial, in addition to confinement or suspension from duty, the former may be remitted by the proper authority, in whole or in part, with- out also remitting the latter. Opinion of Nov. 9, 1876, 15 Op. 175. 112. It is not necessary that the President should attach his sign manual to the approval of a sentence rendered by a court-martial in time of peace, cashiering a commissioned offi- cer, in order to make the sentence effectual. It is sufficient for this purpose if his approval of the sentence is signified through and at- tested by the Secretary of War in a statement signed by the latter. Opinion of June 6, 1877, 15 Op. 291. 113. Paragraph 896 of the Eegulations of the Army does not apply to the proceedings of courts-martial which require the decision of the President. It is applicable only to those proceedings which may be confirmed by the officer who ordered the court to assemble, or the commanding officer for the time being, as the case may be. Ibid. 114. The action of the President in matters relating to the Army which requjre his ap- proval and direction may, in general, be signi- fied through and authenticated by the head of the Department of War. Where the latter acts COURT-IEARTIAL, Y. 1G5 in such matters, he acts, in contemplation of law, under the direction of the President, and is to be regarded as the mere organ of the Executive will. This principle has been long and frequently acted upon in making known the will or determination of the President in cases of sentences of courts-martial required to be laid before him for confirmation or disap- proval. Ibid. 115. A statement made and signed by the Secretary of War, announcing the approval by the President of a court-martial sentence, is a sufficient authentication of the act of the Presi- dent, without an express averment therein that it is made by direction of the President, the presumption being always that such direction was given. Ibid. 116. An act of the President remitting part of a courtrmartial sentence maj' be authenti- cated in the same way in which his act con- firming such sentence can be authenticated. Where partial remission is made at the time of confirmation, the two acts are, in practice, signified and attested together in the same way. Ibid. 117. When the sentence of a court-martial, lawfully confirmed, has been executed, the pro- ceedings in the case are no longer subject to re- view by the President. Ibid. 118. Q. , a commander in the Navy, having been tried and sentenced to dismissal from service by a naval court-martial, the record of the proceedings and sentence was submitted to the President, who, on the 5th of .Tune, 1874, approved the same. On the 9th of same month the Secretary of the Navy addressed a letter to Q. (then in Boston), informing him of the approval of the sentence, and stating that from that date (June 9, 1874) he would ' ' cease to be an officer of the Navy. " On the 12th of same month the Secretary again addressed a letter to Q., asking him to return the letter of dismissal. On the 8th of December following the Secretary addressed a third letter to Q., stating that the sentence of the court-martial "was, on the 9th day of June, 1874, miti- gated to suspension from rank," &c., "to date from that day. ' ' In the mean time, viz, on the 10th of June, S., a lieutenant-commander, was nominated to be a commander in the Navy, from the date last mentioned, vice Q., dis- missed, and this nomination was confirmed on the 12th of June, and a commission issued to S. sameday. Held: (1.) That the letter of the Secretary of the Navy of December 8 is satis- factory proof, not only of the mitigation of the sentence by the President, but that it was mitigated by him on the 9th of June. (2. ) That the letter of dismissal, in execution of the sentence, forwarded by the Secretary on the 9th of June (it being manifest that the complete execution of the sentence, by means of that letter, could not take place on that day), was tJicn revocable ; and the mitigation of the sentence was in effect a revocation of the let- ter. (3.) That it was competent to Ihe Presi- dent, under the circumstances, to mitigate the sentence when he did. (4.) That the subse- quent appointment of S. could not render in- effectual the previous mitigation of the sen- tence. And in view of the fact that the miti- gated sentence has been put in execution by a former administration, by which all questions in the premises must be presumed to have then been fully considered: ^f?ris«/ that this action be now treated as a final determination of the matter as regards the status of Q. Opinion of 3Iarch 16, 1878, 15 Op. 464. 119. Where an Army officer was sentenced to dismissal from the service, and the sentence, without having been approved by the Presi- dent, was carried into effect under orders of the War Department : Held that the subse- quent recognition by the President of the va- cancy thus occasioned by making an appoint- ment during a recess of the Senate, or a nom- ination to that body (followed by the issuance of a commission with the consent of the Senate) of a person to fill the place of such oificer, op- erates as a confirmation by him of the sentence and orders. Opinion of April 1, 1879, 16 Op. 298. 120. Whether a sentence of court-martial has been confirmed by the President is to be determined by evidence, no specific form for this act having been provided by statute. Ibid. 121. On the 28th of January, 1869, the Sec- retary of the Navy addressed a letter to B, as follows: "In consequence of the facts appear- ing upon the record of the naval general coirrt- martial before which you were tried, Novem- ber 16, 1868, on board the U. S. S. Pawnee, at Montevideo, Uruguay, you are dismissed the naval service, and will from this date cease to be regarded as an officer in the United States 166 COTJET-MAETIAL, TI, VII. Navy:" Held that this must be regarded as a dismissal by reason of the disclosures in the record (which dismissal the Executive had then no power to make), and not as a confirma- tion and execution of the sentence. Opinion of April 30, 1879, 10 Op. 312. 122. C, being then a soldier in the service of the United States, was, on tlie 24th of March, 1865, sentenced by a court-martial to be hanged for desertion, robbery, and murder. The proceedings of the court were approved b.y the officer in command of the department, and the sentence ordered to be executed on the 21st of July, 1865. The execution did not take place, for the reason (as is presumed) that the prisoner escaped. In 1870 C. applied to the military authorities for an honorable discharge (the application being based on certain state- ments afterwards discovered to be false), which ■was granted, and dated June 5, 1865. This discharge was subsequently revoked and the certificate canceled by the War Department, on the ground that it was given under a mis- apprehension of facts caused by the false state- ments aforesaid. On the 5th of May, 1875, he ■was dishonorably discharged as of July 21, 1865, the day appointed for his execution. Sdd (1) that the revocation of the "honorable discharge" and cancellation of the certificate thereof were proper; (2) that the second dis- charge operated to cut C. off dishonorably from the service, but did not alter his status as a military prisoner awaiting execution of sen- tence; (3) that no legal obstacle now exists to the execution of the sentence. But (on con- siderations stated in the opinion) recommended that the sentence be commuted to imprison- ment for life, or to such term of years as the President may in his discretion determine. Opinion of 3Iay 27, 1879, 16 Op. 349. 123. Notification by the Secretary of the Navy of the approval by the President of the sentence is sufficient evidence both of approval and promulgation. Opinion of Aug. 7, 1880, 16 Op. 550. VI. Reconsideration of Judgment. 124. Courts-martial have the power to re- consider any judgment and .sentence rendered by them during the term or sitting, and to change the judgment and sentence, even to death, whei-e the former imposed only impris- onment. But the execution of a sentence of death is murder, unless the court pronouncing it consisted of thirteen commissioned officers, where that number could have been convened without manifest injury to the service. Opin- ion of Aug. 29, 1819, 1 Op. 297. 125. The President may direct a naval court- martial to reconsider their judgment in cases where his previous sanction is necessary for the execution of such judgment. Opinion of April 20, 1842, 4 Op. 19. 126. It is in the power of the Secretary, or other authority appointing a court-martial, to order the case back for revision, both in the Army and Navy. But this must be done be- fore the court has actually been dissolved. Opinion of Oct. 27, 1853, 6 Op. 200. 127. Where a general court-martial duly organized by order of the Secretary of War was, after report, required by him to reassem- ble to revise its sentence, and on reassembling two of the original members were absent from whatever cause, but a legal quorum of the court still remained: Held that the absence of the two members at the reassembling of the court did not impair its jurisdiction, or other- wise affect its power to revise the sentence; and that it still was the same continuous and competent court as when it first assembled under the order of the Secretary. Opinion of July 12, 1855, 7 Op. 338. VII. Disapproval of Proceedings. — Ne'W Trial. 128. The President has power to order anew trial before a court-martial where in his opin- ion the court erred in the first trial in exclud- ing proper evidence. Opinion of Sept. 14, 1818, 1 Op. 233. 129. The Executive will not set aside pro- ceedings of courts-martial merely because they have admitted the testimony of negroes or made other mistakes, though objected to, where it appears upon the whole case that justice has been done, and that the verdict is substan- tially right. Opinion of April 27, 1840, 3 Op. 523. 130. B., a paymaster in the Navy, was tried and convicted by a naval general court-martial, convened on board the United States ship Pawnee, at Montevideo, Uruguay, in Novem- ber, 1868, under an order of Eear-Admiral C. H. Davis, commanding the South Atlantic Squadron, and was sentenced {inter alia) to be COURT OF CLAIMS — CRIMES AND MISDEMEANORS. 167 dismissed from the naval service. The record of the proceedings was received at the Navy Department with the following, signed by Eear- Admiral Davis, indorsed thereon: " Re- spectfully forwarded, with the remark that the finding of the court is not sustained by the evi- dence, which fails to show that the accused re- ceived from the hank the amount of money he is charged with having received." Held that the action of the officer who ordered the court (Eear-Admiral Davis), in forwarding the pro- ceedings with that indor.sementthereon, cannot he deemed to be a disapproval of the sentence of the court. Such disapproval should be dis- tinctly expressed. Opinion of April 30, 1879, 16 Op. 312. VIII. Employment of Counsel. 131. According to the law regulating courts- martial, the judge-advocate is the official pros- ecutor ; and in cases arising in the Navy he is by custom either a naval officer specially des- ignated, or a lawyer employed for that pur- pose. But by force of section 17 of the act of June 22, 1870, chap. 150, where the case be- fore the court-martial is of such a character as to render it expedient that the proceeding be conducted by a lawyer, the Secretary of the Navy is not at liberty to employ counsel, but should call upon the Department of Justice to supply an officer for that service. Opinion of April 25, 1871, 13 Op. 515. 132. The head of the Navy Department cannot, consistently with the provisions of sec- tion 17 of the act of June 22, 1870, chap. 150, •employ an attorney or counsellor at law to ■conduct proceedings before a naval court-mar- tial. Opinion of Attorney-General Akerman ■on same subject (13 Op., 515) examined and concurred in. Opinion of March 4, 1872, 14 ■Op. 13. COURT OF CLAIMS. See also Claims, XIX. An officer of the Bureau of Military Justice TD CONSULAR OFFICBES, I. titled to be treated with respect so long as he is permitted to continue in the country to which he is sent, and especially ought not to be libeled by any of the citizens. If he com- mits any ofleuse, it belongs, in our country, to the President of the United States to take notice of it, and not to any individual citizen. The President may dismiss him, or desire his recall, or complain to his sovereign and require satisfaction. Ihid. 4. An affront to an ambassador is j ust cause for national displeasure, and, if offered by an individual citizen, satislaction is demandable of his nation. It is not usual for nations to take serious notice of publications in one nation containing injurious and defamatory observa- tions upon the other ; but it is usual to com- plain of insults to their ambassadors, and to require the parties to be brought to punish- ment. Ihid. 5. A foreign minister here should correspond with the Secretary of State on matters which interest his nation, and ought not to be per- mitted to do it through the press in our country. His intercourse is to be with the Executive of the United States only upon matters that con- cern his mission or trust. He has no authority to communicate his sentiments to the people of the United States by publications, either in manuscript or print, which he shall write and circulate while resident among us. Such con- duct would be a contempt of the Government, for which he would be reprehensible by the President. Opinion of July 27, 1797, 1 Op. 74. 6. .There is no provision in the Constitution, nor in any law or treaty, which reaches the case of an insult to the Spanish minister. Opinion of May 12, 1802, 5 Op. 691. '7. The entry into a minister's garden by the agent of the owner of a slave, and there seizing and carrying away such slave to the owner, is not such a violation of the domicil of the ministeras constitutes an offense. The immu- nities of a minister's domicil cannot extend to his garden. Opi)don of May 9, 1804, 1 Op. 141. 8. The certificates of foreign ministers do not seem to compose a part of the regular papers with which a ship is usually furnished for the protection of herself and cargo. Opin- ion of July 20, 1807, 1 Op. 162. 9. The President being intrusted with the subject of the diplomatic intercourse of the United States with foreign nations, may, in his discretion, advance money to a minister going abroad oyer and above his outfit. Opin- ion of June 15, 1829, 2 Op. 204. 10. Mr. Barrozo Pereira, the Portuguese charg6 d'affaires, was, on the 30th of October, 1829, entitled to the respect and immunities of a public minister, notwithstanding the assump- tion of regal power in Portugal of Don Miguel in exclusion of Don Pedro. Opinion of K'ov. 3, 1829, 2 Op. 290. 11. The change which had occurred in the political condition of his country was not yet consummated. The uncertainty which in- duced him to suspend instead of terminating his functions was the same uncertainty which delayed the recognition by the United States of .the existing Government of Portugal. Until that was done, it could not consider as valid any act of that Government affecting Mr. Bar- rozo; and his own act, unnoticed as it was by this Government; was open to the explanation which he gave of it. Ibid. 12. The minister to Madrid is not entitled to charge lor office rent, although similar charges have been allowed to our ministers to London and Paris, the same not being war- ranted by law, nor having been the usage of the Government. Opinion of Aug. 5, 1831, 2 Op. 453. 13. Where the charge d'affaires to New Gre- nada was'authorized to draw upon the Barings for his salary, and such drafts brought a pre- mium: Meld, that he was chargeable with such premium, and must be considered to hold it in trust ibr the Government. Opinion of Dec. 26, 1843, 4 Op. 295. 14. The Government was bound to pay the minister a stipulated salary of $4,500 per annum, and, being thus liable, it was bound to make that amount available to him at his foreign residence; yet if, in the fiscal arrange- ments to make such salary available, he receive more than his due, he is bound to account for it. Ibid. 15. The persons and household goods of for- eign ambassadors, and those attached to their respective legations, are exempt Irom lawful arrest, seizure, or molestation, as well by the law of nations as the act of April 30, 1790, chap. 9. Opinion of Feb. 13, 1849, 5 Op. 69. 16. It is therefore unlawful for the keeper of a hotel in Washington with whom the at- tache of the legation of France is a boarder to DIPLOMATIC AND CONSULAR OFPICEES, 1, 187 ■oppose by force, in any manner, the removal therefrom of any of his personal effects. INd. 17. Yet it is not incumbent on the Secre- tary of State to interfere in such cases. The act of Congress which forbids the act and pre- scribes the penalty refers them to the judi- ciary. Ibid. 18. A minister to a foreign government is entitled to an outfit not exceeding one year's salary, though he vrere not in the United States at the time of his appointment. Opin- iort of July 20, 1849, 5 Op. 139. 19. The appropriation act of March 3, 1849, chap. 100, takes from the President any dis- cretion as to the amount, and requires a full outfit to be paid Mr. Donelson, the claimant in this case. Ihid. 20. A minister of the United States to the republic of Mexico is entitled, under the acts of May 1, 1810, chap. 44, and March 3, 1847, chap. 47, to an outfit of $9,000, although he -was not in the United States at the time of his appointment. Opinion of Oct. 8, 1849, 5 Op. 163. 21. The expression ' ' ambassadors and other public ministers, ' ' which occurs three times in the Constitution, must be understood as com- prehending all ofiicers having diplomatic func- tions, whatever their title or designation. Opinion of May 25, 1855, 7 Op. 189. 22. "Ambassadors," by the public law of Europe, enjoy the highest privileges, because of the pretended or putative direct relation of the ministers of this name to their sovereign ; but the imperial or regal sovereignty of a Eu- ropean monarchy neither has nor can have any public right in this respect, which does not equally belong to the popular sovereignty of a republic like the United States. Ibid. 23. The Commissioner of the United States in China, while he is a diplomatic officer by the law of nations, is also a judicial officer by treaty and by statute. Ibid. 24. The provision of the act of March 1, 1855, chap. 133, which contemplates the ap- pointment only of an envoy extraordinary to China, is imperfect ; for although the first minister of the United States, in China, held those two distinct commissions, yet a repeti- tion of that fact at this moment would not be compatible with the diplomatic relations at present existing between the United States and China. Ihid. . 25. It was the practice of the Spanish crown, during the reigns of Charles I and his succes- sors of the Austrian dynasty, to delegate to Spanish viceroys, governors, and captains- general, the Jus legationis as well in Europe as in Asia and America ; and that delegation was recognized by the public law of Europe. Opinion of Oct. 16, 1855, 7 Op. 551. 26. According to the public law of the mon- archies of Europe, the authority of ministers, and perhaps of international commissioners, expires on the death, deposition, or abdication of the prince ; but not so as between the Amer- ican republics, in which the executive power is permanent and continuous, without regard to the governing person, and there is no inter- ruption of the authority or renewal of the credentials of their public ministers on a. change of President for whatever cause, pro- vided such President continues to represent and exercise the appointing power of the Gov- ernment. Opinion of Oct. 29, 1855, 7 Op. 582. 27. The United States observe, as their rule of public law, to recognize Governments de facto, and also governing persons de facto, without scrutiny of the question of legitimacy of origin or accession. Ibid. 28. Hence, in this case, the Mexican com- missioner, Mr. Salazar, being duly appointed by President Santa Anna, continued to be com- petent to act after the sequent accession of President Carrera, and his official agreement, signed then, if otherwise regular and com- plete, definitively establishes the line as re- spects the Mexican republic. Ibid. 29. A person coming to this Government as the pretended diplomatic minister of a foreign state, and not recognized or received as such, has no diplomatic privilege except of transit, and that by comity, not of right ; which quali- fied privilege is subject to be withdrawn from him, leaving him amenable to the municipal law, if he engage in or contemplate any act not consonant with the laws, peace, or public honor of the United States. Opinion of Bee. 24, 1855, 8 Op. 47t. 30. A person claiming to be the diplomatic agent of a foreign Government, but not recog- nized as such, discharged from prosecution for unlawful recruiting on condition of leaving the United States. Opinion of Dec. 27, 1855, 8 Op. 473. 31. Ministers in office and receiving aug- 188 DIPLOMATIC AKD CONSULAR OFFICERS, IL mented salary, according to the provisions of the act of March 1, 1855, chap. 133, asamended by the act of August 18, 1856, chap. 162, are subject to the conditions of that act as to resi- dence. Opinion of Aug. 30, 1856, 8 Op. 69. 32. If a slave, employed by the representa- tive of ii foreign Government, -without the owner's authority, be reclaimed by the owner ■with or without legal process, the reclamation is not a breach of diplomatic privilege. Opin- ion of Mar. 30, 1857, 9 Op. 7. 33. P''or injuries done by private persons to the representatives of foreign Governments, the Government of the United States affords re- dress through its judicial tribunals. Ibid. 34. The Executive Department has no power to redress such injuries. Ibid. 35. The absence of a minister resident from his post, with permission of the President, is not an offense for which his salary, during the time of the absence, is to be withheld from him. Opinion of April 27, 1858, 9 Op. 138. 36. The act of August 18, 1856, chap. 127, does not forbid an absence of less than ten days without permission, or of more than that time with leave of the President. Ibid. 37. A secretary of legation is lawfully au- thorized to act as charge d'affaires ad interim whenever he assumes the duties of that ofSce in a manner warranted by public law, diplo- matic usage, and the general instructions of the Department of State. Opinion of May 3, 1860, 9 Op. 425. 38. When legally authorized to act in that capacity, he is entitled, under the act of August 18, 1856, chap. 127, to receive the pay of a charge d'affaires. Ibid. 39. A minister plenipotentiary from the United States to a foreign power cannot, with- out the consent of Congress, accept a similar commission from a third power ; though he is not prohibited from rendering a friendly serv- ice to a foreign Government, even that of nego- tiating a treaty, provided he does not become an officer thereof. Opinion of Nov. 23, 1871, 13 Op. 537. II. Consuls, Vice-Consuls, Commercial Agents, &c. 40. A consul is not considered a public min- ister, because he is not in any degree invested with the representative character ; and he is not entitled to the privileges attached to the person of such an officer. The Constitution of theUnited States distinguishes between them, where it extends the judicial power»"to all cases affecting ambassadors, other public minis- ters, and consuls" ; and the same distinction is also observed in the 13th section of the judi- ciary act of September 24, 1789, chap. 20. Opinion of Feb. 20, 1794, 1 Op. 41. 41. A riot before the house of a foreign con- sul by a tumultuous assembly req^uiring him to give up certain persons supposed to be res- ident with him, and insulting Mm with im- proper language, is not an offense within the act of 30th April, 1790, chap. 9, for the punish- ment of certain crimes against the United States, and cannot be prosecuted in the courts of the United States. Ibid. 42. A consul is not, as such, privileged from legal process by the law of nations, nor is the French consul-general by the consular con- vention of 1788 between the United States and France. Opinion of Nov. 21, 1797, 1 Op. 77. 43. Though the transaction which gave rise to the suit instituted against the French consul- general was not of a private character, but of a public nature, and one in which he acted as agent of his Government, yet the President of the United States has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice. Ibid. 44. A consul of the United States for Tunis, with instructions from the Department of State authorizing him, if he could find a suitable channel througli which to negotiate the im- mediate release of the American prisoners at Algiers, to go as far as three thousand dollars per man, employed an agent, by promise of reward, to effect the object, and then drew bills on the State Department for such com- Ijeusation, and for money paid, &c., in favor of a merchant at Gibraltar : Held, that the emiiloyment of an agent was justified under the power, but that the true meaning of the instructions was lost sight of by the manner of the emijloyment of the agent for a compen- sation. Opinion of Dec. 30, 1816, 1 Op. 196. 45. It is not essential to the -validity of a consular bond that it should be attested. Opinion of June 30, 1820, 1 Op. 378. 46. Foreign consuls and vice-consuls are not public ministers within the law of nations or DIPLOMATIC AND CONSULAR OPPICERS, II. 189 the acts of Congress, but are amenable to the civil jurisdiction of our courts. Opinion of Dec. 1, 1820, 1 Op. 406. 47. But consuls are bound to appear only in the Federal courts ; the Constitution and laws, contemplating the responsibility of consuls, having provided these tribunals, in exclusion of the State courts, in which they shall an- swer. IMd. 48. Consular jurisdiction depends on the general law of nations, existing treaties be- tween the two Governments affected by it, and upon the obligatory force and activity of the rule of reciprocity. Opinion of Sept. 8, 1830, 2 Op. 379. 49. French consular jurisdiction in an Amer- ican port depends on the correct interpretation of the treaties existing between his most Christian Majesty and the United States, and which limit it to the exercise of police over French vessels, and jurisdiction in civil mat- ters in all disputes which may there arise, and provide that such police shall be confined to the interior of the vessels, and shall not inter- fere with the police of our ports where the vessels shall be. They also provide that in cases of crimes and breaches of the peace the offenders shall be amenable to the judges of the country. Ihid. 50. The claim of the French envoy, there- fore, for the exercise of judicial power by the consul of his Government in the port of Savan- nah, is not warranted by any existing treaties, nor by a rule of reciprocity which the Execu- tive has power to permit to be exercised. Ibid. 51. The Executive will pay to the widow of a consul, having a salary, who has died in office abroad, upon her return, the amount which it has been customary to pay to consuls them- selves upon their recall, viz, his salary for three months. Opinion of 3Iay 31, 1832, 2 Op. 521. 52. The funeral expenses of the deceased consul, and the incidental and contingent ex- penses of the consulate after his death, are a fair item of charge on the fund for the contin- gent expenses of foreign intercourse. lUd. 53. And where the son of the deceased con- sul remains at the port and discharges duties of consul, which are recognized by the Gov- ernment, he may receive the compensation fixed by law for such services. Ibid. 54. Foreign consuls in the United States are entitled to no immunities beyond those en- joyed by foreigners coming to this country in a private capacity, except that of being sued and prosecuted exclusively in the Federal courts. Opinion of Sept. 16, 1835, 2 Op. 725. 55. If any foreign consul shall be guilty of any illegal or improper conduct, he will be liable to the revocation of his exequatur, and to be punished according to our laws, or he may be sent back to his own country, at the discretion of our Government. Ibid. 56. Consuls have no authority to order the sale of a ship in a foreign port, either on com- plaint of the crew or otherwise. Opinion of July 24, 1854, 6 Op. 617. 57. If, on such sale, a consul retains money for the payment of seamen's wages, he acts at his own peril, and is responsible to the owners. Ibid. 58. The United States are not responsible in damages for moneys illegally received by con- suls, or for any other act of malfeasance of theirs in office. Ibid. 59. Consuls of the United States have no lawful authority as such to solemnize mar- riages in countries comprehended within the pale of the international public law of Christ- endom. Opinion of Nov. 4, 1854, 7 Op. 18. 60. Secus, in countries not Christian, where by convention or in fact the rights of exterri- toriality are possessed by citizens of the United States. Ibid. 61. Consuls are officers created by the Con- stitution and the laws of nations, not by acts of Congress. Opinion of June 2, 1855, 7 Op. 243. 62. All the provisions of the act of March 1, 1855, chap. 133, regarding the duties of con- sular officers take effect on the 1st of July, 1855. Ibid. 63. Thepenaltyof removalfromoffice, which the act affixes to the non-performance of some duties by consuls, is inoperative, because re- moval from office cannot be enacted as a statute penalty, it being a matter for the Constitu- tional discretion of the President. Ibid. » 64. Consuls not duly accounting for fees col- lected for consular service are subj ect to in- dictment for the statute crime of embezzlement, in the terms of the act of August 6, 1846, chap. 90. Ibid. 65. In taking charge of the estates of citi- zens of the United States dying abroad, the power of consuls is limited to collecting the assets abroad, discharging them of local Mabili- 190 DIPLOMATIC AND CONSULAR OFFICERS, II. ties, reducing them to monej', and transmitting to tlie Treasury, subject to the orders, both before and afterwards, of the lawful executor or administrator. Ibid. 66. Consuls-general are the proper persons to hold consular posts in the capitals of the great transmarine dependencies of European powers, and to constitute the medium of com- munication with the local governor or captain- general, and are appointable at the discretion of the President with the consent of the Sen- ate. Ibid. 67. A consul may be authorized to communi- cate directly with the Government near which he resides; but he does not thereby acquire the diplomatic privileges of a minister. Opinion of July 14, 1855, 7 Op. 342. 68. Nor does he, as consul, acquire such privileges by being appointed, as he may, at the same time chargd d'affaires. Ibid. 69. To the question whether a consul can solemnize marriage or not, as consul, it is wholly immaterial whether he be or not a, sub- ject of the foreign Government. Ibid. 70. The exterritoriality of foreign consuls in Turkey and other Mohammedan countries is entirely independent of the fact of diplo- matic representation, and is maintained by the difference of law and religion; being but incidental to the fact of the established exter- ritoriality of Christians in all countries not Christian. Ibid. 71. Consuls, as international commercial agents, originated in the colonial municipali- ties of the Latin Christians in the Levant, which municipalities were self-governing through their "consuls," the ancient title of muni- cipal magistrates in Italy. Ibid. 72. Eights of private exterritoriality having ceased to exist in Christendom, foreign con- suls have ceased, mostly, to be municipal magistrates of their countrymen there; bat they still continue not only international agents, but also administrative and judicial functionaries of their countrymen in countries outside of Christendom. Ibid. 73. Foreign consuls have no right, on the trial of a person whose acts affect them as ac- complices, to interpose by letter; but may appear as witnesses or by counsel in aid of the defense of the party indicted. Opinion of Sept. 17, 1855, 8 Op. 469. 74. In virtue of the treaty of 1844 between the United States and China, all citizens of the United States in China enjoy complete rights of exterritoriality, and are amenable to no authority but that of the United States. Opinion of Sept. 19, 1855, 7 Op. 496. 75. The act of Congress empowers the com- missioners and consuls of the United States in China to exercise judicial authority over their fellow-citizens. Ibid. 76. The several consuls, each in his consular circumscription, have, by express provision of statute, original jurisdiction in all civil cases of contract, or the like sounding in damages, which arise between two or more citizens of the United States, and in all crimes committed by an American. Ihid. 77. In such civil matters of contract, or the like sounding in damages, the consul sits with or without assessors, according to circum- stances; and in case of difference of opinion between him and his assessors, an appeal lies to the commissioner. Ibid. 78. In all criminal matters, except certain petty misdemeanors, the consul sits with assess- ors, and decides subject to appeal as in civil cases to the commissioner. Save that in capi- tal cases, there is no appeal, but the conviction is invalid unless approved by the commis- sioner. Ibid. 79. In controversies between citizens of the United States and subjects of China, the case is to be tried by the court of the defendant's nation; and so in controversies between citi- zens of the United States and those of any friendly foreign government. Ibid. 80. The consular court has no authority by the treaty or the statute to entertain jurisdic- tion of a suit by the Chinese Government for duties. Ibid. 81. In all criminal matters, and in all civil matters of contract, or the like sounding in damages, the commissioner has only appellate jurisdiction. Ibid. 82. As to all other matters, such as probate of wills, divorce, intestacy, copartnership, chancery, admiralty, proceedings de re or in rem, personal or prerogative writs, division of lands, and the like, the statute makes no spe- cific provision, leaving them to regulations of the commissioner and consuls. Ibid. 83. Vice-consuls are competent to act, when, duly appointed or approved as such by the Sec- retary of State. Ibid. DIPLOMATIC AND CONSTJLAE OFFICEES, 11. 191 84. The face of a banker's circular letter of credit, found in the possession of an American dying abroad, is not assets to that amount to he administered by the consul. Opininii of Oct. 10, 1855, 7 Op. 542. 85. Citizens of the United States, who hold foreign consulates in the United States, are not exempt from jury duty or service in the militia by the law of nations, or by the Constitution and laws of the United States, nor unless ex- empted by the statutes of the State of the Union in which they may respectively reside. Opinion, of Nov. 3, 1856, 8 Op. 169. 86. Consuls of the United States in foreign countries are required to see to persons charged with the commission of crimes at sea or in port under circumstances giving jurisdiction to the courts of the United States, and have au- thority to send such persons home for trial, and in that view to inquire into the facts of the alleged crime. Opinion of Feb. 11, 1857, 8 Op. 380. 87. But the authority of the consul in such case is ministerial, not judicial, in its nature. Ibid. 88. Under the act of August 11, 1848, chap. 150, the United States consuls in Turkey have judicial powers only in criminal cases. Opin- ion of March 16, 1859, 9 Op. 296. 89. An American consul, under the act of February 28, 1803, chap. 9, has no authority, by withholding a ship's papers, to compel pay- ment of demands for which suit has been brought by a creditor, after her release in bond by the court. Opinion of Aug. 6, 1859, 9 Op. 384. 90. Such consul, under the twenty-eighth section of the actofAugustlS, 1856, chap. 127, has authority to detain the papers of a ship to enforce only the payment of wages in certain cases and consular fees; but he has not a gen- eral power of deciding upon all manner of dis- puted claims against American vessels. Ibid. 91. Such consul may receive the penalties incurred by the master of a vessel for neglect- ing to deposit his papers in a court of compe- tent jurisdiction, but he has no right to en- force otherwise the payment of the penalties. Ibid. 92. An American consul in a foreign port has no power to retain the papers of vessels which he may suspect are destined for the slave trade. Opinion of May 3, 1860, 9 Op. 426. 93. No more than fifty cents can be charged for certifying invoices, and for certifying the place of growth or production of goods made duty free by the reciprocity treaty with Great Britain, although such certificate may be ac- companied by an attestation of the official character of a magistrate and of the value of the goods. Gpiiiiou of July 16, 1860, 9 Op. 441. 94. Consuls, as well as consular officers and agents, are subject to this restriction. Ibid. 95. It applies to all the British iSTorth American Provinces included in the reciprocity treaty. Ibid. 96. A United States consul whose salary ex- ceeds $2,500 is entitled to be paid his fees as commissioner for taking depositions in an ad- miralty proceeding in a United States district court. Opinion of Oct. 16, 1860, 9 Op. 496. 97. The penal provisions of the seventeenthi section of the act of August 18, 1856, chap. 127, only apply to the taking of greater fees than are allowed by the act itself, and do not therefore extend to the taking of greater fees than are allowed by the third section of the act of March 3, 1859, chap. 75. Opinion of Nov. 22, 1860, 9 Op. 500. 98. No law or regulation requires an Amer- ican consul to <:ertify to the official character and acts of a foreign notary public. Opinion of Aug. 1, 1866, 12 Op. 1. 99. Consuls of the United States are author- iiicd by the twenty-fourth section of the act of August 18, 1856, chap. 127, to perform any no- tarial acts; but a certificate as to the official character of a foreign notary is not a notarial act. Ibid. 100. The third section of the act of July 25, 1866, chap. 233, is limited to unsalaried con- suls and commercial agents. Opinion of Nov. 22, 1866, 12 Op. 97. 101. Consular agents are entitled to the compensation allowed them under the fifteenth section of the act of August 18, 1856, chap. 127. Ibid. 102. The fees of consular agents receivable under the act of 1856 are not returnable in the accounts of the consuls to whom they are subordinate under the act of 1866. Ibid. 103. The fees collected by consular agents which are payable under the act of 1856 to their principals are returnable in the accounts of such principals. Ibid. 104. The act of February 28, 1867, chap. 99, 192 DIRECT TAX LAW. forbidding the payment of compensation to any consul or commercial agent of the United Slates who is not a citizen of the United States, does Dot apply to deputy consuls, consular agents, vice-consuls, and vice -commercial agents. Opinion of March 6, 1867, 12 Op. 124. 105. Consuls may retain $1,000 out of the aggregate moneys received trom consular agen- cies or vice-consulates. Opinion of Nov. 21, 1868, 12 Op. 527. 106. The action of a consul, in the exercise of the discretion given him by sections 4580, 4581, 4583, and 4584, respecting the discharge of sea- men in a foreign port, is not reviewable other- wise than by some competent court. Opinion of Feb. 20, 1879, 16 Op. 268. 107. Where a consul has collected extra wages of the master of a vessel in a foreign port, or requested collection of such extra wages on the arrival of the vessel in the United States, it is not competent to the Secretary of the Treasury or any bureau of the Treasury Department, in the examination of the ac- counts of the consul, to do anything more than revise the amount of the collection and deter- mine its arithmetical accuracy. Ibid. DIRECT-TAX LAW. 1. Under the acts of July 22, 1813, chap. 16, and January 9, 1815, chap. 21, minors have the right to redeem their lands sold for direct taxes at any time within two years from the removal of the disability by payment of the purchase money with 10 per cent, thereon, and compensation for improvements, whether deeds have been given to the purchasers or not; for no deed is valid unless given in pursuance of law, and the law does not authorize the giving of a deed until the time of redemption shall have expired. Opinion of July 3, 1820, 1 Op. 378. 2. Where lands liable for a direct tax are not divisible the whole must be sold. Opinion of Aug. 10, 1820, 1 Op. 401. 3. Lands sold therefor may be redeemed by the former owners within two years upon pay- ment of the amount paid by the purchaser with 20 per cent, interest. Ibid. 4. Property cannot lawfully be sold for direct taxes while in the custody of the mar- shal under proceedings for confiscation. ion of Aug. 14, 1865, 11 Op. 318. 5. The direct-tax commissioners are not re- quired to give the Freedmen's Bureau posses- sion of any lands purchased for the United States at direct-tax sales which are subject to redemption under the law, and the Commis- sioner of the Bureau has no authority to set apart those lands, or any of them, for the uses mentioned in the statute of March 3, 1865, chap. 90. Opinion of Sept. 6, 1865, 11 Op. 344. 6. A certificate of sale issued to the United States upon a purchase by them of property under the direct-tax act of June 7, 1862, chap. 98, should be signed by the commissioners who constituted the board at the time of the issuing of the certificate. Opinion of Sept. 3, 1866, 12 Op. 30. 7. Such certificate should bear date as of the day it is actually signed. Ibid. 8. The patent authorized to be issued by the second section of the act of March 3, 1865, chap. 87, for lands sold for direct taxes, is to be issued by the General Land OfSce, and not by the Treasury Department. Opinion of Sept. 13, 1866, 12 Op. 45. • 9. The Secretary of the Treasury has no power, on the application of the trustees of the Florida Eailroad Company, to issue repay- ment drafts to the purchasers of lands of the company, sold for direct taxes, upon a claim that the lands have been duly redeemed. Opinion of Oct. 26, 1868, 12 Op. 517. 10. It is competent to the officer of internal revenue, designated by the Secretary of the Treasury under the third section of the joint resolution of March 26, 1867, to perform the duties of tax-commissioner in South Carolina, to enter upon and sell lauds that may have been previously sold partly for cash and partly on credit by the tax-commissioners in that State pursuant to the provisions of section 11 of the act of June 7, 1862, chap. 98, in cases where default in the deferred payments has been made by the purchasers of such lands. Opinion of Jan. 5, 1872, 13 Op. 559. 11. That officer can receive, at anytime be- fore the entry and sale, the amount due on the deferred payments, including interest, and such payment will perfect the title of the pur- chaser so far as the Government is concerned. Ibid. 12. The assignee of a certificate of sale DISBUrSEMENT OF PUBLIC MONEYS. 193 issued by the tax-commissioners to a purchaser stands in the same situation as the latter, and upon payment by him of the amount in arrearsj at any time prior to entry and sale by the aforesaid oiEcer, becomes entitled to the property. Ibid. 13. The purchase of lands sold by the lax- commissioners for taxes, under the direct-tax law, is not within the prohibition of the eighth section of the act of September 2, 1789, chap. 12, which forbids the purchase by certain officers of " public lands or other public prop- erty." Opinion of Dee. 19, 1873, 14 Op. 352. 14. The proviso in section 6 of the act of March 3, 1865, chap. 87, requiring bills for ex- penses incident to proceedings of the direct- tax commissioners to be submitted to and ap- proved by the Secretary of the Treasury before payment, does not withhold from the action of the Secretary cases in which his approval is asked after such bills have been paid by the commissioners. Opinion of May "iTt, 187G, 15 Op. 106. 15. The authority exercised by the Secre- tary under section 14 of the same act, in fix- ing the rates of compensation to be allowed the clerks, &c., there mentioned, is distinct from that exercisable under section 6, and does not amount to an approval of payments to such persons within the meaning of the latter sec- tion. Ibid. DISBURSEMENT OP PUBLIC MONEYS. See also Checks. 1. The superintendent for construction and repair of the Cumberland road may be allowed to disburse funds committed to his care by turning over the sanie to officers employed under him; yet he must be held personally accountable at the Treasury for the correct dis- bursement thereof. Opinion of July 15, 1836, 3 Op. 140. 2. Disbursing officers of the Government, in accepting their offices, assume the risk and trouble of exchanges and transportation of funds, and cannot charge for insurance, but only for the actual expenses of transportation. Opinion of May 23, 1849, 5 Op. 104. 3. If they insure the amount received upon a draft to cover their liability to the Govern- DIG 13 ment, it is for their own indemnity, for if it be lost by force, theft, hazard of the elements, or any other cause, they are responsible. The transportation is never at the will of the Gov- ernment, but always at that of the officer. Ibid. 4. Antecedent authority to insure cannot charge the Department for a loss. Ibid. 5. Under section 3620 Eev. Stat. , as amended by act of February 27, 1877, chap. 69, the Treasurers and Assistant Treasurers of the United States may be authorized to pay the checks of disbursing officers, where the same are drawn in favor of the persons to whom pay- ment is made, but are payable to order or bearer. Whether such checks shall be made payable only to the persons entitled to pay- ment, or to bearer, or to order, is a matter to be regulated entirely by the discretion of the Secretary of "the Treasury. Opinion of June 4, 1877, 15 Op. 288. 6. It is competent to the Secretary of the Treasury, under section 3620 Eev. Stat., as amended by the act of February 27, 1877, chap. 69, to permitdisbursing officers todraw, and the assistant treasurers and public depositaries to pay, checks made payable to themselves or bearer or order, for such sums as may be neces- sary to make payments of small amounts, to make payments at a distance from a depositary, or to make payments of fixed salaries due at a certain period (as authorized by Treasury reg- ulations of August 24, 1876), provided such checks bear indorsed thereon the names of the persons to whom the sums are to be paid, or the claim upon which they are to be paid, or are accompanied by a list or schedule, made a part of the check, containing the same infor- mation. Opinion of June 8, 1877, 15 Op. 303. 7. Under section 5 of the act of June 20, 1874, chap. 328, it is the duty of disbursing officers, wdth whom funds have been placed for disbursement, when the time arrives at which unexpended balances of the appropriations from which such funds were drawn lapse, to repay the funds remaining in their hands, in order that they may be carried to the surplus fund and covered into the Treasury. Opinion of Aug. 10, 1877, 15 Op. 358. 8. Where previous to that time, these offi- cers have issued certificates by which claims upon such appropriations have been definitely ascertained, and payment thereof has not actu- 194 DISOHAEGE— DISTRICT ATTOENEY. ally been made before that time, such claims may thereafter be paid by them out of the proper funds remaining in their hands. Hid. 9. For what period and to what amount such officers should be allowed to retain in their hands funds for that purpose, after the date when unexpended balances of the appropria- tion lapse, is a matter of administration, fall- ing within the province of the Secretary of the Treasury to regulate. Ibid. 10. The provisions of section 3651 Eev. Stat, in effect prohibit the exchange of gold and sil- ver coin for United States notes by the Treas- urer, assistant treasurers, and other deposit- aries of public funds. Opinion of Sept. 19, 1879, 16 Op. 381. DISCHARGE. See Aemy, XXI. DISMAL SWAMP CANAL. The joint resolutionof July 25, 1866, author- izing the sale of the stock of the Dismal Swamp Canal Company, owned by the United States, considered. Opinion of Jan. 25, 1868, 13 Op. 350. DISMISSAL. See Aemy, IX; Marine Coeps, III; NaVy, VII. DISPOSAL OP OLD MATERIAL. 1. Under the act of 3d March, 1825, chap. 93, the President, only, has power to cause ord- nance, arms, ammunition, &c., unfit for public service, upon proper inspection and survey, to be sold; and to that end, a method of efiecting the sale has been prescribed by the Secretary of War, by which the property must be offered first at public auction. Opinion of Sept. 11, 1833, 2 Op. 580. 2. Upon examination of section 3618 Rev. Stat., amended by act of February 27,1877, chap. 69, and also of section 3672 Eev. Stat. : Advised that the Chief of the Bureau of Engrav- ing and Printing cannot be authorized by the Secretary of the Treasury to exchange certain old presses for a new press with the manufact- urers, so that but a small amount of money in addition will have to be paid to them therefor; yet that the Secretary may authorize a sale of the old presses to the manufacturers, the pro- ceeds to be covered into the Treasury, and at the same time a purchase of the new press can be made from them, paying for the same out of the appropriation available for that purpose. Opinion of June 23, 1877, 15 Op. 322. DISTRICT ATTORNEY. See also Compensation, II; Fees and Costs. 1. Where the decree of a judge raises a pre- sumption against the jurisdiction of the United States courts, in cases of capture, the district attorney may cause the necessary depositions to be taken de tene esse, to be used by the Ex- ecutive, in case the appellant does not prose- cute his appeal, or the decree be affirmed. Opinion of Feb. 8, 1794, 1 Op. 39. 2. It is the duty of district attorneys to at- tend all the courts of their respective districts when required by the Government. Opinion of Feb. 18, 1830, 2 Op. 319. 3. Where a district attorney acted as counsel for a collector of customs in suits instituted against him to recover back duties paid under protest, and was adjudged by the circuit court to be entitled to receive his fees and disburse- ments for such service from the United States: Held that the same should not be included in his official return of fees under the act of 18th May, 1842, chap. 29, for the reason that the services were rendered as the private counsel of the collector, and not in his official capacity as district attorney. Opinion of Feb. 9, 1844, 4 Op. 308. 4. It is not the official duty of a district attorney of the United States to attend on the examination by a magistrate of a State of a complaint preferred by an officer of the Army against a citizen for violation of an act of Con- gress, or to leave the place of his residence to assist such officer of the Army in procuring' evidence, or otherwise preparing the case. Opinion of Nov. 11, 1853, 6 Op. 218. 5. A district or territorial attorney of the- DISTRICT ATTORNEY. 195 United States has no power to commence a suit in the name of the Government without instructions from the Solicitor of the Treasury, except in a case of manifest urgency, which it is his duty to communicate to the Solicitor immediately, in order that he may be in- structed as to its further prosecution by the Solicitor. Opinion of Jan. 1, 1855, 8 Op. 454. 6. It is the oflScial duty of district attorneys to appear in the Federal courts of their re- spective districts in all cases in ■which the United States shall be concerned, although the case may stand not in the name of the United States, but of some officer of the United States. Opinion of Feb. 20, 1857, 8 Op. 399. 7. The act of August 16, 1856, chap. 124, section 12, was intended to compel district at- torneys to include in their emolument ac- counts the fees received from the Government for defending its officers, as well as other fees. Opinion of May 'i5, 1858, 9 Op. 146. 8. When the office of a district attorney is so overburdened with business the Depart- ments may employ other counsel to aid him in defending suits against the public officers, or may allow him to employ a regular assistant at an agreed salary. Ihid. 9. It is in the discretion of the Secretary of the Treasury to decide whether an outgoing district attorney shall cease all connection with pending suits against collectors; but in some cases it would be wise to employ the late attorney as assistant counsel with the incum- bent. Hid. 10. The Secretary of the Treasury has no authority to appoint an assistant district attor- ney at a fixed salary payable out of the judi- ciary fund. Opinion of June 5, 1858, 9 Op. 164. 11. The heads of the several Departments may retain an assistant for a district attorney to aid in the defense of suits against the Fed- eral officers. IMd. 12. Such counsel should act under the direc- tion of the district attorney, and his maximum compensation should be fixed when he is em- ployed. Hid. 13. A district attorney is entitled, under the act of February 26, 1853, chap. 80, to mileage only from the place of his permanent residence to the place where the court is held. Opinion ofFeb.lX, 1860, 9 Op. 411. 14. He is entitled to mileage to and from court, as of right, in all cases of his lawful at- tendance on court at a distance from his place of abode. Ihid. 15. Travel is not a "service" within the meaning of the act of February 26, 1853, chap. 80. Opinion of Feb. 18, 1860, 9 Op. 417. 16. The necessary attendance of a district attorney before one court is a sufficient cause to render it impossible for him to attend an- other court held in a different place at the ' same time. This will justify the appointment- of a substitute to attend such other court, if the public interest requires it. Opinion of Dec. 11, 1860, 9 Op. 526. 17. It is not a part of the official duties of a district attorney to resist applications for the discharge of enlisted minors, under writs of habeas corpus issued out of State courts, but the Secretary of War has power to employ the district attorney for that purpose if he shall deem it proper. Opinion of Oct. 16, 1861, 10 Op. 146. 18. The plain intent of section 14 of the act of August 16, 1856, chap. 124, was to guard against inj ury to the public service by the ac- cidental and temporary inability of a district attorney to attend at court, and not to allow him to hold the title of his office while all its duties are pernffmed by a, deputy or substi- tute of his own appointment, and the officer himself volunteers to employ all his time in another vocation. Opinion of Nov. 2, 1861, 10 Op. 150. 19. While a district attorney who should accept a commission in the Army and neglect the duties of his civil office would be liable to be removed by the President, yet the accept- ance of such a commission would not, propria vigore, vacate the office of district attorney. Ibid. 20. The fees received by the district attorney for the southern district of New York for serv- ices in confiscation cases constitute a part of his official emoluments, and as such must be accounted for, pursuant to section 3 of the act of February 26, 1853, chap. 80. Opinion of Sept. 12, 1864, 11 Op. 79. 21. A district attorney is not required to return in his emolument accounts the com- pensation received for services rendered under section 12 of the act of March 3, 1863, chap. 76, in suits against collectors or other revenue officers". Opinion of Sept. 20, 1864, 11 Op. 88. 22. Section 15 of the act of June 22, 1874, 196 DISTRICT COURT OF THE UNITED STATES; DISTRICT OF COLUMBIA, I. chap. 391, modifies section 838 Rev. Stat., in so far as to require the district attorney to commence proceedings in all cases covered by the latter section, excepting only where the case cannot in* his judgment be "sustained." Opinion of Nov. 11, 1875, 15 Op. 523. 23. It is the duty of the district attorney, however, to report the facts to the Secretary of the Treasury in every case (as well where proceedings are instituted by him as where they are not), to the end that the Secretary may determine what "the ends of public jus- tice require ' ' in relation thereto. Ibid. DISTRICT COURT OF THE UNITED STATES. When there is a vacancy in the ofl&ee of dis- trict judge the circuit judge cannot designate a district judge to hold court in that district, the act of Congress (of July 29, 1850, chap. 30) only authorizing such designation in cases of sickness or other disability. Opinion of Jan. 23, 1858, 9 Op. 131. DISTRICT or CoSi^MBIA. See also Washington City. I. Generally. II. Commissioners of. III. Police Board. — Board of Health. IV. Sinking fund. Y. Bonds and other Securities of. I. Generally. 1. The orphans' court of the county of Washington has power to grant letters of ad- ministration in respect to assets existing in the county, and payments made by the Treas- ury Department to an administrator thus ap- pointed are regular ; yet, in a case where the decedent resided in Baltimore, and left a will appointing an executor there, and letters grant- ing administration de bonis nan are afterwards granted in Maryland upon the same estate, the letters issued in Washington become sub- ordinate to them. Opinion of. April 18, 1836, 3 Op. 89. 2. The circuit court of the District' of Co- lumbia is not invested with authority to issue a mandamus against the Postmaster- General to compel him to execute an act of Congress in a particular way. Opinion of May 30, 1837, 3 Op. 236. 3. The inspectors of the penitentiary in the District of Columbia have, notwithstanding the authority conferred on the warden by the act of 25th February, 1831, chap. 31, the re- sponsibility and duty of a general superintend- ence and management of the institution; and it belongs to them to limit the number of sub- ordinate officers and servants, and to regulate their salaries. Opinion of July 6, 1849, 5 Op. 129. 4. In them, and not in the warden, is vested the authority to appoint the physician and chaplain, they not being "inferior oflicers" within the meaning of the law. Ibid. 5. The circuit and district courts of the Dis- trict of Columbia are circuit and district courts of the United States within the meaning of paragraph No. 167 of act 18th May, 1842, chap. 29, and the clerk thereof is required to return a semi-aimual account of his fees and emolu- ments; but said clerk, as ex officio clerk of the criminal court of said District, is not required to make such return for the criminal court. Opinion of Feb. 28, 1853, 5 Op. 678. 6. The fees of inquests super visum corporis in the county and city of Washington are to be paid out of the goods and chattels of the deceased. Opinion of June 19, 1854, 6 Op. 561. 7. In default of such goods said fees are a charge on the county, to be deftayed by the levy court, and are not lawfully payable by the United States. Ibid. 8. The question of the validity and of the formal parts and operation of a will made in the District of Columbia, as it now exists, mainly depends on the laws of the State of Maryland. Opinion of Feb. 5, 1855, 7 Op. 47. 9. In order that a devise of real estate shall be eflfective on lands situated in the District of Columbia, such devise must have been exe- cuted in conformity with the statutes of the State of Maryland. Ibid. 10. The distribution of the personal efl'ects of a decedent situated in the District is gov- erned by the lex domicilii, not the lex loci rd sitse. Ibid. 11. No persons, not of the Army or Navy, are entitled to admission into the Government hospital as indigent insane, unless at the time DISTRICT OF COLUMBIA, I. 197 of becoming insane tley are legal residents of the District. Opinion of Aug. 30, 1855, 7 Op. 450. 12. Responsibility of clerk of the courts of the United States in the District of Columbia for fees receivable by his office reaffirmed. Opinion of Aug. 12, 1856, 8 Op. 33. 13. Construction of the act of Congress of August 11, 1856, chap. 84, amending the charter of the city of Georgetown. Opinion {imofficial) of Nov. 28, 1856, 8 Op. 546. 14. The clerk of the circuit court of the Dis- trict of Columbia is bound by law to account for the fees earned and received by him in the criminal court as well as in the circuit court. Opinion of April 8, 1858, 9 Op. 136. 15. The marshal of the District of Columbia is entitled, under the act of March 3, 1807, chap. 23, to a daily allowance of twenty-one cents and a slight fraction for keeping and sub- sisting prisoners confined in the jail of the Dis- trict on criminal charges. Opinion of March 27, 1862, 10 Op. 210. 16. The fees of the marshal of the District of Columbia for services under the act of April 16, 1862, chap. 54, do not constitute a part of his regular emoluments, to be included in his semi-annual returns to the Interior Depart- ment, under the act of Febraary 26, 1853, chap. 80, and are not subject to the limitation upon the amount of his compensation contained in that act. Opinion of Feb. 18, 1863, 10 Op. 458. 17. Under the order of the Secretary of the Interior requiring the marshal of the District of Columbia to state and settle his accounts for fees and expenses of courts, in accordance with the act of February 26, 1853, chap. 80, the marshal is entitled to receive for the main- tenance of the prisoners confined in jail for criminal offenses such allowance as that act authorizes. Opinion of Feb. 28, 1863, 10 Op. 463. 18. The act of 1853 entitles the marshal to a reasonable allowance for such service, the amount of which is determinable by the proper accounting officers, under the direction of the Secretary of the Interior, according to a fair and just standard. Ihid. 19. The act of February 29, 1864, chap. 16, authorizing the appointment of a warden of thejailinthe District of Columbia, deprives the marshal of the District of Columbia of the power of executing sentence of death upon any person imprisoned in the jail of that District under such sentence. Opinion of March 28, 1864, 11 Op. 34. 20. Tlie appointment of the register of wills for the District of Columbia is with the Presi- dent, by and with the advice and consent of the Senate, and the tenure of the office is at the pleasure of the President, subject to the modification prescribed by the tenure of office acts. Opinion of April 25, 1871, 13 Op. 409. 21. The act of February 21, 1871, chap. 62, providing a government for the District of Co- lumbia, does not repeal or modify the act of March 3, 1803, chap. 20, providing for the organization of the militia of the District; nor does it confer upon the legislative assembly of the District power to repeal or modify the pro- visions of the latter act. Opinion of Dec. 25, 1871, 13 Op. 542. 22 Congress not having placed the Secre- tary of War under the direction of the said legislative assembly, it has exceeded its pow- ers in enacting that ' ' the officers of the Dis- trict militia shall be commissioned by the Secretary of War. " Ihid. 23. Under t'he act of February 21, 1871, it is the duty oflBfce governor of the District to oommi.ssion all officers created by the District legislative assembly. Ibid. 24. All sessions of the legislative assembly of the District of Columbia, called as well as regular, are by section 5 of the act of February 21, 1871, chap. 62, limited in duration to sixty days. Opinion of Jan. 15, 1872, 14 Op. 1. 25. The board of commissioners created by the act of June 1, 1872, chap. 260, to carry out the provisions of the act of July 25, 1866, chap. 236, and the acts amendatory thereof, authorizing the construction of a jail in and for the District of Columbia, have no power to purchase a site for the j ail. Opinion of July 18, 1872, 14 Op. 60. 26. By the act of July 25, 1866, the selec- tion of the site therefor was restricted to "a suitable place, on some of the public grounds belonging to the Government. " Under that act a site was selected; but afterward, by joint resolution of March 2, 1867, Congress directed a new site to be selected, and this enactment left the restriction imposed by the act of 1866, as to the selection of the site, stiU.in force. Ibid. 198 DISTRICT OF COLUMBIA, II, III. 27. The act of June 1, 1872, contains noth- ing that enlarges the field of selection which existed previous thereto, or that renders the restriction mentioned inconsistent with its pro- visions: and though, under it, the board of commissioners may change the site, they can- not locate the same on any other ground than such as is already owned by the Government. Ibid. 28. The fifteenth section of the act of Au- gust 6, 1861, chap. 62, was entirely superseded by the act of February 2] , 1871, chap. 62, and no longer imposes any duty or confers any au- thority in regard to providing accommodations for the police force of the District of Columbia, this subject clearly falling within the legisla- tive power given by the latter statute to the legislative assembly of the District. Opinion of Oct. 11, 1872, 14 Op. 127. 29. Semble that under the sixth section of the act of March 3, 1797, chap. 20, a writ of execution upon a judgment obtained in favor of the United States, issued by a court of the United States in any State, "may run and be executed in " the District of Columbia. Opin- ion of April 8, 1874, 14 Op. 384. 30. Accordingly, where two .such writs were directed to the marshal of said District from the United States circuit court for the western district of Tennessee: Advised that it was his duty to execute them. Ibid. 31. The First and Second Comptrollers of the Treasury, sitting as a board of audit un- der the act of June 20, 1874, chap. 337, are, by the provisions of that act, authorized to allow interest at the rate of 6 per cent, per annum upon that part of the indebtedness of the District of Columbia which purports "to he evidenced and ascertained by certificates of the auditor of the board of public works" of said District. Opinion of Oct. 17, 1874, 14 Op. 465. II. Commissioners of. 32. The Commissioners of the District of Columbia have authority, under the act of June 20, 1874, chap. 337, to appoint notaries public in and for the District. Opinion of July 17, 1874, 14 Op. 419. 33. The Board of Commissioners of the Dis- trict of Columbia, under its general executive and administrative authority over the affairs of the District, and its general supervision and direction over the Engineer ofScer detailed to perform certain duties relating to the "repair and improvementof all streets, avenues, alleys, sewers, roads, and bridges of the District, ' ' has power to direct the discharge of the two assist- ants whom that officer is authorized to ap- point, whenever, in its judgment, circum- stances malce it expedient to determine their employment. The Engineer officer is not au- thorized to retain these assistants after the Board has directed their discharge. Opinion of April 6, 1877, 15 Op. 216. 34. The Commissioners of the District of Columbia have not power under the act of June 11, 1878, chap. 180, to abolish the ofiice of the fire commissioner, whose appointment is vested in the Secretary of the Interior by the law creating the ofi&ce (the act of the legis- lative assembly of the District of Columbia, passed August 21, 1871). Opinion of Oct. 17, 1878, 16 Op. 180. III. Police Board.— Board of Health. 35. Under the authority of the act of August 6, 1861, chap. 62, the board of police of the District of Columbia may, at the expense of the United States, uniform the police, mount such a portion of them as may be necessary, and also employ a temporary drill-master for their instruction. But the board have no au- thority to appoint an assistant clerk and mes- senger. Opinion of Sept. 27, 1861, 10 Op. 131. 36. The ex officio members of the board are not entitled to the compensation of §5 per day allowed by the twenty-second section of that act. Ibid. 37. Bysection22of theactof August6, 1861, chap. 62, the treasurer of the board of police is entitled to the per diem allowance of §5 as a commissioner, in addition to his official salary of $600 per annum. Opinion of A^ov. 7, 1861, 10 Op. 156. 38. The board of police of the District of Columbia have no authority to employ, in the erection of buildings to be used as police head- quarters, the funds saved from past appropri- ations made by Congress for the payment of salaries and other necessary expenses of the Metropolitan police for said District. Opinion of June 24, 1870, 13 Op. 264. 39. The board of health of the District of Columbia, in the absence of any statutory pro- vision on the subject, has of necessity an in- DISTRICT OF COLUMCIA, TV, 199 herent power to appoint officers necessary to its complete organization, such as a clerk or secretary. Opinion of June 8, 1871, 13 Op. 677. 40. The board may not only declare what sliall be deemed nuisances, but provide by contract or otherwise for the removal of nuisances, if necessary, at the expense of the District. Ihid. 41. Scmile that the power given to the board to make and enforce regulations is confined to preventing domestic animals running at large in the streets, and the sale of unwholesome food; but that this power includes the power to fix penalties for the violation of such regu- lations, at least in the absence of any legisla- tion on the subject. The enforcement of such penalties, however, must be through the ordi- nary tribunals and magistracy of the District. Ibid. 42. By the 3d section of the act of July 23, 1866, chap. 215, which remains in full force, no valid license for the sale or disposal of in- toxicating drinks within the District of Co- lumbia can be issued without the approval of the Board of Metropolitan Police. Opinion of Dec. 10, 1873, 14 Op. 339. 43. The board is bound to act on all licenses duly presented for approval; but it is not re- quired to approve every license so presented, though as regards such license a full compli- ance with the other provisions of the license laws is shown. Ibid. 44. The power conferred upon the board is wholly discretionary, and may be exercised by it as the circumstances of each case in its j udg- ment seem to require. Ibid. IV. Sinking Fund. 45. Upon consideration of the provisions of section 13 of the act of March 3, 1877, chap. 117, section 7 of the act of June 11, 1878, chap. 180, and section 3 of the act of March 3, 1879, chap. 182: Held that a previous requisition on the Secretary of the Treasury by the Commis- sioners of the District of Columbia is necessary to authorize a warrant for disbursing the sink- ing fund of the District by the Treasurer of the United States. Opinion of Sept. 29, 1879, 16 Op. 632. V. Bonds and other Securities of. 46. The act of June 20, 1834, chap. 337, con- fers no power upon the sinking-fund commis- sioners of the District of Columbia, either di- rectly or indirectly, to make the principal and interest of the 3.65 bonds, which they are hereby authorized to issue, payable in coin, by expressing on the face of the bonds that the iprincipal and interest thereof will be paid in coin. Opinion of Aug. 11, 1874, 14 Op. 445. 47. Their duty as to the preparation of the bonds will be discharged in entire conformity with the requirements of the statute by mak- ing them payable in dollars simply, without introducing any qual ification therein respect- ing the kind of money in which they are to be paid. Ibid. 48. The intention of the act, manifestly, is that the principal and interest of such bonds shall be paid in whatever may constitute, when the payment is to be made, lawful money of the United States. Ibid. 49. The amendment of the 7th section of the act of June 20, 1874, chap. 337, made by the act of February 20, 1875, chap. 94, supplies by legislative authority, in the particular clause to which it relates, nothing more than what was previously necessary to be supplied by con- struction, in order to give the clause any mean- ing or effect whatever, consistent with its ob- vious purpose. It does not really introduce any modification ofthe former law, but merely renders the meaning thereof more plain and explicit. Hence the pledge of the faith of the United States, with respect to the payment of the principal and interest of the District of Columbia 3. 65 bonds, is not made any more complete thereby, but remains precisely as it was before. Opinion of Mar. 13, 1875, 14 Op. 545. 50. The word ' ' guarantee ' ' does not aptly describe the undertaking of the United States in relation to those bonds; though, practically, such undertaking, when regarded as a security, may be equivalent to an unqualified guaran- tee; inasmuch as the particular means and sources of revenue by and from which the United States promises to provide for the pay- ment of said bonds, interest and principal, are unquestionably adequate to that end. Ibid. 51. The bonds of the District of Columbia, which the commissioners of the sinking fund of the District were authorized to issue by an act ofthe District legislative assembly, passed June 20, 1872, are not affected by the provis- ions of the 16th section of the act of March 3, 200 DOMESTIC TIOLENCE IN STATES — DRAFTS OE EOEEIGN GOVERNMENT. 1875, chap. 162, requiring the destruction by ■burning of all bonds, sewer-certifloates, and other obligations of the cities of Washington and Georgetown and of the District of Co- lumbia, "paid or redeemed," &c., there not having been such a redemption of the first- mentioned bonds as to require them to be de- stroyed. Opinion of Mar. 29, 1875, 14 Op. 554. 52. Those bonds may be disposed of by the commissioners of the sinking fund agreeably to the provisions of the aforesaid act of the District legislative assembly, subject to the re- striction respecting the sale thereof which is imposed by the 10th section of the act of June 20, 1874, chap. 337. Ibid. 53. The faith of the United States is, by sec- tion 7 of the act of June 20, 1874, chap. 337, and the amendatory act of February 20, 1875, chap. 94, pledged for the payment of the interest and principal of the bonds known as the 3.65 District of Columbia bonds. Opinion of Oct. 22,1875, 15 Op. 56. 54. The holders of overdue coupons of the 8 per cent, certificates issued under the act of the legislative assembly of the District of Co- lumbia, approved May 29, 1873, are entitled to interest thereon at the rate of 6 per cent, per annum; and such interest should be al- lowed by the Treasurer of the United States where such coupons arc tendered in payment of taxes for special improvemements within the said District. Opinion of June 8, 1880, 16 Op. 515. DOMESTIC VIOLENCE INSTATES. 1. Instruction as to alleged obstruction of legal process, indicating what acts are regarded as constituting an emergency to justify the in- tervention of the armed force of the United States. Letter of Jan. 20, 1854, io United States marshal, 8 Op. 445. 2. Consideration of the circumstances in which the President may employ the military and naval force of the Union to suppress insur- rection in one of the States. Opinion of July 19, 1856, 8 Op. 8. 3. Where calls are made upon the President, under section 4, Article IV, of the Constitution, by two persons, each claiming to be governor of the same State, to protect the State against domestic violence, it of necessity devolves upon the President to determine, before giving the required aid, which of such persons is the law- ful incumbent of the office. Opinion of May 15, 1874, 14 Op. 391. 4. Review of the respective claims of Elisha Baxter and Joseph Brooks — each of whom hav- ing made application for Executive aid to sup- press an insurrection in Arkansas — to be rec- ognized by the President as governor of that State. And upon consideration of the consti- tution and laws of the State, the decisions of its highest judicial tribunal, and the actual determination of the controversy between those parties by the general assembly of the State, which, according to the rulings of the said tri- bunal, had exclusive jurisdiction of the matter in controversy: Advised that Elisha Baxter be recognized by the President as the lawful gov- ernor of the State. Ibid. DOMICILE. 1. The question of the domicile, nationality, or competent forum of a slave, depends on that of his master. Opinion of June 13, 1855, 7 Op. 278. 2. Hence, if a crime be committed by a slave in the Indian country, and his master is a citi- zen of the United States, he must be tried by the district court. Ibid. 3. But if the slave of a Cherokee commit a crime against a Cherokee, and in the Cherokee Nation, he is triable by the Cherokees. Ibid. DOWER. 1. Marriage, seisin, and death of the husband are essential to the right of dower. Where the seisin is not sufficiently proved, dower cannot beallowed. Opinion of Jan. 29, 1827, 2 Op. 47. 2. Where land has been mortgaged j oiutly by husband and wife, the wife is dowable of the equity of redemption, after the death of her husband. Opinion of July 27, 1859, 9 Op. 377.. DRAFTS OP FOREIGN GOVERN- MENT. The question whether the United States will pay, according to their original tenor, drafts drawn by the Mexican Government under the DRAWBACK — EIGHT-HOUK LAW. 201 Mesilla convention, or suspend the payment at the subsequent request of said Government, is matter of political not of legal determination. Opinion of Nov. 25, 1855, 7 Op. 599. DRA^A^BACK. See Customs Laws, IX. DUTIES. See COMMKECB AND NAVIGATION, III; CUS- TOMS Laws; Inteenal Eevbnub. EASEMENT. 1. The Secretary of the Kavy has no author- ity to grant to the city of Chelsea, Mass., a right to construct and maintain a sewer upon the grounds of the United States naval hos- pital at that place. To authorize the grant of such right an .act of Congress is necessary. Opinion of Oct. 1, 1878, 16 Op.. 162. 2. A right to send rays from a light-house across a private close, unobstructed by future erections thereon by the ovi^ner, is an easement which must be gained by the United States in the usual way, i. e., by grant, express or im- plied, from the owner of the close. In the absence of such a grant by the owner, his right to build upon the close remains intact; and, if he is unwilling to make a grant, the United States are left to have recourse, under the law of eminent domain, to condemnation of the property for the public purposes involved. Opinion of Sept. 29, 1879, 16 Op. 631. EIGHT-HOUR LA'W. 1. The act of June 25, 1868, chap. 72, con- stituting eight hours a day's work for all Gov- ernment laborers, does not absolutely require that employes of the Government must receive as high wages for their eight hours' labor as similar industry in private employment re- ceives for a day's labor of ten or twelve hours; but it simply requires that the same worth of labor shall be compensated in the public em- ployment at the same rate of wages that it re- ceives in private employment. Opinion of Nov. 25, 1868, 12 Op. 530. 2. The act of June 25, 1868, chap. 72, known as the eight-hour law, ha.s nothing to do with the compensation to be paid to workmen in the navy-yards, that being still left to be de- termined under the provisions of the act of July 16, 1862, chap. 184, so as to conform, as nearly as is consistent with the public interest, with the rate of wages of private establish- ments in the immediate vicinity of the respect- ive yards. Opinion of April 20, 1869, 13 Op. 29. 3. There is nothing in the latter statute re- quiring workmen in the navy-yards to be paid the same price for eight hours' labor which private establishments pay for ten or twelve, unless the amount of services rendered or the qaality of work make the fewer hours in the navy-yards equivalent in value to the longer time hired in private establishments, or for some other reason make it consistent with the public interest. The conclusions of Attorney- General Evarts, in his opinion of November 25, 1868 (12 Op. 520), referred to and approved. Ibid. 4. The act of June 25, 1868, chap. 72, de- claring that "eight hours fhall constitute a day's work," left the subject of compensation- to be regulated upon principles in force at the time of its passage. The President, by proc- lamation dated May 19, 1869, directed that thereafter no reduction should be made in the wages of Government employes on account of the reduction in the hours of labor : Held that persons serving the Government as laborers, workmen, and mechanics are not entitled to receive, for the period intervening between the date of the act and the date of the procla- mation, the wages of a day of ten hours for working eight hours — the Government being under no obligation to pay more for the past because it has agreed to pay more for the future. Opinion of May 31, 1871, 13 Op. 424. 5. The provisions of the act of June 25, 1 868, chap. 72, declaring that eight hours shall con- stitute a day's work for all laborers, workmen, and mechanics employed by or on behalf of the United States, are not applicable to mechanics, workmen, and laborers who are in the employ- ment of a contractor with the United States. That act was not intended to extend to any others than the immediate employes of the Government. Opinion of May 2, 1872, 14 Op. 37. 202 EMINENT DOMAII,". 6. The interpretation of the act of June 25, 1868, chap. 72, commonly called the eight- hour law, given in opinion of May 2, 1872, reaffirmed. Opinion of Blay 18, 1872, 14 Op. 45. 7. Section 2 of the act of May 18, 1872, chap. 172, relating to the settlement of accounts for the services of laborers, workmen, and me- chanics employed by tjie Government between June 25, 1868, and May 19, 1869, was de- signed to have a broad and liberal construc- tion ; and, interpreted in this wise, its provis- ions may be taken to include all persons who were thus employed and paid by the day, although they may not come within the de- scription of "laborers, workmen, and me- chanics," regarding these words in their more strict signification. Opinion of Oct. 24, 1872, 14 Op. 128. 8. The circular of the Navy Department of -March 21, 1878, announcing that "the Depart- ment will contract for the labor of mechanics, foremen, leading-men, and laborers on the basis of eight hours a day, ' ' but that all work- men ' 'electing to labor ten hours a day will receive a proportioiiate increase of their wages," is in accordance with section 3738 Eev. Stat., embodying what is commonly known as the eight-hour law. Opinion of July 9, 1878, 16 Op. 58. 9. That section prescribes the length of time which shall amount to a day's work when no special agreement is made upon the subject. It does not forbid the making of contracts fix- ing a. different length of time as the day's ■work. Ibid. EMINENT DOMAIN. 1. The United States may lawfully make title to land in one of the States by expropri- ation as of the eminent domain of such State, and with assent thereof Opinion of April 24, 1855, 7 Op. 114. 2. The act of the legislature of Maryland, empowering the United States to acquire land in said State for the use of the Washington aqueduct, is not in conflict with the Constitu- tion either of that State or of the Uni ted States. Ibid. 3. The .acquisition of land by the United States through the means of a statute process of expropriation is a "purchase," which, if done in strict accordance with the form of the statute, may be certified by the Attorney- General as vesting a valid title in the United States. Ibid. 4. The United States cannot take private land for the construction of a road in one of the Territories without some legal form of ex- propriation, either by act of Congress or of the Territory. Opinion of July 7, 1855, 7 Op. 320. 5. It is in the power of either of the States to take land of its citizens for public use by special act and without intervention of jury, but on paymentof reasonable indemnity, ascer- tained by commissioners. Oxrinion of Aug. 11, 1856, 8 Op. 31. 6. A public use of the United States is a pub- lic use of each of the States of the Union. IMd . 7. The eminent domain of the Mexican Ee- public in Texas passed to the new Eepublic or State, and never vested intermediately in the United States. Opinion of Jan. 26, 1857, 8 Op. 333. 8. If, however, such eminent domain could have been held in suspense, it would have been vested in the State on its admission into the Union, in virtue of the inherent coequality of the several States. Ibid. 9. All lands in America are held by titles derived from the Government, and whether with or without express reservation, are held by the grantee and his assigns subject to the eminent domain of the Government. Ihd. 10. Constitutional provisions for securing indemnity to private persons, for property taken for public uses, impliedly recognize the reserved right of the Government. Ibid. 11. On these points the law is substantially the same, both in Spanish and British America. Ibid. 12. The assessment made by the jury in the proceedings, under the statute of the State of California of February 14, 1859, for the con- demnation of land for the erection of fortifica- tions at Lime Point, California, will be accepted by the Government when the amount thereof is paid into the proper county treasury and a deed is demanded for the premises from the sheriff of the county. Opinion of March 20, 1861, 10 Op. 18. 13. The deed for land to which the United States may acquire title by condemnation under the said statute is not required to be approved by the Attorney-General under the joint resolution of September 11, 1841. Ibid. ENLISTMENT — EVIDENCE. 203 14. The authorized agent of the United States will be protected, in the payment of the amount assessed by the jury as the value of the land, by taking the receipt of the county treasurer as his voucher for such disbursement. Ibid. 15. It seems that the United States may ac- quire private property for public use, in con- formity V7ith the laws of a State passed in the exercise of its own eminent domain. Opinion of June 26, 1867, 12 Op. 173. 16. Property owned by a State, and held for public uses, is not private property within the meaning of a law of the State providing for compensation to owners of private property appropriated to the use of corporations exist- ing in the State, and such property is not sub- ject to condemnation for the public use of the United States under that law. Ibid. 17. The mode of acquiring lands by the ex- ercise of the right of eminent domain can be resorted to only in cases where provision is made therefor by statute. Opinion of July 30, 1870, 16 Op. 370. ENLISTMENT. See Aemy, XVI; Navy, XII. ENROLLMENT OP VESSELS. See COMMEECE AND NAVIGATION, II. EVIDENCE. 1. It is not the right of offenders on trial for ■violation of the laws of the United States to call upon the officers of the Government to exculpate themselves from charges that such officers had given their sanction to the offens-. ive proceedings'. Opinion of 3Iarch 18, 1806, 5 Op. 695. 2. "Where payment was to be made, under act of May 24, 1824, chap. 144, for the relief of certain assignees: Held that the notes of the assignor exhibited by the assignees were ^n'ma fade evidence of the debt, though the adminis- trator might controvert it. Opinion of Aug. 13, 1824, 1 Op. 692. 3. The rule of law that no evidence shall be given against a prisoner except in his presence is a personal privilege, which he may waive. Opinion of March 15, 1825, 1 Op. 706. 4. If consent be given that depositions of witnesses abroad may be used on a trial, the point of time at which the consent shall be ex- pressed will not affect the competency of the testimony. Ibid. 5. A receipt acknowledging that money had been received in part payment for a Virginia military land-warrant, but importing on its face that more was due, is nbt sufficient evi- dence of assignment; it is only evidence of an incomplete contract. Opinion of Aug . 31, 1827, 2 Op. 56. 6. Our courts hold that foreign laws are matters of fact, and should be proved like other facts. Opinion of Oct. 16, 1828, 2 Op. 168. 7. A receipt, dated 1785, acknowledging the receipt of money in part payment of a Vir- ginia military warrant, is not per se an assign- ment, nor is it evidence of an assignment. Opinion of Oct. 13, 1829, 2 Op. 276. 8. Thereis no law which makes entries in the books of the paymaster of the Marine Corps, charging officers of that corps with sums of money, admissible as evidence in the settle- ment of their accounts. Opinion of Feb. 17, 1830, 2 Op. 319. 9. Depositions should not be admitted in courts- martial, except under certain restric- tions, and in cases not capital. Such courts should adhere to rules of evidence established in courts of common law jurisdiction. Opin- ion of June 4, 1830, 2 Op. 344. 10. Legal evidence from competent sources (excluding the oaths of claimants and all in- terested parties) is what is intended by the word " proof ' contained in the act of the 29th May, 1830, chap. 208. Opinion of June 21, 1836, 3 Op. 126. 11. The commissioner may prescribe the mode and kind of proof, how and by whom it should be taken, but cannot prescribe any- thing as proof which is not such in fact, nor any rule as to its weight and force. Ibid. 12. The Department of War may receive any credible evidence, written or oral, coming from any disinterested source, which may tend to establish the fact that Choctaw heads of families signified to the agent, within due time, their intention to remain and become citizens of the States. Opinion of June 27, 1836, 3 Op. 134. 204 EXCLUSIVE JURISDICTION — EXECUTIVE DEPAE'l MENTS. 13. The plats returned to the General Land Office by surveyors-general are evidence of the existence and general character of rivers, creeks, bays, &o., which the law requires to be marked upon them, and may be regarded as affording fall proof for the purposes of set- tling pre-emptions and locations. Opinion of March 13, 1839, 3 Op. 420. 14. If satisfied of the correctness of the ac- count furnished by the commissioners of the school fund in Ohio, the Secretary of the Treasury may allow the 3 per cent, to accrue to Ohio thereon, no further proof being re- quired by the act of December 12, 1820, chap. 2. Opinion of July 15, 1840, 3 Op. 567. 15. There is no doubt of the competency of the evidence of the prosecutor before a court- martial; but how far his credibility may be affected by the relation in which he stands towards the accused is a question of discretion for the court itself Opinion of Nov. 25, 1841, 3 Op. 714. 16. Where, in a contract for the removal of the Cherokee Indians, the number to be re- moved was left indefinite, making a case of latent ambiguity, parol evidence is admissible to show what the contract really was. Opin- ion of Dec. 8, 1841, 3 Op. 731. 17. Prior to the enactment of the act of March 2, 1855, chap. 140, no law of the United States existed for the execution of foreign rogatory, commissions to take testimony in the United States. Opinion of Ft b. 28, 1855, 7 Op. 56. 18. By the military as well as by the civil law, courts have authority to commission experts for the examination of all questions of mental or physical disability. Opinion of Jan. 31, 1857, 8 Op. 337. 19. The Secretary of the Interior is not con- cluded in his action as to the issue of certain land scrip by what purports to be an authen- ticated copy of an act ol the State of Florida of the 19th of February, 1870, but may inquire whether or not such an act was passed by the legislature of the State and has become a law. Opinion of April 30, 1870, 13 Op. 224. 20. A paper purporting to be a duly authen- ticated copy, or an exemplification, of a statute of a State under the seal of the State is prima fade evidence of the existence of such statute; and, in the absence of anything to the contrary, would justify the Secretary in acting upon it. Hid. 21. But when the evidence is exhibited or suggestions made that there is no such statute, or that it was not passed according to the forms of law, he has a right, and it is his duty, so far as he is called upon to act in reference to the existence or validity of such a statute, to in- quire and determine what the facts in those respects are. Hid. EXCLUSIVE JURISDICTION. See Cession of Jueisdiction; Lands Ac- quired FOE Public Uses, II; Purchase OF Land. EXECUTION OF CAPITAL SEN- TENCES. 1. In the early period of the Government there was irregularity in the practice regarding capital sentences under acts of Congress — that is, upon the point whether the convict should be executed on a warrant of the court by which he was tried, or of the President. Opinion of Oct. 19, 1855, 7. Op. 56.1. 2. But in the administration of President Jackson it was determined and made known 'by circular from the office of the Attorney- General, in all cases to leave the execution of the sentence of the law to the discretion of the court, in confidence that the courts will give a reasonable time for the interposition of Execu- tive clemency in cases where it ought to be in- terposed. Ihid. EXECUTIVE DEPARTMENTS. See also Depaetment of Justice; Inteeioe Department; Navy Department; Post-Office Department; State De- partment; Treasury Department; "War Department. 1. The executive officers are not subject to suits for acts in the regular discharge of their official duties. Opinion of April 8, 1823, .5 Op. 759. 2. The decision of a head of a Department, directing payment of a particular claim, is binding upon all the subordinate officere by whom the same is to be audited and passed. Opinion of April 19, 1849, 5 Op. 87. EXECUTIVE DEPARTMENTS. 205 3. This doctrine has been recognized from the organization of the Go%'ernment, is neces- sary to its proper operations, and is warranted by law. Ibid. 4. The archives of any Department are not in the possession of the head of Department, chief of bureau, or clerk under either, for the time being, but in the possession of the United States. Opinion of March 25, 1853, 6 Op. 8. 5. Hence, a party cannot, by writ of replevin against such head of Department or other pub- lic officer, take papers from the public archives on the allegation of their being his private property. Ihid. 6. Any head of a Department may, in his discretion, employ special counsel in behalf of the Government. Opiniun of May 11, 1855, 7 Op. 141. 7. The Auditor of the Treasury for the Post- Office Department has direct oflficial relation to both the Treasury and Post-Office Depart- ments. Opinion of Aug. 25, 1855, 7 Op. 439. 8. As a general rule the direction of the President is to be presumed in all instruc- tions and orders issuing from the competent Department. Opinion of Aug. 31, 1855, 7 Op. 453. 9. Official instructions, issued by the heads of the several executive Departments, civil and military, within their respective jurisdictions, are valid and lawful, without containing ex- press reference to the direction of the Presi- dent. Ibid. 10. Heads of Departments or of Bureaus, and other certifying officers of the Government, cannot certify by delegation, unless when spec- ially authorized so to do by act of Congress. Opinion of Nov. 9, 1855, 7 Op. 594. 11. When an officer of the United States en- tered into possession of property not in virtue of any public power delegated to him by the Government, or under any contract made with or for the Government, the Secretary of the Treasury has no power to protect him in the enjoyment of such rights as he may have under a private contract of his own. Opinion of Feb. 8, 1859, 9 Op. 280. 12. The heads of Departments have a right- ful authority to direct allowances to be made, or to reject claims for allowances, in settling and adjusting accounts relating to the business oftheir respective Departments, and such di- rections ought to be conformed to by the ac- counting officers. Opinion of Jan. 13, 1863, 10 Op. 436. 13. It is the general theory of Departmental administration that the heads of the Executive Departments are the executors of the will of the President. Opinion of Oct. 9, 1863, 10 Op. 527. 14. The Secretary of War has authority to withhold his signature from a requisition for an amount which he believes to be not prop- erly due, though certified to by the accounting officers of the Treasury Department. The opinion of Attorney-General Bates, of April 25, 1862 (10 Op. 231), upon this subject, ap- proved. Opinion of Sept. 15, 1866, 12 Op. 43: 15. The Secretary of War cannot grant or convey any interest in land belonging to the United States, except in pursuance of an act of Congress expressly or impliedly authorizing him to do so. Opinion of May 13, 1869, 13 Op. 46. 16. The War Department has no authority to proceed with the erection of any other bridge than the one "recommended by the Chief of Ordnance, ' ' referred to in the act of March 2, 1867, chap. 170 ; nor has Congress authorized an expenditure for the bridge of more than one million of dollars, irrespective of the amount to be refunded by the railroad company. Opinion of June 9, 1869, 13 Op. 78. 17. When a right is created by law and a duty devolved upon an Executive Department under the same law, the enjoyment or enforce- ment of such right cannot be suspended at the request of a Congressional committee. Opinion of June 22, 1869, 13 Op. 113. 18. The New Idria Mining Company, if en- titled to a patent under the law, and are pre- pared to furnish the proper proof of it, have a right to have the question of their claim to such patent passed upon by the Interior De- partment, notwithstanding the request from a committee of one of the Houses of Congress for suspension of action. Ibid. 19. An Executive Department has no right to omit or delay the discharge of the duties imposed upon it by law at the request of a committee of a House of Congress; it can only pay attention to such request when it affects a discretionary power. Ibid. 20. Under the provisions of the act of March 6, 1866, chap. 1 2, it is for the Secretary of the Treasury to determine whether a cattle dis- 206 EXECUTOES AND ADMINISTRATORS. ease prevailing in a foreign country is such that, if neat cattle or the hides of neat cattle are imported from thence into the United States, the importation will tend to the intro- duction or spread of contagious or infectious diseases among the cattle here. Opinion of Oct. 22, 1869, 13 Op. 158. 21. Should the Secretary determine that such importation will have that tendency, he can revoke, in whole or in part, the suspension of the said act heretofore made by him. Ibid. 22. The head of a Department should not dispose of public lands or issue the bonds of the Government in aid of any enterprise, how- ever meritorious, without an unequivocal di- rection from Congress. Opinion of Jtme 3, 1871, 13 Op. 430. 23. Under the proviso to section 11 of the act of February 24, 1855, chap. 122, the head of a Department is not at liberty to furnish to the Court of Claims, on a call from that court, information or papers, when to do so would, in his opinion, be inj urious to the public in- terest. Opinion of Nov. 24, 1871, 13 Op. 539. 24. An application for copies of papers on file in a Department, to be used by the appli- cant in a suit promoted by him under section 3491 Ee v. Stat. , stands upon the same footing with a like application by a plaintiff in any other private suit. Opinion of May 13, 1876, 15 Op. 562. 25. Only those bureaus and offices can be deemed bureaus or offices in any of the Exec- utive Departments which are constituted such "by the law organizing the Department; the latter, with its bureaus or offices, being in contemplation of the law an establishment distinct from the branches of the public serv- ice and the officers thereof which are under its supervision. Opinion of May 16, 1877, 15 Op. 263. 26. Recommendations for office are not pa- pers or documents which are required to be kept by the Departments in which they are deposited. They are placed on file therein for the convenience of applicants for office, who are allowed to withdraw them whenever they desire to do so. Opinion of July 28, 1877, 15 Op. 343. 27. Such applicants can properly be per- mitted to see objections that have been filed against themselves (subject to the limitation, however, that the permission should only bo given where the communication is not in its nature privileged), in order that they may, if possible, answer or remove them. But the- privilege should not be extended further, as all is done that justice requires when a party is permitted to see any objections filed against himself Ibid. 28. Accordingly, where application was- made to the President on behalf of a newspa- per for permission to examine the files of the Executive Departments with a view to ascer- tain what persons have been recommended for office by a certain Senator and Representative in Congress (the purpose being to establish from such examination the fact that improper persons have been thus recommended by the Senator and Representative named): Advised that the Department files ought not to be sub- mitted to a search of that character. Ibid. 29. Nor should copies of recommendations and papers of this nature be furnished in any case, unless the applicant appears himself to have been directly affected by the writing of which a copy is applied for. Ihid. 30. The provision in the sundry civil act of June 20, 1878, chap. 359, that "no books shall be printed and bound except when the same shall be ordered by Congress or are au- thorized by law," operates to prohibit the practice which theretofore existed (under im- plied authority of law) of printing and binding reports, &c., made in the course of Depart- mental business, and requires that thenceforth, for such printing and binding, there must be express statutory authorization. Opinion of July 2, 1878, 16 Op. 57. 31. The printing and binding, at the Gov- ernment Printing Office, of the book called " The American Ephemeris and Nautical Al- manac," for the Navy Department, are within the appropriation made by the act of June 20, 1878, ch,ip. 359, for printing and binding for that Department, and accordingly are author- ized by law. Opinion of Sept. 10, 1878, 16 Op. 1!:7. EXECUTORS AND ADMINISTRA- TORS. 1. Although it has been the custom of the Bank of the United States .and the Treasury officers to respect powers of attorney derived from foreign executors, the Supreme Court has EXBCUTOBS AND ADMINISTEATORS. 207 decided (3 Cranch, 319) that suits cannot be maintained in the District of Columbia upon letters testamentary granted in a foreign coun- try. Opinion of Oct. 16, 1828, 2 Op. 168. 2. tetters testamentary give to executors no autliority to sue for the personal estate of the testator out of the jurisdiction of the power by which the letters were granted. Ibid. 3. A foreign administrator cannot maintain a suit on letters granted in a foreign country. Whatever may have been the practice of the Government concerning foreign letters, it is not safe to act upon a power of attorney to transfer any of the funded debt executed by a tbreign administrator. Opinion of Oct. 16, 1828, 2 Op. 171. 4. Land script issued on the surrender of warrants should be issued to the heirs or as- signees of the warrantee and not ta executors nor administrators, for it is to be considered as belonging to the realty. Opinion of Oct. 1, 1830, 2 Op. 385. 5. Land warrants for bounty lands are real estate; and where parties first entitled have died, they must in general issue to heirs or devisees, not to administrators, nor to admin- istrators with wills annexed. Opinion of Mar. 28, 1832, 2 Op. 506. 6. But in a case where there is a will and an administrator to execute it, and the issuing of the warrant to heirs will embarrass the ad- ministrator with the will annexed in carrying out the testator's intention; and where there are no conflicting interests to be affected by the form of the issue, it may issue to the ad- ministrator in trust for the purposes men- tioned in the will. Ibid. 7. Where there is a conflict of claims be- tween an executor and his assignees for an award of moneys by the Third Auditor to the decedent, the Treasury officers should pay the same to the executor, who is the legal repre- sentative. Opinion of t>ec. 7, 1835, 3 Op. 29. 8. Executors and administrators are the " legal representatives, " in contemplation of the act of July 5, 1832, chap. 173, to provide for liquidating and paying certain claims of the State of Virginia. Opinion of March 4, 1836, 3 Op. 43. 9. Where a medal was ordered to be struck and, before the resolution of Congress had been executed, the individual for whom it was in- tended died, it was deemed proper that it should be struck and delivered to the decedent's- son and administrator. Opinion of June 22, 1841, 3 Op. 640. 10. An administrator has no right to de- mand land scrip under the act of May 30, 1830, chap. 215. Opinion of May 25, 1842, 4 Op. 37. 11. The administration law of Georgia has nothing to do with lands lying without the limits of the State which are governed by the lex loci. Ibid. 12. Congress was competent to pass, and did pass, an act (the act of March 3, 1837, chap. 41). conferring original authority upon administra- tors to make sale of Creek Indian reserves with- out reference to the law of Alabama. Opinion of July 28, 1842, 4 Op. 77. 13. Where a land warrant issued to the ad- ministrator de bonis non of a deceased colonel of the Virginia line, for services rendered by him in the Revolutionary war, and the said ad- ministrator proposed to surrender it and to re- ceive scrip in lieu thereof for the benefit of the devisees named in the decedent's will, pursu- ant to the act of Congress for the relief of cer- tain officers and soldiers of the Virginia line and navy and of the continental army: Held, that as the warrant issued to the administra- tor with the will annexed, for the benefit of the devisees, scrip in exchange may issue in the same manner and for the same purpose. Opinion of March 24, 1851, 5 Op. 308. 14. The Treasury of the United States has no locality, and credits upon it are not bona notabilia confined to the District of Columbia. Opinion of June 17, 1854, 6 Op. 557. 15. An unliquidated claim to bounty land scrip in Virginia passes by a clause of general residuary devise. Opinion of Sept. 13, 1854, 6. Op. 716. 16. An administrator of the estate with such will annexed, who, as such, received the bounty land warrant under the authorities of the State of Virginia, is entitled to receive the scrip in exchangefrom the United States. Ibid. 17. The words " legal representatives " in a statute generally intend executors and admin- istrators, but may, according to the contextand subject-matter, intend heirs at law. Opinion o/Jlfarcfc9,1855, 7Op.60. • 18. During a professional visit of Madame Sontag Eossi to the United States, she invested the sum of twenty-five thousand dollars in stocks of the United States in her own per- 208 EXPATEIATION. sonal name, and after her decease administra- tion upon this property, as legal assests in the State of -New York, was granted by the surro- gate of the county of New York to "George Christ, of the city of New York, the attorney in fact of Charles Count Eossi, husband of Henrietta Eossi, deceased, late of Vienna, Austria;" the power of attorney referred to having been executed by Count Eossi after the death of Madame Sontag Eossi, and giving to Mr. Christ authority "to collect and 'receive any and all money due to me in any way, and to sell any stocks standihg in my name on the books of any company in the United States, and the dividends on the same to receive:" Held, that this power of attorney does not, by the laws of the State of New York, apply to the stocks in question, which stocks having been invested in the name of his wife, and not having been reduced to possession by her hus- band during her lifetime, are not of necessity money or effects due or growing due to Count Eossi. Opinion of ilarcli 28, 1855, 7 Op. 68. 19. In general, by the statutes of New York, administration on the estate of the deceased wife is granted to the husband jure mariti; but that rule does not apply here, because the dis- tribution of the effects of decedents is governed by the personal, not the local statute, and de- pends, in this case, on the lex domicilii, that is of Austria. IMd. 20. In the present case, the rights of prop- erty appertaining to Count Eossi in the prem- ises, if any, m\ist be determined in Austria. lUd. 21. Count Eossi, being a nonresident alien, is not, by the statutes of New York, entitled to administration there, and not being entitled himself, he cannot communicate any repre- sentative right of administration to Mr. Christ. Ibid. 22. It is doubtful whether the mere fact of a given dividend, on any stocks of the United States, being transmitted to the assistant treas- urer of New York for payment, makes those stocks local assets in "the State of New York. lUd. 23. By the Treasury relegulations, transfer of public stocks held by foreign decedents may be made on satisfactory proof that the party claiming the right in such stocks is entitled as devisee, distriliutee, or otherwise according to law! Opinion of iVmj 31, 1855, 7 Op, 240. 24. The rule for the distribution of the per- sonal effects of any deceased citizen of the United States, either at home or abroad, is the law of the particular State of his domicile, and cannot be changed by act of Congress. Opinion of June 2, 1855, 7 Op. 242. 25. The face of a banker's circular letter ot credit found in the possession of an American dying abroad is not assets to that amount to be administered by the consul. Opinion of Oct. 10, 1855, 7 Op. 542. 26. Unlooated land scrip of the State of Vir- ginia belonging to the estate of the Baron Steu- ben, being personal estate, is subject to the testamentary provisions of Baron Steuben's will, proved in the State of New York, and therefore demandable, on the failure of testa- mentary trustees, by a trustee duly appointed by the couvrts of New York. Opinion of May 21, 1856, 7 Op. 688. 27. The estates of foreigners dying in the United States are settled ty the local author- ities. Opinion of Sept. 12, 1856, 8 Op. 98. 28. Administration may be granted to the next of kin if he reside in the State. Ibid. 29. A. B. died, leaving an executor, on whose death letters of administration on the estate of A. B. were taken out in the District of Columbia by C. D., a creditor, and after- wards letters were granted to E. F. , in Ken- tucky, the place of decedent's domicile. Con- gress directed a sum of money to be paid to the legal representatives of A. B. : Held, that C. D. was entitled to receive the fund. Opinion of Oct. 15, 1S59, 9 Op. 393. EXPATRIATION. 1. Citizens of the United States possess the right of voluntary expatriation, subject to such limitations in the interest of the State as the law of nations or acts of Congress may impose. Opinion of Oct. 31, 1856, 8 Op. 139. 2. Any citizen of the United States, native or naturalized, may remove from the country and change his allegiance, provided this be done in time of peace, and for a purpose not directly injurious to the interests of this Gov- ernment. Opinion of Aug 17, 38.57, 9 Op. 63. 3. If he emigrates, carries his family and effects with him, manifests his intention not to EXPATRIATION. 209 returD, takes up liis residence abroad, and as- sumes the obligation of a subject to a foreign Government, tbis implies a dissolution of his previous relations Vfith the United States, and no other evidence of that fact is required by our law. Il)id. 4. A native of Bavaria naturalized in Amer- ica may return to his native country and as- sume his political status as a subject of the King of Bavaria, if there be no law there to forbid it. Ihid. 5.' The Bavarian Government may require him to abjure his allegiance to the United States in such form as they may choose to pre- scribe, since we on our part make our own reg- ulations for the admission of Bavarian subjects as citizens of the United States. Ibid. 6. The natural right of every free person, who owes no debt and is not guilty of any crime, to leave the country, of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and sub- stituting another allegiance in its place, is incontestable. Opinion of July 4, 1859, 9 Op. 357. 7. We take our knowledge of international law not from the municipal code of England, but from natural reason and justice, from writers of known wisdom, and from the prac- tice of civilized nations; and they are all op- posed to the doctrine of perpetual allegiance. lUd. 8. In the United States, ever since our inde- pendence, we have upheld and maintained the right of expatriation by every form of words and acts; and upon the faith of the pledge which we have given to it millions of persons have staked their most important interests. IMd. 9. Expatriation includes not only emigra- tion, but also naturalization. Ibid. 10. Naturalization signifies the act of adopt- ing a foreigner and clothing him with all the privileges of a native citizen or subject. Ibid. 11. In regard to the protection of our citi- zens in their rights at home and abroad, we have in the United States no law which di- vides them into classes or makes any difference whatever between them. Ibid- 12. The theory that a naturalized citizen is liable to be divested of his acquired citizen- ship and allegiance if found within the power DIG 14 of his native sovereign, though he may claim the protection of his adopted country every- where except in the country of his birth, is without any foundation, except the dogma which denies the right of expatriation without the consent of one's native country. Ibid. 13. A naturalized citizen who returns to his native country is liable, like any one else, to be arrested for a debt or a crime, but he can- not rightfully be punished for the nonperform- ance of a duty which is supposed to grow out of his abj ured allegiance. Ibid. 14. A sovereign state who tramples upon the public law of the world cannot excuse her- self by pointing to a provision in her own municipal code. Ibid. 15. A foreign Government cannot justify the arrest of a former subject who was naturalized in the United States by showing that he emi- grated contrary to the laws of his native country. Ibid. 16. The declaration in the act of July 27, 1868, chap. 249, that the right of expatriation is "a natural and inherent right of all people, ' ' comprehends our own citizens as well as those of other countries; and where a citizen of the United States emigrates to a foreign country, and there, in the mode provided by its laws, formally renounces his American citizenship with a view to become a citizen or subject of such country, this should be regarded by our Government as an act of expatriation. Opin- ion of Aug. 20, 1873, 14 Op. 296. 17. The selection and actual enjoyment of a foreign domicile, with an intent not to return, would not alone constitute expatriation; but where, in addition thereto, there are other acts done by him which import a renunciation of his former citizenship, and a voluntary assump- tion of the duties of a citizen of the country of his domicile, these together with the former might be treated as^jresanioiiw/y amounting to expatriation, even without proof of naturaliza- tion abroad; though the latter is undoubtedly the highest evidence of expatriation. Ibid. 18. Obligations of the Government toward its citizens domiciled in foreign countries, who apparently have no intent to return, and who do not contribute to its support, considered; and likewise what should be regarded as evi- dence of the absence of an intent to return in such cases. Ibid. ::J10 JiXPOETATION OF AEMS AND MUNITIONS OF WAR — ^EXTKADITION. EXPORTATION OF ARMS AND MUNITIONS OP ■WAR. 1. The commander of the Military Depart- ment of California has no authority to pro- hibit our own citizens from exporting muni- tions of war as merchandise to the belligerents inMexico Opinionof Dec. 23, 1865, 11 Op. 408. 2. The steamer ' ' Pocahontas ' ' is entitled to clear with munitions of war for Honolulu. Opinion of June 8, 1866, 11 Op. 501. EXTERRITORIALITY. See also Diplomatic and Consulae Offi- CEKS, I; International Law, III. 1. Citizens of the United States, in common with all other foreign Christians, enjoy the privilege of exterritoriality in Turkey, includ- ing Egypt; the same in the Turkish regen- cies of Tripoli and Tunis; and also in the in- dependent Arabic states of Morocco and Mus- cat. Opinion of Oct. 23, 1855, 7 Op. 565. 2. A merchant vessel, except under some treaty stipulation otherwise providing, has no exemption Irom the territorial jurisdiction of the harbor in which the same is lying. Opin- ion of Dec. 14, 1876, 15 Op. 178. EXTRADITION. 1. If a Spanish subject who has violated the territorial law of Florida shall be within the United States at the time of demand for him as a subject and fugitive from justice, he ought to be given up for trial and punishment; yet there is no lasv directing the mode of proceed- ing. Opinionof Jan. 26, 1797, 1 Op. 68. 2. The extradition of persons under the twenty -seventh article of the British treaty of 1794 is not authorized, unless the crime they are accused of was committed within the juris- diction of Great Britain. Opinion of March 14, 1798, 1 Op. 83. 3. Whether a British subject who has run away with a British vessel, and entered one of our ports iu violation of our revenue laws, should be delivered to the officers of his Gov- ernment for trial, is doubtful as a question of international law, such a case not having been provided for by any statute or existing treaty. 0\nnion of Nov. 20, 1821, 1 Op. 510. 4. The Executive is not authorized to deliver up to the King of Portugal the seamen con- fined in Boston, who are charged by the charg6 d'affaires of His Majesty with piracy com- mitted on the brig Triumph. Opinion of April 16, 1833, 2 Op. 559. 5. There is no law of Congress which au- thorizes the President to deliver up any one found in the United States who is charged with having committed a crime against a for- eign nation ; and we have no treaty stipula- tions with Portugal for the delivery of offend- ers, nid. 6. No State can, without the consent of Con- gress, enter into any agreement or compact, express or implied, to deliver up fugitives I'rom justice from a foreign state who may be found wdthin its limits. Opinionof Oct. 11, 1841, 3 Op. 661. 7. According to the practice of the Execu- tive Department, the President is not consid- ered as authorized, in the absence of any ex- press provision by treaty, to order the deliver- ing up of fugitives from j ustice. IMd. 8. Where a person is charged with the com- mission of the crime of murder in Scotland, and apprehended in the United States, and exam- ined before a commissioner, and by him certi- fied to be probably guilty on the evidence ad- duced: fleZdthat he should be delivered up to justice if the evidence upon which the appli- cation is founded be such as, according to the laws of the place where the fugitive shall be found, would justify his or her apprehension and commitment for trial if the crime had there been committed. Opinion of Aug. 7, 1843, 4 Op. 201. 9. In such cases the mode of procedure is to prefer a complaint to a judge or magistrate, setting out the offense charged on oath; where- upon the judge or magistrate may issue a war- rant for the apprehension of the person accused, and if, on the hearing, the evidence be deemed sufficient to sustain the charge, the same should be certified to the executive authority, that a warrant may issue for the surrender. Ibid. 10. A commissioner for the United States, appointed by the circnit court, is a magistrate within the meaning of the law and the treaty of Washington, and as such has power to ap- prehend, examine, and certify as to fugitives from justice. IMd. 11. A requisition for a fugitive is not neces- EXTBADITION- 211 saryto a preliminary examination upon^whioli the evidence of criminality is to be heard and considered, but with a view only to the sur- render, after the ascertainment of the facts showing the party charged to be in a condition which justifies the apprehension and commit- ment for trial, according to the laws of the place where he or she shall be found. Ibid. 12. The Executive will not issue his war- rant for the surrender of fugitives under the tenth article of the treaty of Washington, ex- cept in cases where the preliminary proceed- ings have been had and properly certified to him. Opinion of Aug. 29, 1843, 4 Op. 240. 13. The mode provided for the surrender of persons accused of the crimes mentioned in the treaty with France is by requisitions made in the name of the respective parties, through the medium of their respective diplomatic agents. Opinion of July 8, 1844, 4 Op. 330. 14. The surrender will be made only when the fact of the commission of the crime shall he so established that, according to the laws of the country in which the fugitive, or the person so accused, shall be found, his or her apprehension and commitment for trial would be justified, if the crime had been there com- mitted. Ibid. 15. The international extradition of fugi- tives from justice is a duty of comity, not of strict right. Opinion of Aug. 19, 1853, 6 Op. 85. 16. It is the settled policy of the United States not to make such extradition except in virtue of expressed stipulations to that efifect. Ibid. 17. Hence the United States ought not to ask for extradition in any case as an act of mere comity. Ibid. 18. Larceny is not included in the causes of extradition stipulated as between Great Britain and the United States. Ibid. 19. Any foreign Government entitled by treaty to the extradition of a fugitive from justice may apply to the courts, in the first instance; but, if requested, the President will issue the previous authorization held to be necessary by a portion of the court in Kaine's case. Opinion of Aug. 31, 1853, 6 Op. 91. 20. On a party being arrested for extradi- tion and brought before a magistrate, that magistrate examines the case judicially; and his decision is not subject to any direction on the part of the President. Hence the question of remanding the prisoner for further exami- nation, and the time of remanding, are ques- tions for the magistrate to determine. Ibid. 21. The alleged fugitive may be arrested a second time on a new complaint, either with or without a, new warrant of the President. Ibid. 22. Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the ' ' favored- nation ' ' clause in treaties. Opinion of Oct. 14, 1853, 6 Op. 148. 23. In granting his mandate, at the request of a foreign Government, for the purpose of commencing proceedings in extradition, the President does not need such evidence of the criminality of the party accused as would jus- tify an order of extradition, but only prima facie evidence. Opinion of Nov. 9, 1853, 6 Op. 217. 24. Where a court of one of the Slates as- sumes to take, by habeas corpus, out of the hands of a marshal of the United States, a person held by him as a fugitive from crime, committed in a foreign country, and under reclamation by treaty, the United States may well, by counsel and direction, protect their marshal in the maintenance of the laws, and in discharge of public faith toward the re- claiming foreign Government. Opinion of Dec. 13, 1853, 6 Op. 227. 25. When a commissioner of the United States has made return according to law, as to an alleged fugitive from justice, that he is lawfully subject to extradition, it is the duty of the Secretary of State to order the final writ of extradition, notwithstanding any contra- dictory proceedings of the courts of a State. Opinion of Jan. 30, 1854, 6 Op. 270. 26. Where a marshal of the United States has in custody a fugitive from foreign justice, under warrant of extradition from the proper authorities of the United States, and a State court undertakes to usurp jurisdiction of the case, it is the duty of the marshal, disregard- ing any process of the State court, to take the party to the exterior line of such State, and there deliver him to the agent of the foreign Government. Opinion of Feb. 13, 1854, 6 Op. 290. 27. Constructive larceny, consisting ol em- L'lS EXTRADITION. bezzlement of the money of a bank by one of its officers, is not among the causes of extra- dition provided for by treaty between Great Britain and the United States. Opinion of April 21, 1854, 6 Op. 431. 28. The United States will not make de- mand for extradition of a person alleged to be a fugitive from the j ustice of one of the United States, and to have taken refuge in Great Britain, except on the exhibition of a judicial "warrant" duly issued, on sufficient proofs, by the local authority of the State in which the crime is alleged. Opinion of May 31, 1854, 6 Op. 485. 29. Evidence of the forging of checks on the communal chest of Breslau, in Prussia, is suf- ficient cause for the issue of a warrant for judicial inquiry with a view to the extradition of the party, under the treaty between the United States and Prussia. Opinion of Oct. 7, 1854, 6 Op. 761. 30. A mere notification by the local officer of a foreign Government of the escape of an alleged criminal is not sufficient prima facie evidence of a case to justify the preliminary action of the President. Opinion of Nov. 2, 1854, 7 Op. 6. 31. All demands of international extradition must emanate from the supreme political au- thority of the demanding state. Ihid. 32. A foreign mandat d'arrel, setting forth the offense of a fugitive from the justice of a foreign country within the terms of any treaty of extradition, such mandat coming through the proper political channel, is sufficient foun- dation for the issue of the President's warrant authorizing the institution of proceedings be- fore the judicial authorities of the United States. Ojyinion of June 18, 1855, 7 Op. 285. 33. Statement of the subsisting treaties be- tween the United States and foreign Govern- ments for the extradition of fugitives from justice. Opinion {unofficial) of July 26, 1855, 8 Op. 519. 34. By treaty between the United States and Great Britain, the expense attending the proceedings in extradition is to be borne by the Government making the reclamation. Opin- ion of Aug. 23, 1855, 7 Op. 396. 35. But where, in consequence of conflict between the judicial authorities of the United States and those of a State, the latter aiming to prevent the extradition, the United States intervenes to maintain its own dignity in the premises, the special expenses of such interven- tion should be defrayed by the United States. lUd. 36. The mutual extrad ition of fugitives from justice is an object alike interesting to all gov- ernments. Opinion of Oct. 4, 1855, 7 Op. 537. 37. Emigrants and exiles for cause of polit- ical difference at home are entitled to asylum in this country; but not malefactors; on the contrary, the foreign Government which re- claims its fugitive malefactors is serviceable to us by ridding us of the intrusive presence of crime. Hid. 38. Hence, when reclamation of a fugitive from justice is made under treaty stipulation by any foreign Government, it is the duty of the United States to aid in relieving the case of any technical difficulties which may be in- terposed to defeat the ends of public justice, the object to be accomplished being aUke in- teresting to both Governments, namely, the punishment of malefactors, who are the com- mon enemies to all society. Ihid. 39. The ordinary expenses, including fees of counsel; attending the process of international extradition, are to be defrayed by the demand- ing Government. Opinion of Dec. 20, 1855, 7 Op. 612. 40. Extradition cannot be demanded of France by the United States in the case of a breach of trust -in the State of California, made grand larceny by the laws of that State. Opin- ion of Feb. 28, 1856, 7 Op. 643. 41. The term "public officers" or that of ' ' public depositaries " in a treaty signifies offi- cers or depositaries of the Government only in some of its branches or degrees, and does not comprehend officers of a railroad company. Opinion of Sept. 30, 1856, 8 Op. 106. 42. To justiiy the commencement of process in extradition, it must appear that the crim- inal acts charged, as complicity with robbery, were committed within the territorial jurisdic- tion of the demanding Government. Opinion of Nov. 29, 1856, 8 Op. 215. 43. Any competent magistrate may take jurisdiction of a question of international ex- tradition voluntarily, that is without the pre- vious application of the foreign Government, or issue of the preparatory letters permissive of the President. Opinion of Dec. 18, 1856, 8 Op. 240. EXTEADITION. 313 44. There can be no actual extradition -with- out proper requisition to that effect, addressed by the foreign Government to the Secretary of State. Ibid. 45. Although extradition cannot be ordered by the President on mere judicial documents, but requires Executive requsition, still, it may be effected in the absence of any diplomatic minister of the demanding Government, through other intermediate agencies, recog- nized by the law of nations. Ibid. 46. An alleged criminal is subject to extra- dition, notwithstanding that he may have come to this country otherwise than as an apparent fugitive on account of the particular crime; for the treaties apply not only to persons seeking an asylum here professedly, but to such as may be found in the country. Opinion of Jan. 10, 1857, 8 Op. 306. 47. Eecommendation that authority be given to France to institute process of extradition for the crime of forgery, as against persons accused of defrauding the Northern Railroad Company. Opinion of Jan. 10, 1857, 8 Op. 307. 48. It is the duty of the United States to provide a place of imprisonment for persons detained for extradition at the instance of a for- eign Government. Opinion of Feb. 18, 1857, 8 Op. 396. 49. A clerical error in letters missive, author- izing a foreign Government to institute pro- ceedings of extradition in the United States, is of no account, such a document not being a judicial paper in any sense, but only a politi- cal commissioner license. Opinion of Feb. 27, 1857, 8 Op. 420. 50. The extradition laws do not requii'e the proceedings against a foreign criminal or a de- serting seaman to be either carried on or ap- proved by the attorney of the United States lor the proper district. Opinion of Oct. 29, 1858, 9 Op. 246. 51. In a case of the extradition of a fugitive from justice, the act of Congress does not re- quire or authorize the issuing of any warrant by the State Department until the facts of the case are judicially ascertained and certified. Opinion of July 28, 1859, 9 Op. 379. 52. Attorneys of the United States in the several districts are not obliged by any act of Congress to appear on the part of foreign gov- ernments claiming the extradition of fugitives, and if the minister or agent of an accusing foreign Government needs legal advice, or de- sires to have a case presented to the judicial authorities through the medium of a profes- sional lawyer, he may select whom he pleases for that purpose. Opiniofi of Nov. 15, 1860, 9 Op. 497. 53. By the extradition treaty between the United States and Prussia, the expenses of the apprehension and delivery of a fugitive must be defrayed by the party who makes the requisition and receives the fugitive. Ibid. 54. Under that treaty, a commissioner or marshal may lawfully demand such fees as are usual for analogus services rendered to the United States. Ibid. 55. The second section of the act of August 12, 1848, chap. 167, for giving effect to treaty stipulations with foreign Governments for the extradition of offenders, is repealed by the act of June 22, 1860, chap. 184. Opinion of July 6, 1863, 10 Op. 501. 56. In a case of extradition of a fugitive from justice of a foreign country, the judge or magistrate acts under special authority con- ferred by treaties and acts of Congress, and as no appeal from his decision is given by the law under which he acts, no right of appeal, by either party, exists. Ibid. 57. A discharge by a district judge of a per- son apprehended as a fugitive from j ustice does not preclude, in a proper case, his rearrest under the warrant of another judge, with a view to a re-examination of the case. Ibid. 58. A certificate, under the act of June 22, 1860, should show upon its face that the officer who made it is the principal diplomatic or con- sular oificer of the United States, resident in the country making the demand of extradition, and should declare that the documents to which it is attached are legally authenticated, according to the laws of the country from which the fugitive escaped, so as to entitle them to be received as evidence for similar pur- poses by the tribunals of that country. Ibid. 59. Eobbery on the lakes is piracy within the meaning of our extradition treaty with Great Britain; but inasmuch as the parties engaged in the outrages on Lake Erie were guilty of robbery and assault with intent to commit murder, the Secretary of State was advised, in view of the disputed question of piracy on the lakes, that their extradition should be demanded at the hands of the Cana- 214 BXTEA PAY; PEES AND COSTS. dian authorities for those offenses. Opinion of Oct. 10, 1864, 11 Op. 114. 60. A. "warrant of extradition, issued under the third section of the act of August 12, 1848, chap. 167, is not a warrant of arrest. Opinion of Oct. 16, 1866, 12 Op. 75. 61. Under the extradition treaty with France, a public officer of the United States who embezzles moneys of the United States intrusted to his care, and flies from justice to the territory of France, is liable to be removed to this country for trial; such crime being here punishable with infamous punishment. Opin- ion of Nov. 29, 1867, 12 Op. 326. 62. The additional article proposed to the extradition treaty between the United States and France will be effectual for the mutual surrender of fraudulent bankrupts. Opinion of July 18, 1868, 12 Op. 434. 63. Where a citizen of Prussia, charged with the commission of a crime in Belgium, and with having thence afterward fled to the United States, was demanded by the German Government for the purpose of trial and pun- ishment, under the extradition treaty between the United States and Prussia of June 16, 1852, which provides for the delivery up of persons who, being charged with certain crimes "com- mitted within the j urisdiction of either party, ' ' shall be found within the territories of the other: Held that although by the law of Prus- sia the accused might be justiciable in that country for the alleged offense irrespective of the locality of its commission, yet that under said treaty the locus delicti is material, and unless it be within the jurisdiction of the de- manding party the provisions of the treaty do not apply ; and that, accordingly, in the pres- ent case, as the place where the alleged crime was committed is manifestly not within the jurisdiction of Germany, the accused was not demandable under the treaty. Opinion of July 21, 1873, 14 Op. 281. 64. L., a naturalized citizen, having fled the United States, was arrested in Ireland at the instance of this Government and extradited, under the treaty of 1842 with Great Britain, upon the charge of forgery. The extradition proceedings occurred in the spring of 1875, under the British act of 1870. Upon being brought back to this country he was arrested upon bench warrants issued by a United States circuit court, based on charges of other offenses committed before his surrender, and he has since also been served with a capias issued by the same court in a civil suit brought by the United States to recover a debt due prior to his surrender. Immunity from prosecution in any civil action, or for any offense other than that for which he was extradited, being claimed by him — upon the following grounds mainly: (1) that such jimmunity is provided for by the British act of 1870, under which the extradi- tion proceedings took place; (2) that the im- munity arises by implication out of the treaty of 1842 alone; (3) that it is conceded by sec- tion 5275 Eevised Statutes — he petitions the Executive to instruct the proper oflScers not to prosecute further the civil suit against him, nor any criminal proceeding against him for an offense other than that for which he was extradited, and that he be discharged from arrest under the said bench warrants: Advised that section 5275 Eev. Stat, has no applica- tion to the present case; that, by force of sec- tion 27 of the British act of 1870, in all cases of difference between that act and the treaty of 1842 the treaty controls, and hence the im- munity claimed here must be referred to that treaty considered alone; that this claim lor immunity is not warranted by the said treaty; and that no ground has been laid by the peti- tioner entitling him to the instructions asked for. Opinion of July 16, 1875, 15 Op. 501. 65. Evidence of insanity is admissible in proceedings before a United States commis- sioner for the extradition of one who is charged with an extraditable offense under the treaty of 1842 with Great Britain and section 5320 Eev. Stat. , to explain what has been proved in support of the charge. Opinion of Oct. 17, 1879, 16 Op. 642. EXTRA PAY. See Compensation, VIII. FEES AND COSTS. See also Commekce and Navigation, V; Compensation. 1. The Secretary of the Treasury is author- ized to accept the payment of costs nunc pro :pees and costs. 215 tunc in order to discharge the obligations of certain sureties. Opinion of Jan. 9, 1822, 5 Op. 744. 2. The costs denounced against defendants by the conclud ing sentence of the first section of the act of March 3, 1795, chap. 48, were de- signed as a punishment for the failure of such defendants to comply with the requisition ac- companying the notification of the Comp- troller. Defendants who have the ultimate decision of the court in their favor are not lia- ble to costs by force of the said act, unless in suits which have been commenced against them in conformity with the provisions thereof. ■Opinion of Dec. 4, 1829, 2 Op. 301. 3. In the matter of general and established practice, the regular taxation of the costs, and their allowance in due form by district judges, are binding and conclusive upon the account- ing oflacers. Opinion of Feb. 14, 1840, 3 Op. 497. 4. The United States are liable to clerks of ■circuit courts for their fees, properly charge- able to plaintiffs, in suits in which the United States are plaintiffs, and the accounting officers may allow them, even though marshals may have collected them of defendants and have not paid them over. Opinion of July 20, 1840, 3 Op. 575. 5. In such cases the United States have re- course against marshals on their official bonds. Ihid. 6. Clerks of courts are not responsible to the Treasury for fees, which, after using due dili- gence, they have failed to collect. Opinion of April 13, 1841, 3 Op. 627. 7. The Government is liable for the costs made in a suit upon a draft drawn upon a banker abroad, by direction of the Govern- ment, by a charg6 d'affaires for his salary, and which was protested for non-payment. The Government having devised that method of making salaries available to ministers and agents abroad, and having instructed them to draw upon a given banking-house, is bound to make reparation for any damages sustained in the way of coSts occasioned by the non-accept- ance or non-payment of the drafts. Opinion of Dec. 26, 1843, 4 Op. 295. 8. Costs of suit for the recovery of debts and penalties due the Post-Office Department, and arising under the laws for its government, are payable out of the funds of the Department, and not out of the j udiciary funds. Therefore, such accounts should be settled by the Auditor of the Treasury for the Post-Office Department. Opinion of Jan. 22, 1844, 4 Op. 301. 9. The costs of suits instituted against post- masters and their bail, for debts and penalties, are payable out of the post-office funds, and not out of the judiciary fund. It is different, however, with costs incurred in criminal pros- ecutions. Opinion of June 6, 1844, 4 Op. 328. 10. The costs incurred in libelling, in the district court of Massachusetts, the brig Malaga, sent in as a prize on a charge of par- ticipating in the slave trade, are properly chargeable to the appropriation for defraying the expenses of the courts of the United States, and likewise for defraying the expenses of suits in which the United States are concerned, and for prosecution for offenses committed against the United States. Opinion of 3Iaij 11 , 1847, 4 Op. 565. 11. The allowance of the costs of prosecu- tion, where the United States are concerned, does not depend upon the result of the pro- ceedings. Ibid. 12. In suits against officers of the Navy for personal injuries inflicted by them under color of office, in which the Government of the United States has no pecuniary interest, the officers should be left to their defense, and to bear the costs, each, of their own defense, without any contribution whatever from the Department. Opinion of July 3, 1851, 5 Op. 397. 13. Where the suit is against the officer as a nominal party, the Government being sub- stantially interested and bound ultimately to indemnify the officer in case of recovery against him, the proper course would be for the district attorney to cause the suit, if com- menced in a State court, to be removed into the proper court of the United States, there to be defended by him. Ibid. 14. The fees of inquests super visum corporis in the county and city of Washington are to be paid out of the goods and chattels of the deceased. Opinion of June 19, 1854, 6 Op. 561. 15. In default of such goods said fees are a charge on the county, to be defrayed by the 216 PINES, PENALTIES, AND FOEPEITUEES. levy court, and are not lawfully payable by the United States. Ibid. 16. Scmhle that by the laws of Texas the defendant in a civil action, which has resulted in his favor, is liable to the officers of the court for so much of the costs of the suit as was in- curred in his behalf, but no more. Opinion of April 22, 1872, 14 Op. 35. 17. Where, however, the taxation of costs is erroneous ov improper, the remedy of the party aggrieved is by motion to the court to retax. IMd. 18. The fees and costs allowable in prosecu- tions against seamen, charged with any of the ofienses enumerated in the act of June 7, 1872, chap. 322, are regulated by the act of February 26, 1853, chap. 80. Opinion of Nov. 5, 1873, 14 Op. 325. 19. Whether the provisions of the act of 1872, respecting the punishment of the offenses referred to, a^jply to seamen engaged for serv- ice on foreign vessels as well as to those en- gaged for service on American vessels, is a question that appropriately belongs to the courts having cognizance of such offenses, to determine, and their determination should govern the action of the executive department of the Governmentin regard to the allowanceof fees and costs, so far as such action depends on the answer to that question. lUd. So. The fees of marshals, district attorneys, and clerks of United States courts in Govern- ment suits, taxed and recovered as costs from the defendants therein, should be turned into the Treasury, and not paid over to the officers; they being entitled to payment (by force of section 856 Rev. Stat.) only on settling their accounts at the Treasury, and from the proper appropriation. Opinion of Nov. 9, 1877, 15 Op. 387. 21. So the fees of these officers, in cases of seizure, are not payable out of the proceeds of the property seized, except where the statute has so specially provided, but are payable only on settlement of their accounts at the Treasury, as in other cases. The exceptions to this rule are in cases of prize seizures (section 4639 Rev. Stat.) and seizures for forfeitures under the customs laws (section 3090 Rev. Stat.); also, the per centum allowed to district attorneys in lieu of all costs and fees under section 825 Rev. Stat. Ibid. FINES, PENALTIES, AND FOR- FEITURES. See also Customs Laws, X, XI; Foefeit- tJEE; INTEENAL REVENUE, X, XI; POSTAL Seevioe, V. 1. The power of an executive department to impose fines and forfeitures upon their con- tractors is derived solely from the agreement to that effect in the contracts. Opinion of June 4, 1857, 9 Op. 33. 2. Where a fine was imposed on a person by judicial sentence on conviction for crime against the United States, but the sentence was not enforced during the lifetime of the party, the President has power to remit the fine after his death. Opinion of April 15, 1864, 11 Op. 35. 3. The judgments against the employes of the California Steam Navigation Company may be released by remissions of the Secretary of the Treasury under the act of March 3, 1797,. chap. 13. Opinion of Bee. 31, 1866, 12 Op. 103. 4. Statutory rules for the distribution of certain fines recovered under the internal-rev- enue acts of June 30, 1864, chap. 173; July 13, 1866, chap. 184; and March 2, 1867, chap. 169. Opinion of Feb. 11, 1869, 12 Op. 558. 5. Section 5293 of the Revised Statutes gives the Secretary of the Treasury power to remit fines, penalties, or forfeitures imposed by authority- of any provision of law referred to in the first paragraph of that section, ' for im- posing or collecting any duties or taxes," where the amount of the fine, penalty, or forfeiture does not exceed one thousand dollars, without the summary inquiry and statement of facts by a judge, as provided in section 5292 of the same statutes. Opinion of Sept. 25, 1874 14 Op. 454. 6. But if the fine, penalty, or forfeiture was imposed by authority of any provision of law referred to in the same paragraph, "relating to registering, recording, enrolling, or licensing ves- sels," power is given the Secretary in the former section to remit the same, without the summary inquiry and statement mentioned, only where the amount does not exceed fiftj/ dollars. Ibid. 7. By section 4751 Rev. Stat., the Secretary of the Navy has power to mitigate any fine. PISHING BOUNTIES— FOREIGN COINS. 217 penalty, or forfeiture incurred under the pro- visions of the sections designated therein ; and this power may be exercised by him as well -where the proceedings, civil or criminal, have not been instituted with his knowledge and by his direction as where they have been thus instituted. Opinion of Jan. 23, 1878, 15 Op. 436. 8. Where a vessel was condemned and sold by decree of a United States court as a for- feiture under section 2874 Eev. Stat., for land- ing after sunset certain cases of foreign gin and brandy, valued at more than $400, the proceeds of the sale being still retained subject to the orders of the court: Held that the owner and a mortgagee of the vessel are persons who in- curred the forfeiture within the meaning of sections 17 and 18 of the act of June 22, 1874, i;hap. 391, which authorize the Secretary of the Treasury, after certain proceedings had, to remit such forfeiture, ''if in bis opinion the same shall have been incurred without willful negligence or any intention of fraud in the pi^son or persona inawrring the forfeiture." Opinion of March 15, 1880, 16 Op. 473. FISHING BOUNTIES. Where a fishing-smack, having complied with all the conditions required by the law relating to fislnng bounties except the return to port, was captured on its way home by a confederate privateer and destroyed: Held that the capture and destruction constituted a loss of the vessel within the meaning of the act of May 26, 1824, chap. 152, and that the owner and crew are accordingly entitled, under the provisions of that act, to the same bounty they would have been allowed had the smack re- turned to port. Opinion of Mai/ 31, 1871, 13 Op. 423. FLORIDA BONDS. 1. The bonds given by the Territory of Florida for loans of money to provide for the defense of the inhabitants of and the suppres- sion of Indian hostilities in that Territory, may be paid, under the joint resolution of March 1, 1845, from the appropriation made by the acts of August 23, 1842, chaps. 183 and 192. Opinion of May 8, 1845, 4 Op. 373. 2. The amount that may be thus paid, how- ever, under the authority of that resolution cannot exceed the appropriation. Ibid. 3. Bona fide holders of bonds for loans made to Florida for the suppression of Indian hostil- ities, which have not been paid by the author- ities of Florida, or at the Treasury, may be paid for the same, if the appropriations made by the acts of Congress of A ugust 23, 1842, chaps. 183 and 192, are sufScient. Opinion of Jan. 29, 1846, 4 Op. 466. 4. The payment made by the United States to the agent of the governor of Florida, which went to the bondholders, may be taken into account in adjusting the balance due. Ibid. 5. The United States are not liable for any losses on the public stock in which that pay- ment was voluntarily invested by the agent who received it. Ibid. 6. Consideration ofthe liability of the United States to take up and pay certain outstanding war bonds of the Territory of Florida. Opin- ion of Jan. 12, 1857, 8 Op. 308. FOREIGN COINS. 1. The Secretery of the Treasury is author- ized to direct the computations of the values of foreign coins at the custom-houses, when such values are to be expressed in the money of account of the United States, to be mp.de according to the values oflScially estimated and proclaimed agreeably to the 1st section of the act of March 3, 1873, chap. 268, excepting only the sovereign or pound sterling of Great Brit- ain, the value whereof must be computed as the same is fixed by the 2d section of that act. (See Note, 14 Op. 357). Opinion of Jan. 8, 1874, 14 Op. 353. 2. The designation of the " first day of .Jan- uary, "in the 1st section of the act of March 3, 1873, chap. 268, as the time for the perform- ance of the duty thereby devolved upon the Secretary of the Treasury of making proclama- tion of the values of foreign coins annually estimated by the Director of the Mint, is not to be regarded as aireotory merely, but as a limitation upon the authority of the Secretary. He is authorized and required to make such .218 FOREIGN ENLISTMENT ; FOREIGN GOVERNMENT. procLamation at the time designated, and at no otiier. Opinioa of March 31, 1874, 14 Op. 382. FOREIGN ENLISTMENT. 1. It is a settled principle of the law of na- tions that no helligerent can rightlully make nse of the territory of a neutral State for bel- ligerent purposes without the consent of the neutral Government. Hence the undertaking of a belligerent to enlist troops of land or sea in a neutral State, without the previous con- sent of the latter, is a hostile attack on its national sovereignty. Opinion of Aug. 9, 1855, 7 Op. 367. 2. A neutral state may, if it please, permit or grant to belligerents the liberty to raise troops of land or sea within its territory; but for the neutral state to allow or concede this liberty to one belligerent and not to all would be an act of manifest belligerent partiality and a palpable breach of neutrality. IMd. 3. The United States constantly refuse this liberty to all belligerents alike, with impartial justice, and that prohibition is made known to the world by a permanent act of Congress. Ibid. 4. Great Britain, in attempting, by the agency of her military and civil authorities in the British North American provinces, and her diplomatic and consular functionaries in the United States, to raise troops here, committed .an act of usurpation against the sovereign rights of the United States. Ibid. 5. All persons engaged in such undertaking to raise troops in the United States ibr the mil- itary service of Great Britain, whether citizens or foreigners, individuals or ofiBcers, unless protected by diplomatic privilege, are indict- able as malefactors by statute. Ibid. 6. Foreign consuls are not exempted, either by treaty or the law of nations, from the penal effect of the statute. And in case of indict- ment of any such consul or other ofScial per- son, his conviction of the misdemeanor, or his escape by reason of arranged instructions or contrivances to evade the operation of the statute, is primarily a matter of domestic ad- ministration, altogether subordinate to the consideration of the national insult or injury to this Government involved in the fact of a foreign Government instructing its olEcers to abuse, for unlawful purposes, the privileges which they happen lo enjoy in the United States. Ibid. 7. The acts of Congress prohibiting foreign enlistments is a matter of domestic or mu- nicipal right, as to which foreign Governments have no right to inquire, the international offense being independent of the question of the existence of a prohibitory act of Congress. Ibid. 8. A foreign minister who engages in the enlistment of troops here for his Government is subject to be summarily expelled from the country, or, alter demand of recall, dismissed by the President. Ibid. 9. Views on questions involved in the enlist- ment of troops by British officers in the United States. Report to President of May 27, 1856, 8 Op. 476. FOREIGN GOVERNMENT. See also Claims, II; Deaft of Foeeign GOVEEXMENT. I. Beclamation. II. Violation of Heveime Laws of. I. Reclamatiorf. 1. The rule that, before a citizen of one country is entitled to the aid of his Govern- ment in obtaining redress for wrongs done him by another Government, he must have sought redress in vain through the judicial tribunals of that other Government, is inapplicable where (as in the case considered) the ofl'ending Government, by the acts of its proper organ, relieves the injured party from the obligation of pursuing such a course. Opinion of Dec. 28, 1871, 13 Op. 547. 2. The Government of Brazil is not responsi- ble for damage resulting to a citizen of the United States from the alleged corruption of a municipal judge in that country in authenti- cating and ratifying the report of a board of surveyors upon a damaged vessel, though the charge were established. Opinion of Dec. 29, 1871, 13 Op. 553. 3. Where an oifioer with a party of armed men, acting under an order of a judicial officer FOREIGN INTERCOURSE FUND — FORT SNELLING. 219 of llie port of Granada, seized an American vessel at that port, kept possession of it a few hours, and then -withdrew, pursuant to an order of the same judge, the seizure having been made for the purpose of enforcing a supposed legal right : Advised that this Government ought not to malie reclamation in behalf of the owner, as it is presumable that ilthe pro- ceedings Avere illegal the judicial tribunals of Nicaragua will afford redress. Ojpinion of Jan. 1, 1872, 18 Op. 554. II. Violation of Revenue Laws of. 4. An American vessel, having been embar- goed in a port of Brazil by competent authority, was unlawfully taken out of the port and out ■of Brazilian waters by her master, without payment of the required charges. The Bra- zilian Government requests that measures be taken by this Government against the master to redress the injury to the fiscal interests of Brazil resulting from his act : Advised that the xi,ct charged against the master was not a viola- tion of any statute of the United States, and that, in the absence of a statutory provision applicable to the case, no prosecution therefor could be maintained in the courts of the United ■States. Opinion of 3Iarch 13, 1879, 16 Op. 282. 5. Where the master of an American vessel, which was under detention by the customs authorities at a port in Jamaica, escaped with his vessel, in violation of the British revenue laws : Advised that there is no statute of the United States under which the master is liable to prosecution in the courts of this country for the act alleged. Opinion of March 13, 1879, 16 Op, 283. FOREIGN INTERCOURSE FUND. The fund for foreign intercourse is an annual fund placed at the disposal of the President to defray its expenses; and he is limited in re- spect to an outfit only by the provision that it shall not exceed a year's salary. When the outfit has been paid, it is beyond the recall of the President or Congress. Opinion of June 5, 1822, 1 Op. 545. FORFEITURE. See also Bounty, IV; Conteaot, VI; Cus- toms Laws, X, XI ; Intebstal Revenue, X ; Postal Seevic:!s, V. 1. The President has no povver (in the case presented) to remit the forfeiture of a bail- bond. Opinion of Feb. 20, 1843, 4 Op. 144. 2. He is invested with authority to remit judgments of forfeiture pronounced against vessels, their tackle and apparel, for infractions of the act of April 20, 1818, chap. 91, pro- hibiting the slave trade. Opinion of May 13, 1847, 4 Op. 573. 3. In certain cases, under the acts of Con- gress regulating the transportation of passen- gers in merchant vessels, forfeitures may be remitted by the Secretary of the Treasury. Opinion of March 24, 1854, 6 Op. 393. 4. The act of March 3, 1855, chap. 213, reg- ulating the carriage of passengers in steamships and other vessels, and imposing penalties and punishment for contravention, is made appli- cable to ships abroad in sixty days in Europe, and six months in other parts of the world, and requires notice of the act to be given in all foreign ports through the Department of State: Seld that where such notice had failed to be given in such foreign port, and the owner or master of a vessel had thus unconsciously of- fended, it was proper case for remission of for- feiture and for pardon of the master. Opinion of Sept. 11, 1855, 7 Op. 489. 5. The President has no general constitu- tional or statutory power to remit judgments obtained against sureties on forleited recogni- zances taken in criminal proceedings before the courts of the United States. Opinion of Nov. 21, 1864, 11 Op. 124. 6. The act of June 17, 1812, chap. 100, au- thorizes the President to remit the forfeiture of recognizances taken in such proceedings in the District of Columbia. Ibid. FOREIGN MAILS. See Postal Service. FORT SNELLING. 1. The Secretary of War had the power con- ferred upon him by law to make a contract lor the sale of Fort Snelling, and having executed that power he was functus officio. Opinion of Sept. 28, 1857, 9 Op. 103. 2. The Secretary has no right to change the 220 PEANCHISB — FEEEEMEN'S BUEEAU terms of the contract ia any particular what- ever. IMd. FRANCHISE. See also Teeeitoeies. The act of the legislature of the North- western Territory authorizing Briggs and an- other to erect a bridge over Will's Creek does not confer an exclusive privilege. Opinion of July 26, 1828, 2 Op. 107. FRANKING PRIVILEGE. 1 . Postmasters can not lawfully receive, to be conveyed in the mail, any packet weighing more than three pounds, in any case whatever, except such as are specially provided for in the act of December 19, 1821, chap. 1, and the joint resolution of January 13, 1831. Opinion of Dee. 13, 1836, 3 Op. 164. 2. The taking a seat in a special session of the Senate called and held for executive busi- ness merely, and without any contemporaneous meeting of the House of Eepreseutatives, is not such a taking of a seat in Congress as will en- title a Senator to the exercise of the franking privilege. Opinion of March 2, 1837, 3 Op. 171. 3. The franking privilege of Senators and Representatives in Congress commences with the term for which they are respectively elected, or from the period of their election in cases where that occurs after the commence- ment of a term. Opinion of April 23, 1851, 5 Op. 358. 4. The privilege is given to them as mem- bers of Congress during their terms of service, without any reference to the time when they take their seats or the oath of ofSce. Ihid. 5. So far as relates to this purpose, they are members of Congress by their election and ac- ceptance. Ihid. 6. Letters from ofScers of national banking associations employed as depositaries of public moneys, on business arising from that employ- ment, are not transmissible through the mail free of postage to the Treasury Department. Opinion of Ifareh 19, 1864, 11 Op. 23. 7. Under the postal act of March 3, 1863, chap. 71, section 42, the head of a Bureau in one of the Executive Departments can exercise the authority to send mail matter free of post- age by impressing his name on the outside of the package to be mailed, with an engraved stamp, as well as by writing his signature thereon. Opinion of March 26, 1864, 11 Op. 31. 8. The head of a Bureau entitled to frank mail matter cannot delegate to another person the power to frank such matter by using his stamp. Opinion of March 30, 1864, 11 Op. 35. 9. The Postmaster-General may, by regula- tion, authorize ofiS.cers in or belonging to the various Executive Departments legally desig- nable as chief clerks, whether of the Depart- ments proper or of Bureaus therein, to Irank official communications. (See Note.) 02rin- ion of March 19, 1869, 13 Op. 2. 10. The franking privilege is a personal priv- ilege, and the selection of the person to whom matter shall be sent free through the mails can- not be delegated by the person enjoying the privilege to any other person. Opinion of Oet. 21, 1869, 13 Op. 157. 11. Members-elect of either House of Con- gress are, under section 7 of the act of March 3, 1877, chap. 103, entitled to exercise the priv- ilege of franking public documents as soon as the term for which they were elected com- mences, .although no session of the Congress has convened and they have not qualified. The language used in that section is to be con- strued with reference to similar legislation for- merly existing (of which a review is given in the opinion), and must be interpreted as in- tended to restore the franking privilege, so far as it relates to public documents, for the term for which the members are elected, with the additional period therein stated. Opinion of Feh. 26, 1879, 16 Op. 271. FRBBDMEN'S BUREAU. 1. It is the duty of the Commissioner of the Freedmen's Bureau to take control only of such portions of the lands described in the act of March 3, 1865, chap. 90, as he may, in the exercise of his authority, set apart for the use of loyal refugees and freedmen. Opinion of June 22, 1865, 11 Op. 255. 2. The act of July 6, 1868, chap. 135, con- tinuing in force the Freedmen's Bureau, does not require that officers " retained " by the Commissioner shall be in terms reappointed. Opinion of Sept. 12, 1868, 12 Op. 490. peeedmen's bueeaxj. 221 3. The Freedmen's Bureau cannot be re- garded as an agent or attorney within the meaning of the joint resolution of July 26, 1866 [No. 86], fixing the fees for collecting bounty claims of colored soldiers, &c., incases where such claims are collected by it, and therefore cannot retain for the Government the prescribed fees for such service, though the claimants so request. Opinion of Aug. 17, 1871, 13 Op. 509. 4. The Commissioner of the Freedmen's Bureau is liable for all losses sustained by the Government through the default of subordi- nate disbursing officers or other persons em- ployed by him in the disbursement of the moneys intrusted to him under the joint reso- lution of March 29, 1867 [No. 25]. Opinion of July 3, 1873, 14 Op. 269. 5. The resolution of March 29, 1867 [No. 25], was passed for the protection of a particu- lar class of claimants described therein, its specific o1)ject being to more effectually secure to such claimants, through the instrumentality of the Freemen's Bureau, the money due them from the Government in cases where claims were prosecuted in their behalf by agents or attorneys. Opinion of Oct. 24, 1874, 14 Op. 474. 6. To enable the Freedmen's Bureau to dis- charge the duty thereby devolved upon it, the check? and certificates issued at the Treasury on the settlement of such claims were required by the resolution to be made payable to the Commissioner of the Bureau. Ibid. 7. The money drawn from the Treasury by the Commissioner upon those checks and cer- tificates was public 7noney, and retained that character while it remained in his hands, or until disbursed by him or his subordinates as directed in the resolution. Ibid. 8. By the provisions of the third section of the resolution the Qpramissioner, and those of his subordinates who were charged with the duty of paying out this money to the parties en- titled to receive it, were subjected, in respect of the custody and disbursement of such money, to the same degree of responsibility andaccountibility to which a disbursing officer of the Army was subject in respect of the pub- lic money in his hands. Ibid. 9. Therefore, the investment in Government securities of the public money in their hands, made by the Commissioner and the chief dis- bursing officer of the Bureau, rendered them liable to severe penalties imposed by the acts of August 6, 1846, chap. 90, and June 14, 1866, chap. 122, and to be criminally prose- cuted therefor under these acts. lUd. 10. But though such investment was pro- hibited by the statutes last referred to, the profits derived therefrom in the shape of in- terest and premium inured solely to the United States; they were public money, and should have been accounted for by those officers the same as other public money. Neither of them could legally apply these profits to reimburs- ing himself for erroneous or double payments made to claimants, or to paying employes of the Bureau extra compensation, &o. Ibid. 11. The approval by the Second Comptroller of the application of the public money to the purposes just mentioned is no jDrotection to the Comm issiouer and chief disbursing officer of the Bureau, unless such approval was given by the Comptroller while officially passing on their accounts; in which case the action of the Comptroller would be conclusive until such accounts are reopened or the settlement thereof set aside on some valid ground, such as fraud, mistake, &c. Ibid. 12. Those officers, notwithstanding a crim- inal prosecution against them on account of the aforesaid investment may now be barred by the limitations of the statute, remain civ- illy liable for so much of the public money re- ceived by them as has not been lawfully ac- counted for. Ibid. 13. "Where public funds were put into the hands of a disbursing agent of the Freedmen's Bureau for the purpose of paying certain claim- ants against the Government of the class des- ignated in the resolution of March 29, 1867 [No. 25], and the agent, by direction of any such claimant, remitted to the latter the amount of his claim by express or draft: Held, first, that though this mode of payment is not in conformity with the directions of the stat- ute, yet if the claimant actually received the money his claim is discharged ; second, that in case the amount were sent by express, this, being done at the claimant's request, would also constitute a discharge of the claim ; third, that in case the amount was sent by draft, the claim still subsists unless the draft has been paid, and the fact that it is yet outstanding is (in view of the provisions of said resolution) 222 FREEDMAW'S SAVINGS AND TRUST COMPANY — GENERAL AYERAGE. immaterial. Opinion of Oct. 29, 1874, 14 Op. 485. 14. In the cases mentioned neither the said agent nor any other officer of the Bureau would seem to incur any special pecuniary lia- bility to the Government in consequence of the action of the agent. Ihid. 15. But where the disbursing agent has re- mitted funds due claimants to the attorneys of the latter, under instructions from such at- torneys given without the knowledge or con- sent of the claimants, in this case, should the attorneys have failed to pay over the money, the Government would be still liable to the claimants for the amounts due them, and the disbursing agent would be liable to the Gov- ernment for the loss it may thus sustain. Ibid. 16. The responsibility of the Commissioner of the Freedmen's Bureau would also extend to such loss, under the provisions of the afore- said resolution. IMd. FRiiEDMAN'S SAVINGS AND TRUST COMPANY. 1. Eights, duties, and responsibilities of the commissioners appointed under the 7th section of the act of June 20, 1874, chap. 349, to wind up the business of the Freedman's Savings and Trust Company, considered and commented on. Opinion of March 20, 1875, 14 Op. 549. 2. The commissioners thus appointed hav- ing become invested with the title to the prop- erty of said company and taken upon them- selves the performance of their trust, it is not competent to either the board of trustees of said company or the Secretary of the Treasury to accept the resignations of the former, and relieve them from the duties and responsibili- ties which they have assumed. Hid. FUNDED DEBT. See also Bonds of the TJifiTED States. 1. It is the duty of the commissioner of loans to forbear to act in cases where the holder of certificates of the funded debt, or his attorney, presents himself to receive dividends or to transfer the stock after notice, by attachment or private caveat, that an adverse claim has been filed in the office, until the law shall have settled the rights of the parties and given a proper direction to the course of his action. Opinion of June 16, 1828, 3 Op. 90. 2. The certificates of the funded debt are made payable to the holder or his assignees. They are therefore on their face assignable. Being properly assigned, the assignee stands in the place of the first holder. Holding a cer- tificate, with an assignment indorsed on the paper itself, is prima facie evidence of owner- ship. But it is OTi\j prima facie evidence, be- cause a valid assignment may be made on a separate paper which vrill pass the legal title without the manual tradition of the certificate. Ibid. 3. In respect to private caveats, unless the caveators shall state the causes and grounds of them, so that they may be considered and judged of by the commissioner, they should be disregarded; so, also, where the causes and grounds are manifestly untenable. Ibid. FURLOUGH. See Aemy, XX. GENERAL AVERAGE. 1. The cargo of the United States, shipped at Alexandria for Valparaiso, on board a vessel forced by stress of weather to throw overboard aportion of her freight to lighten her and then to put back to Norfolk, incurring expenses of the nature of general average, is bound to contrib- ute to the general average; but whilst such is the opinion of the Attorney-General, there are reasonable doubts respecting some of the charges in the case under consideration. Opin- ion of March 31, 1823, 5 Op. 757. 2. Where a vessel at sea is in imminent dan- ger, and a part either of the vessel or cargo is voluntarily sacrificed to save tfie rest, and the sacrifice is successful, the portion saved must contribute pro rata to make the loss good. Opinion of July 19, 1860, 9 Op. 447. . 3. In a case of involuntary stranding," the direct and immediate consequences which re- sulted therefrom cannot be brought into gen- eral average; but the owners of the cargo axe bound to contribute by way of general average their proportion of expenses voluntarily in- GENERAL LAND OFFICE: GRANT TO THE UNITED STATES. 223- curred, and sacrifices voluntarily made, after- wards by the vessel to avert the peril surround- ing vessel and cargo. Ihid. GENERAL LAND OFFICE. See also Public Lands. 1. The act of 4th July, 1836, chap. 352, places the General Land Office under the super- vision of the Secretary of the Treasury. If there be doubts of its eifect, it is at any rate competent for the President to exercise his con- trol by directing the Secretary of the Treasury to superintend the same, under the usual sub- ordination to the President. Opinion of July 4, 1836, 3 Op. 137. 2. The proviso in the appropriation act of March 14, 1862, chap. 41, limiting the Secre- tary of the Interior in the use of the appro- priation under the act of March 3, 1855, chap. 207, to the allowance of |1,200 per annum for office work, &c., does not apply to the salaries of the regular additional clerks in that branch of the General Land Office. Opinion of Sept. 3, 1862, 10 Op. 330. GRANT TO THE UNITED STATES. 1. The United States cannot divert land granted for the express and single purpose of a light-house site, to any use wholly uncon- nected with the object of the grant, without violating the spirit and terms of the cession. Opinion of Nov. 15, 1819, 1 Op. 321. 2. The president and directors of the Navy Yard Bridge Company are competent to exe- cute a deed of said bridge to the United States, pursuant to a. resolution instructing them to do so, passed at a regular meeting of the stockholders, upon obtaining the concur- rence of the president and directors of the Eastern Branch Bridge Company; but they cannot convey the individual stock of said company unless the shareholders shall have conveyed it to them. Opinion of Nov. 15, 1848, 5 Op. 53. 3. If the several stockholders shall convey their shares to the individuals who are to ex- ecute a deed to the United States, and the latter shall e.xecute a deed as well for themselves as the company, a valid tro.nsfer of the bridge and the stock will have been effected. Jbid. 4. The patent and deed of conveyance of certain lands situate at the mouth of the Mus- kegon River, in the State of Michigan, appear to give the United States u, valid title to the same. Opinion of Oct. 8, 1850, 5 Op. 267. 5. The reservation in the deed of Simeon Leland and wife, conveying David's Island, in Long Island Sound, to the United States; of ' ' the right of ferriage to and from said prem- ises, ' ' secures to the grantors a right to use so much pf the island as may be needed for the purpose of a ferry, whether public or private, and for no other purpose. Opinion of June 2,. 1871, 13 Op. 426. 6. The Government, however, is under no- obligation to use a ferry kept by the grantors, but may, simply as a riparian proprietor, es- tablish one for its own accommodation. Ibid. 7. It may also allow others than the grantors to land boats at the island, and to transport thereto and therefrom passengers or freight, and may avail itself of the facilities for com- munication thus afforded. Ibid. 8. Parties having proposed to donate to the United States certain land for the extension of the pier and breakwater at Oswego, New York, upon the following conditions, viz, that, the work "shall be constructed at or near the point, and substantially upon the plan adopted and recommended by the board of engineers, " &c. : Advised that, if the latter condition is. omitted, the donation may properly be ac- cepted, even though the former condition is retained, but not otherwise. Opinion of June 24, 1871, 13 Op. 465. 9. The Secretary of War has authority under the provision in the act of March 3, 1879, chap. 181, making an appropriation for an ice harbor at the mouth of the Muskingum, in. the State of Ohio, to accept the grant made by the legislature of that State of the right to take possession of the dam belonging to the State, without further legislation by Congress. So, also, a grant from the city of Marietta of the use of the adjacent land owned by the- city. Opinion of Oct. 4, 1879, 16 Op. 387. 10. The estate which the United States would hold in the dam, by virtue of the grant of the State, would be in the nature of an easement; yet it would be sufficient for the 224 GUANO ISLANDS : HABEAS COEPUS. purpose contemplated by the provision afore- said. Ibid. GUANO ISLANDS. 1. "What facts must he established to justify the President in considering a guano island as appertaining to the United States. Manner of proceeding, and substance of bond to he given by the discoverer. Opinion of June 2, 1857, 9 Op. 30. 3. The act of August 18, 1856, chap. 164, requires, before an island whereon guano is dis-covered shall be deemed as appertaining to the United States, that the island shall be taken possession of and actually occupied ; conditions which are not complied with by a mere symbolical possession or occupancy. Opinion of July 12, 1859, 9 Op. 364. 3. No claim, under the act of Congress, can have any earlier inception than the actual dis- covery of guano deposit, possession taken, and actual occupancy of the island, rook, or key whereon it is found. Jbid. 4. In determining the proper party to give the bond required by the act of Congress, the political department of the Government can only look to the party complying with the conditions of the statute, without considering the legal or equitable rights of other parties to share in the profits of the speculation, which are to be left for the determination of the proper j udioial tribunals. Ibid. 5. The President has no power to annex a guano island to the United States while a dip- lomatic question as to jurisdiction is pending between this Government and that of a foreign nation. Opinion of Dec. 14, 1859, 9 Op. 406. 6. The Secretary of State ought not to re- voke the proclamation issued August 7, 1860, relative to Howland's Island, in the Pacific Ocean, in favor of the United States Guano Company, upon the application of the Ameri- can Guano Company. Opinion of Nov. 13, 1865, 11 Op. 397. 7. The eighth section of the act of March 3, 1865, chap. 80, repeals that part of the act of August 18, 1856, chap. 164, which requires the trade in guano from guano islands to be car- ried on in coasting-vessels; and lor two years from and after July 14, 1865, all persons who have complied with the act of 1856, section 2, may export guano in any vessels which may lawfully export merchandise from the United States. Opinion of June 27, 1866, 11 Op. 514. 8. Claim of the widow of William H. Par- ker, under the acts of August 18, 1856, chap. 164, and April 2, 1872, chap. 81, to certain guano islands in the Pacific Ocean, examined, and the following conclusion reached: that claimant has no derivative title to tlie islands under her late husband, and that she is not now in a situation to set up an original title thereto in herself. Opinion of May 8, 1873, 14 Op. 608. HABEAS CORPUS. 1. A writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship-of-war lying in any port or harbor of the United States, al- though the respect due to the foreign sovereign may require that a clear case be made out be- fore the writ be directed to issue. Opinion of June 24, 1794, 1 Op. 47. 2. The jurisdiction of the nation is as com- plete over its ports and harbors as over the laud itself; and the law of nations invests the commander of a foreign ship-of-war with no exemption from the jurisdiction of the country into which he comes. He cannot claim that exterritoriality which is annexed to a foreign minister and to his domicil; but he is con- ceived to be fully within the reach of and amenable to the usual jurisdiction of the State where he happens to be. Ibid. 3. James Collier, being indicted in the dis- trict court of the northern district of California on the charge of feloniously converting to his (nvn use public money intrusted to him as col- lector of San Francisco, and being arrested in the State of Ohio by warrant of the district judge of the United States in order to be car- ried to California for trial, was taken from the United States marshal by habeas corpus ad sub- jiciendum granted by a judge of the State of Ohio : Held that tl;ie act of the State court was an act of unlawful interference with the juris- diction of the courts of the United States. Opinion of Sept. 9, 1853, 6 Op. 103. 4. When a party is lawfully in custody under the judicial authority having apparent juris- diction of the subject-matter, no other court is HABEAS CORPUS. 225 collaterally to take jurisdiction of the case un- der cover of the writ of habeas corpus ad suhji- ciendum, even as between courts of the same sovereignty or jurisdiction. Ibid. 5. A fortiori, a prisoner cannot be withdrawn ftom the jurisdiction of a State by habeas cor- pus issued by the courts of the United States, nor from that of the United States by habeas corpus issued by the courts of a State. Ibid. 6. The courts of the United States are the rightful judges of their own jurisdiction. Ibid. 7. In case where a person claimed as a fugi- gitive from foreign justice is under examina- tion before a commissioner of the United States, it is not in the lawful power of a State court to revise the case on habeas corpus and assume to overrule the commissioner. Opinion of Dec. 20, 1853, 6 p. 237. 8. It is the right of the marshal of the United States to refuse to have the body of the party before the State court, and it is the duty of the courts and other ~ authorities of the United States to protect the marshal in such refusal by all means known to the laws. Ibid. 9. When a person is under arrest for any cause on the warrant of a competent judicial authority of the United States, such person cannot lawfully be discharged on habeas corpus by the courts of a State, and vice versa. Opin- ion of Sept. 11, 1854, 6 Op. 713. 10. Certain persons being under arrest in the State of Wisconsin by proper judicial author- ity of the United States, charged with obstruct- ing the execution of the acts of Congress in the case of a fugitive from service, were discharged from arrest on habeas corpus by the supreme court of the State for alleged unconstitution- ality of the extradition act: Held that such de- cision requires to be reviewed on writ of error by the Supreme Court of the United States. Ibid. 11. A person having been indicted and con- victed on trial before the district court of the United States for the State of Wisconsin, for the forcible rescue of a fugitive from service in another State, who had been arrested by due process preparatory to extradition, and he hav- ing, after conviction, been released by the su- preme court of the State on habeas corpus: Held that the action of the tribunals of the State was unlawful, and should be brought for review by writ of error before the Supreme Court of the United States. Opinion of Feb. 23, 1855, 7 Op. 52. 12. Under the Constitution of the United States the power to suspend the writ of habeas corpus belongs exclusively to Congress. Opin- ion of Feb. 3, 1857, 8 Op. 365. 13. The military authorities of the United States in the State of Mississippi, during the existence of the provisional government therein established by the President, had authority to arrest and imprison a citizen for crime, and hold him in disregard of a writ of habeas corpus issued by the judge of a court appointed by the provisional governor. Opinion of Aug. 23, 1865, 11 Op. 322. 14. The several acts of Congress relative to the jurisdiction of the courts of the United States to issue writs of habeas corpus do not declare that the jurisdiction of those courts shall be exclusive of the jurisdiction of the State courts, even in cases provided for by Fed- eral law. Opinion of Oct. 4, 1867, 12 Op. 259. 15. The power conferred on the Secretary of War to discharge minors under the age of eighteen from the Army is not exclusive, and does not oust judicial inquiry upon habeas cor- pus of the legality of the enlistment. Ibid. 16. Although there has been conflict of opin- ion on the question of the authority of a State court to discharge a person held under color of authority of the United States, there has not been any serious conflict of opinion as to the jurisdiction of a State court to require a return to its writ of habeas corpus in such a case and the production oi the body. Ibid. 17. An exception, however, exists in the case of a person shown to be imprisoned under j udicial process of the United States ; for there, under the decision in the case of Ableman vs. Booth (21 How. 506), the State court cannot require the production of the body of the re- lator. Ibid. 18. It seems that the doctrine of the decision in that case is applicable only to proceedings upon habeas corpus, in State coarts, in eases of imprisonment under process issued under the authority of the United States, and does not extend to a case of imprisonment by an executive oflioer having the custody or control of an enlisted person. Ibid. 19. The capacity of the proper courts of the United States to take jurisdiction in habeas corpus of persons enlisted in the Navy does DIG- -15 226 HAKPEE'S PEEBY — HOT SPRINGS. not, before its actual exercise, oust the juris- diction of a State court. Ibid. 20. A former rebel soldier was arrested in September, 1867, by the military authorities for an assault in Tennessee upon a private citi- zen, with a view of putting him on trial by a military commission for violation of his parole given on May 1, 1865. He subsequently sued out a writ of habeas corpus before the district judge, who, on fall hearing before himself alone, the circuit judge not being present, discharged the prisoner: Seld that under the existing statutes there was no mode by which the case could be taken by appeal to the Supreme Court of the United States. Opinion of Dec. 17, 1867, 12 Op. 332. 21. An officer of the Army, in Kansas, hav- ing arrested three men, at the request of the United States marshal, charged with assault- ing the latter and obstructing the execution of process by him, while the parties so arrested were in the officer's custody a writ of habeas corpus was issued by the probate judge of the county, commanding the officer to bring before him the bodies of the prisoners, together with the cause of their detention; the officer made a proper return to the writ, but without bring- ing up the prisoners, whom he turned over to the marshal ; whereupon the j udge issued an attachment against the officer : Held (on the assumption that the marshal made the arrest under proper process or warrant of a United States court or commissioner, or for an offense committed^within his own view, and that the officer was duly summoned by the marshal to assist in making the arrest and holding the prisoners) that it was the duty of the officer to obey the writ of habeas corpus no further than to make a respectful return of the facts of the case, showing that he held the prisoners under authority of the United States, and that the attachment was void and need not have been obeyed. Opinion of June 19, 1871, 13 Op. 451. HARPER'S PERRY. 1. The persons in the employment of the United States, actually residing in the limits of the armory at Harper's Ferry, do not pos- sess the civil and political rights, nor are they subject to the tax and other obligations, of citizens of the State of Virginia. Opinion of June 24, 1854, 6 Op. 577. 2. The United States have a valid title in fee-simple of all their property at Harper's- Ferry, West Virginia. Opinion of Dec. 5, 1867, 12 Op. 329. HEAD-MONEY. The ascertainment and distribution of bounty or head-money for the destrilction of armed enemy vessels, by naval vessels of the United, States, are subjects of judicial cognizance by the admiralty courts of the United States; and prqceedings to that end in the district court of the District of Columbia are regular and valid, and afford all proper protection to the interests of the Government. Opinion of Nov. 23, 1867, 12 Op. 314. HOSPITAL FOR THE INSANE. 1. The Government Hospital for the In- sane in the District of Columbia is designed only for the use of the Army and Navy, and for such other persons as may be residents of the District at the time of becoming insane. Opinion of Aug. 30, 1855, 7 Op. 450. 2. Volunteer soldiers who have become in- sane within a period of more than three years- after their discharge from service may be ad- mitted to the Government Hospital for the In- sane in the District of Columbia, whether at the time they became insane they were in- ma,tes of any volunteer soldiers' asylum or not. Opinion of April 23, 1873, 14 Op. 225. HOT SPRINGS. 1. The Hot Springs in the Stal e of Arkansas are the property of the United States, having been reserved from entry or sale by express act of Congress. Opinion of Avg. 30, 1854, 6 Op. 697. 2. None of the parties asserting title thereto, either by pre-emption, location, or otherwise, present any satisfactory proof of such title as- against the United States. Ibid. INDEMNITY — INDIANS, I. 227 INDEMNITY. See Damages; Inteenational Law, II; Public Lands, XVIL INDIAN AGENTS AND AGENCIES. 1. The President may, subject to the re- strictions imposed by section 1224 Eev. Stat., direct the military commandant in Alaska to execute thejJuties of an Indian agent there. Opinion of May 5, 1875, 14 Op. 573. 2. Under sections 2058 and 2089 Eev. Stat. the President may, in his discretion, devolve the disbursement of funds for the Indian agencies within a superiutendency upon the superintendent thereof or upon the several Indian agents within the same superiutend- ency. Opinion of Deo. 15, 1875, 15 Op. 66. 3. Under section 2053 Eev. Stat, the Presi- dent has discretionary power to dispense with the services of any Indian agent; and, under sections 1224 and 2062 Eev. Stat., he is au- thorized to assign a military officer to execute the duties of such agent, if this can be done without separating the ofScer from his com- pany, regiment, or corps, or otherwise inter- fering with the performance of his military duties; or, under section 2053 Eev. Stat., he may devolve the duties of such agent upon an agent who has been appointed for another agency. Opinion of Dec. 6, 1877, 15 Op. 405. 4. The President can, under section 2059 Eev. Stat., discontinue any agency, where- upon the functions of the agent would cease. He can also, under the same section, transfer the agency to another place; for instance, to the vicinity of a military post, should it be contemplated to require a military officer to perform the duties of agent. JMd. 5. Under section 2045 Eev. Stat, an Indian agent may, at any time, be suspended, and the place temporarily filled in the mode there pro- vided. Ibid. INDIAN COUNTRY. 1. Under the provisions of the twentieth section of the act of June 30, 1834, chap. IGl, as amended by the second section of the act of March 3, 1847, chap. 66, and the act of February 13, 1862, chap. 24, and also the pro- visions of the act of March 15, 1864, chap. 33, the introduction of spirituous liquors into the Indian country is impliedly prohibited, when- ever it is not done by authority of the War Department. Opinion of April 12, 1873, 14 Op. 290. 2. Semble, therefore, that the authority of that Department touching the introduction of liquors into the luUiau country is exclusive. Ibid. 3. Eeview of the legislation of Congress bear- ing on the question, what is Indian country within the meaning of the Indian intercourse laws? and AcW that all reservations west of the Mississippi Eiver which are occupied by In- dian tribes, and also all other districts so occu- pied to which the Indian title has not been extinguished, are Indian country within the meaning of those laws, and remain (to a greater or less extent, according as they lie within a State or Territory) subject to -the provisions thereof Ibid. INDIAN DEPREDATIONS. See Claims, XV. INDIANS. See also Bounty, III; Claims, IT; Public Lands, XXII, XXXII; Eeseevation, I; Treaties. I. Generally. II. Trade with. — Contracts. — Intercourse Laws. III. Lands of. — Trespass. — Sales and Convey- ances by. IV. Annuities. — Trust Funds of. — Investments for. V. Employment of, in Co-operation with Troops. VI. Hostilities. — War. VII. Jurisdiction of Indian Courts. I. Generally. 1. As the district of country occupied by the Choctaws is within the territorial limits of the United States over which the sovereignty 228 INDIANS, I. of the latter has heen only partially relin- quished, citizens of the United States cannot divest themselves of allegiance to our Govern- ment by a residence among them, nor even by becoming members of the Choctaw Nation. Opinion of Dec. 26, 1S34, 2 Op. 693. 2. And the political relation of negro slaves owned by white men residing in the Choctaw country depends on that of their masters. Ibid. 3. The Cherokee fund is not liable for dam- ages arising from the non-fulfillment by the Government of contracts made for the removal of, and supplies for, the Cherokee Indians. Opinion of March 20, 1839, 3 Op. 431. 4. Indians at peace with the United States are in no received sense of the word "an enemy," and cannot be judicially considered as embraced within it. Opinion of Aug. 13, 1842, 4 Op. 81. 5. It is not the duty of the Executive to pay over the moneys appropriated in the third sec- tion of the act of August 12, 1848, chap. 166, to the Creek Nation of Indians, except on the con- dition that said nation shall first execute a full dischi'Tge of principal and interest on account of the sum of $250, 000. Opinion of Oct. 28, 1848, 5 Op. 46. 6. The form of the release of the claim of the Creeks upon the Government, which has been submitted to the Commissioner of Indian Affairs, answers the requirements of the third sectionof the aotof 12th of August, 1848, chap. 166, if it satisfactorily appear that the chiefs and headmen who have executed it are in fact the chiefs and headmen of the Creeks, and con- stitute a majority of their national council. Opinion of March 21, 1849, 5 Op. 79. 7. The power of attorney, authorizing Joseph Bryan to receive certain moneys from the United States, is suiScient for its purpose if it appear that it was executed by those chiefs and headmen who had authority to execute such an instrument. Ibid. 8. The moneys appropriated by section 4 of the act of August 12, 1848, chap. 166, in exe- cution of the treaty of 24th of January, 1826, with the Creeks, maybe paid to the chiefs and headmen of that nation upon their executing a release in full for all claims for principal and interest on account of the emigration of 1,300 Indians, &c. Opinion of 3Iay 10, 184-9, 5 Op. 98. 9. Had Congress intended to exact a release from the individual Indians, they would have doubtless expressed that intention in the law. Ibid. 10. The moneys appropriated by the acts of 30th September, 1850, chap. 91, and 27th Feb- ruary, 1851, chap. 12, are to be paid to the In- dians referred to in the twelfth and fifteenth articles of the treaty of 1835, and in the ninth and tenth articles of the treaty of 1846, con- cluded with the Cherokees. Opinion of April 16, 1851, 5 Op. 320. 11. The distribution is to be made per capita and equally among all the individuals residing east, and also all those residing west other than the "old settlers" found to be in existence at the* time of the distribution, each being con- sidered as entitled in his own right, and not by representation of another who is dead ; and the payment of these distribution shares is to be made to the individuals entitled, if of com- petent age ; the shares of children to he paid to heads of families to which they belong, whether those heads of families be male or female, father or mother, or persons standing in loco parentis. Ibid. 12. The whole number of the Cherokees to whom payments are to be made per capita, and the identity of the persons to whom distribu- tion is to be made, are questions of fact to be determined in such manner as the Secretary of the Interior, by and with the advice and con- sent of the President, shall deem discreet. Ibid. 13. No part of the money appropriated for per capita payments to the Cherokees can be paid otherwise than by an equal distribution of it among those Indians individually. (See opinion of 23d of June, 1851, 5 Op. 379.) Opinion of Dec. 2, 1851, 5 Op. 502. 14. Under the act of 3d March, 1852, chap. 11, it is competent for the superintendent of Indian affairs in California to examine claims and accounts for furnishing provisions to the Indians. Opinion of July 21, 1852, 5 Op. 572. 15. Indians are not capable of pre-empting the puhlic lands of the United States. Opin- ion of July 5, 1856, 7 Op. 746. 16. Half-breed Indians are to be treated as Indians in all respects, so long as they retain their tribal relations. Ibid. 17. Where a certain class of Indians are en- titled to a certain sum per head, but the ap- INDIANS, II. 229 propriation to make the payment is not large enough to allow all of them that sum : Held that it must be divided among them pro rata. Opinion of June 10, 1857, 9 Op. 48. 18. The act of March 3, 1865, chap. 127, withdrew from the Secretary of the Treasury the authority given him by the act of March 2, 1861, chap. 85, to issue to the Choctaw tribe of Indians bonds of the United States to the amount of §250,000. But that authority was revived by the treaty with said tribe of April 28, 1866, under which the Secretary may lawfully issue the bonds to the Choctaws, as provided in the above-mentioned act of March 2, 1861. Opinion of Dec. 15, 1870, 13 Op. 354. II. Trade and Contracts -with.- course La^ivs. -Inter- 19. The Cherokee Nation of Indians have not the right to impose taxes on persons trad- ing among them under the authority of the United States. Opinion of April 2, 1824, 1 Op. 645, 20. Neither the history and condition of the Indians, the relations which the United States bear to them, nor the treaties which subsist between them and our Government, permits the power of taxation to be considered as one between equal sovereigns. Ibid. 21. Trade with the Cherokees has been pro- vided for by treaty stipulations, giving to Congress the sole and exclusive right of regu- lating trade with them and managing their affairs as shall be deemed proper. The right thus conferred on the United States is sole and exclusive ; wherefore, neither the Cherokees nor any other nation had the right thereafter to touch the subject which was thus solely and exclusively given to the United States. Ibid. 22. No citizen of the United States can ob- tain exemption from the laws of the United States which regulate intercourse with the Indians by entering their territory within our limits and becoming one of them by adoption. Opinion of Dee. 21, 1830, 2 Op. '402. 23. Although the claim of an attorney for the Cherokees cannot be paid out of funds due them vinder the ninth article of the treaty, yet, if the Department shall be satisfied that the contract between him and his principal is free from fraud, and his claim is for a just compen- sation for services rendered, the Department ought to recognize him as having an interest in the fund and pay him accordingly. Opin- ion of March 26, 1840, 3 Op. 504. 24. Payments may be made directly to the Indians, yet care should be taken that those who have rendered them service in collecting evidence, &c., be not defrauded. Ibid. 25. All executory contracts of individual Indians for the payment of money or fees are null by statute, but not of necessity the exec- utory contracts of a nation or tribe of Indians. Opinion of June 13, 1853, 6 Op. 49. 26. The President may, or not, in his dis- cretion, recognize the pecuniary engagements of a tribe of Indians. Ibid. 27. The President will examine into all such contracts, and confirm them, or not, ac- cording to what appears the legality and sufiEi- ciency of their consideration .and of their rela- tion to the interests of the Indians. Ibid. 28. It is in the discretion of the President whether, and at what time, if at all,«ngage- ments of indebtedness made by tribes of In- dians to citizens of the United States shall be allowed and paid by the Government. Opin- ion of May 15, 1854, 6 Op. 462. 29. The acts of Congress regulating inter- course with the Indians are in fall force in Oregon. "When questions arise as to the ap- plicability there of a particular clause of those acts, the question depends on the subject, and is wholly independent of any reference to a supposed test of the convenience or the as- sumed rights of the whites as against the Indians. Opinion of June 22, 1855, 7 Op. 293. 30. By the seventh section of the act of February 27, 1851, chap. 20, all laws then in force concerning trade with the Indians were extended to New Mexico ; and parties arrested or property seized there by the military au- thorities, for Yiolation of those laws, should be placed in the custody of the marshal of the Territory, to be proceeded against according to law. Opinion of July 19, 1871, 13 Op. 470. 31. If the parties arrested were engaged in supplying ammunition to Indians in open and notorious hostility to the United States, who properly came within the description of pub- lic enemies, in that case they would seem to be amenable to trial and punishment by court- martial under the fifty-sixth article of war (act of April 10, 1806, chap. 20.) Ibid. 32. A trader at a military post in the Indian 230 country cannot lawfully maintain a traffic with the Indians unless he be properly licensed for such trade. Opinion of Bee. 11, 1879, 16 Op. 403. 33. License to trade with the Indians at the establishments of post-traders cannot be given by the military authorities. Ibid. III. Lands of. — Trespass. — Sales and Conveyances by. 34. A right of occupancy during pleasure has always been conceded by Europeans to the North American Indians ; wherefore, the ques- tion whether purchasers from the State of Mas- sachusetts may enter upon the Seneca lands, depends altogether on the character of the title which the latter retain in them. Opinion of April 26, 1821, 1 Op. 465. 35. The President of the United States may properly give his consent and approval to the conveyance by will made by Indians La Gros and W»iseskea, his daughter, to General Tip- ton, to four sections of land reserved to said La Gros in the treaty with the chiels and war- riors of the Miamies, concluded 23d October, 1826, subject to all legal questions in respect to the capacity and right to make conveyances by will, and to the execution, validity, and effect of those instruments. Opinion of March 29, 1834, 2 Op. 631. 3G. Whether Indian reservees are capable in law of devising their reservations to third per- sons in any case, qusere. Ibid. 37. Sales by the Creeks, where purchasers, either by force or fraud, abstract from them the purchase money, are fraudulent and void. Opinion of Julij 10, 1837, 3 Op. 259. 38. So, also, are sales appro ved by the Presi- dent where the reservee was personated by other Indians, and patents may be 'withheld. Ibid. 39. Patents may issue directly to a white per- son, being the assignee of a Creek reservee, to whom the tribe had assigned a portion of the twenty-nine sections reserved under the sixth article of the Creek treaty of 1832. Opinion of Aug. 28, 1837, 3 Op. 288. 40. Indian tribes have not been conceded the natural capacity to hold absolute title to lands, except in cases specially provided for by treaty ; wherefore, the title of the Brother- town Indians to the land secured to them by the treaties with the Menomonees is not a fee simple, but only such a right of occupancy as was previously possessed by the Menomonees themselves. Opinion of April 4, 1838, 3 Op. 322. • 41. Whatever may have been the literal con- struction of the Cherokee treaty of 1817 in re- gard to the rights of reservees, provided for therein, to locate their lands within the limit of the cession then made, that right, after the subsequent acts of the parties in the execution of the treaty, and for the purposes of the Cherokee treaty of 1835, must be conceded to exist. Opinion of Aug. 27, 1838, 3 Op. 368. 42. An assignment by P. P. Pitchlynn of a reservation in the treaty in favor of Peter Pitchlynn, where there is no doubt of the ideutity of the person, is good, as the law knows of but one Christian name. Opinion of May 17, 1839, 3 Op. 467. 43. Where a Choctaw reservee conveyed his reservation to D, in trust to sell and apply the proceeds to the payment of a debt owing by the reservee to A and E, who, thereupon, sold a portion of the land, and with the pro- ceeds paid a part of the said debt; and at this stage of the aifair the reservee died, leaving two children, whose guardian, under pretense that he was acting for the children, bought the residue at a sum far below its value, whOj after taking H into partnership with him, conjointly with him sold the land to Banks and Lewis, without the consent of the President, and re- fused to pay over any part of the proceeds to said children: Held that the President ought not to give his approval to the sale to said Banks and Lewis, as it would probably de- prive the children of their inheritance. Opin- ion of April 18, 1840, 3 Op. 518. 44. Where Creek reservees died within the five years during which their reserves were to be withheld from sale, and the lawful admin- istrators sold the reserves, and paid over the proceeds (less the expenses) to the Indian widows, as the heirs, and the question of other heirs being now raised, in opposition to the confirmation of the sales to the purchasers, who have paid the consideration money therefor once in full : Held that the purchasers are en- titled to the confirmations which they, ask, and should not be required to pay a second time any portion of the purchase money. Opinion of July 27, 1840, 3 Op. 578. 45. If the distribution of the proceeds were INDIANS, III. 231 illegal, it ought in no wise to affect the bona fide purchasers. Hid. 46. Heads of Creek families who otherwise would be entitled to a patent for land in Ala- bama, have not lorfeited their right to the same by having become residents and citizens of Georgia before the expiration of five years from the time when the reservation was selected. Opinion, of Aur/. 3, 1840, 3 Op. 585. 47. The President may properly confirm sales of Creek reservations, made by adminis- trators pursuant to the orders of courts having jurisdiction, whether the distribution of the proceeds among the heirs shall have been cor- rectly made or not, provided the purchasers shall have paid in the purchase money in good tiiith to the administrators or legal represent- atives. Opinion of Dec. 3, 1840, 3 Op. 596. 48. But where purchasers have withheld any portion of the purchase money on any pre- tense, or the administrators themselves were the purchasers, and have not accounted for the purchase money, sales ought not to be con- firmed. Ibid. 49. The Senecas are entitled to the possession of their hunting grounds, as well as their cul- tivated lands, until the time limited by the treaty with them for their voluntary removal. Opinion of March 2, 1841, 3 Op. 624. 50. The Menomonee Indians have no reason- able pretensions to lands west of Black Eiver, which they indicated, in the treaty of 1825, as the extent of their claims in that direction, nor to lands beyond the limits which they specitied and claimed in the treaty of 1831; and, as the United States have since purchased them of other tribes, the Government is not required to pay for them again. Opinion of Sept. 13, 1848, 5 Op. 31. 51. Nor have those Indians a title to the large triangular tract within those limits ad- jacent to, and west of, the line established be- tween them and the Chippewas by the treaty of 1827, they having relinquished all claims to the Chippewas. Ibid. 52. But subject to these restrictions they may cross the Wisconsin Eiver into the terri- tory claimed by the Winnebagoes, and show a better ti tie than th eirs if they have one. Ibid. 53. A deed of land purporting to be by a certain Indian, and approved by a former President, proves not to have been executed by him: Weld that the new President may treat that deed as a nullity and approve a new deed duly executed by such Indian. Opinion of Sept. 10, 1854, 6 Op. 711. 54. The Kansas Nation of Indians and the half-breed reservees are in lawful possession, and have a perfect right to enjoy the peaceful occupation of their lands. Opinion of Sept. 26, 1857, 9 Op. 110. 55. The power of the Government ought to be used to protect them against all lawless trespassers, without reference to the question whether their title be a fee or only a usufruct. Ibid. 56. The trade and intercourse law (act of June 30, 1834, chap. 161) is applicable to the Indian reserved land in Kansas and Nebraska, and ought to be executed for their protection. Ibid. 67. The Secretary of the Interior has no power, under the act of March 3, 1859, chap. 82, to confirm any sale of lands allotted to the Wea Indians, in Kansas, by the treaty of May 30, 1854, made beibre the passage of that act. Opinion of May 13, 1862, 11 Op. 253. 58. The case of a proposed deed by one Pe-wo-mo, a Pottawatomie Indian, covering part of the tract reserved to Billy Caldwell (under whom the said Indian claimed title by inheritance) by the treaty of July 29, 1829, with the Chippewa, Ottawa, and Pottawatomie Indians, considered in connection with an ap- plication to the President for his approval of the deed, and also certain inquiries, viz, as to the right of Pe-wo-mo in the premises, the ex- ecution of the papers, and the authority ot the President to approve the deed, answered. Opinion of April 24, 1879, 16 Op. 310. 59. Proposed deed of Pe-wo-mo, a Potta- watomie Indian, granting certain land near Chicago, 111. , considered with reference to ob- jections suggested by the Commissioner of Indian Affairs. Advised that the President, when satisfied that the consideration is a fair one, should approve the deed and transmit it to the Indian Bureau, with directions that the Commissioner deliver the same upon satisfac- tory evidence that tire consideration has been either paid or secured to the Indian. Opinion of May 10, 1879, 16 Op. 325. 60. Semble that where any stock of horses, mules, or cattle are driven or conveyed so near to Indian lands that from the nature and habit of the animals they will probably go upon 233 INDIANS. IV-TI. such lan'ds, especially where the circumstances show an intent on the part of the person so driving or conveying to have them go there, if the cattle should be found upon the lands without the consent of the tribe, such person would be liable to the penalty imposed by sec- tion 2117 Eev. Stat. To incur that penalty it is not necessary that the stock be actually driven upon the Indian lands; it is sufficient if they are so driven as to " a'ange and feed ' ' thereon. Opinion of Oct. 6, 1880, 16 Op. 569. IV. Annuities. — Trust Funds of. — In- vestments for. 61. The Chickasaw invested stocks belong- ing to the fund created by the treaty of October 20, 1833, cannot be transferred to the Choc- taws in payment of the land purchased of them without the previous consent of the Presiden t and Senate. Opinion of Nov. 12, 1840, 3 Op. 591. 62. The general assent of the President and Senate to the stipulations of the convention be- tween the Chickasaws and Choctaws, by which the former were to pay the latter $530,000, cannot be regarded as such an assent as to authorize an application of the funds of the Chickasaws to the payment suggested. Ihid. 63. It is doubtful whether Indian annuities granted by the Government ought to be re- garded as legally assignable, unless made so by law. Opinion of Jan. 8, 1851, 5 Op. 285. 64. Investments in behalf of the Indians, provided by treaty to be placed in stocks of the United States bearing interest at 5 per cent. , may, in the absence of any such stock, be invested in stocks bearing interest not less than 5 per cent. , but only stocks of the United States. Opinion of Slarch 21, 1853, § Op. 2. 65. The treaty with the Wyandots requires that certain funds of that tribe shall be in- vested in United States stock, and the act of September 11, 1841, chap. 25, contains the same command. Opinion of June 10, 1857, 9 Op. 45. 66. The funds of the "VVyandots can there- fore not be invested otherwise than in stock of the United States, though the high price which that stock commands in the market may justify the Secretary of the Interior in not making any investment at all for the present. Ihid. 67. The treaty with the Delawares requires the investment to be made "in safe and profit- able stocks." Any stocks which come up to this description may be taken for them. Ibid. 68. No part of the amount appropriated, by the act of March 3, 1865, chap. 127, for the benefit of the Miami Indians of Indiana can be paid to persons other than those embraced in the corrected list made by the Secretary of the Interior under the act of June 12, 1858. Opinion of Od. 26, 1865, 11 Op. 384. 69. In the administration of the fund appro- priated by the act of March 2, 1867, chap. 173, for the Indiana Miamies, the Indians named in the list referred to in the amendment to the treaty of June 5, 1854, between the United States and the Miami Indians, and their suc- cessors and representatives, as provided for in the amendment, are the sole beneficiaries. Opinion of Sept. 20, 1867, 12 Op. 236. 70. The principal of the Choctaw trust fund, under article 13 of the treaty of June 22, 1865, cannot be drawn upon without special legisla- tion of Congress. Opinion of Oct. 10, 1868, 12 Op. 516. 71. The investment in bonds of the State of Virginia, in 1851, of the moneys belonging to the Creek orphan fund arising from the sale of bonds of the State of Alabama, was an error on the part of the President; he being then re- quired, by section 25 of the act of September 11, 1841, chap. 25, to make suth investment in stocks of the United States. Opinion of June 6, 1878, 16 Op. 31. 72. That error cannot now be remedied by the Interior Department. It is for Congress to determine whether the loss thereby occasioned is one which should be borne bj' the United States. Ihid. V. Employment of, in Co-operation with Troops. 73. The Navajo Indians having offered to co-operate with the United States troops against the Apaches if the military authorities will arm and subsist them: Advised (concurring with the view of the General of the Army) that no statutory provision exists under which said In- dians can be armed and subsisted as proposed. Opinion of Jan. 29, 1880, 16 Op. 451. VI. Hostilities.— War. 74. A public war, within the meaning of the Constitution and of the Rules and Articles of INDIAN TEEEITORY: INPOEMBRS. 23S War (act of April 10, 1806, chap. 20), has ex- isted witli the Seminoles since the day Congress recognized their hostilities and appropriated money to suppress them. Opinion of March 9, 1838, 3 Op. 307. 75. When any Indian tribes are carrying on a system of attacks upon the property or per- sons, or both, of the settlers upon our frontiers, or of the travelers across our Territories, and the troops of the United States are engaged in repelling such attacks, this is war in such a sense as will justify the enforcement of the Ar- ticles of War against persons who are found relieving the enemy with ammunition, &c. Opinion of July 19, 1871, 13 Op. 470. VII. Jurisdiction of Indian Courts. 76. The Choctaws have neither jurisdiction nor authority to pronounce and execute a sen- tence of death upon a slave of a white man re- siding among them, for the reason that the treaty limits their power to the government of the Choctaw Nation of red people and their descendants. Opinion of Dec. 26, 1834, 2 Op. 693. 77. A white man, although he may have been adopted by Chickasaws or Choctaws, does not become subject in criminal matters to the jurisdiction of the courts of the Choctaw Na- tion. Opinion of May 23, 1855, 7 Op. 174. 78. Butinmattersof civil jurisdiction, aris- ing within the Nation, its courts have jurisdic- tion over a white man who has voluntarily made himself a Chickasaw by intermarriage and exercise of all the rights of a Chickasaw, and where the question concerns property the proceeds of a head-right granted to him as a Chickasaw. Ihid. INDIAN TERRITORY. 1. The Chickasaw Indians, in conceding to resident Choctaws the treaty privilege of citi- zenship as required by treaty, were nnder no obligation to concede to such Choctaws the right to participate either as electors or elected in the government of the Chickasaw Nation. Opinion of Jan. 7, 1857, 8 Op. 300. 2, Distinction between citizenship and elect- orship pervades the public law of the United States. Ibid. 3. The internal-revenue system of the United States has not, in any instance or for any pur- pose, been extended over the Indian country. Opinion of July 24, 1867, 12 Op. 208. 4. Cotton raised in the Choctaw Nation, by an Indian of that nation, is not liable to taxa- tion, under the internal-revenue laws, either while in the Indian country, or in transit through any collection district, or in the col- lection district where it may have been found or may have been sold. Ibid. 5. As between the Missouri, Kansas and Texas Railroad Company and the Missouri Eiver, Fort Scott and Gulf Eailroad Company, the right under the acts of Congress and the treaties with the Indians to construct a rail- road through the Indian Territory, from the southern boundary of Kansas, belongs to the former company. Opinion of July 21, 1870, 13 Op. 285. 6. Property belonging to an Indian may be seized in the Indian Territory for a violation of the internal-revenue laws. Opinion of Dec. 28, 1871, 13 Op. 546. 7. A military officer, unless he be an Indian agent, or be called upon to act by such agent, has no power to arrest fugitives from justice in a State who have escaped into the Indian Ter- ritory. Such persons may be removed from the Territory as intruders, and surrendered to the State authorities, by the proper Indian- agent. Opinion of Jan. 23, 1877, 15 Op. 601. INFORMERS. See also Customs Laws, XII; Inieenal Eevenue, XI. 1. Live-oak timber cut in violation of law for the purpose of transportation is not subject to forfeiture, so as to give informers a right to a distributive portion of it; such timber being all the while, inlaw, the property of the United States. Opinion of Sept. 2, 1843, 4 Op. 247. 2. Informers are only entitled to a share of the penalties and forfeitures recovered for the cutting, destroying, or removing live oak, red cedar, &c., from the public lands, not to any part of the timber. Opinion of Oct. 2, 1844, 4 Op. 339. 3. A collector of customs may become ain informer and receive a portion of the penalties- 23i INSOLVENT DEBTOR ; INSUEEECTION. UDder section 2 of the act of July 7, 1838, chap. 191, in relation to steamboats, and under the acts prohibiting the slave trade. Opinion of Nov. 9, 18o9, 9 Op. 400. 4. In the case of moneys paid after August 1, 186G, in lieu of fines, penalties, and forfeit- ures, without suit, or before judgment, in pur- suance of compromises made before that date, the informers are only entitled to share accord- ing to the provisions of the act of July 13, 1866, chap. 184. Opinion of Nov. 9, 1866, 12 Op. 87. INSOLVENT DEBTOR. 1. The act of 6th of June, 1798, chap. 49, Tequires an assignment of the debtor's estate, real and personal, as a preliminary to his dis- charge. Opinion of 3Iinj 26, 1820, 5 Op. 737. 2. The discharge of a principal debtor under the act of 3d March, 1817, chap. 114, does not discharge the sureties of such debtor. Opinion of Dee. 7, 1822, 5 Op. 746. 3. The term ' ' insolvent debtors, ' ' contained in the act of Congress of March 2, 1831, chap. 62, means persons who were tn a state of known insolvency, manifested by some notorious act of bankruptcy on or prior to the 1st of Janu- ary, 1831. Opinion, of July 28, 1831, 2 Op. 451. 4. The release of one of 'two partners, or of one of two or more obligors in a custom-house bond, will discharge the other or others, unless the latter execute a proper instrument preserv- ing their liability. Ibid. 5. Applications must be made, and the oath or affirmation necessary must he taken, not by an attorney, but by the debtor himself. Ihid. 6. Where acts are done by a debtor to pre- vent the legal priority of the United States from vesting, and to enable him, in contem- plation of legal insolvency, to dispose of his property so as to secure other and more favored creditors, the United States being thereby de- prived of their legal priority, the law withholds from such debtor the release which it is a mat- terofiudulgence and favor to grant. (See opin- ion of July 28, 1831, 2 Op. 451.) Opinion of Sept. 1, 1831, 5 Op. 762. 7. Under act of July 14, 1832, chap. 230, it is not necessary that partners shall be insol- vent debtors, within the meaning of the pri- ority acts, in order to be entitled to relief. It is sufficient that they are unable to pay their debts to the United States. Opinion of Feb. 20, 1833, 2 Op. 552. 8. Neither the act of March 2, 1831, chap. 62, nor the said act of 1832 deprives debtors of their right to relief where they fail to place the United States upon equal footing with the rest of their creditors. All persons who • are unable to pay their debts to the United States may be released, provided they are not of that class who are excepted from the benefit of those laws. Ibid. 9. The Secretary of the Treasury may, in his discretion, refuse a discharge on account of circumstances taken in connection with the ap- plication of the property of debtors to their private creditors. Hemayhaveevidencethat renders them unfit subj ects for relief. But the application of all the debtor's effects to the payment of private creditors is not of itself a legal bar to their release. Ibid. 10. Where imprisoned debtors are discharged on payment of costs, it is to be inferred that the condition embraced only, the cost of suit in the cases in which they were imprisoned, and not the expenses of the examination made under the act of June 6, 1798, chap. 49. The expenses of the examination may be paid from the judiciary fund. Opinion of Jan. 22, 1841, 3 Op. 614. 11. The act of March 3, 1797, chap. 20, which provides that when the estate of a de- ceased debtor to the United States is insuffi- cient to pay all his debts, the debt due to the Government shall he first satisfied, does not create any lien upon the debtor's property bat merely points out a mode of distribution. Opinion of May 16, 1857, 9 Op. 28. 12. The priority of the United States there- fore cannot reach hack over any valid lien, whether it be general or specific. Ibid. 13. Where a collector of customs executed a mortgage upon his real estate to indemnify his sureties, and then died insolvent, and in debt to the United States, the mortgage to the sure- ties is valid and effectual against the United States. Ibid. INSURRECTION. See Domestic Violekoe in States. INTEREST. INTEREST. 1. Interest on certificates founded upon in- dents of interest issued under act of August 4, 1790, chap. 34, is not allowable, and the courts would embarrass a system of finance by a determination in favor of interest for the year 1791. Opinion of Aug. 21, 1791, 1 Op. 17. 2. Interest is in the nature of damages for withholding money which the party ought'to pay, and would not or could not; but where the holder of a claim omits for a long time to make application for payment, and the act of Congress directing payment is silent as to in- terest, he does not come within the reason of the rule. Opinion of April 3, 1819, 1 Op. 268. 3. The Georgia claims, settled by commis- sioners under the treaty of the 8th January, 1821, with the Creek Nation of Indians, should he liquidated on the same principle that they ■would have been against the Indians, and in- terest thereon should not be allowed. Opinion of June 11, 1822, 1 Op. 550. 4. Interest is not a thing of course ; it is in no case a part of the debt, nor is it a necessary consequence of the debt. By the polity of many nations it is forbidden, and by those whose laws allow it in eases between individ- \mls itis not made a right in all cases. In cases of unliquidated damages it is in general disal- lowed, and the Georgia claims, being of that character, are excluded by the general rule. Opinion of July 20, 1822, 1 Op. 554. 5. The Secretary of the Treasury has no au- thority to increase an allowance made by the Secretary of the Navy to certain citizens of Baltimore under the act of 26th April, 1822, chap. 36, and it would be an increase of it to give interest on the amount, or to assume it as a debt due at a day antecedent to the allow- ance. The allowance becomes a debt due from the United States only from the time it is made. Opinion of April 7, 1823, 1 Op. 605. 6. The United States were bound to Vir- ginia, by the relation which subsists between the General and State Governments, toprovide the means of carrying on the war, and failing to make such provision, and Virginia herself having made it from her own resources, the same became a debt against the United States, which they were bound to reimburse. The rule concerning interest has been, that where a State supplied the moneys for expenditure from her own treasury no interest has been allowed ; but where a State, from the condition of her own finances, was obliged to borrow the money, and to thus incur a debt on which she herself became obligated to pay interest, inter- est) has been allowed to her for indemnity. Opinion of June 6, 1825, 1 Op. 723. 7. In the case of Virginia there is a special statute (the act of March 3, 1825, chap. 106) authorizing the payment of interest, and pre- scribing the rules for computing it. Interest may be computed upon loans or money bor- rowed and actually expended for the use and benefit of the United States during the late war with Great Britain, but shall not be com- puted on any sum which Virginia has not ex- pended for the use and benefit of the United States, as evidenced by the amount refunded, nor upon any sums refunded or paid her sub- sequent to such refunding or payment. Ibid. 8. It was the intention of Congress to reim- burse to the State of Virginia all the interest which she had actually paid on account of loans made necessary by her having taken the place of the United States in meeting the ex- penses of the war in that State, and although the money so borrowed may have been placed in the State treasury and thereby blended with the State's revenue, yet, if from the revenues thus blended a sum equal in amount to the sum borrowed was expended for the use of the United States, the State is nevertheless enti- tled to interest without proof that the very dollars borrowed were expended. Ibid. 9. In like manner she is entitled to interest on loans made necessary by the exhaustion of the State treasury in taking up loans for the use of the United States. Ibid. 10. The idemnification awarded by the Em- peror of Russia to be paid by Great Britain for having violated the treaty of peace in taking and carrying away American slaves and other property involves not merely the return of the value of the specific property, but a compensa- tion also for the subsequent and wrongful de- tention of it in the nature of damages; and since this will be a work of great labor and time, interest, accordingtotheusageofnations, may be taken as a necessary part of the in- demnification awarded. Opinion of Slay 17, 1826, 2 Op. 28. 11. Thepeopleof Georgia are not entitled to interest, under the treaty of Indian Spring, 236 INTEEEST. on their claims against the Creek Nation, the commissioner having made his award on such equitable principles as gave a just indemnifi- cation without the superad'dition of interest. Opinion of July 28, 1828, 2 Op. 110. 12. The trustees of M. and S. who, having been unfortunate in the business of merchants at Norfolk, made an assignment in 1819 whilst owing the United States about |19,000 (which sum was afterwards reduced by them and their trustees to $10,240.65), cannot properly claim that the detention of certain specie brought in by the Macedonian frigate in 1812 amounted to a payment upon the debt of the United States so as to extinguish interest. Opinion of July 1, 1829, 2 Op. 214. 13. No interest is allowable by the account- ing ofiScers on the appropriation of five years' full pay in favor of the memorialists made by act of 29th May, 1830, chap. 159, being the commutation for half-pay for life due to their father in his life-time. Opinion of Oct. 2, 1830, 2 Op. 390. 14. There is no law forbidding accounting oflScers from allowing interest to claimants, if it shall appear that interest is justly due them. Opinion of Sept. 10, 1831, 2 Op. 463. 15. Interest on a demand against the United States is properly allowable where the claim- ant, in a suit against him, obtained a judicial decision in his favor, and the act of Congress providing for its payment proceeded upon the knowledge that interest had been allowed by the court. Opinion of Nov. 23, 1837, 2 Op. 294. 16. Aside from the reports in the case, the law which requires the accounting oflicers to recognize the judicial decision as settling the true construction of the contract and the rela- tive rights of the parties under the same, also requires the payment of interest. Ibid. 17. Interest on Treasury notes issued under the act of the 12th of October, 1837, chap. 2, and placed in the hands of disbursing officers to meet public liabilities, does not begin to ac- crue until they are actually issued by such ofiScers. Opinion of Dec. 2, 1837, 3 Op. 296. 18. "Where the Treasurer of the United States issued a draft upon a deposit bank to a Navy agent, who sold it in order to raise money for necessary expenditures, and the draft was afterwards presented and dishonored: Held that it was proper for the Treasury Depart- ment to pay the interest and costs incident to the dishonor out of the original appropriation under which it was drawn. Opinion of March 23, 1838, 3 Op. 320. 19. Interest cannot be legally claimed upon the stocks issued by the State of Maryland, and redeemable at the pleasure of the State, which are held in trust for the Chickasaws, from the time when the fands were provided hy the State for the redemption of the princi- pal. Opinion of Feb. 8, 1840, 3 Op. 495. 20. A legislative provision ought to be re- garded as notice by a State to the holders of its stock sufficient to bar any legal claim to subsequent interest. Ibid. 21. Interest on claims for losses occasioned by troops in the service of the United States is not allowable, unless the same shall he ex- pressly provided for in the act of Congress under which the claim is authorized to be paid. Opinion of June 17, 1841, 3 Op. 635. 22. A claimant is not entitled to interest as against the Government on account of the omission of the executive officers to allow his claim when presented. Opinion of April 2, 1842, 4 Op. 14. 23. In the case presented by the executor of William Otis, some time collector at Barn- stable, under an act of Congress directing the accounting officers to settle with said Otis, and satisfy such amount of principal and interest as might be found due to him, the allowance of interest is proper. Opinion of Aug. 4, 1842, 4 Op. 79. 24. If the account has once been adjusted by the Comptroller without allowing interest, under the erroneous idea that interest was not allowable, the settlement may be opened and the account be correctly stated and settled. The case is distinguishable from ordinary ac- counts. Ibid. 25 . Under the settled practice of the Govern- ment, interest will not be allowed on items admitted in the settlement of a claim from a mistaken view of the law. Opinion of Dec. 20, 1842, 4 Op. 136. 26. The Secretary of the Treasury is not authorized to allow interest on the claims pre- sented under the treaty with Spain, and the acts of March 3, 1823, chap. 35, and June 26, 1834, chap. 87, it not having been the usage of the Government to do so, nor does its duty to the claimants, under the circumstances. INTEREST. 237 require it. Opinion of Dec. 9, 1843, 4 Op. 286. 27. In the ease of James Semple, cliarg6 d'affaires to New Grenada, who had drawn a draft for his salary, which was dishonored at the banking house in London, and the holder subjected to delay thereby and the drawer to the payment of interest: Held that the Gov- ernment is liable for such interest, and that Mr. Semple is liable to account to the Govern- ment for interest on the amount over and above his salary realized by him on the negotiation of such draft from the time he was notified of the mistake. Opinion of Dec. 30, 1843, 4 Op. 299. 28. The Executive Departmentisnotauthor- ized to allow interest upon a dralt drawn by the American charg6 d'affaires to Peru upon the Treasury for his outfit before the same had been appropriated by Congress, because of the delay occurring in respect to its payment. Opinion of Sept. 8, 1848, 5 Op. 28. 29. The interest on the claim of the repre- sentatives of George Fisher, deceased, for prop- erty taken or destroyed by the troops of the United States, should be computed from the time of the taking or destruction. Opinion cf i^cft. 16, 1849, 5 0p. 71. 30. In general, the Government, which is always to be presumed ready and willing to dischargeits obligations, pays no interest; yet, from considerations of state policy, it has some- times allowed it, as in the case of claims under the act of April 18, 1814, chap. 68. Opinion of May 30, 1849, 5 Op. 105. 31. In the case of the claim of the heirs of Thomas Ewel for commutation for military services, interest as well as the principal may beallowed. Opinion of July 20, 1849,50p. 138. 32. George Galphin, in his lifetime and prior to 1773, was a trader with the Creeks and Cherokees in the then colony of Georgia, and at the date of the treaty concluded in that year between said Indians and the Government of Great Britain, ceding a large district of coun- try to the latter, in trust, for the payment of their debts to traders from the proceeds, &c., a creditor of said Indians to a large amount. After the appointment of commissioners by Great Britain to liquidate such debts, he ob- tained from them in 1 775 a proper certificate of liquidation of his demand, but, in consequence of his subsequent disloyalty to that Govern- ment in the revolution which immediately followed, was never paid according to the stipu- lations of the said treaty, but retained such certificate unsatisfied until his death. His claim was then preferred against Georgia, and subsequently against the United States, to whom a large tract of said land had been ceded, until 1848, when Congress ordered it to be paid; and, pursuant to its order, the principal was paid by the Secretary of the Treasury: Held that the lands ceded by the treaty of 1773 were charged with this debt; that the same was subsequently assumed by the United States; that the claim is analogous to others upon which interest has been allowed, and that the claimant is entitled to interest from the date of the certificate of said commissioners liquidating the demand. Opinion of Feb. 2, 1850, 5 1, p. 228. 33. Interest is not chargeable again.st the Bank of the United States, nor the trustees thereof, upon the demands in question, from and after the 11th of July, 1843, when the sheriff sold the assets of said bank in satisfac- tion of the demands of the United States, until the month of January, 1846, when the funds were invested. Opinion of Mar. 15, 1851, 5 Op. 304. 34. The moneys advanced to the contractors for transporting the mails from New York to Chagres were so advanced as afavor and bounty to the enterprise, without provision for interest or repayment until the passage of the act of March 3, 1851, chap. 34; and under that act interest, at the rate of 6 per cent, per annum, is to be computed and charged, but only from the date of its passage. Opinion of April 22, 1851, 5 Op. 356. 35. Interest on claims for transportation, under the act of June 2, 1848, chap. 60, should be allowed up to the time of payment at the Treasury, provided the claimant presents his application without unnecessary delay. The act did not create debts bearing interest re- deemable only at the pleasure of the creditor. Opinion of Oct. 8, 1851, 5 Op. 399. 36. A draft for ^20,000 was legally drawn by a purser in California on the Navy Department, and indorsed to the order of B. , who presented it for payment on the 5th of April, 1850, but it was not paid till the 9 th of August Ibllowing: Held that B., having accepted payment and surrendered the bill, has no claim for interest 238 INTERIOR DEPARTMENT; INTERNAL REVENUE, I. and 20 per cent, damages. Opinion of Nov. 14 1851, 5 Op. 444. 37. Such bill is to be considered as a foreign bill of exchange, and a protest was necessary before even the drawer or indorser could be bolden for damages. Ibid. 38. Interest should be allowed the State of Florida upon all sums expended and obliga- tions contracted for supplies and services of local troops called into service in 1849,' by and under the authorities of said State, where it shall appear that said State has paid, lost, or incurred interest on that account. Opinion of Nov. 17, 1851, 5 Op. 455. 39. As a general rule, the United States do not pay interest on any debts of the Govern- ment. Opinion of Sept. 20, 1855, 7 Op. 523. 40. The only exceptions are where the Gov- ernment stipulates to pay interest, as in public loans, and where interest is given by act of Congress expressly, either by the name of in- terest or by that of damages. J bid. 41. Acts of Congress authorizing the settle- ment of claims according to ' ' equity, ' ' or ' ' equity and j ustice, ' ' do not give interest ; for, as between private individuals, there is no material difference in this respect between equity and law, and that expression does not change the result as regards the Government. Ibid. 42. Where a mail steamship company were hound by law, out of sums of money coming due to it from the Government for mail service, to refund, with interest, certain advances made to the company, and by reason of the failure of Congress to make appropriations for the service the Government was in default to the company : Held that the latter was not bound to pay interest during the period of such default. Opinion of Sept. 27, 1855, 7 Op. 535. 43. As a general rule, the Government never pays interest upon a debt except under a special contract or a special law expressly providing for the payment of interest. Opinion of Aug. 11, 1857, 9 Op. 57. 44. An act of Congress authorizing the pay- ment of interest on a debt, without fixing any time when it shall cease to be paid, authorizes interest to be computed as long as any part of the principal remains unsatisfied. Ibid. 45. Interest is never given by construction under an act of Congress authorizing the pay- ment of money out of the Treasury to a citi- zen. Opinion of July 20, 1860, 9 Op. 450. INTERIOR DEPARTMENT. See Executive Departments; Seceetaby OP the Inteeioe. INTERNAL REVENUE. See also Commissionee op Internal Rev- enue. I. Generally. II. Collection Districts. III. States and Municipal Corporations. IV. Banks and Bankers. Y. Salaries. VI. Export Bond. VII. Distiller's Bond. — Surety on. VIII. Stamps. IX. Befunding. X. Forfeiture. — Compromise. XI. Informer's Share. XII. Properly in Custody, &c. , of Court. I. Generally. 1. The regulations of the Commissioner of Internal Revenue established in October, 1862, under the proviso to the sixty-ninth section of the act of July 1, 1862, chap. 119, are not war- ranted by the statute. Opinion of April 27, 1863, 10 Op. 476. 2. The Commissioner had authority under the law to exempt articles from taxation in the hands of the manufacturers which were made and sold to the Government under contracts of date prior to July 1, 1862. Ibid. 3. Taxes assessed and paid upon articles manufactured and sold to the Government un- der such contracts cannot lawfully be added by the officers of the Government to the con- tract price of such articles. Ibid. 4. The fines imposed upon indictments and convictions under the ninth section of the in- ternal-revenue act of July 1, 1862, chap. 119, inure wholly to the United States, and the col- lectors have no right or interest therein. Opin- ion of July 30, 1864, 11 Op. 62. INTERNAL REVENUE, I. 239' 5. The offense created by the said ninth sec- tion can be tried and punished only by indict- ment, and not otherwise. lUd. 6. Under the fourteenth section of the inter- nal-revenue act of June 30, 1864, chap. 173, the assessor has power, in all cases of false or fraudulent lists or valuations, to add the penal duty of 100 per cent, before the lists have been returned to the collector; but such power ter- miuates on the transmission of such lists to the collector. Opinion of July 10, 1865, 11 Op. 280. 7. The ninety-eighth section of the internal- revenue act of June 30, 1864, chap. 173, im- poses tax on sales at auction of Government property. Opinion of Sept. 14, 1865, 11 Op. 354. 8. Cotton belonging to a Choctaw Indian, produced by him in the territory of his nation and found beyond its limits, is not subject to the internal-revenue tax. Opinion of March 30, 1807, 12 Op. 132. 9. Distillers of brandy from apples, peaches, and grapes, exclusively, may be exempted, in the discretion of the Commissioner of Internal Eevenue and the Secretary of the Interior, from the provision of the fifty- ninth section of the act of July 20, 1868, chap. 186, levying a special tax of $4 a barrel upon distilled spirits. Opinion of Oct. 10, 1868, 12 Op. 514. 10. The general purpose of the internal-rev- enue law of July 20, 1868, chap. 186, so far as relates to distilled spirits, is to lay a tax upon the product of distillation known as proof- spirits. Opinion of Nov. 14, 1868, 12 Op. 523. 11. The act has made decisive and peremp- tory distinctions between the production of proof-spirits and the rectification or purifica- tion or the production of other forms of alco- holic compounds. Ibid. 12. Any contrivance which should accom- plish the production of alcohol or rectified spirits in a manner to subject such products to a single tax, as upon proof-spirits, would be presumptively in contravention of the law. lUd. 13. A true construction of the act of Con- gress does not require any distinction to be drawn between an arrangement of stills by which the process of "doubling" is carried on by passing the low wines a second time through the same still, and passing these a second time through distillation in another still. Ibid. 14. An arrangement by which a tanlc is in- terposed as a receptacle for the product of dis- tillation, so far as the same has not reached the condition of proof-spirits, but still contin- ues to be low wines, with a view to carry it back for further distillation, is not a violation- of the act. Ibid. • 15. The provisions of the ninety-seventh section of the internal-revenue act of June 30, 1864, chap. 173, relative to the discharge of duties upon articles delivered to the United States under contract, where such duties were imposed subsequent to the date of the con- tract, are limited to additional duties on the articles contracted to be delivered, and do not include additional duties imposed upon articles used in the manufacture of the articles so con- tracted to he delivered. Opinion of Sept. 6, 1869, 13 Op. 138. 16. Accordingly a person who contracted' before the passage of the act of June 30, 1864, to furnish army clothing to the Government after its passage, is discharged from payment of the 2 per cent, additional tax imposed by that act upon clothing, but not from payment of any additional taxes imposed upon the yarn or cloth used in its manufacture. Ibid. 17. The proviso to the ninety-seventh sec tion of the internal-revenue act of June 30, 1864, chap. 173, is applicable only to such persons as, by reason of manufacturing the articles taxed either by themselves or their agents, would have been liable to pay the ad- ditional taxes upon the articles unless ex- empted therefrom by the provisions of that section. Opinion of Sept. 13, 1869, 13 Op. 143. 18. Detectives whom the Commissioner of Internal Eevenue is authorized to employ by the fiftieth section of the act of July 20, 1868, chap. 186, are not internal-revenue ofScers.. Opinion of May 13, 1870, 13 Op. 229. 19. The proprietors of coasting vessels and vessels running upon the rivers and inland lakes, engaged in the carrying or delivery of money, valuable papers, or any articles for pay, whose gross receipts therefrom exceed $1,000 per annum, are liable to the special tax im- posed on express carriers and agents by para- graph 50 of section 79 of the act of June 30, 1864, chap. 173, as amended by the act of July 13, 1866, chap. 184. Opinion of Nov. 8, 1870, 13 Op. 572. 20. The Commissioner of Internal Revenue has no authority to direct the restamping of 240 INTERNAL REVENUE, I. distilled spirits aud fermented liquors where the stamp previously affixed has become de- tached aud destroyed without the fault of the distiller. Opinion of May 8, 1871, 13 Op. 574. 21. The proYisions of the sixth section of the act of flarch 3, 1865, chap. 78, imposing on national banking associations, State banks, or State banking associations a tax of 10 per cent, upon the amount of notes of any person, State bank, or State banking association, used for circulation and paid out by them, apply as well to the notes of a State bank or banking association which are hy itself paid out, as to any others falling within the above description. Opinion of Aug. 14, 1872, 14 Op. 98. 22. The exemption irom taxation of 5 per cent, of the outstanding circulation of any bank, association, coiporation, company, or person, provided by the fourteenth section of the said act of March 3, 1865, as amended by section 9 [pis] of the act of July 13, 1866, chap. 184, does not relate to the tax upon notes paid out which the sixth section of the act of 1865 imposes, but exclusively to the tax upon circu- lation imposed by the one hundred and tenth section of the act of June 30, 1864, chap. 173, as amended by section 9 of the said act of 1866; and it relieves, to the extent mentioned, from the latter tax only. Ibid. 23. Effect of the amendment of the seventy- fourth section of the act of July 20, 1868, chap. 186, made by the thirty-first section of the act of June 6, 1872, chap. 315, in regard to the internal-revenue tax on tobacco, considered. Opinion of Aug. 27, 1872, 14 Op. 110. 24. All tobacco stored in bonded warehouses, and withdrawn for sale or consumption before the 1st of July, 1872, is, notwithstanding that amendment, subject to taxes imposed by the act of July 20, 1868. Ibid. 25. But all tobacco in bonded warehouses on the 1st of July, 1872, and withdrawn after that do.fe for the same purposes, is by virtue of that amendment subject to the tax imposed by the act of June 6, 1872, Ibid. 26. The tax imposed by the internal-revenue act of June 30, 1864, chap. 173, as amended by the act of July 13, 1866, chap. 184, on the articles enumerated in Schedule C, is payable as well upon the removal of such articles for consumption without sale as upon the removal thereof for sale. Opinion of Oct. 8, 1874, 14 Op. 459. 27. The proviso in section 31 of the act of June 6, 1872, chap. 315, authorizing the use of wood, metal, paper, &c., separately or in combination, for packing tobacco, snuff, and cigars, under regulations of the Commissioner of Internal Eevenue, does not by implication modify or in any way affect the requirement of the act of July 20, 1868, chap. 186, section 89, that certain numbers and names be burned into cigar-boxes with a, branding-iron before removing them from the manufactory. Opin- ion of Oct. 11, 1875, 15 Op. 517. 28. The terms of section 3251 Rev. Stat., namely, ' ' every person in any manner inter- ested in the use of any still, distillery, or dis- tilling apparatus shall be jointly and severally liable for the taxes imposed by law on the dis- tilled spirits produced therefrom," include stockholders of private corporations engaged in distilling for gain. Opinion of April 23, 1877, 15 Op. 559. 29. Where certain savings banks, without capital stock, received daily deposits from oth- ers than their regular depositors, under agree- ment that no interest should be allowed thereon, but that they might be checked out without previous notice, and that the checks should be paid by drafts on Boston when so required, to meet which drafts a fund was kept on deposit in a Boston bank, upon which interest was allowed the savings banks at the rate of 4 per cent, per annum : Held that these savings banks are not entitled to exemption from taxation on said deposits under section 9 of the act of July 13, 1866, chap. 184 (nor under section 3408 Rev. Stat. ). Opinion of March 2, 18-8, 15 Op. 452. 30. Upon consideration of the following sec- tions of the Revised Statutes, namely, sections 3236, 3244, 3362, 3363, 3387, 3390, and 3392: Held that the manufacture of cigare and to- bacco and the sale oC cigars and manufactured tobacco at retail cannot be lawfully carried on at the same time in the same place; that the manufacturer of these articles is not author- ized to sell from broken packages, under a retail dealer's license, at the place of manu- facture. Opinion of .July 17, 1878, 16 Op. 89. 31. The obligations issued by the Philadel- phia and Reading Railroad Company, called "wages certificates," in sums of $10 each, payable in money to the bearer thereof, and receivable in payment of debts due the com- pany (a copy of which instrument is given in INTERNAL REVENUE, II, III, 241 the opinion) are "notes used for circulation," ■within the meaning of sections 19 and 21 of the act of February 8, 1875, chap. 36, and sub- ject to taxation thereunder. Opinion of May 23, 1879, 16 Op. 342. 32. Semile that certain obligations issued by Knapp, Stout & Co., of similar character, payable in merchandise, are within the mis- chief intended to be remedied by that act; wherefore it is advised that the tax be exacted upon them, as it has heretofore been, under the sections aforesaid. Ibid. 33. The ' ' tax on deficiency ' ' in the quantity of distilled spirits exported, when compared with the quantity withdrawn for exportation (see acts of June 9, 1874, chap. 259, and March 1, 1879, chap. 125), may be collected by dis- traint upon the property of the withdrawer of the spirits, as well as by suit upon the trans- portation bond. Opinion of Oci. 2, 1879, 16 Op. 634. 34. Such tax is secured by a lien, under the general provision contained in section 3186 Rev. Stat. , upon all the property of the person liable therefor. The special provisions found in section 3251 Rev. Stat, do not forbid the application of the general provision of section 3186 to all cases where there is nothing in such special provisions to contradict. Ibid. 35. The receipt of the ascertainment of de- ficiency by the collector of internal revenue from the collector of customs is, in effect, his receipt of an assessment list of the tax, within the meaning of section 3186, as amended by the act of March 1, 1879, chap. 125. Ibid. II. Collection Districts. 36. The President, under the authority of the internal-revenue act of July 1, 1862, chap. 119, having divided the United States into convenient collection districts, the arrange- ment which he made became a part of the sys- tem established by the statute, and can be changed only by the law-making power. Oj>inion of March 19, 1862, 10 Op. 469. 37. The existing internal-revenue laws do not authorize the consolidation of the cotton- growing States into a single collection district for the purpose of collecting the cotton tax. Opinion of Sept. 29, 1866, 12 Op. 55. 38. The provision in the second section of the act of July 1, 1862, chap. 119, readopted by the seventh section of the act of June 30, DIG 16 1864, chap. 173, limiting the number of inter- nal-revenue collection districts in any State, is unrepealed by the provision in the act of July 12, 1870, chap. 251, authorizing the President, at his discretion, to "divide the States and Territories respectively into convenient col- lection districts, or alter the same," &c. The restriction as to the number of such districts imposed by the former provision is still in force. Opinion of April 9, 1873, 14 Op. 215. III. States and Municipal Corpora tions. 39. The certificates or receipts issued by the State of Alabama, under authority of the act of its legislature of February 19, 1867, are not subject to the tax of 10 per cent, imposed by the act of Congress of March 26, 1867, chap. 8. Opinimi of June 28, 1867, 12 Op. 176. 40. Railroads owned exclusively by a State and operated by its own agents do not fall within the provisions of the internal-revenue act of June 30, 1864, chap. 173. Opinion of Oci. 14, 1867, 12 Op. 277. 41. Articles manufactured by convict labor in the penitentiaries of a State, for the use or on account of the State, are not subject to taxation under .the internal-revenue laws. Ibid. 42. The Detroit, Mich. , house of correction is within the principles of the opinion of At- torney-General Stanbery of Oct 14, 1867 (12 Op. 277), which declares that articles manu- factured by convict labor in the penitentiaries of a State, for the use of the State, are exempt from taxation under the internal-revenue laws. Opinion of March 30, 1868, 12 Op. 376. 43. The city of Baltimore, by authority of the State legislature, made a loan to the Bal- timore and Ohio Railroad Company, the latter agreeing to, pay to the city interest thereon quarter-yearly, at the rate of 6 per cent, per annum, and giving to the city a mortgage upon all its property to secure the performance of the agreement : Held that the company is not liable, under the provisions of the internal- revenue act of June 30, 1864, chap. 173, as amended by the acts of July 13, 1866, chap. 184, and March 2, 1867, chap. 169, to pay a tax upon the interest payable by it to the city on the said loan. (See Note, 13 Op. 76. ) Opin- ion of June 2, 1869, 13 Op. 67. 44. The opinions of Mr. Stanbery and Mr. 242 INTERNAL EEVENTTE, IV. Browning, touehiDg kindred subjects which were submitted to and considered by them (see 12 Opins. 176, 277, 376), reviewed. Ihid. 45. The provisions of the internal-revenue laws relating to income taxation do not apply to municipal corporations, either directly, by imposing a duty upon their receipts of revenue, or indirectly, by imposing a duty upon the sources whence their revenue is derived. Ihid. 46. Internal-revenue tax paid on dividends accruing to the State of Massachusetts as a stockholder in the Boston and Albany Rail- road, from January, 1863, to July, 1869, in- clusive: Held (upon the authority of opinions of former Attorneys-General cited) to have been erroneously collected. Opinion of June 3, 1871, 13 Op. 439. IV. Banks and Bankers. 47. Bankers doing business as brokers are liable to pay, under the ninety-ninth section of the act of June 30, 1864, chap. 173, duties upon all their sales, whether for the benefitof themselvesorof others. Opinion of May i, 1866, 11 Op. 482. 48. The terms ' ' capital ' ' and ' ' capital em- ployed," as used in paragraph second of sec- tion 3408 Rev. Stat., include such portion of the capital of any bank, association, company, corporation, or person mentioned therein as is invested in a banking house. Opinion of April 7, 1877, 15 Op. 218. 49. Under that provision every banking as- sociation, company, or corporation is taxable for the fixed amount of its capital, and every private banker for the entire capital employed by him in the banking business, less only the average amount invested by them respectively in United States bonds. Ibid. 50. The Eagle and Phoenix Manufacturing Company, a Georgia corporation, with a large capital invested in mills, machinery, &o., by authority of an act of the Georgia legislature passed in 1873 established a savings bank in connection with its manufacturing business, pledging the entire capital stock and property of the company for the payment of depositors and the holders of certificates of deposits issued therebj'. By the same act the company was authorized to issue certificates of deposit "to an amount equal to the amount actually de- posited, in sums of five, two, and one dollars, which may be payable to the holder of the same, and may be circulated by delivery as currency," which were issued and employed as currency in the business of the company : Held that the company is subject to the tax imposed by the second paragraph of section 3408 Rev. Stat. , of " one twenty-fourth of one per centum each month" upon its whole cap- ital stock. Opinion of Oct. 3, 1877, 15 Op. 371. 51. The duty imposed on every national banking association by section 5214 Rev. Stat, of " one-quarter of one per centum each half year on the average amount of its capital stock beyond the amount invested in United States bonds," is a, tax upon the franchise of the bank, not a tax upon its capital stock. Hence, in determining the quantum of such tax pay- able by the bank, no deduction can be made from its capital stock of the amount thereof which is invested in any non-taxable property that does not fall under the description of "United States bonds" within the meaning of the statute. Opinion of Oct. 16, 1878, 16 Op. 174. 52. Although the bonds known as the ' ' Dis- trict of Columbia 3.65 bonds" are obligations of the United States, for the payment of which the faith of the Government is solemnly pledged, yet those bonds are not "United States bonds" within the meaning of sections- 5214 and 5215 Rev. Stat. : Held, accordingly,, that a national banking association, in making returns of the average amount of its capital stock, &c., under section 5215 Rev. Stat., should not be allowed to deduct the amount of capital invested in ' ' District of Columbia 3.65 bonds,'' although these bonds are, by section 7 of the act of June 20, 1874, chap. 337, " exempt from taxation by Federal, State, or municipal authority. ' ' Ibid. 53. In determining "the average amount invested in United States bonds, " under the provisions of section 3408 Rev. Stat., impos- ing a tax upon the capital employed in the business of banking, and "the amount in- vested in United States bonds," under the provisions of section 5214 Rev. Stat., imposing a serai-annual duty on national banking asso- ciations, the amount thus "invested" is in either case to be ascertained by taking the price actually paid for the bonds. But within the price accrued interest should not be com- INTERNAL REVENUE, T-VIII. 243 pu ted, that being a mere temporary invest ment, which is replaced as soon as the inter- est becomes due and payable. Opinion of Oct. 21, 1878, 16 Op. 187. V. Salaries. 54. A tax upon the salary of an officer, to be deducted from what would otherwise be payable as such salary, is a diminution of his compensation ; and, in the case of the Presi- dent and the judges of the Supreme and in- ferior courts of the United States, such dimi- nution would fall within the prohibition of the Constitution, if the act levying the tax was enacted during the official term of the Presi- dent or of the judge affected thereby. Opinion of Oct. 23, 1869, 13 Op. 161. 55. When Congress imposes a tax upon the sal- ariesof all civil officers, the language, although general, must necessarily be construed to mean all civil officers except those whom Congress has not the constitutional power to subject to such a tax. Ibid. 56. Accordingly, the just construction of the internal-revenue laws, taxing "all salaries of officers," &c., does not require or permit any deduction of an income-tax from the sala- ries of the President or the justices of the Su- preme Court. Ibid. VI Export Bond. 57. Money recovered in a suit on an expor bond given under the internal-revenue laws belongs exclusively to the United States, the same as money recovered in a snic on any other contract with the Government; and neither revenue officers nor informers can have any share therein. Opinion of July 6, 1869, 13 Op. 116. 58. An export bond covering certain dis- tilled spirits was subsequently canceled upon the production of a landing certificate; after which it turned out, on examination at the place of landing, that the barrels which con- tained the spirits were all, or nearly all, filled with water, in fraud of the revenue: Advised, that a claim which has since been preferred against the obligors in the bond, with respect to their liability in the matter (no suit or pro- ceeding in court having been commenced), might be compromised by the Commissioner of Internal Eevenue with the approval of the Secretary of the Treasury. Ibid. \ VII. Distiller's Bond. — Surety on. 59. The stockholders of a corporation en- gaged in tHfe business of distilling cannot properly be accepted as sureties upon the bond required of the corporation by section 3293 Rev. Stat., even if their individual liability for the debts of the corporation is, by the term.'? of the charter, limited to the amount of their stock. Suchstockholdersbeingalreadyjointly and severally liable, under the provisions of section 3251 Rev. Stat., for the taxes imposed upon the spirits manufactured by the corpora- tion, no additional security for the payment thereof would be gained by their suretyship. Opinion of May 13, 1878, 16 Op. 10. 60. The liability imposed upon the stock- holders by the internal-revenue law is a lia- bility distinct from that which they are under as such to the public with whom the corpora- tion deals; it is a liability imposed by reason of the business in which the corporation whereof they are stockholders is engaged. Ibid. VIII. Stamps. 61. Notwithstanding the decision of the State courts of Tennessee that section 170 of the act of June 30, 1864, chap. 173, imposing stamp duty on writs and other legal instru- ments, is unconstitutional, the proper officers of the United States should be instructed to institute proceedings against all persons in that State guilty of a violation of the statute. Opinion of Sept. 1, 1866, 12 Op. 23. 62. In placing the portraits of living persons upon internal-revenue stamps there is really no infraction of the provisions of section 3576 of the Revised Statutes; nor are such ornaments forbidden to be placed on such stamps by any other legislative enactment; yet their exclu- sion therefrom would seem to be in consonance with the spirit of said section. Opinion of Feb. 15, 1875, 14 Op. 528. 63. Sections 3445 and 3446 Rev. Stat, give the Secretary of the Treasury and the Com- missioner of Internal Eevenue power to re- quire and enforce the use of the so-called Hun- ter stamp upon cigars. Regulations promul- gated under and in conformity with those sec- tions have the force of law; and a failure to comply therewith is punishable under the gen- eral clause of section 3456 Rev. Stat. Opinion of Feb. 2, 1877, 15 Op. 191. 244 64. A dealer in cigars -would not be liable to any penalty under existing laws (see sections 3397 and 3406 Eev. Stat.) lor refusal or neglect to detach the coupons from the%tamp known as the Hamilton-Brooks stamp, at the lime con- templated by that device, should such stamp be adopted in pursuance of the provisions of section 3446 Eev. Stat., as amended by section 18 of the act of March 1, 1879, chap. 125. He would under existing laws incur liability for not destroying the stamp when the box is emptied, but not for relusal or neglect to do so previously thereto. Opinion of Jan. 24, 1880, 16 Op. 443. IX. Refunding. 65. The Commissioner of Internal Revenue is authorized, not obliged, to refund taxes erro- neously collected ; but he should refund in all such cases, except where the fault of the tax- payer, or his waiver of his rights, or his long acquiescence, or other sufScient circumstances discredit the claim. Opinion of June 3, 1871, 13 Op. 439. 66. An application filed with the Commis- sioner of Internal Eevenue for the refunding of taxes alleged to have been erroneously or illegally assessed and collected, though infor- mal or defective, may nevertheless be regarded as a " claim ' ' within the meaning of section 44 of the act of June 6, 1872, chap. 315, so far at least as to be the foundation for an amend- ment. Opinion of July 15, 1873, 14 Op. 615. 67. Where the application is delivered to a collector or other local internal-revenue officer, it is not a presentation of the claim to the Com- missioner such as is contemplated in the first proviso of that section. Ibid. 68. Under the internal-revenue act of June 30, 1864, chap. 173, section 120, money earned and received by a bank during any one of the four years beginning with April 1, 1864, and added to its surplus or contingent funds, either actually (t. e., at periods having intervals of less than six months) or by construction of law (i. c, once in six months), remained liable to the 5-per-centum tax imposed by said section, notwithstanding that subsequently an equiva- lent amount of money was stolen from the bank by one of its officers. But where the money earned and received was stolen and lost, either before having been actually added to the surplus or before the expiration of the six months, the case is one entitled to relief. Opinion of March 13, 1874, 14 Op. 643. 69. Semble, that where a distiller, in conse- quence of the destruction of a revenue stamp without fault on his part, is forced to affix a new one, the Commissioner, upon proof of these facts, may direct the price of the second stamp, or rather the tax thus a second time exacted, to be refunded, under the power given him to refund taxes illegally assessed. Opinion of May 8, 1874, 13 Op. 574. 70. Stamps or stamp-duties come under the provisions of section 3228 of the Eevised Stat- utes imposing a limitation on claims for the refunding of internal taxes, and hence claims for a refund of money paid for stamps must be presented to the Commissioner of Internal Eevenue within two years from the time they have accrued, otherwise they will be barred. bpinion of Jan. 7, 1875, 14 Op. 513. 71. Where a trust-deed was executed to se- cure certain bonds and duly stamped and de- livered, but the bonds not having been issued as contemplated, the deed was subsequently canceled and in lieu thereof a new trust-deed and bonds of another description were there- upon executed and delivered: Held that the case of the first-mentioned deed is within the provisions of section 3426 of the Eevised Stat- utes, and presents a case for allowance by the Commissioner, unless barred by section 3228. Ibid. 72. The amount of taxes illegally collected from the Illinois Central Railroad Company from 1863 to 1866, as income tax upon divi- dends on stock held by non-resident aliens, should be repaid to that company, after deduct- ing so much therefrom as has already been paid over to the stockholders lawfully entitled thereto. Opinion of Dec. 29, 1875, 15 Op. 67. 73. The limitation in section 3228 Eev. Stat. , relative to claims for the refunding of internal- revenue taxes, has no application to claims for allowances for stamps under section 3426 Eev. Stat. Opinion of January 7, 1875, in 14 Op. 513, overruled. Opinion of Jan. 16, 1878, 15 Op. 427. 74. That limitation is intended to apply to the claims described in section 3220 Eev. Stat, only. Ibid. 75. Documentary stamps presented under section 3426 Eev. Stat, above the denomina- tion of two cents, which have beeu-spoiled or INTERNAL REVENUE, X. 245 improperly or unnecessarily nsed, or are affixed to blank instruments, &c. , and which are there- fore not in the same condition as when issued, cannot be redeemed by the Commissioner of Internal Eevenue unless the person presenting them satisfactorily traces the history thereof, as provided by the proviso in the act of July 12, 1876, chap. 181. Ibid. 76. Where internal-revenue taxes were paid by a railroad company on dividends of its stock owned by a State, and no application has been made by the company within the time limited by statute for a refund : Held that the Commis- sioner of Internal Eevenue has no authority to allow the amount so paid to be applied by way of set-off in discharge of a liability of the com- pany for taxes arising upon a subsequent as- sessment. Opinion of Jan. 14, 1879, 16 Op. 249. 77. In the winter of 1866-'67, R. purchased a large quantity (1,777 barrels) of distilled spirits in bond, which were not withdrawn from warehouse until May, 1869. Upon their withdrawal therefrom the internal-revenue tax was exacted on the whole quantity originally deposited in the warehouse, without allowance for leakage (which amounted to about 13,000 gallons) whilst there. R. subsequently made application to the Commissioner of Internal Eevenue, under section 3220 Eev. Stat., for re- payment of so much of the tax which was ex- acted as covered the amount of spirits lost by warehouse leakage, claiming that to this extent such tax was "wrongfully collected": JTeld that under the provisions of the internal-rev- enue laws in force at the time (acts of July 13, 1866, chap. 184, and July 20, 1868, chap. 186) the tax was chargeable upon spirits in warehouse according to the quantity originally deposited therein, without regard to leakage, and that the tax in the above case upon the whole quantity originally deposited being therefore exacted pursurmt 1o law, there was in the collection thereof ''nothing wrongful" within the meaning of section 3220 Rev. Stat., and accordingly the case is not one wherein the Commissioner is authorized by that section to refund. Opinion of May 5, 1880, 16 Op. 667. X. Forfeiture. — Compromise. 78. The course of proceeding to be observed in execution of the one hundred and second section of the act of July 20, 18G8, chap. 18G, relative to the compromise of suits under the internal-revenue laws, considered and indi- cated. Opinion of Sept. 1, 1868, 12 Op. 472. 79. Under section 102 of the act of July 20, 1868, chap. 183, the Commissioner of Internal Eevenue has power to compromise cases aris- ing under the internal-revenue laws, before suit, with the advice of the Secretary of the Treasury; but after the commencement of a suit or proceeding in court, the recommenda- tion of the Attorney-General is also necessary. Opinion of July 27, 1871, 13 Op. 479. 80. The power to compromise, under that section, ceases as soon as the judgment in the suit or proceeding is rendered. Ihid. 81. But by virtue of authority conferred by section 10 of the act of March 3, 1863, chap. 76, judgments obtained by the United States in civil proceedings instituted under the in- ternal-revenue laws may be compromised by the Secretary of the Treasury, upon the report and recommendation of the attorney or agent of the Government and of the Solicitor of the Treasury. Hid. 82. The provision in section 179 of the act of June 30, 1864, chap. 173, as amended by the act of July 13, 1866, chap, 184, for com- promising internal-revenue cases, is repealed by section 102 of the act of July 20, 1868, chap. 186. Opinion of Sept. 6, 1871, 13 Op. 525. 83. The Commissioner of Internal Eevenue is not authorized by section 102 of the act of July 20, 1868, chap. 186, to compromise cases in which internal-revenue officers are charged with embezzlement tinder the sixteenth sec- tion of the act of August 6, 1846, chap. 90, the provisions whereof are made applicable to such officers by the internal-revenue law of June 30, 1864, chap. 173. Opinion of Feb. 7, 1872, 14 Op. 8. 84. The words ' ' all cases arising under the internal-revenue laws," in the former section, mean those cases wherein the tax -payer, and not the tax-collector, is the party seeking a compromise. Ibid. 85. Where an assessor of internal revenue was indicted upon the provisions of section 30 of the act of March 2, 1867, chap. 169, and of sections 97 and 98 of the act of July 20, 1868, chap. 186, for having entered into a corrupt arrangement with certain distillers to defraud the Government, and before trial proposed terms of compvomifrc to the Commissioner of 246 Internal Eevenue, under section 102 of the last-mentioned act: Held that the case does not come within the purview of the latter section. Opinimi of 3Xay 15, 1873, 14 Op. 43. 86. Where an act is committed by the owner of a distillery by which a forfeiture thereof is incurred under the revenue laws, and subse- quently the owner conveys the property to an innocent purchaser without notice of the com- mission of the act, the property remains still subject to the forfeiture incurred. The con- veyance, in such case, passes no title as against the United States. Opinion of June 8, 1878, 16 Op, 41. 87. The Commissioner of Internal Eevenue has not authority, with the concurrence of the Attorney-General and the Secretary of the Treasury, to compromise a tax legally due from a railroad company (the same being sol- vent) for a sum less than the amount of the tax. The authority to compromise conferred by sec- tion 3229 Eev. Stat, does not permit the volun- tary relinquishment of a part of a tax lawfully assessed upon and due from a solvent person or corporation. Opinion of Jan. 14, 1879, 16 Op. 249. XI. Informer's Shares. 88. Internal-revenue oiiicers are not excluded from claiming and receiving informer's shares. Opinion of May 13, 1870, 13 Op. 229. 89. The provisions of the one hundred and seventy-ninth section of the act of June 30, 1864, chap. 173, as amended by the act of July 13, 1866, chap. 184, relating to such shares, are expressly applicable only to cases not other- wise provided for; but where it is not other- wise provided for, they are applicable, whether the fine, penalty, or forfeiture is recovered or is recoverable by indictment, or information, or action of debt. Ihid. 90. The form of the prosecution is immate- rial in respect to the rights of any person claim- ing as informer; and under the statutes now (May, 1870) in force, the £iot that a fine or pen- alty can be recovered only by indictment is no objection to the claim of any person to be de- clared informer. Ihid. 91. The statute does not state to whom the first information must be given in order to en- title the person giving it to be declared in- former; but the intention is that it should be given to the United States; that is, to some person representing the United States for the purpose of administering the internal-revenue laws. Ibid. 92. A communication, however, from one revenue officer to another, or from a revenue officer to a United States attorney, ot vice verm, is not first informing within the meaning of the statute. Hid. 93. Internal-revenue officers, who by law are authorized to enter and inspect buildings and places used for certain purposes, may be- come entitled to share as informers, if in the performance of such service they first discover the cause, matter, or thing, whereby a fine, penalty, or forfeiture has been incurred. Ibid. 94. Whether a subordinate officer, acting under instructions of his official superior, is in such case to be regarded as an informer in con- sequence of what he discovers while so acting, depends upon how far his discoveries were the the result of his own exertion and skill, and how far they were the result of the instructions given him. Ibid. 95. The right of an internal-revenue officer to be declared an informer in any case does not depend upon the particular office he holds, hut upon what he himself has discovered and done to insure the recovery of any fine, penalty, or forfeiture, or the payment of moneys in lieu thereof. Ibid. 96. An internal-revenue oificer, who has ob- tained information of a violation of internal- revenue laws in the manner authorized thereby, may he awarded an informer's share of the pro- ceeds of the fine or forfeiture. Opinion of Jan. 7, 1871, 13 Op. 369. 97. Detectives employed in the internal- revenue service under section 50 of the act of July 20, 1868, chap. 186, may be allowed in- former's shares. Ibid. XII. Property in Custody, &c., of Court. 98. Where a lot of ale, while still within the brewery in which it was made, was seized under judicial process emanating from a State court as a forfeiture to the Stite, and is in the custody of the sheriff awaiting the judgment of the court: Held that the possession of the sheriff cannot be legally interfered with by in- ternal-revenue or other officers of the United States. Nor can those officers legally interfere with the sale of such property by the sheriff, in the execution of a judgment of condemna- INTERNATIONAL EXHIBITION ; INTERNATIONAL LAW, I. 247 tion by the court. Opinion of Feb. 20, 1874, 14 Op. 370. 99. When, however, the property passes from under the control of the court, and goes again into private hands, it may be dealt with under the internal-revenue laws as such laws provide. Hence, in case it is removed from the brewery without the internal-revenue tax thereon being paid, the United States of&cers may seize it after the sale by the State author- ities, and w.hen it passes into the possession of the purchaser, for non-payment of such tax. IMd. INTERNATIONAL EXHIBITION. 1. The President has power to fill vacancies happening subsequent to March 3, 1872, in the Centennial Commission created by the act of March 3, 1871, chap. 105, on the nomination of the governors of the States and Territories respectively. Opinion of May 22, 1872, 14 Op. 48. 2. The property of exhibitors at the Inter- national Exhibition, at Philadelphia, in 1876, will not be liable to seizure for any debts, ■claims, or demands whatsoever against the Cen- tennial' Commission, or against any other cor- porate body, person, or association of persons connected with said exhibition. Opinion of Nov. 27, 1874, 14 Op. 503. INTERNATIONAL LA"W. See also Blockade; Capture; Diplomatic AND Consular Officers; Neutrality; Prize; Reprisal. I. Generally. II. Claims for Indemnity. III. Exterritoriality. IV. Jurisdiction of Local Authorities. V. Sea Letter. I. Generally. 1. The law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land. Impliedly, it is considered by the act of April 30, 1790, chap. 9, affixing penalties to certain crimes, as being in force, and some of its snb- jectsthrown under particular provisions. (See sections 25 to 28.) Opinion of June 26, 1792, 1 Op. 27. 2. The law of nations does not allow repri- sals except in ease of violent injuries directed and supported by the State, and the denial of justice by all the tribunals and the sovereign. Opinion of April 12, 1793, 1 Op. 30. 3. It is an offense against the law of nations for any persons, whether citizens or foreigners, to go into the territory of Spain with intent to recover their property by their own strength, or in any manner other than its laws permit. Opinion of Jan. 26, 1797, 1 Op. 68. 4. The seizure of an American vessel by an- other, also American, within the jurisdiction of a foreign Government, for an infringement of our revenue or navigation laws, is a viola- tion of the territorial authority of the foreign Government. Opinion of Nov. 29, 1843, 4 Op. 285. 5. To whatever extent a ship of war of the United States may be justified in seizing upon the high seas a vessel of the United States sail- ing in violation of the laws thereof, and bring- ing her into our ports for trial and condemna- tion, no such authority to seize for such an offense can be rightfully exerted within the jurisdictional limits of a foreign power. Ihid. 6. The Government ought not to form an opinion upon the affair of the Peacock and Nautilus upon ex 'parte reports transmitted by the British minister. A coirrt of inquiry will doubtless be the proper step. Opinion of June 24, 1816, 5 Op. 703. 7. According to the law of nations, neutrals have the right to purchase during war the property of belligerents, whether ships or any- thing else; and any regulation of a particular state, which contravenes this doctrine, is against public law, and in mere derogation of the sovereign authority of all other independ- ent states. Opinion of Aug. 7, 1854, 6 Op. 638. 8. A citizen of the United States may at this time lawfully purchase a merchant ship of either of the belligerents — Turkey, Russia. Great Britain, France, or Sardinia; if pur- chased bona fide, such ship becomes American property and entitled as such to the protection and to the flag of the United States; and al- 248 INTEKNATIONAL LAW, I. though she cannot take out a register by our law, yet that is because she is foreign built, not because she is belligerent built; and she can obtain a register by special act of Congress. Ibid. 9. The different states of Christendom are combined, by religious faith, by civilization, by science and art, by conventions, and by usages or ideas of right having the moral force of law, into a community of nations, each politically sovereign and independent of the other, but all admitting much interchange of legal rights or duties. Opinion of Nov. 4, 1854, 7 Op. 18. 10. As between themselves, the general rule of public law is, that each independent state is sovereign in itself, and has more or less com- plete jurisdiction of all persons being, matters happening, contracts made, or acts done within its own territory. Hid. 11. When we speak of the law of nations, we mean international law of the nations of Christian Europe and America. Our treaties vidth nations other than these bring them practically within the pale of our public law, but it is only as to political rights; municipal rights remain as they were. Ibid. 12. Belligerent ships of war, privateers, and the prizes of either are entitled, on the score of humanity, to temporary refuge in neutral waters from casualties of the sea and land. Opinion of April 28, 1855, 7 Op. 123. 13. By the law of nations, belligerent ships of war, with their prizes, enjoy asylum in neutral ports for the purpose of obtaining sup- plies or undergoing repairs, according to the discretion of the neutral sovereign, who may refuse the asylum absolutely, or grant it un- der such conditions of duration, place, and other circumstances, as he shall see fit, pro- vided that he must be strictly impartial in this respect towards all the belligerent powers. Ibid. 14. Where the neutral state has not signi- fied its determination to refuse the privileo-e of asylum to belligerent ships of war, priva- teers, or their prizes, either belligerent has a right to assume its existence, and enter upon its enjoy men ii, subject to such regulations and limitations as the neutral state may please to prescribe for its own security. Ihid. 15. The United States have not by treaty with any of the present belligerents bound themselves to accord asylum to either; but neither have the United States given notice that they will not do it; and of course our ports are open, for lawful purposes, to the ships of war of either Great Britain, France Russia, Turkey, or Sardinia. Ibid. 16. The nations of Europe and America, while independent each of the other in polit- ical sovereignty, are yet associated together by common ties in a great commonwealth of states. Opinion of May 27, 1855, 7 Op. 230. 17. In their mutual intercourse, these na- tions recognize, and more or less obey, certain rules of right, partly natural and partly con- ventional, which oblige their consciences, and control their actions, in war as well as in peace, and which constitute the law of na- tions. Ibid. 18. This law of nations is subdivided into two great parts — one which treats of the re- ciprocal duties and rights of nations personi- fied and in their public relation as nations, and another which treats of the duties and rights of each nation in its relation to individuals of another nation. Ibid. 19. Each of the nations of Europe and America has exclusive jurisdiction within it- self to pass laws and to administer them, and to employ its aggregate force to maintain obe- dience to its local authority, administered primarily for the good of the members of its- own nationality. Ibid. 20. But each nation admits foreigners of other friendly nations to enter its territory for certain limited peaceful and private objects of commerce, instruction, social intercourse, deni- zenship, or the like; and the legal condition of such foreigners is regulated by the interna- tional law private, as distinguished from the public international law. Ibid. 21 . None of the nations of Europe or America concede to transient, commorant, or denizen foreigners all the advantages of the domestic nationality; nor can such foreigners rightfully pretend to any special or exclusive rights or peculiar privileges at the hands of the local Government. Ibid. 22. It is a settled principle of the law of na- tions that no belligerent can rightfully make use of the territory of a neutral state for bel- ligerent purposes without the consent of the neutral Government. Opinion of Aug. 9, 1855, 7 Op. 367. INTERNATIONAL LAW, II. 249 23. The undertaking of a belligerent to en- list troops of land or sea in a neutral state without the previous consent of the latter, is a hostile attack on its national sovereignty. Ibid. 24. A neutral state may, if it pleases, per- mit or grant to belligerents the liberty to raise troops of land or sea within its territory; but for the neutral state to allow or concede this liberty to one belligerent, and not to all, would be an act of manifest belligerent partiality and a palpable breach of neutrality. IMd. 25. The tFnited States constantly refuse this liberty to all belligerents alike, with impartial justice; and that prohibition is made known to the world by a permanent act of Congress. Ibid. 26. Great Britain, in attempting, by the agency of her. military and civil authorities in the British North American provinces, and her diplomatic and consular functionaries in the United States, to raise troops here, com- mitted an act of usurpation against the sov- ereign rights of the United States. Ibid. 27. It was the practice of the Spanish crown, during the reigns of Charles I, and his succes- sors of the Austrian dynasty, to delegate to Spanish viceroys, governors, and captains-gen- eral, the jus legationis, as well in Europe as in Asia and America; and that delegation was recognized by the public law of Europe. Opin- ion of Oct. 16, 1855, 7 Op. 551. 28. According to the public law of the mon- archies of Europe, the authority of ministers, and perhaps of international commissioners, expires on the death, deposition, or abdication of the prince; but not so as between the Ameri- can republics, in which the executive power is permanent and continuous, .without regard to the governing person, and there is no inter- ruption of the authority or renewal of the cre- dentials of their public ministers on a change of President for whatever cause, provided such President continues to represent and exercise the appointing power of the Government. Opinion of Oct. 29, 1855, 7 Op. 582. 29. The United States observe, as their rule of public law, to recognize Governments de facto, and also governing persons de facto, with- out scrutiny of the question of legitimacy of origin or accession. Ibid. 30. Hence, in the case of the establishment of the new boundary line between Mexico and the United States, the Mexican com- missioner, Mr. Salazar, being duly appointed by President Santa Anna, continued to be competent to act after the sequent accession of President Carrera, and his official agreement, signed then, if otherwise regular and complete, definitively establishes the line as respects the Mexican Republic. Ibid. 31. By the law of nations, one Government cannot enter upon the territories of another or claim any right whatever therein'. Opinion of March 14, 1859, 9 Op. 286. 32. A grant of authority by a foreign Gov- ernment to a citizen of the United States to improve in a solid manner an old wagon-road, so as to make it fit for the transit of wheeled carriages, does net comprehend the right of making a railroad. Ibid. 33. A cruiser of one nation has a right to know the national character of any strange ship she may meet at sea; but the right is not a perfect one, and the violation of it cannot be punished by capture and condemnation, nor even by detention. Opinion of July 28, 1860, 9 Op. 456. 34. The party making the inquiry must raise his own colors, or in some other way make himself fully known before he can lawfully demand such knowledge from the other ves- sel. Ibid. 35. If this is refused, the inquiring vessel may fire a blank shot, and in case of further delay a shotted gun may be fired across the bows of the delinquent. Ibid. 36. Any measure beyond this which the commander of an armed ship may take for the purpose of ascertaining the nationality of another vessel must be at his peril. Ibid. 37. This right of inquiry can be exercised only on the high seas, and no naval oflicer has the right to go into the harbor of a nation with which his Government is at peace to inquire into the nationality of a vessel which is lying there. Ibid. 38. Belligerents have the right to purchase arms in a neutral country, and to ship them therefrom at their own risk. Opinion of March 24, 1866, 11 Op. 451. II. Claims for Indemnity. 39. The usage of Governments is not to in- terfere in the administration of justice until the foreign subject who complains has gone 250 ■INTEENATIONAL LAW, III. ■with his case to the court of dernier resort. Opinion of Feb. 22, 1792, 1 Op. 25. 40. If the citizens of one state do an injury to the citizens of another, the government of the offended subject ought to take every rea- sonable measure to cause reparation to be made by the offender. But if the offender is subject to the ordinary processes of law, this principle does not generally extend to oblige the Government to make satisfaction in case of the inability of the offender. Opinion of March 11, 1802, 1 Op. 106. 41. There is no principle of the law of na- tions by which the Government is bound to answer in the first instance for the unlawful capture of its subjects, or becomes so from their insolvency or avoidance. Governments will sometimes, from policy, and under the special circumstances of the case, cause a repa- ration for injuries done by their subjects to others. But this is not considered to be within the great and obvious principles of national right. Ihicl. 42. In its internal organization, each Gov- ernment has public officers, administrative, judicial, or ministerial, which officers are the agents of the community for the conduct of its public or common affairs, and of many private affairs, and are individually responsible to their country, and in many cases to individuals, for acts of political or official misbehavior; but the Government itself is not responsible to private individuals for injuries sustained by reason of the acts of such officers in the private business with which they may be officially concerned, though as public agents yet for individual benefit only; it is responsible only for such in- jury to individuals as may occur by acts of such officers performed in the proper behoof and business of the Government. Opinion of Hay 27, 1855, 7 Op. 230. 43. Thus, Governments hold themselves re- sponsible to individuals for injuries done to the latter by public officers in the collection of the revenue or other administrative acts of govern- mental relation ; but not for the errors of opin- ion, or corruption even, of administrative, judicial, or ministerial officers, when such officers are administering theirpublicanthority in the interest of individuals as distinguished from the Government. Ibid. 44. Hence the State of California is not re- sponsible to a citizen of the United States for inj ury which his vessel may have sustained by the unskillfulness of a pilot at San Francisco; and a foHiori that State is not responsible in such case if the vessel belonged to a citizen of the Peruvian Republic. Ibid. 45. Hence, also, the United States are not responsible to a citizen of the United States for the failure of a marshal to collect an execu- tion ; and a fortiori the United States are not responsible in such case if the execution be- longed to a citizen of the Peruvian Republic. Ibid. 46. In such a case our courts of law are open to the individual who pretends himself aggrieved by the act of the pilot or that of the marshal; but the Government is not surety for their acts; and the Peruvian Republic has no rights of reclamation in the premises against the United States for any imputed de- fault either of its own officer or the officer of the State of California. Ibid. 47. The rule of international law is well es- tablished that a foreigner who resides in the country of a belligerent can claim no indem- nity for losses of property occasioned by acts of war of the other belligerent. Opinion of Aug. 31, 1866, 12 Op. 21. 48. American merchants domiciled for com- mercial purposes at Valparaiso cannot sustain a claim for indemnity against Spain or Chili for losses of merchandise in the conflagration caused by the bombardment of Valparaiso by the Spanish fleet in March, 1866. Ibid. III. Exterritoriality. 49. A foreign ship-of-war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the rights of exterritoriality, and is not subject to the local jurisdiction. Opinion of April 28, 1855, 7 Op. 123. 50. A prisoner of war on board a foreign man-of-war or her prize cannot be released by habeas corpus issuing from courts either of the United States or of a particular State. But if such prisoner of war be taken on shore, he becomes subject to the local jurisdiction or not, according as it may be agreed between the political authorities of the belligerent and the neutral power. Ibid. 51. The exterritoriality of foreign consuls in Turkey and other Mohammedan countries is entirely independent of the fact of diplomatic INVALID AND DISABLED SOLDIEES. 251 representation, and is maintained by the differ- ence of law and religion, being but incidental to the fact of the established exterritoriality of Christians in all countries not Christian. Opinion of July 14, 1855, 7 Op. 342. 53. Consuls, as international commercial agents, originated in the colonial municipal- ities of the Latin Christians in the Levant, which municipalities were self-governing through their "consuls," the ancient title of municipal magistrates in Italy. Ibid. 53. Eights of private exterritoriality having ■ceased to exist in Christendom, foreign consuls have ceased, mostly, to be municipal magis- trates of their countrymen there ; but they still continue not only international agents, but also administrative and judicial function- -aries of their countrymen in countries outside of Christendom. Ibid. 54. Citizens of the United States, in com- mon with all other foreign Christians, enjoy the privilege of exterritoriality in Turkey, includ- ing Egypt ; the same in the Turkish regencies of Tripoli and Tunis ; and also in the inde- pendent Arabic states of Morocco and Muscat. Opinion of Oct. 23, 1855, 7 Op. 565. 55. Ships of war enjoy the full rights of exterritoriality in foreign ports and territorial waters. Opinion of Sept. 6, 1856, 8 Op. 73. 56. Merchant ships are a part of the terri- tory of their country, and are so treated on the high seas, and partially but not wholly so while in the territorial waters of a foreign country. Ibid. IV. Jurisdiction of Local Authorities. 57. A ship entering the port of a friendly nation with slaves on board is not, by the law of nations, responsible to the local authorities of that nation so long as the slaves remain on board. Opinion of July 20, 1842, 4 Op. 98. 58. In the case of a compulsory entry of a foreign port under an overruling necessity, the enlbrcement of the municipal law of that nation having jurisdiction over the port to the subversion of the authorities and rights guar- anteed by its own country, is not in any re- spect justifiable. Ibid. 59. If a vessel be compelled by any overrul- ing necessity to take refuge in the ports of a tbr- eign nation, she is not subject to the munici- pal law of that nation so lar as concerns any penalty, prohibition, tax, or incapacity that would'otherwise be incurred, provided she do nothing further to violate the municipal law during her stay. Ibid. 60. In port the local authority has jurisdic- tion of acts committed on board of a foreign merchant ship while in port, provided those acts affect the peace of the port, but not other- wise; and its jurisdiction does not extend to acts internal to the ship or transpiring on the high seas. Opinion of Sept. 6, 1856, 8 Op. 73. 61. The authority of the ship's country in these cases is not taken away by the fact that the actors are foreigners, provided they be of the crew or passengers of the ship. Ibid. 62. The local authority has right to enter on board a foreign merchantman in port for the purpose of inquiry universally, but for the purpose of arrest only in matters within its ascertained j urisdiction. Ibid. V. Sea-Letter. 63. A sea-letter given to a foreign merchant vessel by the commander of a ship-of-war in time of war, does not convert such vessel into American property. Opinion of July 25, 1854, 6 Op. 630. 64. A Frenchman, commercially domiciled in the Mexican Republic during the war be- tween that Republic and the United States, who sailed his vessel under a license or letter of protection from the commander of an Amer- can ship-of-war, and who was afterwards prose- cuted and subjected to loss on that account by the Mexican Government, cannot be redressed by the United States. Ibid. INVALID AND DISABLED SOL- DIERS. 1. The act of March 22, 1867, chap. 4, author- izing the Secretary of War to furnish each in- valid soldier who is an inmate of any regularly- constituted soldiers' home with one complete suit of clothing, does not extend to those in- valid soldiers who are inmates of the National Asylum for Disabled Volunteers or its branches. Opinion of 31arch 14, 1872, 14 Op. 14. 2. The clothing thus authorized to be dis- tributed is required, by the terms of the act, to be taken Irom the "stock on hand" at the time of its passage, and the managers of any such soldiers' home may make requisitions 252 ISTHMUS OF PANAMA — JTJRISDICTION. therefor as long as that particular stock lasts, but no longer. Ibid. 3. By the act of May 28, 1872, chap. 228, entitled "An act to provide for furnishing trusses to disabled soldiers, ' ' Congress designed to furnish soldiers of the Union Army, who were ruptured while in the line of duty, with the best truss that could be procured ; but left it discretionary with the Surgeon-General to adopt one style, or different styles, always keeping in view; however, the selection of that which in his judgment is best adapted to the particular case for which it is intended. Opin- ion of July 30, 1872, 14 Op. 72. ISTHMUS OF PANAMA. 1. The act of the Government of New Gra^ nada conceding to a company the exclusive right to construct a railroad across the Isthmus of Panama must be construed so as to give that right within the true geographical bound- aries of the Isthmus. Opinion of Sept. 19, 1859, 9 Op. 391. 2. Those boundaries do not extend on the north to the Costa Rica line, nor do they in- clude the Isthmus of Chiriqui. Ibid. JUDGMENT. A definitive judgment, decree, or condem- nation are legal terms, and have a technical meaning ; they are synonymous with finai j udg- ment, decree, and condemnation. The words final and definitive, in law or in common par- lance, have the same meaning. A final judg- ment or decree is that which puts an end to the suit, by declaring that the jjlaintiff or libel- ant has or has not entitled himself to recover the object of his suit ; and it is opposed to an interlocutory or intermediate judgment or de- cree. Opinion of June 17, 1802, 1 Op. 114. JUDICIARY FUND. 1. Where the marshal of a Territory ex- pended upwards of $20,000 in carrying the judges to the courts with a guard, he cannot be allowed such expenses either by the account- ing officers or by the President, under the act of August 31, 1852, chap. 108. Opinion of Aug. 25, 1857, 9 Op. 73. 2. The expenses of a judge in traveling to his courts are his own expenses, and not those of the marshal, and are, therefore, not properly incurred by a ministerial officer in the execution of the law. Ibid. 3. Under the said act of 1852, extraordinary expenses of a ministerial officer, incurred in the execution of the law, cannot be allowed by the President, unless such expenses be regu- larly taxed; and taxation is not legal or regu- lar unless it be made in and by the proper court duly organized, with a quorum of judges on the bench, in regular session, and a record is made of their decision. Ibid. 4. Where a district attorney, prior to the passage of the act of August 2, 1861, chap. 37, made a seizure of telegraphic dispatches at the instance of the Secretary of War and the At- torney-General: Held that his compensation therefor was payableoutof the judiciary fund. Opinion of Sept. 18, 1861, 10 Op. 124. 5. Since the act of August 2, 1861, the com- pensation of a district attorney for any pro- fessional service rendered by direction of the Attorney-General, for which compensation is not provided by the act of February 26, 1853, chap. 80, is payable out of the judiciary fund. Ibid. 6. The Secretary of the Interior has no power to make requisitions on the judiciary fund for money to be advanced to marshals of the United States, to be used in efforts to de- tect counterfeiters of the United States Treas- ury notes. Opinion of April 9, 1862, 10 Op. JURISDICTION. See also Cession of JanisDicTioji" ; Courts^ I; Couet-Maetial, II. 1. When one Department of the Govern- ment has lawfully assumed jurisdiction of a particular case, any other co-ordinate Depart- ment should decline to interfere with or as- sume to control its legitimate action. Opin- ion of Oct. 20, 1864, 11 Op. 117. 2. The pereons charged with the mm-der of the President are triable by a military court.. Opinion of April 28, 1865, 11 Op. 215. JURY DE MEDIATATE— LAND-GRANT ROADS. 253 JURY DE MEDIATATE. 1. A person born in Ireland, but naturalized as a citizen of the United States, is not en- titled, when arraigned in a British court for the offense of treason-felony, to the privilege of a jury de mediatate. Opinion of Nov. 26, 1867, 12 Op. 320. 2. That right, being conferred by British law, must, in a British court, be regulated by that law. Ihid. 3. It is well-established English law that a native-born subject of Great Britain is not capable of throwing off his allegiance. Ibid. 4. The statutes of the United States make no provision for trial by jury de mediatate. Ibid. 5. The right to a jury de mediatate does not exist at this time in any of the States of the Union. Ibid. 6. The United States have no right to com- plain that one of its citizens, indicted for a crime in Great Britain, is not entitled to a privilege not accorded by Federal or State law to a subject of Great Britain indicted for crime committed in the United States. Ibid. LAKES. The nght and title to the lake shore of the great lakes is in the several States, not in the United States. Opinion of Oct. 19, 1853, 6 Op. 172. LAND-GRANT ROADS. 1. Provision in the act of June 16, 1874, chap. 285, prohibiting payment of any part of the money appropriated by that act for trans- portation of property or troops of the United States over any railroad constructed by the aid of a grant of public land on the particular con- dition therein referred to, or "upon any other conditions for the use of such road for such transportation," examined and explained. Opinion of June 29, 1874, 14 Op. 663. 2. The prohibition alluded to applies to rail- roads whose land grants are conditioned for a preference in transportation, or for ordinary rates of transportation, ot for averagerates, &c., where such service is required by the Govern- ment, as well as to railroads whose land grants contain a condition in favor of the Government (like the one mentioned in said provision) for free transportation. Ibid. 3. But it is inapplicable to railroads in whose laud grants no conditions for the use of said roads by the Government appear. Ibid. 4. The prohibition in the act of June 16, 1874, chap. 285, forbidding payment for the transportation of troops or property of the United States over any railroad which, in whole or in part, was constructed by the aid of a grant of public land on condition that said railroad should be a public highway for the use of the Government, &c. , is applicable to so much of the road as lies between the termini thereof which existed at the time the grant was made. Extensions subsequently made beyond either terminus, as well as leased roads, &c., are not affected by the prohibition. Opinion of July 30, 1874, 14 Op. 428. 5. In the matter of a claim of the Burling- ton and Missouri Eiver Railroad Company of Nebraska for military transportation: Advised (after review of the act of May 15, 1856, chap. 28; sections 18, 19, and 20 of the act of July 2, 1864, chap. 216; section 6 act of July 1, 1862, chap. 120; and joint resolution of April 10, 1869, which relate to the establishment of the road in Nebraska; and upon consideration of the provisions of the acts of June 16 and 22, 1874, and of March 3, 1875, forbidding the payment of military transportation to a certain class of railroads) that payment be withheld from the company until its right thereto is judicially established. Opinion of March 8, 1878, 15 Op. 459. 6. The act of July 25, 1866, chap. 241, sec- tions 1 to 5, the act of July 12, 1876. chap. 179, section 13, and the act of March 3, 1877, chap. 125, considered; and Tield that upon the acceptance by the Missouri River, Fort Scott and Gulf Railroad Company (formerly the Kansas and Neosho Valley Railroad Company) of the terms and conditions of the said act of March 3, 1877, according to 1ihe provisions thereof, that act became binding upon the company from its date, and that the road of the company should be treated as a non-land- grant road from such date (March 3, 1877). Opinion of April 28, 1880, 16 Op. 481. 254 LANDS ACQUIEBD FOE PUBLIC USES, I, II. LANDS ACQUIRED FOR PUBLIC USES. See also Cession op Jueisdiction; Eminent Domain; Geant to the United States; puechase of land. I. Generally. II. Exclusive Jurisdiction Over. III. License to Occupy. IV. National Cemeteries. I. Generally. 1. The proceedings in the circuit court of the county of Nassau (Florida) will have vested the United. States with the title to a tract of land on Amelia Island when the con- veyance is executed. Opinion of July 6, 1850, 5 Op. 239. 2. The accretion of several acres of land at the mouth of the Chicago River, formed from earth washed there hy the waters of Lake Michigan, and deposited against a pier con- structed by the General Government for the improvement of the harbor, must be regarded as belonging to the United States. Opinion of Oct. 4, 1850, 5 Op. 264. 3. The title of M. to land on which the United States have erected a fort at the mouth of Bay Desprez and Lake Borgue and lands adjoining is invalid. Opinion of Oct. 22, 1851, 5 Op. 402. 4. The Solicitor of the Treasury should com- mence an action in behalf of the Government to try the title, as M., being in possession, cannot, if he would, institute a suit against the United States to quiet his claim. Ibid. 5. A patent issued to F. , which was founded on a Virginia land warrant, located on the shore of Chesapeake Bay, including the shore between high and low tide. It also included an alluvion formed since the grant to the United States by Virginia of 250 acres of land, embracing Old Point Comfort, whereby his location nearly surrounded Fort Monroe: Beld that although such alluvion would be an in- crease of the 250 acres originally granted to the United States, yet by the law of nations, and by the statutes of Virginia of 1679, 1819, and 1849, the title to the same is in the United States. Opinion of Nov. 11, 1851, 5 Op. 412. 8. The rule of the English common law that private rights to lands bordering on the sea, or a bay, or a river where there is a flux and reflux of the sea, should be limited to high- water mark, has not obtained in Virginia since the 31st Charles II. Ihid. 7. Natural boundaries prevail over artificial boundaries. Ibid. 8. The title of the United States to lands in San Francisco, noted on the plan of the town as Government reserves, appears to be valid. Opinion of Nov. 17, 1851, 5 Op. 447. 9. The authorities of San Francisco origin- ally derived their title to the town site by an official deed from General Kearney, civil and military governor, in which deed the reserva- tions were made. If that conveyance was valid, then the title of the Government to the reserves is valid ; if invalid, then all the lands therein mentioned belong to the United States under the treaty of Guadalupe Hidalgo. Ibid. 10. To avoid litigation it is advised that a deed be procured of the authorities of San Fran- cisco, relinquishing all claim to these reserves. Ibid. 1 1 . Land purchased or reserved by the United States for light-houses, barracks, navy-yards, and other like purposes, are not included in the designation of "public lands." Opinion of Aug. 4, 1852, 5 Op. 578. 12. The Executive cannot lawfully expend money on a site for public uses purchased with assent of the State in which it lies if with ex- press refusal of the latter to cede jurisdiction- to the United States. Opinion of Sept. 17, 1856, 8 Op. 102. 13. Title of the United States to certain land held thereby at Sandy Hook, N. J., reviewed; said land embracing the entire tract bounded southwardly by a line running east from the mouth of Young's Creek at low water to the sea, and on every other side by the sea. And Jield that there are no existing legal rights to said land in conflict or incompatible with the exclusive right and title of the United States. Opinion of Nov. 22, 1878, 16 Op. 206. II. Exclusive Jurisdiction Over. 14. The site of the navy -yard at Pensacola having been reserved out of the public domain of the United States for naval purposes while- Florida was a Territory, and jurisdiction over such site not having been ceded by the legisla- ture of Florida after its admission as a State: Advisedthat, in this case, application be made to- LANDS ACQUIRED POE PUBLIC USES, 11. 255 the State for a cession of its jurisdictioa tliere- over to the United States; as, without such cession, the latter cannot claim exclusive j uris- diotion over_the premises. Opinion of Oct. 24, 1855, 7 Op. 571. 15. Jurisdiction is acquired by the United States by the consent of a State to the purchase of land within the same for constitutional uses of the Union. Opinion of Fei. 11, 1856, 7 Op. 628. 16. Phrases in legislative acts of the States retaining concurrent jurisdiction for certain purposes do not impair the Federal jurisdiction conferred by the Constitution. Ibid. 17. Consent of a State to the purchase of land within it conveys in general jurisdiction to the United States; but not when all juris- diction is expressly reserved by the State. Opinion of Aug. 11, 1856, 8 Op. 31. 18 . The commissioners of the harbor of Port- land have no authority to prevent the depo- sition of stone or other materials deemed nec- essary by the of&cers of the United States for the construction of a fort on Hog Island Ledge in that harbor. The work has been author- ized by Congress, and the legislature of the State of Maine has ceded to the United States jurisdiction over the premises for the purposes of the fort. Opinion of March 29, 1859, 9 Op. 319. 19. Congress cannot acquire oi" assert exclu- sive jurisdiction over any part of the territory of a State without the consent of the State leg- islature; and hence, before such jurisdiction over a national cemetery can become vested in the United States, the consent of the legisla- ture of the State in which the cemetery is situ- ated must be obtained, notwithstanding the provision of section 6 of the act of February 22, 1867, chap. 61. Opinion of July 29, 1869, 13 Op. 131. 20. Where compensation has been paid for land acquired under that act for a national cemetery, without having obtained the consent of the State legislature to the acquisition, the proper course to be taken is for the Secretary of War to apply to such legislature for its con- sent. Ihid. 21. The purchase by the United States of the land occupied by Fort Trumbull, Connec- ticut, and the consent of the State legislature to the purchase, though a formal cession of jurisdiction is wanting, give to Congress the exclusive power of legislation over the pur- chased land. Opinion of April 15, 1871, 13 Op. 411. 22. The act of the Virginia legislature of January 14, 1871, providing for a cession of jurisdiction over the bridge across Mill Creek, at Old Point Comfort, Virginia, owned by the Government, proposes in effect that, the United States shall have exclusive jurisdiction over the bridge and its abutment (with concurrent jurisdiction in the State for the execution of process) so long as the bridge is kept up and maintained by the Government for military purposes, and the public are permitted to pass- over the same free of charge, and no longer: Adiiised that there would be no impropriety in accepting the grant of jurisdiction executed by the governor of the State in pursuance of said act, upon the terms proposed. Opinion of Ma% 18, 1871, 13 Op. 419. 23. The act of the legislature of New Jersey ,. mentioned in this case, considered insufficient to meet the requirements of the law of Sep- tember 11, 1841 (5 Stat., 468), in regard to the cession of jurisdiction over certain land pur- chased by the United States, at Finn's Point,, in that State. Opinion of June 22, 1871, 13. Op. 461. 24. Such transfer of jurisdiction may take place in two ways: indirectly, by the State consenting to the purchase of the land by the- United States; and directly, by the State- granting the jurisdiction to the United States.. Ibid. 25. The United States have over lands within a State held for national cemeteries or other public purposes, which were acquired by the former without the consent of the State, or over which the latter has not ceded its juris- diction, only such jurisdiction as they have over other parts of the State wherein they pos- sess no proprietary interests. Opinion of April 2, 1875, 14 Op. 558. 26. The mere ownership of the land does not put the United States in a different position, as regards the matter of j urisdiction over it, than they occupied previous to its acquisition; nor is the situation of the State, with reference to the same matter, in any degree altered thereby. Ihid. 27. Strictly speaking, therefore, where the United States own land situated within the limits of a State, but over which the State has 256 LANDS UNDER NAVIGABLE WATERS; LEASE. not parted with its jurisdiction, they cannot be taken to have exclusive jurisdiction over such land. Ibid. 28. Consent of the legislature of Texas to the purchase by the United States of the building site recently acquired in the city of Austin was given by operation of a law of that State passed April 4, 1871. Held that such consent worked a transfer of jurisdiction over the site from the State to the United States when the title to the site became vested in the latter. Opinion of April 10, 1878, 15 Op. 480. 29. The superintendent of a national ceme- tery, over which the State has ceded jurisdic- tion to the United States, and within the limits of which he resides, is exempt from the duty devolved by the State upon all male persons between certain ages to work on the public roads.' Otherwise if the State has not ceded jurisdiction, or if the superintendent resides elsewhere within its jurisdiction. Opinion of Feb. 7, 1880, 16 Op. 468. III. License to Occupy. 30. Thfe permission given by the President to the Long Branch and Sea-Shore Railroad Company in 1864, and that given to the same company with the approval of the Secretary of War in 1869, to occupy and use, for railroad purposes, a part of certain land of the United States at Sandy Hook, N. J., conferred upon the company no interest whatever in the land itself. They constitute nothing more than a license, which is revocable at any time by the President or the duly authorized agents of the War Department; and upon the revocation thereof all the privileges derived thereunder by the company would terminate. Opinion of Nov. 22, 1878, 16 Op. 206. 31. So, by the terms of the agreement made March 31, 1854, with the New York and Sandy Hook Telegraph Company, it may be put an end to at any time at the pleasure of the Gov- ernment, whereupon all rights and privileges derived by that company thereunder would immediately cease. Ihid. IV. National Cemeteries. 32. To authorize payment for land appro- priated for the purpose of a national cemetery under the act of February 22, 1867, chap. 61, the consent of the legislature of the State in which the land lies is not necessary; nor, in such case, is the opinion of the Attorney-Gen- eral as to the validity of the title required, though, as a prudential measure for the secu- rity of the Government, it would seem to be highly expedient to obtain his opinion. Opin- ion of July 29, 1869, 13 Op. 131. LANDS UNDER NAVIGABLE ■WATERS. See also Commeecb and Navigation, IX. 1. It is not competent, to the Light-House Board to erect a light-house on Great Beds, Earitan Bay (for the establishment of which provision is made by the act of June 20, 1878, chap. 359), untQ title to the sites, though lo- cated under navigable waters of the United States, has been obtained for the Government. Opinion of .July 30, 1879, 16 Op. 370. 2. The proprietorship of the soil under such waters, within the territorial limits of a State, belongs absolutely to the State, subject only to the rights surrendered by the Constitution to the General Government. Hid. 3. Where landsof that description are needed to enable the General Government to perlbrm its proper functions (as e. g.,to establish light- houses), it may appropriate them for that pur- pose. This ft may do, not by virtue of any ownership in the soil, but by virtue of the right of eminent domain. Ibid. LEASE. 1. Legal effect of a lease of two thousand years. Opinion of May 19, 1853, 8 Op. 428. 2. At common law, an executor, duly ap- pointed, succeeds to a trust vested in his tes- tator by the previous testator. Opinion of May 23, 1853, 8 Op. 431. 3. Of the transmission of the testamentary powers. Ibid. 4. In genera], a lessee has the right to un- derlet, unless there be a covenant to the con- trary in the original lease. Opinion of Nov. 16, 1855, 7 Op. 598. 5. Property was leased to the United States for a term of years, at a stated monthly rent, before Treasury notes were made legal' tender. After such notes were made legal tender the LEGAL EEPRBSBNTATIVES— LICENSE OF VESSELS. 257 rent was jjayable in tliem, and by their depre- ciation the rent reserved in the lease became very inadequate: Held that the oiScer by whom the contract was made cannot, during the term, increase the rent to meet the supposed equity of the ease. Opinion of June 29, 1864, 11 Op. 51. 6. A building in Chicago, knoyvn as ' ' The Arcade," was leased to the United States, "to have and to hold, &c.,from the 3d day of May, 1874, for and during the term of three years thence next ensuing. ' ' The lease contained a clause providing that the lessor might use such part of the building as was not needed by the lessee, "in accordance with the terms of ac- ceptance of said building by the Hon. Secre- tary of the Treasury, as shown by copy of his letter, attached hereto, and made part of this agreement." This letter, after referring to a proposition made in behalf of the owner of the premises to lease so much of the same as may be needed by the Government ' ' until the pub- lic building to be erected in Chicago is ready for use," states under what circumstances the owner would be permitted to occupy a part of the premises, and ' ' upon these conditions ' ' the Secretary concludes to take the building: Held that the term of the leasehold is governed (not by the letter of acceptance, in which case it might endure beyond three years, but) by the provision in the lease above quoted, which definitely limits its duration to three years from the 3d of May, 1874. Opinion of Feb. 21, 1877, 15 Op. 613. 7. The hire of a building to be used as an office by the ofScer assigned to the duty of tak- ing charge of the construction of the State, War, and Navy Department building, &c., is in violation of the act of March 3, 1877, chap. 106, which prohibits the renting of any build- ing, or part of any building, for Government purposes in the District of Columbia, "until an appropriation therefor shall have been made in terms by Congress. " Opinion of May IS, 1877, 15 Op. 275. LEGAL REPRESENTATIVES. The words "legal representatives" in a statute generally intend executors and admin- istrators, but may, according to the context and subject-matter, intend heirs at law. Opin- ion of March 9, 1855, 7 Op. 60. LEGAL TENDER. Treasury notes issued under the various acts of Congress enacted prior to the act of the 25th of February, 1862, chap. 33, are not a legal tender. Opinion of March 4, 1862, 10 Op. 196. LETTER OF MARQUE. Where an American vessel commissioned with a letter of marque and reprisal was sold to foreigners, and the new owners were found cruising with the same commander and letter under the American flag, and there was reason to suppose that the commission had been in- tentionally transferred: Held that it was such an abuse of it as to justiij' a suit upon the bond. Opinion of Dec. 5, 1814, 1 Op. 179. LIBEL. 1. Any malicious publication tending to render another ridiculous, or to expose him to public contempt and hatred, is a libel; and in the case of a foreign public minister the muni- cipal law is strengthened by the law of nations, which secures the minister a peculiar protec- tion from violence and insult. Opinion of Sept. 17, 1794, 1 Op. 52. 2. Certain letters addressed to Philip Fatio and published, concerning the King of Spain and his minister plenipotentiary here, are libel- ous, and the editor is indictable. Opinion of July 27, 1797, 1 Op. 71. 3. A malicious defamation of any person, and especially a magistrate, by printing, writ- ing, signs, or pictures, in order to provolie him to wrath, or expose him to public hatred, con- tempt, and ridicule, is a libel. Hid. LIBERIA. There is no law authorizing the agent of the United States residing at Liberia, pursuant to the act of March 3, 1819, chap. 101, to pur- chase arms for defense of the negroes. Opinion of Sept. 21, 1829, 2 Op. 272. LICENSE OP VESSELS. See COMMBEOE AND NAVIGATION, II. DIG- -17 258 LBIN— LIMITATION, I, II. LIEN. An attorney of record of the claimant in a case prosecuted to j udgment against the United States in the Court of Claims has no lien on the judgment, or on the money payable under it, for his fees as such attorney ; nor has he any equitable interest in the judgment, or the money payable upon it, which the Govern- ment is bound to protect in payment of the judgment. Opinion of July 25, 1867, 12 Op. 216. LIME POINT, CALIFORNIA. The facts in relation to certain negotiations, during the administrations of Presidents Pierce and Buchanan, for the purchase of Lime Point Bluflf, California, do not show such an agree- ment to purchase that property as would bind the Government if it were an individual. Opinion of Feb. 7, 1862, 10 Op. 171. LIMITATION. See also Couet-Martial, II. I. Civil and Criminal Proceedings. II. Military Offenses. I. Civil and Criminal Proceedings. 1. No right of action accruing to the United States is barred by lapse of time, unless where there may be special provision by act of Con- gress to that effect. Opinion of Jan. 9, 1856, 7 Op. 614. 2. There is no statute of limitations against the Government, and mere lapse of time can therefore not be applied as a legal bar to a pub- lic claim; but the natural presumption of fact which arises from lapse of time is as just an element of decision against theGovernmentas against an individual. Opinion of July 21, 1858, 9 Op. 198. 3. Section 3 of the act of March 2, 1863, chap. 67^ to prevent and punish frauds upon the Government, contemplates two proceed- ings, one civil and the other criminal; of which the former is subject to the limitation pre- scribed by the seventh section of that act, and the latter to that prescribed by the thirty- second section of the act of April 30, 1790,. chap 9. QpinioH of June 7, 1872, 14 Op. 54. 4. The various statutes passed by Congress, applicable to civil and criminal proceedings under the internal-revenue laws, reviewed, and the folio wing result reached : 1. That the third section of the act of March 26, 1804, chap. 40, furnishes the law of limitation as to all criminal proceedings under the internal- revenue acts, the period within which such proceedings must be compienced being five years. 2. That the same section perhaps, or, if not, then certainly the fourth section of the act of February 28, 1839, chap. 36, furnishes the law of limitation as to all proceedings for the recovery of fines, penalties, and forfeitures under the internal-revenue acts, the period being the same under either section, namely, five years. Opinion of Aug. 3, 1872, 14 Op. 81. II. Military Offenses. 5. The accused cannot be tried by court- martial after two years from the issuing of the order, even on his own application, unless by reason of absence or some other manifest im- pediment he shall not have been amenable to- justice within the time limited by the Articles- of War. Opinion of July 25, 1820, 1 Op. 383. 6. According to the eighty-eighth of the Arti- cles of War (act of April 10, 1806, chap. 20) no- person is liable to be tried and punished by a general court-martial for any offense which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself, or some other mani- fest impediment, shall not have been amenable to justice within that period. Opinion of Dec. ' 30, 1853, 6 Op. 239. 7. This limitation cannot be waived by the accused, nor can he, even with his consent, be tried by a general court-martial ordered after the time prescribed by statute. Ibid. 8. But this limitation does not apply to- courts of inquiry; for the objects of a court of inquiry are not confined to investigation as- preparatory to a court-martial, but extend to the legal procurement of information of any sort material to the military service or the dis- cipline and government of the Army. Ibid. 9. -A prosecution of an ofiBcer before court- martial having been instituted, and the party arraigned within the two years required by LI'MITATION, II. 259 law, and he pleading the pendency of civil pro- ceedings arising in liie matter, whereupon the proceedings of the court-martial were sus- pended until a period after the lapse of two years: ITcMthatthe statute of limitationscould not then be pleaded in the case. Opinion of June 5, 1854, 6 Op. 506. 10. The last clause of section 12 of the act of January 29, 1813, chap. 16, was not intended to repeal the eighty-eighth Article of War, so far as the oifense of desertion is concerned, and thus allow a deserter to be tried at any time after the term of his enlistment. Notwithstand- ing two years may have elapsed since the com- mission of the offense, the limitation imposed by that article still applies. Opinion of June 23, 1871, 13 Op. 462. 11. The two years' limitation prescribed by the eighty-eighth Article of War applies to all offenses triable and punishable by court-mar- tial, including those which may be thus tried and punished under the act of March 2, 1863, chap. 67. Opinion of June 12, 1872, 14 Op. 52. 12. The concealment of an offense by the accused is not a " manifest impediment " to his prosecution, within the meaning of that article, and does not prevent the limitation from running in his favor. Ibid. 1 3. Where a soldier belonging to the Ninth Eegimeut of Infantry deserted on the 19th of September, 1870, but in about one year after- ward re-enlisted under an alias in the Sixth Regiment of Infantry, and (he having subse- quently acknowledged that he was a deserter from the former regiment) an order was issued on the 11th of March, 1873, for his trial by a court-martial for desertion, of which offense ^ he was thereupon tried by the court, convicted, and sentenced to punishment: Held that the prosecution was barred by the two years' limit- ation prescribed by the eighty-eighth Article of War, and that, consequently, the conviction and sentence of the .court are void. Opinion of June 30, 1873, 14 Op. 266. 14. " Manifest impediment, ' ' as used in that article, does not mean merely want of evidence or ignorance as to the offender or offense by the military authorities, but it means something akin to absence — want of power or a physical inability to bring the party charged to trial. Ibid. 15. The two years' limitation provided by the one hundred and third Article of War (sec- tion 1342 Rev. Stat.) is applicable to the offense of desertion. Opinion of Sept. 1, 1876, 15 Op. 152. 16. The limitation begins to run from the commission of the offense, excepting in a case where, by reason of " manifest impediment," the accused is not amenable to justice within two years from that time. In such case it begins to run from the removal of the impedi- ment. Ibid. 17. Desertion is a continuing offense — aa offense which may endure ( j. c. , be continually committed) from day to day after the period of its completion. But the continuing com- mission thereof is limited by the obligation to serve imposed upon the deserter by his engage- ment. When that obligation ceases to exist the commission of the offense necessarily ter- minates, and the limitation then begins to run in cases not excepted. Ibid. 18. Held accordingly, in case of desertion by an enlisted soldier, that (excepting where the offender has previously surrendered himself or been apprehended, or where, by reason of mani- fest impediment, he is not amenable to justice) the limitation begins to run from the last'day of the term for which he enlisted. Ibid. 19. Absence without leave is not per se suflS.- cient to prevent the limitation from running. Ibid. 20. Opinion of Attorney-General Tatt, of September 1, 1876 (15 Op., 152), in regard to the application to the offense of desertion of the limitation provided in the one hundred and third Article of War, the nature of that offense, and the time when the limitation begins to run in favor of the deserter, the scope and effect of the exception contained in that article preventing the limitation from running in certain cases, the operation of the forty-eighth Article of War with respect to the deserter's term of service, &c., reaffirmed. Opinion of Oct. 16, 1878, 16 Op. 170. 21. The exception from the limitation con- tained in the one hundred and third Article of War (viz, when, by reason of having absented himself or of some other manifest impedi- ment, the accused shall not have been amen- able to justice within the period mentioned) does not produce any effect where the limita- tion itself would not otherwise run. Hence absence without leave during tie term of enlist- ment, in the case of a deserter, is unimportant, 2C0 LOUISVILLE AND POETLAKD CANAL — MARINE COUPS, L inasmuch as, the offense of desertion being a coutiniiing one during such term, the limita- tion would not otherwise begin to run nntil the expiriitiou thereof. Ibid. 22. Where the absence of the deserter con- tinues after his term of service has expired, no presumption of law arises that he was not amenable to justice during such absence, and that his case is accordingly within the excep- tion. The fact must be shown by evidence submitted at the trial. Ibid. 33. Nor is a plea of guilty, when it appears by the record that the order for trial was issued more than two years before the com- mission of the offense, to be taken as an ad- mission by the accused of the existence of an exception withdrawing his case from the lim- itation. Ibid. 24. It is for the prosecution to show, as a matter of fact, in some other way than by the form of the pleadings, that by reason of having absented himself, or of some other manifest impediment, the accused was not amenable to justice within the two years. Ibid. 25. Opinion of October 16, 1878 (16 Op. 170), relative to trial and punishment by court-martial of deserters from the military service (in which the conclusions of Attorney- General Taft, in the opinion given by him on that subject dated September 1, 1876, were restated and concurred in), reaffirmed. Opin- ion of Nov. 25, 1879, 16 Op. 396. LOUISVILLE AND PORTLAND CA- NAL. 1. The expenditure of the appropriation pro- vided by the act of June 10, 1H72, chap. 416, "for continuing the work on the canal at the Falls of the Ohio River," whether made with or without the consent of the Louisville and Portland Canal Company, will not affect any xights which the latter may now have as to tolls. Opinion nf Aug. 7, 1872, 14 Op. 90. 2. The act of May 18, 1880, chap. 95, which abolished all tolls at the Louisville and Port- land Canal after July 1, 1880, authorized the Secretary of War "to draw his warrant from time to time upon the Secretary of the Treasury to pay the actual expenses of operating and keeping said canal in repair." Held that, by fair implication from the provision quoted, the Secretary of the Treasury is thereby as fully authorized to pay the warrants drawn by the Secretary of War as if it had expressly de- clared that they should be paid out of any moneys in the Treasury not otherwise appro- priated. Opinion of Aug. 14, 1880, IGOp. 557. 3. That act compared with the provision in the act of June 14, 1880, chap. 211, directing the application of the money collected there- tofore as tolls on said canal, or which may thereafter " be so collected prior to the passage of an act to make said canal free to the pub- lic, " &o. , and the purpose of each enactment explained. Ibid. MAIL CONTRACTOR. See Postal Service. MAIL DEPREDATIONS. See Postal Service. MAIL TRANSPORTATION. See Postal Seevice. MARINE CORPS. See also Compensation, V. I. Generally. II. Bnrets. III. Appointment and Dismissal of Officers. IV. Retired List. I. G-enerally. 1 . The Secretary of the Navy may suspend, modify, or rescind, at pleasure, any order issued to the lieutenant-colonel of the Marine Corps, or any other subordinate officer, except where a direct authority has. been given by Congress to an oiEcer to perform any particular function. Opinion of July 6, 1820, 1 Op. 380. 2. The President's orders to the Marine Corps should pass through the Seoretary of the Navy, except when that corps is incorporated with the Army. Ibid. MARINE CORPS, II, III. 261 3. Such allowances as are actually necessary for the Marine Corps, although unauthorized by any act having express relation to that corps, may be made by considering the acts authorizing them to officers of the Army as extending to the Marine Corps, wherever the analogy is complete. Opinion of July 18, 1829, 2 Op. 223. 4. A lieutenant-colonel commanding Slarine Corps cannot grant discharges to the marines before the expiration of their term of enlist- ment; and until Congress shall otherwise pro- vide, such discharges can only be granted by the President of the United States, or in con- formity to such regulations as he may think proper to prescribe. Opinion of June 29, 1830, 2 Op. 353. 5. Neither the pay, rations, nor clothing of enlisted marines who are taken in custody by the civil authorities for violations of the laws can be withheld during their confinement and absence from their military stations. Opinion of Nov. 18, 1830, 2 Op. 396. 6. In case the public service shall demand it, the commandant of the Marine Corps may employ a clerk in his ofiBce who shall not be of the corps; yet it is doubtful, perhaps, whether any part of the appropriation made for pay and subsistence can be paid any person not an integral part of the corps. Opinion of April 3, 1835, 2 Op. 707. 7. A quartermaster-sergeant, acting as a clerk in the office of the quartermaster of the Marine Corps, is entitled to the additional compensation of 15 cents per day allowed by the act of March 2, 1819, chap. 45, and paid to the sergeant acting as clerk in the office of the Quartermaster-General of the Army. Opinion of May 13, 1836, 3 Op. 116. 8. By the application of the act of 2d March, 1827, chap. 42, to the Marine Corps, an assist- ant quartermaster of marines was entitled prior to the 30th June, 1834, to all the extra pay and emoluments allowed to an assistant quartermaster in the Army similarly situated. Opinion of July 11, 1837, 3 Op. 266. 9. A captain or subaltern in the command of a detachment of marines is entitled to re- ceive the 110 per month, as provided by the said act for the officer commanding a company in the Army. IMd. 10. An officer in the actual command of any number of men sufficiently large to constitute a detachment of marines, according to the usage of the Xavy Department, will be en- titled to the allowance given in the second section of the act of March 2, 1827, chap. 42. Opinion of July 21, 1838, 3 Op. :M2. 11. The act of July 25, 18(jl, chap. 19, does not repeal the proviso to the third sect ion of the act of March 2, 1847, chap. 40, separating the staff from the line of the Marine Corps. Opin- ion of Feb. 27, 1802, 10 Op. 193. II. Brevets. 12. As no such officer as brevet major of marines is recognized by any act of Congress now in force, the President cannot confer that rank under the act of April 16, 1814, chap. 58. Opinion of April 22, 1820, 1 Op. 352. 13. The act of 3d March, 1817, chap. 65, taxing the peace establishment of the Marine Corps, not having retained any majors in service, the brevets previously conl'erred were thereby made to cease with the terminalioii of the lineal rank of majors by commission. Opinion of Aug. — , 1821, 1 Op. 489. 14. Since the act of 3d March, 1817, chap. 65, the only brevet rank of major which the President can confer is that of brevet major in the Army of the United States. Upiiaou of Dec. 11, 1822, 1 Op. 578. 15. If it shall be deemed inexpedient to confer upon a captain of marines the brevet rank of major in the Army, then he is entitled, if entitled at all to promotion, to the brevet rank of lieutenant-colonel in the Marine Corps. Ihid. 16. Brevet officers of the Marine Corps are entitled to the same pay and emoluments which are allowed to officers of similar grades in the infantry of the Army. Opinion of Feb. 19, 1852, 5 Op. 513. III. Appointment and Dismissal of Offloers. 17. The commandant of the Marine Corps possesses no power either to appoint or dismiss a paymaster, quartermaster, or an inspector thereof, the act of July 11, 1788, chap. 73, contemplating nothing more than a, matter occasional and transitory. Opinion of Feb. 22, 1828, 2 Op. 77. 18. The power of appointing the paymaster, quartermaster, and adjutant and inspector to the Marine Corps, when stationed permanently 2G2 MAEINB-HOSPITAL TAX — MABBIAGE. on siore, in time of peace, belongs to the Presi- dent and Senate. Ihid. 19. By the sixth section of the act of June 30, 1834, chap. 132, the staff officers of the Marine Corps are required to be talcen from the captains or subalterns of the corps; where- fore only those are qualified to act as such staff officers who have, at the same time, a lineal rank as captains or subalterns. Opinion of Oct. 5, 1844, 4 Op. 340. 20. A captain or lieutenant of the Marine Corps holding a staff appointment is still such captain or lieutenant, and entitled to promo- tion in the line as though such staff appoint- ment had never been conferred. His accept- ance in the one does not produce any vacancy in the other. Opinion of April 11, 1845, 4 Op. 422. 21. The President may lawfully give Mr. Stoddard a commission as second lieutenant in the Marine Corps under the circumstances of his case. Opinion of July 1, 1862, 10 Op. 308. 29. Where a captain in the Marine Corps, in whose favor an examining board convened by the Secretary of the Navy under the seventeenth section of the act of August 3, 1861, chap. 42, had made a favorable report, was, notwith- standing such report, subsequently (in De- cember, 1864) dismissed from the service by a general order of the Navy Department: Held that the officer was lawfully removed from the service. Opinion of March 24, 1869, 13 Op. 3. 23. At that period, by virtue of the seven- teenth section of the act of July 17, 1862, chap. 200, the President was fully invested with a statutory power of summary dismissal respect- ing officers in the Army, Navy, and Marine Corps, which it was competent to him to exer- cise at discretion. IMd. 24. The order of dismissal promulgated by the Secretary of the Navy, though containing no express reference to the direction of the President, was nevertheless sufficient. Ibid. 25. The President had, in 1861, power to dismiss from the service an officer of the Marine Corps. Opinion of Jan. 8, 1878, 15 Op. 421. IV. Retired List. 26. A board of officers, duly constituted, was convened by an order of the Secretary of the Navy, dated July 30, 1874, to inquire into and determine whether W. , a lieutenant of Marines, was incapacitated for active service. The hoard ibund him so incapacitated, and that the cause of his incapacity was not an incident of the service. On submission of the proceedings and finding of the board to the President, he, un- der date of August 18, 1874, indorsed thereon: ' ' I concur in opinion with the retiring board in the case of W. Let him be retired on fur- lough pay." Held, (!) that the action of the President amounted to an approval of the find- ing of the board, and to a retirement of W. from "active service," within section 1252 Rev. Stat., and that he was retired in con- formity with the law applicable to officers of the Marine Corps; (2) that W. thereby became entitled to receive pay according to the rate established by law for retired officers of the Marine Corps (viz, 75 per cent, of the pay of the actual rank held by him at date of retire- ment), notwithstanding a different rate of pay (viz, furlough pay) was named by the Presi- dent in retiring him. Opinion of Jan. 31, 1878, 15 Op. 443. MARINE-HOSPITAL TAX. 1. The new rate of taxation upon vessels, for the Marine Hospital, provided by the first and second sections of the act of June 29, 1870, chap. 169, was intended to be laid uniformly from and after August 1, 1870. Accordingly, such rate first accrued on any vessel on the 2d of August, 1870, up to which date the former tax of 10 cents per month is still collectible. Opinion of Oct. 7, 1870, 13 Op. 330. 2. Canal-boats are not liable to the tax im- posed by that act. Ibid. MARINER. See Seamen. MARRIAGE. 1. Marriage, so far as its validity in law is concerned, in New York is considered as a civil contract; no formal solemnization by a min- ister, or any particular officer, being requisite. Opinion of Aug. 18, 1837, 3 Op. 287. MATISHAL. 263 2. Consuls of the United States have no lawful authority as such to solemnize mar- riages in countries comprehended within the pale of the public law of Christendom. Opin- ion of Nov. 4, 1854, 7 Op. 18. MARSHAL. See also Compensation, II; Fees and Costs. 1. Marshals are not required hy law to exe- cute the sentence of a French consul arising under the twelfth article of the convention with His Most Christian Majesty and the United States. Opinion, of March 6, 1794, 1 Op. 43. 2. The United States may sue a marshal on his bond for misfeasance of himself or depu- ties.. Individuals injured by his official mis- conduct may use the name of the United States in prosecuting a suit on the bond. Opinion of Feh. 4, 1800, 1 Op. 92. 3. Under the act of the 8th of May, 1792, chap. 36, for regulating processes, &c., allow- ances may be made to marshals for supplying any of the necessaries of life to prisoners. Opinion of Nov. 16, 1819, 1 Op. 322, 4. A marshal may bring a suit against the sureties of a defaulting deputy whenever the marshal has become liable to a suit on his bond to the United States by reason of such default. Opinion of May 12, 1820, 1 Op. 363. 5. The President advised not to remove the marshal of Ohio on the ex parte statements of the complainants, but to inclose the papers to the district attorney of Ohio, with instructions to proceed or not, as the evidence shall direct him. Letter of Feb. 23, 1821, .5 Op. 732. 6. The general provisions of the twenty- seventh section of the j udicial act of Septem- ber 24, 1789, chap. 20, confer no authority upon the President to appoint marshals in districts created subsequently to its passage. Opinion of Aug. 27, 1829, 2 Op. 253. 7. The practice, in New York, of giving the custody of goods libeled to the marshal is erroneous; the collector is legally entitled to the keeping of the property, after the proceed- ings are instituted as well as before. Opinion of Jan. 7, 1832, 2 Op. 496. 8. Where a marshal , appointed by the Presi- dent during a recess of the Senate, is subse- quently nominated to the Senate for the oflace and confirmed, and a new commission issued to him, he should execute a new bond to the Government. Opinion of March 12, 1832, 2 Op. 500. 9. Marshals are liable to account to the United States for moneys paid to their depu- ties on execution, even though the return day of the execution may have passed; and de- fendants in such execution who shall have paid money on the same after the return day are entitled to be credited at the Treasury for such payments. Opinion of April 7, 1836, 3 Op. 78. 10. Marshals have no control over the prac- tice of the courts, nor over the kind of process which they may issue; they are simply bound, as officers of the courts, to execute the process issued to them. Opinion of Feb. 14, 1840, 3 Op. 497. 1 1 . The district marshal of the United States should obey an injunction issued against him by the superior court of a Territory. Opinion of July 16, 1841, 3 Op. 643. 12. The marshal of the district of Georgia, appointed while such district covered the en- tire State, continued in office after the State was divided as marshal of both districts, and the sureties on his bond remained liable for his acts. Opinion of May 8, 1849, 5 Op. 96. 13. Although the marshal of Massachusetts might have been more energetic and active in executing a warrant for the' arrest of Crafts, a fugitive slave, no sufficient cause is shown for removing him from office. He and his depu- ties appear to have acted, to a considerable ex- tent, upon consultation with the agent of the owner of the fugitive, who, at the conclusion of the examination, observed that he had no complaint to make against them. Opinion of Nov. 25, 1850, 5 Op. 272. 14. Marshals are entitled to compensation for, transporting witnesses in custody, though it be not mentioned in the statute, by analogy of the statute compensation for the transpor- tation of criminals. Opinion of June 18, 1853, 6 Op. 58. 1 5. When combinations exist among the citi- zens of one of the States to obstruct or defeat the execution of acts of Congress, and the ques- tion of the constitutionality of such laws is made in suits against a mar.shal of the United States, the President is justified in assuming 264 MARSHAL. his defense on behalf of the United States. Hence, a marshal being harassed with suits on account of his official action in the extra- dition of a fugitive from service, his defense may well be undertaken by the United States. Opinion of Nov. 14, 1853, 6 Op. 220. 16. Counsel may be allowed to a marshal of the United States sued for execution of a process of extradition. Opinion of Nov. 22, 1853, 8 Op. 444. 17. Where a court of one of the States as- sumes to take, by habeas corpus, out of the hands of a marshal of the United States a person held by him as a fugitive from crime committed in a foreign country, and under reclamation by treaty, the United States may well, by coun- sel and direction, protect their marshal in the maintenance of the laws and in discharge of public faith toward the reclaiming foreign Government. Opinion of Dec. 13, 1853, 6 Op. 227. 18. A marshal of the United States, when called upon to serve due process for the arrest of an alleged fugitive from service, has no ab- solute right to demand a bond of indemnity as the consideration of making service. Opin- ion of Dec. 16, 1853, 6 Op. 230. 19. Such bond may lawl'uUy be given by the claimant; but if he refuses, and the marshal thereupon refuses to proceed, the latter will be responsible in damages or not according as the proofs may appear of the claimant's right of reclamation of service in the case. Ibid. 20. In case where a person, claimed as a fugi- tive from foreign justice, is under examination before a commissioner of the United States, it is not in the lawful power of a State court to revise the case on habeas corpus and assume to overrule the commissioner. Opinion of Dec. 20, 1853, 6 Op. 2.37. 21. It is the right of the marshal of the United States to refuse to have the body of the party before the State court, and it is the duty of the courtsand other authorities of the United States to protect the marshal in such refusal by all means known to the laws. Ibid. 22. Where a marshal of the United States has in custody a fugitive from foreign jiTStice under warrant of extradition from the proper authorities of the United States, and a State court undertakes to usurp jurisdiction of the case, it is the duty of the marshal, disregarding any process of the State court, to take the party to the exterior line of such State and there de- liver liim to the agent of the foreign Govern- ment. Opinion of Feb. 13, 1854, 6 Op. 290. 23. The marshal of the United States for the southern district of Florida cannot at the same time hold the office of commercial agent of France. Opinion of April 3, 1854, 6 Op. 409. 24. In case of vexations suits against mar- shals of the United States lor lawful acts done by them in the extradition of fugitives from service, the President may authorize the em- ployment of counsel in their behalf by the United States. Opinion of June 3, 1854, 6 Op. 500. 25. The United States, as a Government, have no responsibility or interest in the ques- tion whether a marshal succeeds or not in levy- ing upon or holding property taken to satisfy an execution in a private suit, issued by some district court. Opinion of July 17, 1855, 7,0p. 350. 26. In a question of conflict of jurisdiction between a district court of the United States and the supreme court of a State, which ques- tion arises on a writ of habeas corpus ad subji- ciendum issued by the latter to inquire into the legality of the detention of a prisoner by the marshal on the order of xhe former, it is proper for the Executive of the United States to allow counsel to the marshal, leaving the case otherwise to the regular course of judicial de- termination, until the question be duly deter- mined by the Supreme Court of the United States. Opinion of Sept. 7, 18.35, 7 Op. 482. 27. No marshal of a district can be allowed in his accounts for the expenditure of more than 820 for furniture and $50 for rent, unless previously to the expenditure he obtain the approbation of the Secretary of the Interior. Opinion of Sept. 25, 1857, 9 Op. 98. 28. The Secretary has no authority to give the apj)roval after the expenditure is made. Ibid. . 29. The powers of the Secretary in this re- spect are not enlarged by the law which author- izes an appeal to him from the accounting offi- cers. Ibid. 30. A marahal is chargeable with all the fees which accrued to him, whether they were actually collected or not. Opinion of June 22, 1858, 9 Op. 176. 31. He may entitle himself to a credit for such of them as he shows that he could not recover by any reasonable ctfort. Ibid. MAETIAL LAW— MILITARY ACADEMY. 265 32. A marshal of the United States is enti- tled to compensation for serving a subpoona in a "criminal case on a witness beyond the limits of his own district, and also for executing an attachment on the same witness for failing to appear. Opinion of Feb. 9, 1859, 9 Op. 265. 33. The Secretary of the Interior has no power, without authority of law, to reopen the accounts of a marshal which have been ad- justed by the accounting officers of the Treas- ury. Opinion of Dec. 23, 1864, 11 Op. 129. 34. The President has no power to direct the accounting officers to reopen such accounts after the Secretary of the Interior has refused an application by the marshal for the reopen- ing of them. Jlid. 35. The Secretary of the Interior is invested by law with exclusive supervisory power over the accounts of United States marshals, and his decision of questions connected with the settlement of such accounts is the law of such settlement for the executive department of the Government. Ibid. 36. A marshal must account for the fees which he earned and failed or neglected to col- lect. Opinion of April 6, 1866, 11 Op. 455. 37. Without special legislation for his relief, a marshal cannot receive a credit in his ac- counts for fees which he was unable to collect by reason of the insolvency or non- residence of the parties. Ibid. 38. A marshal who may incur a greater ex- pense than $20 a year for furniture, without the previous authority of the Secretary of the Interior, cannot be allowed in his accounts the amount expended exceeding that allowance; and the same rule applies to the excess above $50 for rent and improvements when expended without such authority. Opinion of June 25, 1866, 11 Op. 506. MARTIAL LA"W. See also Militaby Commission. 1. Consideration of the nature of martial law. Opinion of Feb. 3, 1857, 8 Op. 365. 2. The power to suspend the laws and sub- stitute military in the place of civil authority is not within the legal attributes of a governor of one of the Territories. Ibid. MEXICAN CONTRIBUTION. In the case of the Mexican contribution fund it is safe to follow the long-continued practice of the War and Treasury Departments relative to extra allowances for services. Opin- ion of March 1, 1861, 10 Op. 8. MILEAGE. See also Teaveling Allowances. Territorial attorneys are entitled to the al- lowance of mileage to and from court, as of right, in all eases of the lawful attendance of any such attorney. Opinion of Jan. 3, 1857, 8 Op. 286. MILITARY ACADEMY. 1 . Cadets are soldiers, receiving the pay of sergeants, and bound to perform military duty in such places and on such service as the Com- mander-in-Chief shall order, and the corps to which they are attached is a part of the mili- tary peace establishment. As a part of the Corps of Engineers, they form a part of the land forces of the United States, and have been constitutionally subjected by Congress to the Eules and Articles of War and to trial by court-martial. Opinion of Aug. 21, 1819, 1 Op. 276. 2. The regulations of the Military Academy may be altered by the Secretary of War, with the approbation of the President. Opinion of MayW, 1821, lOp. 469. 3. The professors and cadets at that Acad- emy, as such, are not commissioned officers within the meaning of the sixty-fourth article of the Rules and Articlesof War, for the purpose of being detailed as members of a general regi- mental court-martial; nor can such court be formed of professors for the trial of cadets. Ibid. 4. Cadets may be tried by a regimental or garrison court-martial, according to the sixty- sixth and sixty-seventh articles of the Rules and Articles of War. Ibid. 5. Cadets are not commissioned officers within the meaning of the sixty- fourth article of the Rules and Articles of War, nor are bre- 20(5 MILITAKY ACADEMY. Tetted graduates officers until an office be- comes vacant which they can fill, until which event they remain graduated cadets, privi- leged, by virtue of their degree and the recom- mendation of their academical staff, to become ■commissioned officers. Opinion of Aug. 17, 1829, 2 Op. 251. 6. Graduated cadets employed in the office of the Assistant Adjutant-General are doing staff duties, and are entitled to the additional ration allowed by act of March 2, 1827, chap. 42, to the captains and subalterns of the Army. Opinion of Feb. 10, 1830, 2 Op. 318. 7. No person has the right to enter the limits ■of the post at West Point, not even to visit the post-office there, unless specially authorized by the laws of the United States, or by some officer having authority to grant permission. Opinion of July 13, 1837, 3 Op. 268. 8. Persons in civil life residing permanently or temporarily at the post, or occasionally re- sorting to the hotel, may be prevented by the Superintendent of the Academy from interrupt- ing its discipline, or obstructing in any way the performance of the duties assigned by law to the officers and cadets. Ihid. 9. The commandant of the post may order from it any person not attached to it by law whose presence is, in his judgment, injurious to the interests of the Academy, and he may be lawfully removed by force. Ihid. 10. When, however, the United States have leased a dwelling-house within the post belong- ing to them to an individual, they have no greater right than an individual would have in respect to ejectment of the lessee. Ihid. 11. The professors of the Military Academy and the commandant of the corps of cadets at We'^t Point are entitled to forage, or money in lieu thereof, for only one horse each in time of peace, and that is required to be owned by them respectively, and actually kept in serv- ice. Opinion of July 17, 1848, 5 Op. 1. 12. The distinction contended for at the Military Academy between academic and mil- itary rank is not allowable in the choice of quarters. Opinion of Sept. 13, 1852, 5 Op. 627. 13. The cadets of the Military Academy at West Point appertain by law to the Corps of Engineers ; they are therefore a part of the land ibrce of the United States, and as such are sub- ject to the Rules and Articles of War. Opinion ofJvJyU, 1855, 7 Op. 323. 14. The under graduate cadets are not com- missioned officers, and therefore are not com- petent to sit on a court-martial, and are triable by a regimental or garrison court-martial. Ihid. 15. But they are not the "non-commis- sioned ' ' officers of the acts of Congress and the General Regulations, which expression means "sergeants and corporals," and is inapplicable to the cadets. Ibid. IG. They are inchoate officers of the Army, and subject by statute and regulation to no discipline incompatible with that character. Ibid. 17. The under graduate cadets, in their in- ternal academic organization as officers, non- commissioned officers, and privates, are not subject to the Articles of War as respects their relation to one another, but only as respects their relation to commissioned officers of the Army on duty as such in the Academy. Ibid. 18. The graduated cadets assigned to service as supernumerary officers are brevet second lieutenants, and as such commissioned officers, and therefore subject to all the duties and en- titled to exercise all the powers of that grade, including the legal capacity to sit on courts- martial as commissioned officers, and be tried only as such according to the Articles of War. Ibid. 19. Assistant professors at the Military Academy are entitled to the "quarters" of captains. Opinion of March 14, 1859, 9 Op. 284. 20. In general, minors whose fathers are liv- ing and residing within the United States, are, by reason of their minority, ineligible to appointment as cadets to the Military Academy at West Point from any other Congressional districts than those in which their fathers re- side. Opinion of July 17, 1869, 13 Op. 130. 21. An officer of the Army, holding the rank of a major-general, may be assigned to the place of superintendent of the Military Acad- emy. Opinion of May 29, 1876, 15 Op. 110. 22. Sections 1310 and 1314 of the Revised Statutes, in so far as they apply to the selec- tion of a superintendent of the Military Acad- emy, considered and construed. Ibid. 23. The professorship of the Spanish lan- guage in the Military Academy at West Point, being established by statute (section 1309 Rev. Stat.), cannot be abolished by an Executive order. Opinion of May 21, 1878, 16 Op. 17. MILITARY COMMISSION— MILITARY STOREKEEPER. 1:07 24. In the third section of the act of June 31, 1878, chap. 181, making appropriations for the support of the Military Academy, the word "hereafter" has been changed from "there- after " by a clerical error. All changes men- tioned in such section are referred to the date July 1, 1883. Opinion of June 28, 1878, 16 Op. 49. MILITARY COMMISSION. 1. The persons charged with the assassina.- tion of the President in the city of Washington, on the 14th of April, 186.5, may be lawfully tried before a military tribunal. Opinion of July, 1865, 11 Op. 297. 2. A military commission sitting in Wash- ington during the war had no jurisdiction to try a citizen of the United States, not in the military service, for a criminal offense com- mitted in !New Yorli. Opinion of March 9, 1867, 12 Op. 128. 3. Any moneys or effects taken by an officer or agent of the United States, from a citizen so tried' and convicted, in execution of the sen- tence of such a, commission, imposing a fine upon the prisoner, may be restored to him, if they are within the control of the Executive Department of the Government. Ihid. 4. It is within the competency of a military commission to try such of the prisoners taken in the Modoc Indian war of 1873 as are charge- able with offenses against the recognized laws and usages of war, and, if found guilty, to sub- ject them to the punishment which those laws and usages warrant. Opinion of June 7, 1873, 14 Op. 249. MILITARY LA-W. See also Couet-Maetial; Limitation, II. 1. Military punishment cannot be inflicted after 1st June, 1821, on those who do not then constitute a part of the peace establishment under the act of 2d March, 1821, chap. 13. Opinim of May 16, 1821, 5 Op. 735. 2. Those who are required to be discharged from the military service by the twelfth section of that act, and are not soldiers on that day, must be citizens, and in this latter character cannot be subject to military law, at least for the completion of a punishment which, in its nature, looks to their restoration to the service when the punishment shall be over. Ihid. 3. An officer or soldier of the Army, who does an act criminal both by the militiir.y and the general law, is subject to be tried by the latter in preference to the former, under cer- tain conditions and limitations. Opinion of April 7, 1854, 6 Op. 413. 4. But his conviction or acquittal, by the civil authorities, of the offense against the gen- eral law, does not discharge him from respon- sibility for the military offense iuvolved in the same facts. Ihid. 5. An officer may be tried by court-martial for the military relation of an act, after having been tried by the civil authorities for the civil relations of the same act. Opinion of June 5,- 1854, 6 Op. 506. MILITARY SALVAGE. 1. The general English doctrine is, that salv- age is not due to a national vessel for service performed in recapturing from the enemy another vessel employed in the public service. Opinion of Oct. 24, 1867, 12 Op. 289. 2. The statutes of the United States make no distinction between the recapture by a public armed vessel of the United States, and recap- ture by a private vessel of the United States; and in case of the recapture of a public vessel by another public vessel, the salvage, costs, and expenses are payable from the Treasury. lUd. MILITARY STOREKEEPER. 1. Military storekeepers are subject to re- moval from office at the discretion of the Presi- dent of the United States. Opinion of 3Iarch 26, 1853, 6 Op. 4. 2. Military storekeepers are all of one grade, and alike subject, as to their place of duty, to the orders of the Secretary of War. Opinion of March 27, 1853, 6 Op. 7. 268 MILITIA AND VOLUNTEERS, I, II. MILITIA. AND VOLUNTEERS. See also Aemy; Compensation, III. I. Oenerally. II. Clothing, Traveling, and other Allowances. III. Arms for Militia. IV. Draft. I. Generally. 1. With certain qualifications, it is the duty of officers of the Quartermaster's Department to make disbursements on account of the mili- tia when called into the service of the United States. Opinion of April 6, 1835, 2 Op. 711. 2. There are no acts of Congress providing pay, rations, and expenses to militia called out hy State or Territorial authority, but disbanded without their having been employed or mus- tered into the service of the United States pre- vious to their dismissal; such cases, as they have arisen, having been, from time to time, specially provided for. Opinion of May 1 , 1840, 3 Op. 528. 3. The Government is not bound to pay such of the Florida militia as disbanded voluntarily, .and without authority, and refused to render service. Opinion nf Oct. 30, 1841, 3 Op. 687. 4. Nor is the Government bound to pay such as were mustered and then directed to repair to their homes to remain in readiness to serve at a moment's notice. Ibid. 5. The disbanding was a virtual discharge from acteaZ service; and, duringsuch discharge, they were not entitled to pay as soldiers of the United States. JbUL 6. The governor of a State has no power to depose an ofScer or interfere with the organi- zation of the regiment to which he belongs, after such regiment is accepted and mustered into the service of the United States. Opinion of June 16, 1862, 10 Op. 279. 7. The tenth section of the act of July 22, 1861, chap. 9, was not referred to, in the pre- vious opinion on the case of Colonel Weir (see 10 Op. 279), for the purpose of pointing out the method by which vacancies in ofSces in volun- teer regiments are to be filled; but merely for the purpose of illustrating the view taken of the point considered in that opinion, viz, the power of governors to depose officers of such regiments in service. Opinion of Jnne23, 1862, 10 Op. 306. 8. The method of their appointment is fixed by the third section of the act of August 6, 1861, chap. 57. Ibid. 9. A person of African descent elected and commissioned by the governor of Massachu- setts as chaplain of the Fifty-fourth Regiment of Massachusetts Volunteers, and duly mus- tered and accepted into the service of the United States, is entitled to the full pay pro- vided by law for the chaplain of a volunteer regiment. Opinion-of April 23, 1864, 11 Op. 37. 10. No provision of law, constitutional or statutory, ever prohibited the acceptance of ' ' persons of African descent ' ' into the military service of the United States as private soldiers, or as commissioned officers, if otherwise quali- fied to be officers. Ibid. 11. The troops known as the ' ' enrolled Mis- souri militia," though acting from time to time in co-operation with the Army of the United States in the suppression of the rebel- lion, constituted no part of it, they never having been mustered into the service of the United States. Opinion of Sept. 28, 1878, 16 Op. 148. 1 2. An order disbanding such troops (though entirely creditabl e to the troops thus disbanded) is not an honorable discharge within the mean- ing of section 2304 Rev. Stat. Ibid. 13. Persons who served with said enrolled militia are therefore not entitled to enter home- steads under the provisions of that section. To entitle them thereto further legislation is neces- sary. Ibid. II. Clothing, Traveling, and other AUo'wances. 14. Every volunteer mustered into serv- ice under the act of 23d of May, 1836, chap. 80, is entitled at once, and in one payment, to receive, in money, a sum equal to the full cost of the clothing of a non-commissioned officer, or private, as the case may be, in the regular troops of the United States, without reference to the time for which he may be kept in serv- ice. Opinion of Nov. 3, 1836, 3 Op. 159. 15. And volunteers, whether for six or twelve months, are entitled to the cost of all those articles which are required to clothe a soldier in the Army of the United States on his en- trance into service; for a year, if he shall be enlisted for a year, for six months, if that be his term. Opinion of Nov. 8, 1836, 3 Op. 159. MILITIA AND VOLUNTEERS, III, IT. 209 16. Where volunteers in the Mexican war were enlisted at Council Bluffs, Iowa, and dis- charged at Los Angeles, California, the travel- ing allowance of fifty cents for every twenty miles, provided lor in act of 18th June, 1846, chap. 29, must be computed according to the overland, not the Panama route. Opinion of MarcJi 8, 1852, 5 Op. 516. 17. The Florida mounted volunteers, called into service under a requisition of the Presi- ■dent of May 28, 1857, are entitled to an allow- ance of forty cents per day for the use and risk of their horses. Opinion of May 21, 1859, 9 Op. 309. III. Arms for the Militia. 18. The appropriation of $200,000 made annually, by the act of April 23, 1808, chap. 55, for providing arms and equipments for the whole body of the miUtia, either by purchase or manufacture, authorizes the use of the money in the manufacture of arms at the na- tional-armories. Opinion of April li, 1857, 9 Op. 16. 19. The War Department has the right to supply a deficiency in the allowance of arms to a State, under the act of April 23, 1808, chap. 55, which occurred in consequence of a mistake in estimating the number of the State militia. Opinion of Nov. 3, 1859, 9 Op. 395. 20. The laws of Congress upon the subject of arming the militia reviewed and considered with reference to the question, "Whether, under existing laws, the right of property in the arms issued for arming the militia of the "United States is vested in the State authori- ties, with power to dispose of them by sale or otherwise without accounting to the United States ;' ' and held that the States do not, by the existing laws, have an absolute right of prop- erty in such arms, and they derive no authority therefrom to sell or dispose of them at pleasure. Opinion of Nov. 11, 1874, 14 Op. 491. 21. The arms transmitted to the States •under those laws (which are embodied in sec- tions 1661, 1667, and 1670of the ReVised Stat- utes) are, iu contemplation of the provisions thereof, to be held by the States for a specific purpose only, which is pointed out therein; hence, they become invested with nothing more than a qualified property in such arms; and they cannot, as a matter of right, and without interfering with the regulations of Congress on a subject over which its anthority is paramount, make any disposition or use of such arms which defeats the purpose referred to. Ihid. 22. Yet those laws make no provision for any accountability to the United States, re- specting the disposition of the arms, after they are once delivered to the State authorities; Congress having seen fi.t to leave it entirely to the good faith of the States, when the delivery takes place, to carry out the purpose contem- plated in furnishing the arms. Ibid. 23. The governor of Virginia having made a requisition upon the Chief of Ordnance for a certain number of revolvers, to be drawn as part of the quota of that State, the latter officer gave to an agent of the State an order for the revolvers upon the manufacturer, which the agent, acting under the directions of the gov- ernor, assigned to certain parties in New York in part payment for camp-equipage furnished the State, with the understanding that the de- livery of the revolvers by the manufacturer should be made directly to them. But the Chief of Ordnance, on being informed of this transaction, directed the delivery by the manu- facturer to said parties on the order to be with- • held: Advised that it was very jn-oper for the Chief of Ordnance to withhold the delivery of the arms to the assignees of the order, as he could not, under the laws mentioned, recog- nize any right in them to the arms; but that the arms cannot be indefinitely withheld Irom the State, the statute requiring the distribu- tion to be made annually. Ibid. IV. Draft. 24. The Provost Marshal General is not re- quired to change the quotas in a draft ordered after the passage of the act of March 3, 1865, chap. 79, by reason of corrections in the en- rollment made since the assignment of the quotas. Opinion of March 13, 1865, 11 Op. 161. 25. The twenty-third section of the act of March 3, 1865, chap. 79, does not supersede the fourth section of the act of February 24, 1864, chap. 13. Opinion of March 14, 1865, 11 Op. 163. 26. The "recruits." whom enrolled persons may cause to be mustered into service, under the twenty- third section of the act of March 3, 1865, are to be considered as other volunteers 270 MINOR — MUTINY. obtained at the expense of the United States. Ibid. 27. Rules for determining the "actual resi- dence" of recruits with reference to the exe- cution of the fourteenth section of the act of March 3, 1865, chap. 79, to provide for enroll- ing and calling out the national forces. Opin- ion of March 15, 1865, 11 Op. 168. 28. The fourteenth section of the act of March 3, 1865, chap. 79, amendatory of the several acts to provide for enrolling and call- ing out the national forces, is applicable to the call for troops made by the President on De- cember 19, 1864. Opinion of March 24, 1865, 11 Op. 177. 29. A substitute liable to draft, and en- rolled, must be credited to the place of his actual residence. But if not liable to draft or enrollment, and is not enrolled, he may be credited to the locality in vrhich his principal is drafted. Opinion of April 11, 1865, 11 Op. 187. MINOR. See Akmy, XVII; NAVY, XII. MITIGATION OF FINES, PENAL- TIES, AND FORFEITURES. See Fines, Penalties, and Foepeituees. MONEY-ORDERS. 1. Provisions of the act of June 8, 1872, chap. 335, relating to the issue of money- orders by the Post-Ofiace Department, cited and commented on. Opinion of Sept. 25, 1872, 14 Op. 119. 2. Semble that Congress designed to give these orders, in some respects, the character of ordinary negotiable instruments, to the end that they might be received vrith full credit, and their usefulness, in a business point of view, be thus promoted. Ibid. 3. The statute does not contemplate that the remitter of the order shall be at liberty to revoke it, and demand back his money, against the will of the payee, after it comes into the possession of the latter; since, to en- able the former to obtain a repayment of the funds deposited, he must produce the order. Ibid. i. The payee of the order, upon complying with the requirements of the law and of the regulations of the Post-OfSce Department, is entitled to payment of the money on demand; and the remitter of the order cannot, previous to its being paid, by any notice that he may give to the office at which it is payable, forbid the payment thereof to the payee. MONEYS PAID INTO UNITED STATES COURTS. 1. The act of March 24, 1871, chap. 2, does not repeal the laws previously in force relat- ing to moneys paid into the courts of the United States, or received by the officers thereof, which are of a special character and apply only to moneys thus paid or received in particular classes of cases, as proceedings in prize and bankruptcy proceedings; it repeal* merely the general law on the subject, as em- bodied in the two statutes mentioned in th& sixth section. Opinion of Feb. 5, 1874, 14 Op. 363. 2. Accordingly, the disposition of moneya paid into the United States cotirts or received by the officers of such courts, in bankruptcy proceedings, is governed since the act of 1871, as it was prior thereto, by the provisions of the bankruptcy acts and the rules prescribed in pursuance thereof Ibid. 3. Semble that there is no law making it the duty of the assistant treasurers, with whom moneys are deposited under the provisions of the act of 1871, to keep a detailed account in. respect of the caimes to which the deposited moneys appertain. Ibid. MUTINY. Where a portion of the crew of the steamer Edgar Stewart forcibly displaced the master thereof from command, and took possession of the vessel: Held that this did not constitute the offense of piracy, but of mutiny: that for the latter offense the parties charged are liable- to be tried and punished under the laws of the- United States; and that they may be tried therefor in any district in which they are first, brought. Opinion of May 2, 1872, 14 Op. 589^ NATIONAL ASYLUM ; NATIONAL BANKING ASSOCIATIONS. 271 NATIONAL ASYLUM FOR DIS- ABLED VOLUNTEERS. The requisition of the Secretary of War on the Secretary of the Treasury for the fund appropriated by Congress to the "National Asylum for Disabled Volunteer Soldiers" should be in favor of the president of the in- stitution. Opinion of Jan. 16, 1867, 12 Op. 106. NATIONAL BANKING ASSOCIA- TIONS. See also Internal Eevende, I, IV. 1. National banking associations, employed under the fifty-fourth section of the national currency act of Feb. 2.'), 1863, chap. 58, are "public depositaries" within the meaning of the act of March 3, 1857, chap. 114, and dis- bursing officers may avail themselves of such associations, except for the deposit of receipts for customs. Opinion of March 19, 1864, ITOp. 23. 2. The provisions of the national currency act of June 3, 1864, chap. 106, and the amend- atory act of March 3, 1865, chap. 78, authorize the creation of banking associations without the right to obtain, issue, and circulate notes. Opinion of Sept. 4, 1865, 11 Op. 334. 3. These acts, while limiting the aggregate amount of bank-note circulation authorized thereby, place no restriction, either expressly or impliedly, upon the aggregate amount of the capital of banks which may be organized thereunder. Ihid. 4. A national bank is not liable under the internal-revenue laws to the tax of 5 per centum upon the dividends due a State on stock owned by the State. Opinion of May 8, 1868, 12 Op. 402. 5. The Treasurer of the United States can not retain, as security for a claim due the United States, the bonds deposited with him by a national bank, under section 16 of the act of June 3, 1864, chap. 106, to secure its circu- lation. Opinion of Jan. 28, 1869, 12 Op. 549. 6. It is not within the power of a State leg- islature to alter, modify, add to, or diminish the powers, duties, or liabilities created in or conferred upon banking associations estab- lished under a law of the United States. Opinion of Slay 15, 1869, 13 Op. 56. 7. Such associations cannot be merged or in any manner identified with similar corpora- tions created by State legislation, without the authority of Congress. Ibid. 8. The dissolution of a national banking association is not complete until the necessary action has been had for the redemption of its circulating notes, either by actually redeem- ing them and surrendering them to the Comp- troller of the Currency, or by depositing an amount of Treasury notes with him adequate to their redemption. Ibid. 9. The obligations, duties, and liabilities of such association, before the completion of the acts necessary to its dissolution; stated. Ihid. 10. The remedies given by the national banking law for a. violation of its provisions may be pursued by the Comptroller of the Currency. Ibid. 11. The United States have no priority over private creditors in the assets of an insolvent national bank for payment of deposits made in such bank to the respective credit of the United States Treasurer, of a United States disbursing-officer, and of the registry of a United States district court, after the fund which may be realized from the bonds held by the United States as a security for such de- posits is exhausted. Opinion of Sept. 9, 1871, 13 Op. 528. 12. Provisions of the acts of March 3, 1865, chap. 82 ; July 12, 1870, chap. 2o2 ; and June 20, 1874, chap. 343, examined and considered with reference to the power and duty of the Comptroller of the Currency concerning the distribution of circulating notes authorized by the national banking laws. Opinion of July 15, 1874, 14 Op. 415. 13. The Comptroller may, consistently with the last-mentioned act, distribute under the act of 1865 such portion as remains unissued of the 5)300,000,000 authorized by the national bank act of June 3, 1864, chap. 106, and under the act of 1870 such portion of the §54,000,000 authorized thereby as remains unissued. Ibid. 14. In the distribution of the $55,000,000, for which provision is made by the act of 1874, it is the duty of the Comptroller, upon appli- cations duly made, to satisfy the same with reasonable expedition, even to the extent of giving to a State its lull apportionment; but 'il'i NATIONAL BOAKD OP HEALTH — NAVAL ACADEMY. of several applications made about tlie same time, if some are from n State or Territory where the deficiency is relatively great, and others from a State or Territory where it is relatively small, preference should be given to the former in case the supply is not suffi- cient for all. Ibid. 15. The means of supplying the said |55,- 000,000 provided by the act of 1874 is by requisitions upon the national banks in States having an excess of circulation; and the Comptroller can resort to no other sources of supply. Ibid. 16. National banks with a capital of $50,- 000 may (notwithstanding the proviso in the fourth section of the act of June 20, 1874, chap. 343) still be organized, as heretofore, upon a deposit of S30,000 in bonds, and those with a capital of not less than 8150,000 upon a de- posit of one-third of their capital stock in bonds. Ibid. 17. In the distribution of the §55, 000, 000 of national bank notes, as provided for by the act of June 20, 1874, chap. 343, the Comptroller of the Currency must rely on requisitions for the withdrawal and redemption of their notes by banks in States where there is an excess of circulation; this is his only resource under that act. Opinion on same subject, given July 15, 1874, reaffirmed. Opinion of Sept. 26, 1874, 14 Op. 456. 18. The German-American Savings Bank of Washington, D. C. , incorporated under a law of Congress relating to the District of Colum- bia, and having a capital of 5>126,000, is, by virtue of section six of the act of June 30, 1876, chap. 156, required to keep on hand (under section 5191 Eev. Stat.) a reserve of 25 per cent, of its deposits, and is entitled (under sections 5157-5189 Eev. Stat.) to re- ceive circulating notes. Opinion of yeb. 5, 1877, 15 Op. 606. 19. The Secretary of the Treasury has au- thority, under section 5153 Eev. Stat., to re- ceive from national banking associations des- ignated as depositaries of public money Treasury notes ol' the United States as security for the safe keeping and prompt .payment of the public money deposited with them and for the faithful performance of their duties as financial agents of the Government. Opinion of July 18, 1878, 10 Op. 96. 20. The provision in section 4 of the act of June 30, 1874, chap. 343, viz, "That the amount of the bonds on deposit for circulation shall not be reduced below $50,000," is for all purposes connected therewith repugnant to the previous statutory provision (sees. 5159 and 5160 Eev. Stat.) requiring national banks to have and maintain with the Treasurer of the United States a bond deposit to the amount of one-third of their capital stock, and so far in effect does away with such provision. Purpose of said act of June 30, 1874, explained. Opinion of April 30, 1880, 16 Op. 663. NATIONAL BOARD OF HEALTH. 1. The National Board of Health can prop- erly pay, from funds under its control, for tents furnished by the War Department as a matter of urgent necessity to the camp which was established at Memphis, Tenn., to pre- vent the spread of yellow fever to other States. Opinion of Aug. 26, 1879, 16 Op. 379. 2. That board has no power to aid in sup- pressing yellow fever, except so far as is re- quired to prevent it from being imported into the United States, or from one State into another. Ibid. NATIONAL CEMETERY. See Lands Acquired foe Public Uses. NATIONALITY. See Citizenship; Expateiation. NATIONAL MILITARY AND NA- VAL ASYLUM. The charter of the National Military and Naval Asylum requires that a majority of the persons named therein shall accept the same, and such acceptance and organization of the company cannot be by proxies. Opinion of June 26, 1865, 11 Op. 261. NAVAL ACADEMY. 1. Under the act of August 31, 1852, chap. 109, a member of Cougtess has no power to NAVAL AOAD-RIMY. appoint a midshipman ; the act only makes the recommendation of a member of Congress a pre-requisite to appointment. Opinion of June 5, 1861, 10 Op. 46. 2. The Secretary of the Navy has power to appoint as midshipman any bne who stands recommended by a member of Congress, who was, at the time he recommended, represent- ing the district in which the applicant resides ; and if more than one be so recommended, the Secretary has a right to choose among them. JMd. 3. The authority to appoint ten acting mid- shipmen granted to the President by the act of July 14, 1862, chap. 164, is not repealed by the 11th section of the act of July 16, 1862, chap. 183. Opinion of July 29, 1862, 10 Op. 315. 4. Midshipmen cannot lawfully be ap- pointed for a district which is not represented in Congress. Hid. 5 The President has no authority, under t;he act of July 16, 1862, to appoint two mid- shipmen for the District of Columbia, in ad- dition to the two from that District appointed under previous law or usage. Hid. 6. The opinion of the Attorney-General on the subject of the appointment of midshipmen from unrepre.sented Congressional districts, dated July 29, 1862 (10 Op. 315), reconsidered and modified. Opinion of July 5, 1863, 10 Op. 494. 7. The eleventh section of the act of July 16, 1862, chap. 183, "to establish and equalize the grade of line officers of the Navy," providing for the appointment of students at the Naval Academy, is a complete substitute for prior enactments on the same subject. Ibid. 8. Under the eleventh section of the act of July 16, 1862, the Secretary of the Navy has the power, and it is his duty, to fill vacancies in the Naval Academy that may exist from any district, when it is clearly impracticable to obtain the recommendation of the Member or Delegate in Congress from that district. Ibid. 9. Under section 11 of the act of July 16, 1862, chap. 183, students or midshipmen at the Naval Academy are not entitled to be eommissioned ensigns until they have per- formed the term of duty on ship-board pre- scribed by regulation of the Department, upon the completion of their academic studies, and passed their final examination on practical navigation and seamanship. Opinion of March 8, 1865, 11 Op. 158. 10. The act of June 23, 1874, chap. 453, to prevent hazing at the Naval Academy, was designed to cut off from a cadet found guilty of the offense, should the finding of the court- martial be approved by the superintendent, all chance of reinstatement or reappointment. Opinion of March 15, 1876, 15 Op. 80. 11. The provisions of article 36 of the Ar- ticles for the Government of the Navy (sec. 1024 Rev. Stat.) do not extend to cadets at the Naval Academy. They may accordingly be dismissed from the Academy and from the naval service for misconduct without trial by court-martial. Opinion of July 10, 1877, 15 Op. 635. 12. Sections 1519 and 1525 Rev. Stat, leave no right to the Secretary of the Navy to con- tinue at the Academy cadets who have been found at any examination deficient in their studies without the recommendation 'of the academic board. Ibid. 13. The words "final graduating examina- tion," in section 11 of the act of July 16, 1862, chap. 183, and "graduating examination," in section 12 of the act of July 15, 1870, chap. 295, signify that examination which, under the regulations of the Naval Academy, takes place after the prescribed term of sea-service has been performed. Opinion of Any. 7, 1877, 15 Op. 637. 14. Assignments of relative rank, as between members of the same class, based upon the re- sults of such examination, are in conformity with law. Ibid. ! 15. On March 6, 1878, a Representative in Congress was informed by the Navy Depart- ment of a viicunt cadetship in the Naval Academj', which was to be filled bj'an appoint- ment from his district. He recommended a candidate for admission, who failed to pass the examination held in June, 1878; he thereupon I recommended another candidate, whol'ailedto pass the examination held in September, 1878. The times fixed by the regulations of the Academy for the examination of candidates for admission are June 11 and September 22 of each year: JMo! that the next recommendation of a candidate for admission to fill the said vacancy should not be made until after March 5, 1879. Opinion of Jan. 18, 1879, 16 Op. &12. 16. Section 1515 Re\'. Stat, is to be read as DIG- 18 274 NAVAL-PENSION FUND — NAVY, I. if the dates fixed by the regulations of the Academy for the examination of candidates for admission were inserted therein ; and hence, by the existing law, the season for recom- mendations and nominations of cadet midship- men begins after the 5th of March and expires on the 22d of September in each year. Ihid. 17. Opinion of August 7, 1877 (15 Op. 637), in the cases of Ensign Qualtrough, Master Turner, and others of the Navy — involving the question of relative rank among graduates of the Naval Academy as between members of the same class — reaffirmed. And advised that the construction given to the act of July 15, 1870, chap. 295, at the Naval Academy — viz, that midshipmen, although graduates, were nevertheless not entirely emancipated from probationary study, but that, after graduation, they were still (as theretofore) to be students at sea, and that while so students at sea a pro- visional relative rank was assigned them by the statute, but it was not intended by such legislation to abolish the old discipline by which a final graduating examination was to have effect upon the relative rank which they should have after emancipation — be not dis- turbed. Opinion of March 31, 1879, 16 Op. 296 NAVAIi-PENSION FUND. 1. Certain moneys having been paid into the Treasury to the credit of the naval-pension fund in pursuance of a final decree of a district court of the United States, and being thus no longer subject to the jurisdiction and control of the court: ^dyisecJ that a subsequent decree of the court, directing a distrijjution of the same moneys as military salvage, should not be respected. Opinion of Aug. 1, 1870, 13 Op. 299. 2. Opinion of August 1, 1870 (13 Op. 299), reconsidered uponadditional matter submitted, and the conclusions arrived at in that opinion re-affirmed. Opinion of Dee. 6, 1870, 13 Op. 348. NAVIGABLE "WATERS. see commekce and navigation, viii, ix; Lakes; Lands under Navigable Waters; Rivees and Haeboes. NAVIGATION. See Commerce and Navigation, VIII, IX. NAVY. See also Compensation, IV. I. Generally. II. Appointment and Promotion. III. Relative Bank. IV. Transfer of Officer. V. Sea Service. VI. Allowances to Officers. VII. Dismissal from the Service. VIII. Examining Board. — Efficiency Ads IX. Belired-List. X. Pay Corps. XL Civil Engineers. XIL Enlistment. XIII. Begulations. I. Generally. 1 Boatswains, gunners, carpenters, andsaiU makers were intended to be included in the resolutions of Congress of 6th January, 1814. Opinion of Aug. 27, 1817, 1 Op. 195. 2. Although there is no act of Congress au- thorizing a call by a governor for the surrender of a midshipman charged with a breach of the peace of a State, nor any law authorizing an arrest by the Executive with a view to a forci- ble surrender of him for the purpose of trial, it is important that the accused should surrender himself for that purpose; to which end it is advised that an order from the Navy Depart- ment be given him. Opinion of Oct. 20, 1818, 1 Op. 244. 3. The numberingof naval commissionsisnot the act of the President and Senate, but of the Secretary of the Na^f, to prevent questions of rank from arising among officers holding com- missions of the same date. Opinion of Dec. 24, 1819, 1 Op. 325. 4. Whenever a change of the number of a commission is proposed, the person affected thereby ought to be heard as to the facts. Ibid. 5. A furlough granted to a sailing master, "on condition that he should relinquish from that date his pay and emoluments as a naval NAVY, I. 275 officer, until further orders, ' ' must be consid- ered as an absolute furlough; the condition being void in law. Opinion of Jan. 22, 1823, 1 Op. 592. 6. The members of the Board of Commis- sioners of the Navy are still ofiicer.s of the Navy not below the rank of post-captains; and they are, whilst members of the Board, en- titled to all the honors, privileges, and powers of that rank, and subject to all the duties of it, except such duties as are inconsistent with their services on the Board. Opinion of July 8, 1823, 5 Op. 761. 7. A surgeon in the Navy who resigned in 1824, and was re-appointed in April, 1827, and has continued since to hold that office, is en- titled to all the benefits to be derived from the act of January 21, 1829, chap. 7, amendatory of the act of May 24, 1828, chap. 121. The terras of the former act are sufficiently com- prehensive to embrace his case. Opinion of Oct. 10, 1829, 2 Op. 273. 8. Where Congress fails to provide for dis- bursements indispensable to the performance of the naval service, the President may make allowances to officers acting in higher stations than those to which they were appointed by their warrants or commissions. Ojnnion of Oct. 24, 1829, 2 Op. 284. 9. Public debtors in the naval service of the United States are entitled to receive the rations allowed them by law, or the amount in money for which they may be commuted, notwith- standing the act of 25th January, 1828, chap. 2. Opinion of March 22, 1831, 2 Op. 420. 10. Members of the Board of Navy Com- missioners, while they act as such, retain their rank of post-captains in the Navy; and may, while they continue members of the Board, be employed by the Government in separate and distinct duties, in their character of post-cap- tains. Opinion of March 22, 1832, 2 Op. 503. 11. As no separate command is assigned to the several members of the Board in their character of post-captains, they cannot exer- cise the authority which an officer of that rank possesses over the officers and men placed under his command when in actual service and afloat. They are entitled to the rights and privileges that belong to an officer of the same grade when on shore and not employed in any par- ticular professional service; and as post-cap- tains they are entitled to nothing more. IWd. 12. The members of the Board of Navy Commissioners having been provided with salaries, in lieu of rations, and not having hitherto received rations, a tacit construction against the right to rations has been given by the Department. Opinion of March 22, 1833, 2 Op. 558. 13. The thirteenth article of the act of April 23, 1800, chap. 33, "for the better government of the Navy, ' ' refers only to officers command- ing. Opinion of 3Iarch 30, 1838, 3 Op. 321. 14. Pursers are liable upon their bonds for public stores committed to their charge, even though such stores are destroyed by inevitable accident. Opinion of Feb. 11, 1845, 4 Op. 355. 15. Commanders of public vessels employed in the public service, whether armed or not, are not required to employ and pay branch pilot? upon entering the ports and harbors of the United States. Opinion of Sept. 9, 1846, 4 Op. 532. 16. An officer of the Navy in command, who requires the purser to pay him more money than is due to him, and fails to account, is not guilty of embezzlement under any existing act of Congress. Opinion of April 6, 1855, 7 Op. 82. 17. When the rate of a ship has been fixed by statute it cannot he changed by an order of the Navy Department, in so far as to affect the compensation of an officer of the Navy. Opin- ion of March 3, 1857, 8 Op. 503. 18. The act of March 2, 1855, chap. 136, establishing summary courts-martial in the Navy, does not interfere with the power of the commander of a vessel, as it existed prior to the passage of that act, to reduce seamen to inferior rate lor incompetency. Opinion of Jan. 16, 1862, 10 Op. 168. 19. Under the act of June 1, 1860, chap. 67, the pay allowed to a naval officer ' ' on duty at sea" begins when, having been ordered to a particular duty, he reports himself at the place designated and enters on that duty. Whether the duty be at once on ship-board or on land, in necessary and immediate preparation for the intended cruise, will depend on the circum- stances of each case, of which the Navy De- partment will j udge. Opinion of Feb. 19, 1862, 10 Op. 191. 20. An acting master's mate is not a warrant officer of the Navy. Opinion of June 20, 1865, 11 Op. 251. 276 NAVY, II. 21. By act of July 15, 1870, chap. 295, the allowance of funeral expenses of a naval officer ■who died in the United States is prohibited; hut such expenses are allowable where the ofiicer died in a foreign country, to an amount not exceeding his sea pay for one month. Opinion of Nor. 17, 1870, 13 Op. 341. 22. The fact that the officer had started on a foreign service, but died in a port of the United States at which his vessel had touched, does not relieve the case from the prohibition of the statute. Jbid. 23. The Secretary of the Navy cannot ex- change a vessel belonging to the Navy, which has been condemned as unfit for naval pur- poses, for another vessel, notwithstanding the exchange might be of advantage to the public service. The disposition of such vessel is con- trolled by the second section of the act of May 23, 1872, chap. 195. Opinion of Feb. 18, 1874, 14 Op. 369. 24. Civil engineers, appointed under section 1413 Rev. Stat. , are officers of the Navy within the meaning of articles 36 and 37 of section 1624 Eev. Stat. Opinion of Sept. 5, 1876, 15 Op. 165. 25. The penalties imposed by State laws for piloting vessels without due license from the State have no application to persons employed as pilots on board of the public vessels of the United States, the latter vessels being within the exclusive jurisdiction of the United States. Opinion of Oct. 22, 1879, 16 Op. 647. II. Appointment and Promotion. 26. Where one was a lieutenant in the Navy prior to 1837, and afterwards resigned, but was again nominated to the Senate by Presi- dent Jackson for the same office from the 16th of February of that year, and confirmed by the Senate, with the condition that he should take rank next after Lieutenant Peck, and for whom a commission was made out at the Navy Department, but never signed by President Jackson; and who was, thereupon, again nomi- nated to the same office by President Van Buren on the 7th of March, 1837, to take rank from the said 16th of February, 1837, but not confirmed; and who was again nominated by President Tyler on the 14th of December, 1841 , " to be a lieutenant from the 2rtth April, 1826, to take rank next after Lieutenant I'eck, ' ' but was rejected by the Senate: Held that he was not a lieutenant within the Constitution and the laws. Opinion of Aug. 9, 1843, 4 Op. 218. 27. Even after the confirmation by the Sen- ate, the President may, in his discretion, with- hold a commission from the applicant; and, until a commission to signify that the purpose of the President has not been changed, the ap- pointment is not fully consummated. IMd. 28. Since the passage of the act of the 4th August, 1842, chap. 121, the President has no power to appoint a midshipman .until the number in the service shall be reduced to the number that were in service on the 1st of Jan- uary, 1841. Opinion of Jan. 23, 1844, 4 Op. 306. 29. An officer out of the Navy cannot be brought again into it except by appointment. IMd. 30. A purser in the Navy, appointed during a recess of the Senate, and his nomination sent to the Senate at the commencement of the next session thereof, having continued to hold hii office under the appointment until the close of such session, was legally in oflSce on the first day of January intervening, and is so to be re- garded under the provisions of the act of the 4th of August, 1842, chap. 121. A nomina- tion to supply any deficiency existing in point of numbers, as fixed by said act, may now be made in respect to that particular grade of officers. Opinion of, April 23, 1844, 4 Op. 321. 31. The act of June 17, 1844, chap. 107, which authorizes the construction of a dry- dock at Brooklyn, containing no provision for the appointment of purchasing and disbursing agents, the authority to appoint them rests on the act of March 3, 1809, chap. 28, permitting the President, during the recess of the Senate, to appoint such temporary agents as may be needed. Opinion of Feb. 8, 1845, 4 Op. 354. 32. But agents for the purchase and dis- bursement of supplies ibr the dry-dock at Brooklyn must be regarded, in contemplation of law, as permanent officers, to whose nomi- nation the sanction of the Senate is necessary at its session next after the making of a tem- porary appointment. Tbid. 33. The commander of a squadron of the Navy on a foreign station has power to appoint a provisional or acting purser in the absence NAVY, III. of any purser of the Navy duly appointed by the President. Opimon of March 12, 1854, 6 Op. 358. 34. Although such appointment be subse- quently disapproved by the Secretary of the Navy, still the acts which the acting purser may have performed while so acting are not thereby invalidated. Ibid. 35. Under the seventh section of the act of July -14, 1862, chap. 164, prescribing the age of chaplains in the Navy, the President cannot appoint a person to that office above the age of thirty-five, although, before the passage of that act, the President instructed the Secretary of the Navy to prepare a nomination of that per- son to the Senate for the office. Opinion of Aug. 28, 1862, 10 Op. 324. 36. Semble that Congress did not intend, by the provision in section 11 of the act of July 16, 1862, chap. 183, to forbid the re-appoint- ment of an officer, dismissed by sentence of a court-martial, to whom the President has ex- tended pardon. Opinion of March 12; 1864, 11 'Op. 19. 37. The acceptance of a promotion is not necessary to consummate the appointment of an officer in the naval service to a higher grade. Opinion of Aug. 1, 1867, 12 Op. 229. 38. The President, by and with the advice and consent of the Senate, has power to ad- vance a naval officer, in his own grade, not exceeding thirty numbers, for distingnished conduct in battle or extraordinary heroism. Opinion of March 11, 1869, 13 Op. 1. 39. Neither the provisions of the act of July 25, 1866, chap. 231, nor those of the act of March 2, 1867, chap. 174, afford any ground for the claim that the officers selected from the volunteer naval seryice for appointment in the regular Navy, under the former act, should be commissioned as of the date of that act, or take rank in the regular Navy from the date thereof. Opinion of March 3, 1873, 14 Op. 192. 40. Where a fictitious date in an officer's commission would be attended with prejudice to other offlcers in the same grade, it must be deemed improper to thus date the commission, unless there is clear authority of law for so j doing. I hid. ' 41. The words in section 1505 Eev. Stat., namely, "shall be sn.spended from promotion for one year, with corresponding lossof date, " do not mean that the loss of date is to be con- temporaneous with the term of suspension, but only that it shall agree therewith in point of duration. Opinion of Dec. 10, 1880, ] 6 Op. 588. 42. Accordingly, where A., a lieutenant in the Navy, being the senior officer of his grade, became entitled to examination for promotion to fill a vacancy in the next higher grade (lieu- tenant-commander), which occurred January 22, 1880, and afterwards, upon examination, failed to pass, and the findings of the examin- ing boards were approved February 6, 1880, by the President, who directed that he "be suspended from promotion for one year, with corresponding loss of date": Held that the loss of date of A. is one year, to be reckoned from the occurrence of the vacancy, January 22, 1880, the date from which he would have taken rank as lieutenant- commander had he been found qualified for promotion, and that his year of suspension is to be reckoned from the approval of the President of the findings of the examining boards, February 6, 1880. lUd. 43. In the above case, as A. , by reason of his suspension, is ineligible for promotion during the whole of the year commencing February 6, 1880, no vacancy should be kept open for him until February 6, 1881. Such vacancies as happen to exist during that period, the offi- cers who are then eligible for promotion are entitled to fill. But as his loss of date is only to be one year from January 22, 1880, if, on his second examination, he shall be found qualified to fill a vacancy in the next higher grade which occurred after the period of his suspension, he will be entitled, upon promo- tion thereto, to take rank in such grade as of the date of January 22, 1881. He will not, however, be entitled to the pay of the higher grade from the ranking date in his commis- sion. Ibid. III. Relative Rank. 44. The Executive has no power, without express authority of law, to fix the relati-i'e rank of the line and staff officers of the Navy. Opinion of Dec. 24, 1862, 10 Op. 413. •15 The fifth section of the act of July 14, 1862, chnp. 164, recognizing the orders of the Secretary of the Navy theretofore issued a.s the regulations of the Navj- Department and 278 NAVY, IV, V. authorizing alterations of such regulations, confers on the Secretary of the Navy, with the approbation of the President, power to alter any orders, issued by him before the passage of the aet, fixing the relative rank of the line and staff officers of the Navy. lUd. 46. The regulations adopted by the Secre- tary of the Navy , with the approbation of the President, on March 13, 1863, concerning the relative rank of the staff oflicers of the Navy, in so far as they are alterations of the orders of the Secretary of the Navy, to which legis- lative sanction was given by the acts of Au- gust 5, 1854, chap. 268, sec. 4, and March 3, 1859, chap. 76, sec. 2, are not founded upon valid authority of law. Opinion of March 31, 1869, 13 Op. 10. 47. Those orders are not properly within the provision of the fifth section of the act of July 14, 1862, chap. 164, from which was drawn the supposed authority to alter or modify them, and establish new and different regulations on the subject to which they relate. The opinion of Attorney-General Bates (10 Op. 413) dissented from. Ibid. 48. In estimating length of service, for the determination of precedence with other officers ■with whom they have relative rank, engineer officers of the Navy who are graduates of the Naval Academy are not entitled to the six years' constructive service allowed to other staff officers of the Navy for that purpose. Section 1484 Rev. Stat, is to be construed as an exception to section 1486 Rev. Stat. , operat- ing to exclude from the provisions of this last section such engineer officers. Opinion of July 11, 1877, 15 Op. 336. 49. But engineer officers not graduated at the Naval Academy stand on the same footing with other staff officers, and are entitled to the six years' constructive service. Ibid. IV. Transfer of OiEcer. 50. On February 4, 1863, Z. was appointed a chief engineer in the volunteer naval service. In June, 1868, he was transferred to the same grade in the regular Navy, upon nomination by the President and confirmation by the Sen- ate, as a chief engineer therein, his commis- sion bearing date the 18th of that month. Subsequently he applied to the Navy Depart- ment for a new commission, giving him rank in the regular Navy from February 4, 1863 (claiming to be entitled thereto under the pro- visions of section 3 of the act of March 2, 1867, chap. 174), and a new commission giving him rank from that date was transmitted to him on the 23d of January, 1877: Held that section 3 of the act of March 2, 1867, did not entitle Z., on his transfer to the regular Navy, to hold a commission as of the date of his ap- pointment in' the volunteer naval service; that the commission transmitted to him January, 1877, was improvidently issued; and that his place on the Naval Register must be deter- mined according to the rank given him by the commission which was issued upon his nomi- nation to and confirmation by the Senate, namely, the commission dated June 18, 1868. Opinion of June 12, 1878, 16 Op. 45. 51. The interpretation placed upon section 3 of the act of March 2, 1867, by Attorney- General Williams, in 14 Op. 192, 358— viz, that it was designed to give the transferred officers the full benefit of their former sea- service, in so far as it might go to complete the period of such service required in their respective grades previous to nomination for promotion, and in so far as it ought properly to be taken into account in the matter of assign- ment to duty, and that it conferred no advant- ages beyond these — approved and adopted. Ibid. v. Sea Service. 52. The seventeenth section of the act of July 16, 1862, chap. 183, is retroactive only in so far as that the computiition of sea-service is to be made from the date of the appoint- ment or entry into the service, although the appointment or entry occurred before the act was passed. Opinion of Aug. 28, 1862, 10 Op. 326. 53. The construction given by the Navy De- partment to the third section of the act of March 2, 1867, chap. 174, "to amend certain acts in relation to the Navy," which requires officers transferred from the volunteer to the regular Navy to be credited with their previ- ous sea-service, concurred in, namely, that to entitle an officer to credit for sea-service there- under he must have been in the volunteer Navy at the time of his appointment to the regular Navy, and that where he had ceased to be an officer in the volunteer Navy prior to such appointment, however brief the interval. NAVY, Vl-VIII. 279 he does not come within the provision referred to. Opinion of Nov. 20, 1.S72, 14 Op. 142. 54. Effect of the said act of March 2, 1867, relative to crediting the officers selected and appointed from the volunteer naval service, ■with the sea-service performed by them while volunteer officers, considered. Opinion of March 3, 1873, 14 Op. 192. 55. The provision in the 3d section of the act of March 2, 1867, chap. 174, declaring that transferred oiSicers from the volunteer to the regular naval service, by whom sea-service has been performed as volunteers, "shall receive all the benefits of such duty in the same man- ner as if they had been, during said service, in the regular Navy," is to be understood to mean that they shall receive whatever benefits their past sea-duty would entitle them to if, during the period of its performance, they had belonged to the regular naval service, holding (not the same grades as those to which they are transferred, but) grades corresponding to those at that period held by them in the vol- unteer naval service. Intention of that pro- vision explained. Opinion of Jan. 24, 1874, 14 Op. 358. VI. Allowances to Officers. 56. The commanding officer at the navy- yard is entitled to the pay and emoluments of a commodore, and therefore a house or apart- ments should be furnished him free of rent. Opinion of June 10, 1807, 1 Op. 160. VII. Dismissal from the Service. 57. In October, 1861, S. was appointed by the Secretary of the Navy ' ' an acting master in the Navy, on temporary service," and was dismissed from the service by the Secretary in March, 1862: Held that the dismissal was lawful ; that in the absence of legislation the Secretary had power to determine the time at which an appointment expressly temporary should come to an end. Opinion of April 25, 1876, 15 Op. 560. 58. In January, 1864, S. was appointed by the Secretary of the Navy ' ' an acting gunner on temporary service" in the volunteer Navy, and in July, 1865, was dismissed from the service by the Secretary : Held that a power to appoint gunners to an undefined ex- tent does not preclude the appointment of act- ing gunners also ; that the power to appoint the latter is implied by section 18, act of July 17, 1862, chap. 304 (Rev. Stat., sec. 1410), and that as an acting gunner S. was liable to dismissal at the will of the Secretary. Opin- ion of June 10, 1876, 15 Op. 564. VIII. Examining Board. — Efficiency Acts. 59. Under the act of Feb. 28, 1855, chap. 127, for promoting the efficiency of the Navy, which provides for a board, consisting of five captains, five commanders, and five lieuten- ants, to examine into the competency of the officers of the Navy, and which further pro- vides that no officer on said board shall exam- ine into or report upon the efficiency of officers of a grade above them, the effect is to exclude any of such officers of the board from being present at the deliberations concerning officers their superior in grade. Opinion of June 16, 1855, 7 Op. 282. 60. It was not the duty of the board, ap- pointed in execution of the Navy efficiency act of Feb. 28, 1855, chap. 127, nor had it power by law to proceed with notice to the parties, hearing of evidence, and other inci- dents of judicial inquiry ; its only function being that of executive recommendation to the President. Opinion of Dec. 10, 1856, 8 Op. 223. 61. It was competent for the Secretary of the Navy to instruct the board to look into questions of moral as distinguished from phys- ical or mental incapability or incompetency to perform promptly and efficiently all the possi- ble duties of an officer of the Navy. Ibid. 62. The language of the statute implies one act of the board as report, and one act of the President as approval — not a separate report in each case, nor separate reconsideration of each by the President. Ibid. 63. Officers of the Navy furloughed under authority of pre-existing law retain their place in the line of promotion, and can be re- stored to active service by Executive order ; but officers reserved under the efficiency act drop out of the line of promotion, and can be restored only by renomination to the Senate. Ibid. 64. The act of January 16, 1857, chap. 12, to amend the act of February 28, 1855, chap. 127, is supplemental to the latter, recognizing its consequences as consummated legal facts, and providing for their continuation in form and 280 NAVY, IX, substance, with provision for the re-examina- tion of cases by court of inquiry, and the con- tingency of consequent restoration to rank or position. Opinion of Jan. 31, 1857, 8 Op. 337. 65. The constitution and the course of pro- ceeding of the court of inquiry, provided for by the supplemental act, are to he governed by the general statutes, and by the common law military as received and practiced in the Army and Navy. Ibid. 66. The President, in the execution of this law, may appoint one court of inquiry, or a plurality of courts, in his discretion. Ibid. 67. The act, in requiring investigation of the fitness for the naval service, physical, mental, professional, and moral, of of&cers displaced by the previous act, is coextensive with the latter in scope, and corresponds in this respect with the pre-existing statute rules for the government of the Navy. Ibid. 68. The court of inquiry takes jurisdiction of each case only in virtue of an order of the Secretary of the Navy founded on written re- quest of an ofl&cer, which ofl&cer occupies the position of actor before the court, affirming his fitness tor reappointment by the President. Ibid. ' 69. The same court may proceed to investi- gate any number of cases, if so ordered, but it must be sworn separately on each case and make report thereon separately to the Execu- tive. Ibid. 70. Investigation of the fitness of persons, physical, mental, professional, and moral, for commissions in the Army and Navy, is the ordinary fact in the military service of the United States, the only legal inuovatiou here being the substitution of a court of inquiry in the place of a board of officers or other execu- tive agents of investigation. Ibid. 71. The authority of the court of inquiry on the general question of fitness, in either of its branches, comprehends personal observation, inspection or examination of the party, evi- dence of specific facts, and professional opinions on the whole case or any of its material con- stituent parts. Ibid. 72. Proof of specific facts of imputed im- morality, as also proof negativing the imputa- tion of any such specific fact, must be of specific natvrre, not mere opinion and reputation. Ibid. 73. But opinions are admissible on the gen- eral question of naval fitness in all its elements, including testimony of particular facts illus- trative of character and reputation. Ibid. 74. Witnesses in such a case, expressing opinions or testifying to reputation or estima- tion of character, on whichever side they tes- tify, may be cross-examined. Ibid. 75. Official letters on file contemporaneous with or a part of the incidents to which they relate are competent evidence, both for and against a party, as are official letters which he may have received at the termination of a par- • ticular service, the same being, however, sub- ject to explanations. Ibid. 76. Neither letters of recommendation nor of condemnation, nor certificates prepared for the occasion, nor even ex parte affidavits, are competent evidence. Ibid. 77. The court has discretion, subject to fixed rules of law, as to motions of delay for obtain- ing the attendance of witnesses. Ibid. 78. The act of Congress, in constituting the court of inquiry, impliedly suggests the sus- pension of other modes of relieving displaced officers by the mere act and initiation of the- Presideht. Ibid. 79. The President has power to review the action and finding of a board of naval surgeons constituted under the 4th section of the act of April 21, 1864, chap. 63. Opinion of Dec. 30, 1867, 12 Op. 347. 80. A naval officer having appeared before an examining board (organized and conducted under sections 1493 to 1505 Eev. Stat. ), and the examination being temporarily suspended, was granted permission to go home and to be absent until notified by the board to appear. He failed to receive this notice until after the examina- tion, which was resumed during his absence, had been concluded. The proceedings and findings of the board were approved by the President and his order in the case duly exe- cuted by the retirement of the officer (under section 1447 Rev. Stat.). But the vacancy created by such retirement remains unfilled, and no rights of any other person have inter- vened: Held that the action of the President can be revoked, and the officer allowed a re- hearing. Opinion of May 29, 1878, 16 Op. 21. IX. Retired List. 81. Retired officers of the Na^y may be pro- moted on the reserved list, provided such pro- motion does not in any way disturb the line of NAVY, X. 281 promotion of officers on active duty. Oj^iiiinn of Aug. 29, 1861, 10 Op. 107. 82. The act of August 3, 1861, chap. 42, pro- viding for the better organization of the mili- tary establishment, does not repeal the act of June 1, 1860, chap. 67, allowing Naval officers on the reserved or retired list the pay of their respective grades when called into active serv- ice. Ibid. 83. The fourth section of the act of July 16, 1862, chap. 183, does not authorize the appoint- ment of an examining board to recommend the promotion or retirement of medical officers of the Navy. Opinion of Oct. 4, 1864, 11 Op. 105. 84. Before a medical officer of the Navy is placed on the retired-list, under the act of April 21, 1864, chap. 63, it should appear that his case has been acted upon by both the boards provided for in that act, and that both of them failed to recommend him for promotion. Ihid. 85. If but one board has acted, and reported adversely upon the case of such medical officer, it is not the duty of the Secretary of the Navy to place him on the retired-list. JMd. 86. The act of June 25, 1864, chap. 152, has the eifect of removing from the retired-list of- ficers of the Navy who were retired in pur- suance of the act of December 21, 1861, chap. 1, but who are not liable to be retired by the provision of the act of 1864. Opinion of June 6, 1865, 11 Op. 144. 87. Section 20 of the act of July 16, 1862, chap. 183, fixing the pay of retired naval offi- cers, does not repeal the previous laws author- izing promotion on the retired-list. Opinion of May 18, 1867, 12 Op. 138. 88. The pay of retired officers of the Navy is regulated in all cases by the provisions of that section. Ibid. 89. The construction of the twentieth sec- tion of the act of July 16, 1862, chap. 183, adopted by the Attorney-General in his opin- ion of May 18, 1867 (12 Op. 138) reaffirmed. Opinion of Aug. 1, 1867, 12 Op. 222. 90. Previous opinions on the subject of the pay of retired naval officers reconsidered and reaffirmed. Opinion of Oct. 31, 1867, 12 Op. 296. 91. The proviso to section 9 of the amenda- tory act of March 2, 1867, chap. 174, ''thatno promotion shall be made to the grade of rear-ad- miral upon the retired-list while there shall be in that grade the full number allowed by law, ' ' does not forbid the advancement to that grade on the re tired -list, under section 1 of the act of July 25, 1866, chap. 231, of any commodore who may have commanded a squadron by or- der of the Secretary of the Navy, or performed other highly meritorious service. Opinion of Dec. 27, 1871, 13 Op. 544. 92. Upon examination of the finding of the retiring board in the case of Paymaster Eod- ney, of the Navy, the proceedings in which took place in June, 1871, and were approved by the President August 31, 1871, who at the same time directed that Paymaster R. be re- tired on furlough pay: Advised that the board found the latter incapacitated upon the sol& ground that his peculiar mental temperament unfitted him for active service in the Navy; that his consequent retirement was not ' ' be- cause of misconduct"; and that there is na legal ground for setting aside the proceedings of the retiring board and revoking the order of retirement in his case. Opinion of Feb. 8, 1878, 15 Op. 446. 93. Whether the finding of the board was warranted by the evidence adduced cannot now be inquired into, as no power of review over its proceedings exist. Ibid. 94. Where a Naval retiring board, convened to inquire into the nature and cause of the dis ability of an officer, has once finished its work,, rendered a complete judgment in the case, and adjourned, asubseqtient reconsideration of its judgment by the board, unless authorized or directed by proper authority, can have no legal effect. Opinion of July 25, 1S78, 16 Op. 104. 95. Accordingly, upon examination of the record of the proceedings before a naval retir- ing board, in the case of Paymaster Rodney: Held that the paper attached to the record,, called a reconsideration of the finding of the board, was without legal effect, and that that officer was properly retired, under the original fiuding of the board, on furlough pay. Ibid. X. Pay Corps. 96. Section 1475 Rev. Stat, does not give to a pay-inspector in the Navy the grade of com- mander. It confers upon him the ranloi com- mander by relation (only) to the rank of a line oflicer of that grade. Opinion of Jan. 8, 1880, 16 Op. 415. 97. By the use of the terms ' ' relative rank, ' ' in that section. Congress intended to make the :282 NAVY, XI, XII. .grades of the jjaj' corps of the Navy equal to, but not identical with, the grades of the line ■with which they are by those terms associated. IMd. 98. As generally used in reference to the naval and military service, the word "title" signifies the name by which an office, or the holder of an office, is designated and distin- guished, and by which the officer has a right to be addressed ; ' ' grade, ' ' one of the divisions or degrees in the particular branch of the serv- ice, according to which officers therein are ar- ranged; and "rank," the position of officers of different grades, or of the same grade, in point of authority, precedence, or the like, of one over another. Sometimes ' ' rank ' ' is used as synonymous with ' ' grade, ' ' and the title of an officer (e. g., admiral, vice-admiral) may de- note both his grade and his rank. The desig- nation "pay-inspector" expresses both title and grade in the pay corps: Held accordingly, that a commission in the following form: "John Doe, a pay- inspector from the day of , A. D. 187 — , with the relative rank of commander," gives the appropriate title and grade of the officer named therein, and fully satisfies the requirement of section 1480 Eev. Stat, in that regard. Ibid. XI. Civil Engineers. 99. In December, 1876, the President nom- inated W. to be a civil engineer in the Navy vice G. , removed, and the nomination was con- firmed by the Senate January 9, 1877, on which date he was also commissioned by the President. No notice was sent to G. of his removal or of the appointment of W. in his place. But from the terms of the act of March 2, 1867, chap. 172 (section 1413 Eev. Stat.), providing for the appointment of civil engi- neers, it is to be implied that the service of such officer may be dispensed with when nec- essary. The appointment is local in its char- acter. And although, under section 9 of the act of March 3, 1871, chap. 117 (section 1478 Eev. Stat. ) the President was given a discre- tionary power to conifer relative rank upon civil engineers, this power has never been ex- ercised, and they have no rank by which their relation to the officers or men in the Navy can be determined: Held, accordingly, (1) that ■civil engineers (in the absence of any action by the President conferring upon them rela- tive rank) are not to be considered naval offi- cers, but civil officers; (2) that it was compe- tent to the President, if he deemed the further continuance of G. in the service not advisable, to nominate W. in his place; (3) the confirma^ tion and appointment of W. operated to re- move G., and the fact that the latter received no notice of his dismissal is unimportant. Opinions of August 19, 1876, and September 5, 1876 (15 Op. 165, 597), referred to and com- mented on. Opinion of Nov. 18, 1878, 16 Op. 203. XII. Erilistnient. 100. Enlistments for the naval service for "two years from the time when the ship shall last weigh anchor for sea" are regular for that term, although made before, and the persons enlisting serve awhile in fitting the vessel for sea. Opinion of July 13, 1811, 1 Op. 169. 101. Where a provision of law concerning enlistment in the naval service was merely directory to the Executive Government, and not meant for the protection of individuals: Seld that it did not lie with those who had enlisted to say that the directions contained in the pro- vision had not been obeyed, and that the Exec- utive Government had violated its duty, this being a matter for the consideration of those to whom it is constitutionally answerable for the proper execution of the will of the legislar ture. Hid. 102. The act of March 2, 1837, chap. 21, pro- viding for enlisting boys for the naval service and to extend the term for the enlistment of seamen, does not include the enlistment of marines. Opinion of Aug. 26, 1842, 4 Op. 89. 103. The apprenticeship had in view by Congress relates only to those who may not be called on for military service on the land. lUd. 104. An alien can be enlisted in the naval or Marine Corps service of the United States, and is bound, the same as citizens, to serve for the terra of his enlistment. Opinion of Noil, 20, 1844, 4 Op. 350. 105. An infant is not bound by a contract of enlistment after he attains his full age, if he then repudiate it, even though it were en- tered into with the assent of his guardian for his benefit. Ibid. 106. The enlistment of minors in the naval service above the age of eighteen is valid with- NAVY AaENT— NEGOTIABLE PAPEE. 283 out the consent of the parents or guardians. Opinion of Oct. 4, 1867, 12 Op. 259. 107. There is no statutory provision author- izing the Secretary of the Navy to discharge persons enlisted in the naval service. Ibid. XIII. Regulations. 108. Congress is empowered by the Consti- tution to make rules for the government and regulation of the land and naval forces of the United States. Opinion of April 5, 1853, 6 Op. 10. 109. Provision of statute exists by which the statute regulations of the Army may, •within certain limits, be altered by the Secre- tary of War, but there is no such provision in regard to the statute regulations of the Navy. Ibid. 110. The President and subordinate execu- tive officers, whether military or civil, possess a limited power to establish regulations, pro- vided these be in execution of and supple- mental to the statutes and statute regulations, but not to repeal or contradict existing stat- utes or statute regulations, nor to make pro- visions of a legislative nature. Hence, the "System of Orders and Instructions" for the Navy, issued by President Fillmore as ' ' Exec- utive of the United States, ' ' February 15, 1853, is without legal validity, and in derogation of the powers of Congress. Ibid. 111. Paragraphs 9, 12, and 13 of the Navy Eegnlations of 1876 (page 114) commented on and construed. Opinion of May 21, 1880, 16 Op. 494. NAVY AGENT. 1. The office of Navy agent not having been created by law, there has been no law defining its duties from which to determine whether the Navy agent at New Tork has or has not rendered extra services Opinion of Sept., 1819, 1 Op. 302. 2. In general, it is the duty of the Navy agents to execute such instructions as they may from time to time receive from the Exec- utive Departments. Ibid. 3. The President has no authority, except in the recess of the Senate, to appoint any per- manent agents for the purchase of supplies or for the disbursement of money for the Navy other than those referred to in the act of 3d March, 1809, chap. 28. Opinion of March 10, 1830, 2 Op. 320. 4. The Secretary of the Navy, however, under the act of 1st May, 1820, chap. 52, may contract for clothing and subsistence of the Navy ; and when these supplies are to be fur- nished in places where there is no permanent agent, he must, of necessity, have the power to appoint a special agent to perform the duty. Ibid. 5. "Where the agency is special and tempo- rary the compensation must be regulated by contract. Ibid. 6. The Navy agent at New York is not com- petent to become a purchaser at a sale made • by himself on account of the Government. Opinion of Dec. 2, 1844, 4 Op. 351. NAVY DEPARTMENT. See Executive Departments; Seoebtaey OF THE Navy. NEGLIGENCE. 1. Laches are not imputable to the Govern- ment. Opinion of Oct. 26, 1856, 8 Op. 125. 2. The Government is not responsible in law for negligence of public officers. Ibid. 3. The bailee of a bill of exchange, whether for pay or collection, is held to use due dili- gence in collecting the same or giving notice of its dishonor. Ibid. 4. Negligence in a given case is a question in part of fact, not purely of law. Ibid. NEGOTIABLE PAPER. See also Bill of Exchange; Drafts of Foreign Government. 1. Bills of exchange may be indorsed by one having a power of attorney. Opinion of April 27, 1816, 1 Op. 188. 2. The cost occasioned by non-acceptance of a draft drawn by the charg6 d'affaires at Lima should be paid by the Government if he was authorized to draw it. Opinion of March 23, 1832, 2 Op. 505. 3. Where an assistant quartermaster gave a draft on another assistant quartermaster to A, 28i NEGROES; NEUTKALITY. and A sold it to B, who surrendered it for an authority to draw on the maker for the amount, and afterwards drawing therefor by malting a bill and selling it to C, who caused it to be presented to the drawer of the first draft, on whom process had been served as garnishee at the suit of A: Held that the drawee should disregard such process, and that he pay the draft which he had authorized to be drawn upon him. Opinion of Dec. 8, 1840, 3 Op. 005. 4. When the United States, by their author- ized of&cers, become a party to negotiable paper, they incur all the responsibilities of individuals who are parties to such instru- ments. Opinion of Sept. 1, 1842, 4 Op. 90. 5. As a general rule, when the Government, by its authorized agent, becomes a party to negotiable paper, it has all the rights, and in- curs all the responsibilities, of other parties to such instruments. But exceptions to this rule may become established in the practice of different Departments of the Government. Opinion of July 10, 1856, 8 Op. 1. 6. The practice of the Post-OflBce Depart- ment takes the place of the general law in the question of notice on drafts of the Department. Opinion of Aug. 2, 1856, 8 Op. 24. 7. Where a mail contractor, in 1834, drew a bill upon the Post-OfSee Department which was accepted by the Treasurer, this is not upon its face a contract which makes the drawer primarily debtor to the holder; he is but surety for the acceptor, unless it can be proved that he had no 'funds in the hands of the drawee; that he procured the acceptance and passed the bill away for his own purposes. Opinion of July 21, 1858, 9 Op. 198. 8. In the absence of any proof it will be presumed that the bill was not accepted for the mere accommodation of the drawer, and that presumption is strengthened by evidence which shows that about the time when the bUl is dated a large number of similar bills were drawn and accepted in the same way and sold in the market by the Post-Office Depart- ment for its own use. Hid. 9. If the drawer of the bill was originally liable to the holder, and in equity bound to pay it, but it remained without demand and unacknowledged in the hands of the holder for more than six years, his liability ceased by lapse of time; and if it was afterwards paid by Congress to the holder, that fact would not revive the extinguished liability of the drawer. Ibid. NEG-ROES. 1. Free colored persons are entitled to the benefits of the pre-emption act of September 4, 1841, chap. 16. Opinion of March 15, 1843, 4 Op, 147. 2. Free colored persons are distinguished from aliens, even where slavery exists, and are capable of all the rights of contract and property. Ihid. NEUTRALITY. 1. The arrest by one belligerent of a vessel belonging to another belligerent, vrithin the capes of Delaware Bay: Held to be a seizure on waters of the United States and in violation of their neutrality, and to give rise to the duty of restitution. Opinion of May 14, 1793, 1 Op. 33. 2. It is the right of an enemy to purchase goods and instruments of war of a neutral nation, yet it may be denied by a law passed for that purpose; but if the object of the law were to impede one belligerent power and to favor the other, such conduct would be a breach of neutrality. Opinion of Jan. 20, 1796, 1 Op. 61. 3. A citizen of a neutral State who, for hire, serves on a neutral ship employed in contra- band commerce with either of the belligerent powers, is not liable to any prosecution for so doing by the municipal laws of his own State; nor can he be punished personally by that belligerent nation to whose detriment the trade would operate. But, in such cases, the contraband goods and vessel may be seized and confiscated. Ihid. 4. If a neutral mariner, who renders service in a neutral ship carrying on unlawiul and contraband trade with a belligerent power, cannot be punished for so doing, it may be in- ferred with certainty that such neutral mar- iner, rendering the like service in an enemy ship employed in lawful commerce with the neutral country, ought not to be "punished, unless the service be rendered in a ship at- tached to, and made part of, the hostile arma- ment with intent to aid the hostility. lUd. NETITEALITY. 2S6 5. It is not illegal I'or a sliip-owner to sell liis vessel and cargo to a citizen of Buenos Ayres, though it would be otherwise if such vessel was furnished with intent to serve a foreign State in committing hostilities with another with which we are at peace. Opinion of July 27, 1816, 1 Op. 190. 6. A vessel fitted out at Savannah with armament, munitions, and sea stores, and afterwards found with a commission from the republic of Venezuela to cruise against the subjects of the King of Spain, and having sailed on such a cruise, but under an- other name, is seized at Savannah on the charge of having been fitted out in a port of the United States to cruise against the King of Spain, is a fit case for adjudication, and not one calling for the interference of the Govern- ment. Opinion of Sept. 10, 1818, 1 Op. 232. 7. Columbian vessels are entitled, under the treaty with that republic, to make repairs in our ports when forced into them by stress of weather; but they cannot enlist recruits there either from among our citizens or foreigners, except such as may be transiently within the United States. Opinion of July 16, 1825, 2 Op. 4. 8. It is not a breach of neutrality to permit a Spanish merchantman, captured as a prize by a Mexican war vessel, and brought by the latter into an American port unseaworthy, to be repaired and put in a condition to be car- ried home to a port of the captor for adjudica- tion. Opinion of 3Iay 3, 1828, 2 Op. 86. 9. There is high authority for the position that a prize may be brought into a neutral port and sold without violating the law of nations concerning neutrality ; but as there is no doubt of the authority of the neutral sov- ereign to prohibit such sale, and as the strongest considerations of expediency and safety urge him to do so, the better course is clearly to prohibit them. Ihid. 10. It would be a breach of neutrality to permit a neutral port to be made a cruising statiQn for a belligerent, or a depot for his spoils and prisoners. Iliid. 11. The building of two schooners of war in New York for the Mexican Government, and being about to be furnished with guns and the usual military equipments, is clearly within the third section of the act of April 20, 1818, chap. 88. Opinion of Dec. 29, 1841, 3 Op. 739. 12. These vessels having been built expressly for the service of Mexico, which is waging war against Texas, the persons are liable to the penalties of the act and the vessels to forfeiture. Ihid. 13. The policy of this country is, and ever has been, perfect neutrality and non-interfer- ence in the quarrels of other nations. Ibid. 14. If such vessels, however, were not deliv- ered, nor the property changed, within our jurisdiction, but were sent out of the port un- der control of our own citizens unarmed, and every possible precaution was taken to insure pacific conduct on the high seas, the doctrine above laid down, though reaflBrraed, does not as fully apply to the case now presented as was supposed Irom the first statement of the case. Opinion of Jan. 8, 1842, 3 Op. 741. 15. The act of April 20, 1818, chap. 88, like that of June 5, 1794, chap. 50, was intended to secure, beyond all risk of violation, the neu- tral and pacific policy which they consecrate as our fundamental law. Ibid. 16. The enlistment of seamen or others for marine service on Mexican steamers in the port of New York, they not being Mexicans tran- siently within the United States, is a clear violation of the second section of the act of April 20, 1818, chap. 88, to preserve and vin- dicate the neutrality of the United States, and the persons enlisted, as well as the oflS- cers enlisting them, are liable to the penalties thereby incurred. Opinion of Sept. 30, 1844, 4 Op. 336. 17. The repair of Mexican war steamers in the port of New York, together with the aug- menting of their force by adding to the num- ber of their guns, or by changing those origi- nally on board for those of larger caliber, or by the addition of any equipment solely appli- cable to war, is a violation of the fifth section of the same act. Ihid. 18. But the repair of their bottoms, copper, &c., does not constitute any intrease or aug- mentation of force within the meaning of the act, and the steamers themselves are not sub- ject to seizure by any judicial process under it. Ibid. 19. Commanders and oflicers of -iessels of other nations found to have violated the statute in question are amenable to the criminal juris- diction of our courts, and may be prosecuted. Ihid. 286 NETJTEALITY. 20. The puroliase and fitting out a war steamer by the German Government in the port of New York whilst a state of war exists between that Government and Denmark, and which is adapted for cruising and committing hostilities against the property or subjects of the latter, is contrary to the provisions of the third section of the act of 20th April, 1818, chap. 88. Opinion of April 28, 1849, 5 Op. 92. 21. The act makes no difference between the degrees of intent with which a vessel shall be fitted out; any intent to commit hostilities against a nation with which the nation fitting her oat is at war is within its prohibiiions. Ibid. 22. Belligerent ships of war, privateers, and the prizes of either, are entitled, on the score of humanity, to temporary refuge in neutral waters from casualties of the sea and land. Opinion of April 28, 1855, 7 Op. 123. 23. By the law of nations, belligerent ships of war, with their prizes, enjoy asylum in neu- tral ports for the purpose of obtaining supplies or undergoing repairs, according to the discre- tion of the neutral sovereign, who may refuse the asylum absolutely, or grant it under such conditions of duration, place, and other cir- cumstances, as he shall see fit, provided that he must be strictly impartial in this respect towards all the belligerent powers. IMd. 24. Where the neutral state has not signified its determination to refuse the privilege of asy- lum to belligerent ships of war, privateers, or their prizes, either belligerent has a right to assume its existence, and enter upon its enjoy- ment, subject to such regulations and limita- tions as the neutral state may please to pre- scribe for its own security. Ibid. 25. The United States have not by treaty with any of the present belligerents bound them- selves to accord asylum to either; but neither have the Uuited States given notice that they will not do it; and of course our ports are open, for lawful purposes, to theships of warof either Great Britain, France, Russia, Turkey, or Sar- dinia. Ibid. 26. A foreign ship-of-war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the rights of exterritoriality, and is not subject to the local jurisdiction. Ibid. 27. A prisoner of war, on board a foreign man-of-war, or her prize, cannot be released by habeas corpus issuing from courts either of the United States or of a particular State. But, if such prisoner of war be taken on shore, he becomes subject to the local j urisdiction or not, according as it may be agreed between the po- litical authorities of the belligerent and the neutral power. Ibid. 28. Miscellaneous expenditures, incurred by order of the State Department for the purpose of preserving the neutrality of the United States, are chargeable to the funds of that Department. Opinion of Aug. 24, 1855, 7 Op. 398. 29. If agents of the British Government, consuls, or others, being instructed to enlist military recruits, succeed by ingenious devices in evading the municipal law, and so escaping punishment as malefactors; such successful eva- sion of the municipal law serves to increase the intensity of the international wrong done to the United States. Letter of instriictions to Dis- trict Attorney-, Sept. 12, 1835, 8 Op. 468. 30. The doctrine of the right of neutrals to purchase the ships of belligerents reaflSrmed. Opinion of Oct. 8, 1855, 7 Op. 538. 31. TheSecretaryof the Treasury may regu- late in such case the authentication of the bill of sale, which is the highest evidence of the change of property. Ibid. 32. Instructions regarding combinations ia the United States for the invasion of Ireland. Letter to District Attorney, Dec. 8, 1855, 8 Op. 472. 33. The organization in one country or state of combinations to aid or abet rebellion in another, or in any olher way to act on its political institutions, is a violation of national amity and comity, and an act of semihostUe interference with the affairs of other people. Opinion of Dec. 2, 1856, 8 Op. 216. 34. But there is no municipal law to forbid and punish such combinations either in the United States or in Great Britain. Ibid 35. Relation of the President of the United Stixtes to prosecutions on account of illegal military expeditions. Letter of instructions to- District Attorney, Feb. 7, 1857, 8 Op. 375. 36. Prosecution of parties engaged in re- cruiting troops at New York for military serv- ice in Central America. Letter of instructions to District Attorney, Feb. 8, 1837, 8 Op. 376. 37. The district attorney should not be in- NEUTRAL TERRITORY — OFFICE, I. 287" stmcted, in the case of the "Meteor," to con- sent to the bonding of the vessel. Opinion of March 30, 1866, 11 Op. 444. 38. When a court of the United States, in the exercise of its discretion, has advisedly de- termined to permit a vessel libeled for viola- tion of the neutrality laws to be released on bond, the executive department of the Gov- ernment has no power or duty to interfere ■with the proceedings. Opinion of Aug. 4, 1866, 12 Op. 2. 39. Upon the facts of the case of the steam- ship "E. R. Cuyler," it appears that this ves- sel was prematurely and without probable cause libeled for violation of the neutrality laws, and she should be released on the owners giving the bond required by the ninth section of the act of April 20, 1818, chap. 88. Opin- ion of Feb. 11, 1867, 12 Op. 113. 40. Upon the representations of the Spanish minister in reference to the steamship " E. E. Cuyler, ' ' the Attorney-General finds it unnec- essary to advise any action in addition to that heretofore taken in regard to her, pursuant to his previous opinion on the subject. Opinion of Feb. 28, 1867, 12 Op. 318. 41. Judicial proceedings should not be in- stituted by the United States, under the third section of the act of April 20, 1818, chap. 88, against certain gun-boats building in New York for the Spanish Government, and which, there is reason to believe, are to be employed by that Government against Cuba. The provisions of that section examined, and shown to be inap- plicable, in view of all the circumstances, to the case considered. Opinion of Dec. 16, 1869, 13 Op. 177. 42. Proof that a vessel transported from Aspinwall to the coast of Cuba men, arms, and munitions of war, destined to aid the Cuban insurgents, is insufficient, by itself, to warrant proceedings against such vessel for violation of the neutrality la w of th e United States. Opin- ion of Dec. 4, 1871, 13 Op. 541. 43. After examination of the papers sub- mitted in the case of the steamer ' ' Virginius, ' ' and upon consideration of the information fur- nished thereby: Advised that the facts pre- sented do not establish any breach of the neu- trality laws, either by the owner of the steamer or by the persons engaged thereon. Opinion 0/ June 5, 1872, 14 Op. 49. NEUTRAL TERRITORY. 1. The arrest of the ship Grange within the capes of the Delaware was a seizure in neutral territory, and the attack of an enemy in neu- tral territory is absolutely unlawful. Resti- tution of the ship should be made. Opinion of May 14, 1793, 1 Op. 33. 2. The neutrality of the Delaware does not depend on any of the various distances claimed , in the sea by different nations possessing the neighboring shore, for here the treaty of Paris and the natural law of nations will justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon, shot. 1 bid. OATH OF ALLEGIANCE. It is the duty of the Secretary of the Inte- rior to cause the oath of allegiance, prescribed by the act of August 6, 1861, chap. 62, to be administered to tlje Board of Police created for the District of Columbia by the statute of the same date. , Opinion of Aug. 22, 1861 , 10 Op_ 104. OFFICE. See also Compensation. I. Appointment. II. Acceptance. III. Oath of Office. IV.- Term and Tenure. V. Holding Over. VI. Performing Duties of more than one Office. VII. Plurality of Offices. VIII. Eligibility. — Disability. IX. Suspension. — Removal. X. Besignation. XI. Abeyance. — Vacancy. XII. Office of Trust. I. Appointment. 1. The President cannot appoint a commis- sioner to make a treaty with Indians, for the purpose of extinguishing their title to lands- within the United States, without the advice of the Senate. Opinion of May 26, 1796, 1 Op.. 65. 288 OFFICE, 1. 2. The President has power to nominate to "the Senate a suitaWe person I'or the office of brigadier-general of the militia of the North- west Territory. Opinion of April 12, 1810, 1 Op. KiS. 3. The President has power to fill, during a recess of the Senate, by temporary commission, a, vacancy that occurred by expiration of com- mission during a previous session of that body, the term in the Constitution, "may happen during the recess," being equivalent to "may happen to exist d\iring the recess," without which interpretation it could not be executed in its spirit, reason, and purpose. Opinion of Oct. 22, 1823, 1 Op. 631. 4. The appointment of a navy agent during the recess of the Senate, made in the case of a vacancy occurring during the recess, is in the exercise of the constitutional power of the President, and not by force of the act of 3d of March, 1809, chap. 28; and the limitation of such appointment is to the end of the succeed- ing session of Congress, unless it be sooner de- termined by the acceptance of a new commis- sion under an appointment made by and with the advice and consent of the Senate. Opin- ion of April 2, 1830, 2 Op. 333. 5. The exercise of the power of the President to till vacancies during a recess of the Senate is not limited to those which occur during a recess. Opinion of July 19, 1832, 2 Op. 525. 6. The Senate cannot originate an appoint- ment ; its constitutional action is confined to a simple affirmation or rejection of the Presi- dent's nominations ; and such nominations i'ail whenever it disagrees with them. Opin- ion of March 29, 1837, 3 Op. 189. 7. The Senate may suggest conditions and limitations to the President, but cannot vary those submitted by him ; for no appointment can be made except on his nomination, agreed to by the Senate without qualification or alter- ation. Ibid. 8. Accordingly, in the case of John E. Cox, jr., nominated for lieutenant in the Navy from date, and confirmed with the qualification that he shall take rank next after Lieutenant E. Peck, held that a commission cannot prop- erly issue. Ibid. 9. The arrangements for an exploring ex- pedition being at the discretion of the Presi- dent, he may appoint and employ a medical assistant thereto without the formality of an examination and approval by the board of sur- geons. Opinion of Oct. 5, 1837, 3 Op. 289. 10. The President and Senate, by nomina- tion and confirmation, may correct the date of military appointments, even after as great a lapse of t-ime as has occurred in the case of Captain Twiggs. Opinion of March 9, 1838, 3 Op. 307. 11. The commissions of the receivers-gen- eral, appointed under the act of the 4th of July, 1840, chap. 41, should be made out, sealed, and recorded at the State Department. Opinion of .July 15, 1840, 3 Op. 569. 12. The liabilities consequent upon a reap- pointment to an office already held do not commence until the term commences for which such reappointment is made. Opinion of 3farch 3, 1841, 3 Op. 626. 13. The Constitution authorizes the Presi- dent to fill vacancies that may happen during the recess of the Senate, even though the va- cancy shall occur after a session of the Senate shall have intervened. Opinion of Oct. 22, 1841, 3 Op. 673. 14. The commission of an ofiScer appointed during a recess of the Senate, who is after- wards nominated and rejected, is not thereby determined, nor his sureties released from liar bility on account of any subsequent breach of his oflaeial bond. Opinion of 3Iay 20, 1842, 4 Op. 30. 15. Under the act of 27th February, 1801, chap. 15, he is authorized to make an original appointment of a justice of the peace during a recess of the Senate for the District of Colum- bia. Opinion of April 13, 1843, 4 Op. 174. 16. After a confirmation by the Senate of a nomination, the President may, in his discre- tion, withhold a commission. Opinion of Aug. 9, 1843, 4 Op. 218. 17. The executive department being charged with the duty of seeing that the laws are faithfully executed, has authority to appoint commissioners and agents to make investiga- tions required by acts or resolutions of Con- gress ; but it cannot pay them, except from an appropriation for that purpose. Opinion of Sept. 21, 1843, 4 Op. 248. 18. The President cannot appoint district judges, attorneys, and marshals, during a re- cess of the Senate, for newly admitted States, 289 ■where the offices were created and took effisct dnring the session of that body. Opinion of April 18, 1845, 4 Op. 363. 19. If vacancies are known to exist during the session of the Senate, and nominations are not then made to fill them, they cannot he flUed by the Executive during the subsequent recess. Ibid. 20. The President is authorized to fill up Ta lands or bonds to the Central Branch Union Pacific Eailroad Company for the construc- tion of a railroad from the present western terminus of its road (one hundred miles from the Missouri Eiver) to the main trunk of the Union Pacific Eailroad. Opinion of June 3, 1871, 13 Op. 430. 11. The act of July 2, 1864, chap. 216, being in express terms amendatory of the act of July 1, 1862, chap. 120, incorporating the Union Pacific Eailroad Company, both these acts constitute in legal contemplation but one statute, and are to be read and construed 304 PACIFIC EAILROADS. together as such. Opinion of May 8, 1873, 14 Op. 233. 12. Regarding them in that light, the re- quirement contained in tlie former, that "one- half of the compensation for services rendered for the Government" by that company should he applied to the payment of the bonds issued by the Government thereto, embraces not only railroad and telegraph service, but bridge service also. Ibid. 13. The second section of the act of March 3, 1873, chap. 266, extends to the road of the same company over the bridge at Omaha ; and when the circumstances exist which bring it into operation — viz, payment of interest by the Government and failure to reimburse by the company — all compensation on account of freight and transportation over the bridge is to be withheld ; but when those circumstances do not exist, the provision in the act of 1864, requiring a reservation of one-half compensa- tion, becomes applicable to such service. Ibid. 14. Accordingly, one-half of the compensa- tion for transportation performed for the Gov- ernment by said company over its bridge at Omaha should be withheld and applied to the payment of the bonds issued by the Govern- ment to the company, except in the case pro- vided for by the second section of the act of 1873, when all compensation for such service must be withheld. Ibid. 15. The Secretary of the Treasury has au- thority, under the second section of the act of March 3, 1873, chap. 226, to withhold pay- ments for transportation services rendered by the Sioux City and Pacific Railroad Company to the United States over the Fremont, Elk- horn, and Missouri Valley Railroad, a, road leased by that company, in case of default on the part of the company to reimburse the Gov- ernment lor interest paid upon the bonds of the United States issued thereto. Opinion of Feb. 24, 1874, 14 Op. 375. 16. Inquiry being made whether tjie Union Pacific Railroad Company should be paid the compensation for mail transportation fixed by Congress for railroads generally, or should be paid as compensation therefor what is paid by private parties for service of a similar kind, and also whether that company is subject to the reduction of compensation provided in the act of July 12, 1876, chap. 179: Adcised that (until a final and authoritative judicial deter- mination of the questions raised) the Postmas- ter-General apply the same rules in dealing with that company which Congress has made applicable to railroad companies in general. Opinion of Feb. 16, 1877, 15 Op. 610. 17 Section 6 of the act of July 1, 1862, chap. 120, leaves the United States free, as against the Union Pacific Company, to resort to either the general rights which they have against all railroad companies or the special rights therein provided. Ibid. 18. Interest on the bonds issued by the Union Pacific Railroad Company under the act of February 24, 1871, chap. 67, commonly known as the "Omaha bridge bonds," is not to be deducted from the gross earnings of tliat company in ascertaining its net earnings. Opinion of Jan. 7, 1879, 16 Op. 240. 19. Under section 2, act of May 7, 1878, chap. 96, all compensation due for transporta- tion for the Quartermaster's Department per- formed over such portions of the Union and Central Pacific Railroads as were built with the aid of Government bonds should be re- tained. And advised that all compensation due to the same roads (they being indebted to the United States upon subsidy bonds) for such transportation performed over those portions of roads owned, leased, controlled, and operated thereby, which were not built with the aid of Government bonds, be also retained, so that the question involved as to such portions of roads can be judicially determined. Same advice, on similar grounds, given in regard to compensation due for transportation performed over the Kansas Pacific, Denver Pacific, and Union Pacific consolidated, and in regard to compensation due for transportation performed over the Sioux City and Pacific and the Cen- tral Branch Union Pacific Railroads, and over lines owned, leased, controlled, and operated thereby. Opinion of June 11, 1880, 16 Op. 517. 20. Under section 52G0 Rev. Stat., all com- pensation due for transportation for the Quarter- master's Department performed over the Kan- sas Pacific Railroad (as well over that portion which was not as over that portion which was built with the aid of Government bonds) should be withheld. Ibid. PARDON. 305 PARDON. 1. In Tiew of the facts appearing in the case of John Mitchell, charged with robhing the mail, &c. . Advised that the consideration of the application for pardon be postponed until after the trial of petitioner. Opinion of March 9, 1795, 5 Op. 687. 2. The district attorney may assure a par- don to a counterfeiter who shall disclose his accomplice and produce the plates and counter- feited paper. A mere disclosure of the name of the accomplice seems not to be enough. Opinion of Nov. 18, 1797, 1 Op. 77. 3. The President may mitigate a sentence of death pronounced by a naval court-martial by substituting a milder punishment in its stead. Opinion of Jan. 4, 1820, 1 Op. 327. 4. The power of absolute pardon given to the President by the Constitution includes the power of issuing a conditional one. Yet there is great danger that conditional pardons may result as absolute ones from the difficulty of enforcing conditions after the offender shall have been released from the custody of the law. Opinion of March 30, 1820, 1 Op. 342. 5. The condition, in order to be effectual for any purpose, must be such that a resort need not be had to the power of arrest in the origi- nal case. Ibid. 6. Pardons may be issued before conviction. They presuppose an offense, and nothing more; and there is neither any constitutional nor legal provision which requires them to be pre- ceded by a trial, a verdict, or a sentence. They may be founded on a confession in writing. Ibid. 7. Where the accused — who has been con- victed of piracy, and the questions of law arising upon the facts in the case were referred to the Supreme Court and decided against him — sets forth in his petition for pardon an ex parte statement of facts which, if true, would show him to have been improperly con- victed, the President is neither required nor authorized to inquire into the truth of the alleged facts, or to grant a pardon on the assumption that they are true. To do either would be an abuse of the pardoning power. Opinion of May 9, 1820, 1 Op. 359. 8. The President advised to withhold a par- don in a particular case on grounds set forth in the opinion. Opinion of Jan. 31, 1821, 5 Op. 729. 9. The President may grant a, conditional pardon provided the condition be compatible with the genius of our Constitution and laws. Opinion of Aug. 16, 1821, 1 Op. 482. 10. "Where an assistant postmaster was con- victed of taking the property of another, and it appears that he has become reformed, a par- don is recommended. Opinion ofJnly 21, 1829, 2 Op. 249. 11. It is generally inexpedient for the Presi- dent to grant a pardon before the applicant is tried. Where an applicant was indicted for murder, the fact that his trial cannot -take place at the first term of court to be held after the indictment was found is not sufficient ground for a pardon. Opinion of Oct. 12, 1829, 2 Op. 275. 12. The pardoning power is coextensive with the power to punish, and is general and un- qualified, except only in the cases of impeach- ments and proceedings for contempts; and it consequently includes the power of remission of fines, penalties, and forfeitures under the revenue laws. The power, however, does not go to the length of making restitution of fines, penalties, and forfeitures after they have been actually paid into the Treasury. Opinion of March 17, 1830, 2 Op. 330. 13. The power of the Executive to grant re- prieves and pardons extends to the remission of fines, penalties, and forfeitures, and costs in criminal cases, and may be exercised in de- grees at different times, at the discretion of the President. Opinion of Feb. 16, 1839, 3 Op. 418. 14. And the same power is possessed by the President over a judgment, after security for its payment shall have been given as well as before. Ibid. 15. And it extends to fines imposed upon in- dividuals for conduct adj udged to be contempts of the circuit courts. Opinion of Feb. 27, 1841, 3 Op. 622. 16. Jenkins, a slave, imprisoned under a sentence of the circuit court for the county of Washington, in the District of Columbia, for a second offense against the act of March 2, 1831, chap. 37, is a proper subject for the ex- ercise of the pardoning power. Opinion of Aug. 25, 1843, 4 Op. 237. 17. The act includes " every person, " and DIG- 20 306 PARDON. therefore makes no distinction between slvesa and free persons who may offend against its provisions. Ihid. 18. The pardoning power authorizes the President to remit a fine imposed upon a citi- zen for contempt in neglecting to serve as a juror. Opinion of April 15, 1844, 4 Op. 317. 19. There being no decisive proof of the guilt of the convict, concurrent representa- tions of various and highly respectable persons as to his innocence may properly be taken into consideration in determining the propriety of clemency, and, if satisfactory, will abundantly justify the exercise of the pardoning power. Opinion of May 3, 1844, 4 Op. 325. 20. In mitigating the sentence of a naval court-martial the President may substitute a suspension for a term of years without pay for an absolute dismissal irom the service, as sus- pension is but an inferior degree of the same punishment. Opinion of Sept. 18, 1845, 4 Op. 433. 21. But the power does not extend to the substitution of another punishment for that decreed by the court. Therefore the Presi- dent cannot suspend the pay of an officer under sentence of court-martial whose pay was not suspended by the court. Opinion of Oct. 16, 1845, 4 Op. 444. 22. The pardoning power, except in the single instance in which it was withheld by the Constitution, is co-extensive with the pun- ishing power, and applies as well to punish- ments imposed for contempt of the process of the United States as for the violation of any other law. Opinion of Nov. 28, 1845, 4 Op. 458. 23. As there is* reason to doubt the guilt of the Indian See-see-sah-ma, who is under sen- tence of death for murder, his case presents a very proper occasion for the exercise of Execu- tive clemency, either hy general pardon or by a commutation of the punishment to which he has been sentenced. Opinion of May 10, 1851, 5 Op. 368. 24. The sentence of the Indian See-see-sah- ma having been commuted to imprisonment for life in the penitentiary, he stands in pre- cisely the same legal condition as if he had been sentenced by the court to imprisonment for life in the penitentiary of the State of Mis- souri. Opinion of May 28, 1851 , 5 Op. 370. 25. It is not competent for the President, in the exercise of the pardoning power, to remit pecuniary penalties attached to an offense, un- less those penalties accrue to the United States. Opinion of April 22, 1852, 5 Op. 533. 26. The punishment in the District of Colum- bia for the unlawful transportation of slaves, by the laws of Maryland applicable to the Dis- trict, is by fine, which the statute appropriates, and cannot be remitted by the President. Hid. 27. The President, in the exercise of the pardoning power vested in him by the Consti- tution, may remit penalties and fines adjudged in the circuit court of the District of Colum- bia against parties convicted of aiding the escape of slaves from their masters and dis- charge them from imprisonment; or he may merely discharge them from imprisonment without remitting the fines. Opinion of Aug. 4, 1852, 5 Op. 580. 28. The President of the United States has the constitutional power to pardon as well be- fore trial and conviction as afterwards; but it is a power only to be exercised with reserve, and for exceptional considerations. Opinion of April 15, 1853, 6 Op. 20. 29. The appointment of an ofacer of the Ma- rine Corps to a new commission is constructive pardon of a previous sentence pronounced but not yet executed. Opinion of Sept. 20, 1853, 6 Op. 123. 30. The pardoning power of the President extends to all cases of penalties and forfeitures, as well as other punishment, provided by the acts of Congress regulating the transportation of passengers in merchant vessels. Opinion of March 24, 1854, 6 Op. 393. 31. After return of execution on scire facias against the surety of an absconding criminal charged with violation of acts of Congress, the only mode of relieving the surety is by exer- cise of the pardoning power of the President. Opinion of April 3, 1854, 6 Op. 408. 32. The governor of the Territory of Utah has power to reprieve, but not to pardon, per- sons indicted and convicted for crime against the United States. Opinion of April 14, 1854, 6 Op. 430. 33. Whether the President can, through the exercise of the power to pardon, lawfully dis- charge a prisoner confined for non-payment of a penalty accruing as indemnification to the individual injured by the prisoner's act, diibi- tatur. Opinion of July 19, 1854, 6 Op. 615. PARDON. 307 34. The order of the Secretary of the Navy to an o£Seer, while under sentence of suspen- sion, to attend a court-martial as a witness, does not operate as a constructive pardon. Opinion of Sept. 12, 1854, 6 Op. 714. 35. The President of the United States alone has the power to pardon oflenses committed in a Territory in violation of acts of Congress. Opinion of Oct. 19, 1855, 7 Op. 561. 36. The President has no power, by a supple- mental or special pardon, to relieve a Federal convict of legal or political disabilities imposed on such convict by the laws of one of the States, where a general pardon does, not of itself re- move the disability. Opinion of July 9, 1S56, 7 Op. 760. 37. The constitutional power of the Presi- dent to pardon extends to all the elements of the subject-matter, including as well pecuniary penalties as other methods of punishment of any Federal offense, except in the case of im- peachment, and it cannot be controlled or cur- tailed by act of Congress. Opinion of Jan. 1, 1857, 8 Op. 281. 38. But when a pecuniary penalty, accru- ing to the United States, has been actually paid into the Treasury, although it may be re- mitted of right by the President, still by reason of constitutional prohibition, which is coequal in force with the constitutional power to par- don, the amount of the penalty cannot be drawn from the Treasury without appropria- tion by act of Congress. Ibid. 39. A person disfranchised as a citizen, by conviction for crime, under the laws of the United States, can be restored to his rights by a pardon issued before or alter he has suffered the other penalties incident to his conviction. Opinion of Sept. 22, 1860, 9 Op. 478. 40. The President's remission of a fine after it has been paid is of no effect. Opinion of Jan. 3, 1861, 10 Op. 1. 41. The power of the President to pardon offenses against the United States does not embrace any case of forfeiture, loss, or condem- nation, not imposed by law as a punishment for an offense. He cannot, by virtue of that grant of power, surrender or give away the pecuniary or proprietary rights and interests of the United States. Opinion of Feb. 9, 1863, 10 Op. 452. 42. The powers of the President, in this re- spect, cannot be enlarged by analogy to the power of an English King, as the powers of the two have tlieir origin and mode of exist- ence in different and opposite principles. Ibid. 43. In some of the States the governors have power, by constitutional grant, to remit fines and forfeitures, as well as to grant reprieves and pardons. Ibid. 44. The condemnation of a vessel and cargo, in a prize court, is not a criminal sentence. No person is charged with an offense; and so, no person is in a condition to be relieved and reinstated by a pardon. Ibid. 45. The constitutional power of the Presi- dent ' ' to grant reprieves and pardons for of- fenses against the United States, except in cases of impeachment," considered and com- mented on. Opinion of May 8, 1865, 11 Op. 227. 46. The effect and operation of a pardon issued by the President stated. Opinion of Nov. 2, 1866, 12 Op. 81. 47. A pardon by the President will restore an officer, whose rank has been reduced by sentence of a court-martial, to his former rela- tive rank according to the date of his commis- sion. Opinion of Jan. 22, 1869, 12 Op. 547. 48. Applications for pardon are addressed to the President, who may act on them upon his own examination simply, or, before acting thereon, may refer them to any of the Execu- tive Departments for advice. Opinion of Blarch 23, 1872, 14 Op. 20. 49. An application ha-s-ing been with that view referred by the President to the Secretary of War, and the latter having afterward sub- mitted the same to the Attorney-General for his opinion thereon, the Attorney-General de- clined to give an opinion on the ground that to do so would be merely to advise the Secre- tary as to what he should advise the President. Ibid. 50. Where a person convicted of a crime against the United States was sentenced to fine and imprisonment, and subsequently received an unconditional pardon from the President, but previous thereto had paid the amount of the fine to the marshal, by whom it was de- posited in court, where it still remains: Held that the fine was remitted by the pardon, and that the money should now be restored to the person pardoned. Opinion of June 28, 1872, 14 Op. 599. 51. A pardon by the President works a re- 308 PARTNERSHIP ASSETS ; PASSENGER LAWS. mission of a pecuniary penalty already paid, unless the money has ai.'tually passed into the Treasury (overruling the decision in 10 Op. 1). lUd. 52. The President may grant a conditional pardon, and he may remit ft, part of the pen- alty or punishment without remitting the whole. Opinion of Oct. 3, 1872, 14 Op. 124. 53. Hence he can pardon a deserter so as to re-enfranchise him [i. e., remove the disabili- ties imposed by section 21 of the act of March 3, 1865, chap. 79), and at the same time make the pardon conditional upon his not becoming thereby entitled to any moneys forfeited ; and a condition of this sort would exclude any right to the pay referred to in the joint resolu- tion of March 1, 1870 (No. 18). Ibid. 54. M., having been convicted in a Federal court of an offense against the United States, was, in April, 1876, sentenced by the court to pay a fine of $1,000. He paid the fine and subsequently applied for a pardon, which was granted January 27, 1877, at which time the money received in payment of the fine had not been covered into the Treasury. The pardon was a full and unconditional one, but con- tained no clause of restitution: Seld that if the money paid in satisfaction of the fine has not yet been covered into the Treasury, but still remains under the control of the Execu- tive, the same should be restored to M. Opin- ion of April 29, 1878, 16 Op. 1. 55. Where the pardon is full and unquali- fied, express words of restitution in the pardon are not needed to entitle its recipient to resti- tution. The right thereto results by the mere effect of such a pardon. Ihid. 56. The organic act of Dakota Territory (see section 2, act of March 2, 1861, chap. 239; also section 1841 Rev. Stat.) confers upon the gov- ernor the power to pardon offenses against the laws of the Territory without any restriction •or limitation whatever; -and this power the Territorial legislature cannot limit or restrict, nor can its c-.xercise by the governor be in any respect controlled thereby. Opinion of June 3, 1878, 16 Op. 28. r," Certain provisions in the Kevised Code of Dakota, 1877, namely, sections 544, 545, 547, 548, 549, and 551, considered in connec- tion with the pardoning power oi'the governor, some of which (sections 544, 545, 547, and 551) are deemed objectionable, as being in conllict with the organic act, while others (sections 547, 548) are regarded as unobjectionable. Ibid. PARTNERSHIP ASSETS. It is a settled rule that the assets of a part- nership are not to be applied to the payment of the private debts of either partner until after the partnership debts are discharged; and this is more emphatically the case where the private debts were contracted after the disso- lution. Opinion of Aug. 26, 1837, 3 Op. 287. PASSENGER LAWS. 1. Vessels propelled by steam, and employed in the transportation of passengers by sea be- tween Panama and San Francisco, are within the provision of the acts of Congress regulat- ing the transportation of passengers in mer- chant vessels. Opinion of March 24, 1854, 6 Op. 393. 2. In cases of mere forfeiture or other pen- alties accruing to the Treasury under the acts of Congress relative to the transportation of passengers, the Secretary of the Treasury may remit, as in similar cases arising under the revenue laws. Opinion of May 31, 1854, 6 Op. 488. 3. This does not exclude the general power of the President to pardon; and where, under the same passenger laws, personal punishment is infiicted, the case can be reached only through the pardoning power of the President. Ibid. 4. The Secretary of the Treasury, and not the President, has power to remit the forfeit- ure of a vessel incurred by violation of the second section of the act of July 7, 1838, chap. 191, for the better security of the lives of pas- sengers on steam vessels. Opinion of Oct. 27, 1864, 11 Op. 122. 5. A judgment entered on a bond given and accepted as a substitute for a vessel seized for a violationof theactof July7, 1838, chap. 191, is incapable of being affected by any action of the President, who cannot invalidate such judgment, or in any way impair its force and effect against the stipulators. Ibid. PASSPORT; PATENT OFFICE. 309 PASSPORT. 1. A passport issued by an unauthorized person substantially in the form used by the State Department is within the letter of sec- tion 23 of the act of August 18, 1856, chap. 127. Opinion of June 22, 1859, 9 Op. 350. 2. The prohibition contained in that act is not confined to the issuing and verifying of such passports or certificates in foreign coun- tries, but applies equally to State and Federal functionaries residing there. Ibid. 3. A passport cannot be issued to any other than a citizen of the United States. Jhid. 4. There is no form of certificate in the na- ture of a passport which can be issued lawfully by a State ofiicer. Ibid. 5. By the act of March 3, 1863, chap. 79, the Secretary of State has power to issue passports to any class of persons liable to military duty by the laws of the United States. Opinion of Aug. 17, 1863, 10 Op. 517. 6. Where application was made to the De- partment of State for passports for five persons residing in the island of Curagoa, four of whom were born in that island, and one in the island of St. Thomas, and all of whom were children of native citizens of the United States, but it did not appear that any of the applicants had ever resided or intended to re- side in the United States: Adoised that the applicants are not entitled to passports. Opinion of June 12, 1869, 13 Op. 90. 7. Semble that the granting of passports is not obligatory in any case, but is only per- mitted where not prohibited by law. Ibid. 8. A Spanish subject by birth was natural- ized in the United States in Februaiy, 1876, and thereupon his son, aged twenty, who was born in the island of Cuba, applied to the State Department for a passport, stating that he had resided in the United States lor five years, but that it was his intention to reside in the country of his nativity and engage in business there: Held that the son, being a minor at the time of the naturalization of his father, must be considered a citizen of the United States within the meaning of section 2172 Kev. Stat., and that no ground exists for withholding the issue of a passport to him on the score of nationality : Held, further, that the circumstance that he intends to return to and reside in the country of his birth does not make him less entitled to a passport than if his intended destination were elsewhere. Opinion of June 7, 1876, 15 Op. 115. 9. The laws of the United States authorize the issue of passports to all citizens thereof, without distinction, whether native-born or naturalized. Ibid. 10. Accordingly, when a naturalized citizen applies for a passport, though with a view to traveling or residing in the country of his former nationality, his right to have the pass- port issued to him is just as obligatory upon the State Department as if he were a native- horn citizen intending to go to the same country. Ibid. PATENT OFFICE. 1. The Commissioner of the Patent Office is subordinate to, and subject to the control of, the Secretary of the Interior in the appoint- ment and payment of such temporary clerks in that ofiice as are authorized by law; and it makes no difference whether the money so to be disbursed is apijropriated from fees or from the agricultural or any other fund. Opinion of Bee. 7, 1850, 5 Op. 283. 2. The necessary cases for the proper exhi- bition and arrangement of models and deposits intended lor the Patent Office may be pro- cured either by a contract for the whole or for part, or by purchases. Opinion of Bee. 28, 1852, 5 Op. C63. 3. The "patent fund" is expressly appro- priated by law for payment of the salaries of officers and clerks, and other expenses of the Patent Office, and contracts for necessary ex- penses may be paid out of that fund without other appropriation. Ibid. 4. The salaries of all clerks in the Patent Office, like its other expenditures, are to be defrayed out of the patent fund. Opinion of March 4, 1854, 6 Op. 319. 5. The Patent Office made a deposit vvith S. W. C, bankers in AVashington, subject to the draft of D. .T. B., an agent of the office in London, upon the certificate of which B. B. C. , bankers in London, advanced money to D. J. 1'.., after which, and before repayment of the advances made by B. B. C, S. ^Y. C. suspended payruent : HeUl that the Patenlj I Office must indemniiy B. B. C. Opinion uf 1 il/rtjT,', 13, 185:., 7 Op. 64. 310 PATENTS FOR INVENTIONS, I. PATENTS FOR INVENTIONS. See also Patent Office. I. Generally. II. Patentability of Invention. III. Application. — Claim and Specification. — Caveat. IV. Appeal from Commissioner. V. Surrender and Beisme. VI. Extension of Patent. VII. Correction of Patent. VIII. Assignment. IX. Bights of Patentees. I. Generally. 1. Patents for inventions are confined to citizens of the United States. Opinion of May 26, 1802, 1 Op. 110. 2. Copies of specifications of a patented arti- cle may be furnished to any applicant. Opin- ion of May 20, 1812, 1 Op. 171. 3. A defendant, when sued by a patentee for an alleged violation of his patent right, has a right to a copy of the specifications lor 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. Opinion of June 20, 1820, 1 Op. 376. 4. The established forms of jury trials in other cases cannot be departed from in patent cases, even though patentees may desire secrecy. Ibid. 5. It is not the duty of officers of the Patent Office to decide upon the legal effect of patents issued in conformity to the laws, nor to inform patentees of their rights. Opinion of Nov. 5, 1822, 1 Op. 575. 6. Patentees, their assigns, and persons sued for violation of patent rights, should, upon de- mand and payment of 25 cents per folio lor the copy, be furnished with copies of specifica- tions. But this privilege cannot be extended to citizens indiscriminately. Opinion of , 1825, 1 Op. 719. 7. It is not advisable to issue patents for newly-invented medicines, to bear the name of other popular medicines existing.' In this ca.se there can be no fair purpose for assuming a name so well known as "Anderson's cough drops." Sic utere tuo ut alienam non Isedaa. Opinion of July 26, 1828, 2 Op. 109. 8. The Department acts ministerially , rather than j udicially, in granting patents for useful inventions. Opinion of Aug. 7, 1831, 2 Op. 455. 9. Copies of papers belonging to the Patent Office may not be made by individuals, but should be made by the proper officers, and fees received therefor and paid into the Treasury. Ibid. 10. No more clerks in the Patent Office can be employed and paid by the Secretary than are particularly authorized by the acts of Con- gress ; nor can any higher allowance be made to them than is authorized by the act of April 20, 1818, chap. 87. Ibid. 11. As to what evidence will be deemed suf- ficient to authorize one man to act as the attor- ney of another, it is the subject of a rule that must be fixed by the Department. Opinion of July 5, 1833, 2 Op. 571. 12. Verifications and depositions in foreign countries, to be made under the provisions of the sixth section of the act of July 4, 1836, chap. 357, before patents can issue, should not be made before consuls, but before competent magistrates of the country where they shall be taken, and authenticated by the consul. Opin- ion of May 12, 1840, 3 Op. 532. 13. Any abrogation of oaths in the patent laws of England will not affect the question here; all conditions requisite to a patent in this country must be complied with according to the laws of Congress. Ibid. 14. Eepayment of patent fees can only be made under the circumstances, and in the man- ner, and to the persons provided by law; and that justifies no repayment to any other than the party in whose name the deposit has been made, or to his duly constituted attorney. Opinion of Oct. 24, 1843, 4 Op. 268. 15. The authority vested in the Commis- sioner of Patents to issue patents exists in full force in each case for examination and final decision, until the patent shall have been actu- ally issued. Opinion of Dee. 22, 1849, 5 Op, 220. 16. The Commissioner of Patents, in issu- ing letters patent of an alleged invention, does not warrant the same. Its validity remains open to inquiry, whether at the instance of PATENTS FOR INVENTIONS, II, III. 311 private persons or of the United States. Opin- ion of Dec. 24, 1856, 8 Op. 270. 17. A patent for printing wooden mail-tags by a particular machine and process is not in- fringed where the tags are printed or produced hy a different machine and process. Opinion ■of April 4, 1874, 14 Op. 209. II. Patentability of Invention. 18. Patents cannot be withheld on moral grounds, relating to the conduct of the appli- cant. Opinion of March 22, 1812, 1 Op. 170. 19. It may be questionable whether the sub- stitution of one material for another be an in- vention within the sense of the patent law. Opinion of June 4, 1827, 2 Op. 5-2. 20. In cases of doubt, however, it will be congenial with the policy of the law to issue a patent to the petitioner, thereby giving him an opportunity of trying the validity of his light. Ibid. 21. The fact that anything for which a pat- ient is sought has been before discovered and used in a foreign country, though not patented nor described in any printed publication, is no reason for withholding a patent. Opinion of Aug. 30, 1848, 5 Op. 1 9. 22. The discovery, by experiment or other- wise, that a particular natural substance will, in appropriate methods of administration, pro- duce an assigned physiological or pathological ■effect on the human body is not a thing pat- entable by existing laws. Opinion of Dee. 24, 1856, 8 Op. 270. 23. The capacity of a chemical agent to pro- duce any specific effect, medical or other, is not a thing patentable. Ibid. 24. A medicament, susceptible of being ad- ministered in various forms or doses, which re- quire to be selected and measured with profes- sional skill, in reference either to the quantity of the agent or the condition of the patient, so as to produce a particular benefit without col- lateral in jury, is not a thing patentable, whether as discovery or as invention. Jbid. 25. Suggestion of the practicability of per- forming surgical operations under insensibility of the patient produced by aosesthetie agents is not a patentable invention. Ibid. 26. Neither principles, nor abstract philo- sophic ideas, nor the natural functions either of animate or inanimate matter, are things patentable. Ibid. 27. The employment of ansesthetic agents in association with surgical operations, whether by inhalation or by any other form of admin- istration, internal or external, is not a recent discovery or invention, but is a universal fact, and is coeval with historic knowledge. Ibid. 28. The production of insensibility in the human system by anesthetic agency or other- wise, and the performance of surgical operations during such insensibility, cannot be considered patental)le, as an art, in contradistinction to a principle, function, or quality of matter. Ibid. 29. A new and useful machine invented by a slave cannot be patented. Opinion of June 10, 1858, 9 Op. 171. III. Application. — Claim and Specifica- tion Caveat. 30. The specifications for an invention should be so distinct, intelligible, and certain that other persons besides the inventor may under- stand its nature and use. Opinion of Feb. 10, 1796, 1 Op. 64. 31. Cases of interfering applications for patents for useful inventions must, under sec- tion 9 of the act of February 21, 1793, chap. 11, be left in the first instance to arbitrators. Opinion of Dec. 17, 1814, 5 Op. 701. 32. No patent for an invention can properly issue unless the applicant makes oath that such invention hath not, to the best of his knowledge, been known or used in this or any foreign country ; and if it turn out that any patent shall have been issued for an invention previously known and used, the same shall be utterly void. Opinion of Jan. 12, 1820, 1 Op. 333. 33. Where an applicant is entitled to two patents for useful inventions in respect to the same machine on two different specifications, made at different times, and requests the last patent to be antedated to correspond with the date of the first one: Held that such antedating would be illegal and improper. Opinion of Feb. 23, 1820, 5 Op. 722. 34. The party applying for a patent must furnish satisfactory evidence that he is a citi- zen of the United States; or if an alien, that he has resided in the United States lor two years. .Opinion of Hay. lb, 1832, 2 Op. 511. 35. It is not proper to grant a patent on a joint invention to one of the inventors upon the assignment of the other; but all who are 312 PATENTS FOE INVENTIONS, IV. concerned in the invention should join in the petition. Opinion of Julu 5, 1833, 3 Op. 571. 36. The Commissioner of Patents may per- mit one of two competing applicants tor a patent to withdraw and reiile his application after he has expressed an opinion favorable to the pri- ority of the other; and such intervening opin- ion or decision is no bar to the issue of a patent on the new application, if, upon full exami- nation of the whole subject, he considers the applicant entitled to it. Opinion of Dec. 22( 1849, 5 Op. 220. 37. A caveator is only entitled to return of two-thirds of the fee paid by him into the Patent Office in case of his acquiescence in the objections of the Commissioner. Opinion of June. 2, 1853, 6 Op. 36. 38. It is a frequent error on the part of the. patentees of new inventions, arising either in- tentionally or from want of logical precision of thought, to employ language of claim generic instead oi specific, and so of undue compre- hension; which improper generality of claim is the origin of many of the questions of in- terference, and will he reduced to its proper specific limits by judicial analysis and exposi- tion. Opinion of May 1, 1855, 7 Op. 133. 39. The patent of Cadwallader Evans would seem in terms to embrace any use of fusible alloys in, connection with infusible rods to open the valve or move the indicator of a steam- engine, but cannot cover the use of such alloy and the jjarticular machinery for using it pre- viously suggested by Professor Bache, and made public in a report of the Franklin In- stitute. Ibid. 40. Every applicant for a patent has the right to withdraw his application, and demand the restoration of two-thirds of the S30 duty money at any period of time, at least anterior to the making oath anew and proceeding upon the ulterior stages of inquiry after adverse re- port by the Commissioner. Opinion of Aug. 16, 1855, 7 Op. 390. 41. A claim of patent right, which under- takes to cover a class of things when the pat- entee's invention goes no further than a single variety of that class, is of no exclusive effect beyond that single variety. Opinion of Dec. 24, 1856, 8 Op. 270. 42. When a specification of patent endeav- ors to monopolize an idea, a function of the vital system, or a quality of objects in nature, instead of being limited to a particular instru- mentality, or concrete form of applying that idea or function or quality in use, such patent is void for undue generality, unless that de- fect be cured by disclaimer in the manner of the statute. Ihid. 43. The payment of a duty upon a patent oi caveat to the credit of the Treasury is not a pledge or deposit of the money, but an abso- lute and unconditional payment. Opin ion of Aug. 18, 1857, 9 Op. 65. 44. If the patentee or caveator afterward de- mands the money to be repaid to him, he must- show that his demand for it is founded on some law within whose terms he can bring his case distinctly and clearly. Ibid. 45. There is but one provision in the act of July 4, 1836, chap. 357, authorizing a duty once paid to be refunded, and that is found in the third sentence of the seventh section. That sentence authorizes .520 to be returned, not to a caveator nor one who has made an "incom- plete application," hut to a person who has made an application which is perfect enough to be examined, and which, in point of fact, has been examined and rejected. Ihid. 46. It follows that a party who merely files a caveat, paying the legal duty of S20, cannot withdraw the caveat and demand a return of $10. Ibid. 47. A person intending to make application for a patent asks the Secretary of the Interior beforehand whether it will be granted. The Secretary is advised {o decline giving any an- swer. Opinion of Scjjf. 24, 1857, 9 Op. 95. 48. Drawings accompanying an application for a patent may be signed either by the in- ventor or by any person he may authorize. Opinion of July 28, 1859, 9 Op. 378. 49. The oath or affirmation required to he taken by an applicant for a patent, under the 7th section of the act of July 4, 1836. clrap. 357, to promote the progress of the useful arts, &c., must be taken by the applicant, and can- not lawfully be taken by his agent or at torney. Opinion of Sept. 30, 1861, 10 Op. 137. IV. Appeal from Commissioner. 50. An act of Congress allowed appeals in certain cases from the decision of the Commis- sioner of Patents to the chief judge of Ihe oii- cuit court of the District of Columbia; and a subsequent act, without taking away that PATENTS POR INVENTIONS, V, VX. 313 power, extended the right of appeal so as to lie to either of the assistant judges: Held that an order of the Commissioner requiring, on account of the infirmity of the chief judge, that appeals be admitted only to the assistant judges, is con- trary to law, and without effective o{)eration. Opinion of June 2, 1853, (J Op. 38. 51. The patent laws having made ample pro- vision lOr revising the decisions of the Com- missioner, in proper cases, by the judiciary, and the Executive having no appellate power over questions arising under them, parties should be left to pursue the mode of relief there provided. (See Note, 13 Op. 29.) Opinion of AprillQ, 1869, 13 Op. 28. 52. Statutes relating to appeals from the Commissioner of Pateiils to the judges of the courts in the District of Columbia, reviewed. Opinion of June 9, 1869, 13 Op. 79. I 53. The provision of the 11th section of the act of March 3, 1839, chap. 88, requiring an appellant from the Commissioner to the judge to pay into the Patent Office, to the credit of the ''patent fund," the sum of |25, is not re- pealed by the 10th section of the act of March 2, 1861, chap. 88. Ihid. 54. Under the act of March 3, 1863, chap. 91, which abolished the circuit court of the Dis- trict of Columbia and established the supreme court of the District, the chief justice and asso- ciate justices of the latter court have the same right to hear and determine appeals from the Commissioner as the chief judge and assistant judges of the former court previously had. Ihid. 55. The allowance of 825 authorized by the act of August 30, 1852, chap. 107, to be paid out of the " patent fund ' ' to the j udge hearing the appeal, is now, I)y virtue of the 7th section of the act of July 20, 1868, chap. 177, payable out of the appropriation for "miscellaneous and contingent expenses of the Patent Office," under the direction of the Secretary of the Interior. (See Note, 13 Op. 85.) lUd. V. Surrender and Reissue. 56. Where patents for inventions have been issued and afterwards canceled by petition of the patentees, and others bearing the same date, comprising additional improvements, issued in their favor, others may afterward issue for the additional improvements alone, taking date from the time when the second patents were issued. Opinion of Aug. 7, 1831, 2 Op. 455. 57. Patents may be surrendered by parties to whom they were granted and new ones taken, including additional improvements. Jbid. 58. An assignee of a patent for an invention cannot surrender it and take to himself a new one on new and additional specifications, except upon proof that the new specifications were invented by the patentee and were intended originally to have been patented by him, and that the omission was a mistake. Opinion of Aug. 20, 1833, 2 Op. 572. 59. The oath of the inventor is requisite, for the act of Congress of Feb. 21, 1793, chap. 11, requires it; the mere statement of what are called corrected specifications by the patentee, or his assignee, is not sufficient. lUd. 60. Unless there be some error in the speci- tication arising from inadvertency, accident, or mistake, and without any fraudulent or de- ceptive intention, the patentee cannot sur- render a patent which includes several distinct improvements, and take out several new ones. Opinion of Dec. 15, 1836, 3 Op. 165. 61. Where an application for the reissue of a patent in two or more divisions is made, while the original patent is in existence, the Commissioner of Patents has power to issue a patent for one or more of the divisions of the reissue application, and subsequently to issue a patent for the remaining divisions, if it be deemed that otherwise the applicant is entitled thereto. Until such appli cation is ended in all its divisions, the vi tality of the original patent continues, so far as required to support that portion of the application which remains un- decided. Opinion of Aug. 31, 1880, 16 Op. 560. VI. Extension of Patent. 62. Extension ofpatents for usefulinventions may be granted to the legal representatives of patentees, where such patentees, if living, would be entitled thereto. Opinion of April 9, 18.39, 3 Op. 446. 63. Applicati ons for extensions of patents for inventions must be made to the Commissioner a sufficient time before the expiration of the term for which they were issued, to enable him to give the notice contemplated by the act of July 4, 1836, chap. 357, to the public in that section of the country most interested adversely to them. Opinion of Nov. 21, 1840, 3 Op. 595. 314 PATENTS POR INVENTIONS, VII-IX. 64. The IStli section of the act of July 4, 1836, chap. o57, as modified by the 1st section .of the act of May 27, 1848, chap. 47, conferred a very large discretion upon the Commissioner of Patents in regard to patent extensions, and under these provisions subjects connected therewith properly fall within the scope of his investigation upon application for such exten- sions. Opinion of April 16, 1869, 13 Op. 28. VII. Correction of Patent. 65. The date of a patent issued for an in- vention may be corrected to correspond with a patent granted by the King of Bavaria, where the mistake in that already issued arose from no fraudulent or deceptive intention. Opinion of Sept. 24, 1844, 4 Op. 335. 66. Where a patent was issued to B. , J. , and L. jointly, in conformity to their application as joint inventors, when in fact the device pat- ented was not the joint invention of all of the applicants, bu| the sole invention of B., the others (J. and L.) being his assignees only: Held that it is not within the power of the In- terior Department to correct the patent thus issued so as to show that B. was the inventor of the device and that J. and L. are the assignees thereof. Opinion of Aug. 7, 1878, 16 Op. 117. 67. The patent issued upon such application being void, the Department cannot, by means of alterations or corrections, impart %'alidity thereto. Ihid. 68. The parties interested can file a new application in a case of that sort, which, if seasonably done, may be made the basis for the issue of a new patent; but the latter will not retroact by way of confirmation of the patent originally issued. Ibid. VIII. Assignment. 69. Patents cannot issue to inventors and assignees of a partial interest jointly, but may issue to assignees of the whole interest. Opin- ion of July 7, 1845, 4 Op. 399. 70. No provision has been made for the issue of a patent for a part of an invention to the inventor and for the other part to his assignee. Ibid. 71. Where the inventor of a machine, be- fore a patent issues to him, makes a full and complete assignment of all his right to another, the assignee is entitled to have the patent issued in his own name ; but where the as- signment of the inventor's right is only par- tial, although the p^rts excepted he very small, the assignee has no legal claim to the patent. Opinion of Nov. 28, 1859, 9 Op. 403. 72. An inventor stipulated with certain parties that they should have the exclusive use and ownership of any and all inventions which he might thereafter make for the clean- ing of rice, in any and all "countries" in which the parties then were, or might there- after be, interested in four other patents taken out by the inventor. In three of the other previous patents the parties had an interest coextensive with the United States ; in the fourth they had an interest throughout the United States, except the cities of New York and Boston. Afterwards the inventor made another machine for cleaning rice. Held that under the contract mentioned the assignees were entitled to have the patent for the new machine issued in their own names. Ibid. IX. Rights of Patentees. 73. Where an American citizen had obtained a patent for a fire-hearth to produce fresh water from the ocean on board of public ships, and also a patent for the same invention in England, and before it was brought into prac- tical use in this country one of the articles so patented in England was captured on board a British vessel by the Enterprise: Held that no right to use such invention on American vessels accrued from the capture. Opinion of May 19, 1820, 5 Op. 726. 74. The rights secured by letters patent are the subjects of judicial, not of executive, de- cision. When all the laws and forms have been complied with, patents issue without in- quiry as to the precise rights they confer. Opinion of Aug. 7, 1831, 2 Op. 455. 75. In respect to a claim that a certain pat- ent had been infringed in the manufacture of pontons for the use of the Army of the United States, it was held that a report of the head of the Engineer Department and also of the Commissioner of Patents that the pontons were not covered by the patent in question constituted suflScient evidence to show there was no infringement as alleged. Opinion of March 29, 1859, 9 Op. 332. 76. The opinion of March 29, 1857 (9 Op. PAYMENT. 315 332), respecting a claim that a certain patent had been infringed, reaffirmed. Opinion of June 16, 1859, 9 Op. 349. 77. OfiScers of the United States, when they use articles manufactured in violation of the rights of patentees, are liable to suit therefor. Hence where articles are advertised for by the United States, and it is claimed by an unsuc- -cessful bidder or other party that the success- ful bidder, in order to furnish the articles, must make them in violation of his patent, it is proper that the successful bidder should be required to furnish a satisfactory bond of in- demnity for the security of the ofiScer against any suit for infringement of patent by the use of the articles. Opinion of Sept. 24, 1878, 16 Op. 137. PAYMENT. See also Claims, XXIII; Conteact, VIII. 1. The security for a debt to the Govern- ment, however ample it may be, is not a pay- ment, andthe Auditor should not so consider it. Opinion of Jan. 24, 1823, 1 Op. 592. 2. "Where a question concerning a doubtful allowance has been submitted to Congress, and an actual appropriation made by that body of the precise amount, there can be no valid ob- jection to the payment. Opinion of Dec. 28, 1836, 3 Op. 168. 3. The Secretary of the Navy may pay the amount of the judgment recovered against Commodore Elliot, for acts done in the per- formance of his official duty, if there are funds within his control properly applicable to such an object. Opinion of Feb. 28, 1838, 3 Op. 306. 4. Payments directed by Congress to be made to M. and T. should be made by the Secretary of the Treasury to them or their constituted attorney, notwithstanding the in- terposition of claims by third persons grounded on assignments, insolvent, or other proceed- ings, anterior to the passage of the act direct- ing the payment. Opinion of 31ay 13, 1840, 3 Op. 533. 5. Accounting officers cannot, in the in- numerable cases in which Congress directs specific sums to be paid to individuals, ex- amine and settle previously existing claims and credits against such individuals. Ibid. 6. The first part of the act of 4th February, 1819, chap. 13, entitled "An act to authorize the payment in certain cases on account of Treasury notes which have been lost or de- stroyed," applies to notes issued from 1837 to 1841, inclusive. Opinion of June. 12, 1841, 3 Op. 634. 7. A Treasury warrant regularly issued is legally available to the true owner at all times, and he may at all times claim the ben- efit of it ; and the sum really due to the real creditor may be paid without the issue of any new requisition. Opinion of Dec. 29, 1843, 4 Op. 298. 8. A requisition and warrant issued in favor of Jeremiah Smith, jr., are not discharged by payment wrongfully made to another person. Ibid. 9. Where a warrant has been properly is- sued and paid by mistake to a wrong person, no new requisition can be issued to cover the claim. A requisition having been already is- sued, and upon it a warrant, which is in legal contemplation yet outstanding, the proper course to be pursued to adjust the matter is to issue a duplicate warrant reciting the facts concerning the disposition of the first, or to withdraw the first and issue another, to be treated as if presented the first time for pay- ment. Opinion of Jan. 24, 1844, 4 Op. 307. 10. The person entitled to payment may be satisfied from the appropriation out of which his warrant was originally payable, the same as if the miistake had not occurred. He is not bound to await a new appropriation by Con- gress. Ihid. 11. The Treasurer having paid the warrant wrongfully through mistake, is chargeable with such mistake. Ibid. 12. Certificates issued under the third sec- tion of the act of 23d August, 1842, chap. 187, to provide for the satisfaction of claims under the fourteenth and nineteenth articles of the treaty of Dancing Rabbit Creek, when held in good faith by a pre-emptor, are receivable in payment for pre-emption lands. Opinion of March 20, 1846, 4 Op. 473. 13. A Cherokee reservee, under the treaty of 1836, in whose favor the commissioners appointed to adjudicate claims made an award, but to whom they delivered no certifi- cate, is, nevertheless, entitled to payment. Opinion of July 7, 1846, 4 Op. 500. 316 PAYMENT. 14. As a general rule the certificate of the commissioners, inclicating the amount due the claimant, is the proper evidence ol'the fact to be produced to the accounting officers, and upon which they are to make payment ; yet the rule is not entirely inflexible. Ibid. 15. And claimants under the seventeenth article of the Cherokee treaty of 1836, in whose - favor an award has been made, are entitled to payment even though they cannot present a certificate of the amount. Opinion of July 7, 1846, 4 Op. 504. 16. A draft drawn by one of two Indian commissioners sent to treat with the Prairie Indians, to the order of and indorsed and negotiated by the other, to Barnley & Co. , the holders, should be paid, notwithstanding the proviso to the appropriation act subsequently passed. Opinion of Aug. 8, 1846, 4 Op. 518. 17. Upon a reconsideration of the claim of David Taylor to payment of an award by the commissioners, upon further evidence pro- duced, it appears that the claim was not ad- judicated within the terms of the treaty. Opinion of Aug. 28, 1846, 4 Op. 528. 18. Therefore payment of the claimant can- not be properly made unless the same shall hereafter be allowed by the commissioners. Ibid. 19. The Bank of the Metropolis is entitled to payment of a draft, drawn by a contractor for removing Miami Indians to the country assigned them west of the Mississippi, upon the Secretary of War, and accepted, payable from the contract moneys, and thereafter transferred to said bank, notwithstanding subsequent assignments of the moneys due upon said contract ; such draft being a prior equitable assignment of the moneys to become due, and made with the knowledge and con- sent of the Secretary of War. Opinion of Jan. 15, 1847, 4 Op. 542, 20. Payment of an award of the Cherokee commissioners to Betsey Mcintosh, upon a claim preferred by her, under the thirteenth article of the treaty of 1836 with the Cherokee Nation, for the value of a reservation which she had been required to abandon, cannot be made from the moneys appropriated by the acts of July 2, 1836, chap. 267, and June 12, 1838, chap. 97. Opinion of Sept. 14, 1847, 4 Op. 621. 21. Where an agent and attorney for claim- ants under the treaty of 1836 with the Cher- okees undertook to prosecute certain claims before the commissioners for the consideration of 111 per cent, on every claim awarded, and omitted to claim his percentage upon the first award, consenting to its payment to the party, but claimed the same upon the payment of a subsequent award, as well as the 10 per cent, on said last award : Held that there should not be deducted from the last award any percentage which may have accrued to the agent and attorney upon other claims. Opinion of Aug. 5, 1848, 5 Op. 13. 22. Payments of the commissioners' awards should be made to the claimants, or their executors or administrators, unless some other person shall produce a warrant of attorney, duly executed, referring to the resolution allowing the claim and specifying the amount, and authorizing him to receive it. Opinion of Sept. 20, 1848, 5 Op. 36. 23. The Senate bill, reported on the 9th February, 1849 (see act of March 3, 1849, chap. 129), to provide payment ibr horses or other property lost or destroyed in the mili- tary service of the United States, embraces field, staff, and other officers, mounted militia, volunteers, rangers, and cavalry engaged in the military service of the United States since the 18th June, 1812, whether the owners be- longed to the regular or other military service. Opinion of 31arch 23, 1849, 5 Op. 80. 24. As the original claimant, Henry de la Francia, was dead at the passage of the sup- plementary act of 14th August, 1848, chap. 174, authorizing the Secretary of State to set- tle his claim for advances, &c., and as the claim was assets belonging to his estate, the avails of which are to be accounted for as such, the amount awarded should be paid only to an administrator duly appointed and authorized to receipt for the estate.' Opinion of July 17, 1849, 5 Op. 135. 25. But as it appears that a competent court has decided Joseph de la Francia to be the sole distributee entitled to the amount from the administrators, the Secretary is ad- vised to take a receipt from him or his attor- ney also. Ibid. 26. Under the power of attorney executed by J. de la Francia to James Bowie, the latter ■ PAYMENT. 317 had authority to substitute William C. John- son in his stead. Opinion of July 20, 1849, 5 Op. 137. 27. The pa,yment of a liquidated demand against the Govern meut to a person not author- ized to receive it does not relieve the Govern- ment Irom responsibility to make payment to the proper claimant, and the loss must fall upon the United States. Opinion of Nov. 19, 1849, 5 Op. 183. 28. No part of the money appropriated for per capita payments to the Cherokees can be paid otherwise than by an equal distribution of it among those Indians individually. (See opinion of 23d of June, 1851, 5 Op. 379.) Opinion of Dec. 2, 1851, 5 Op. 502. 29. Where a sum of money, standing in the name of A., had been enjoined in a suit in equity by B., and by due order not appealed the injunction was dissolved as to a part of said sum, and its payment ordered to C. : Held that the Secretary of the Treasury might lawfully pay to C. according to such order. Opinion of May 14, 1854, 6 Op. 461 ». 30. A professed award, for the value of an improvement under the provisions of the Cherokee treaty of December 29, 1835, which was made by the commissioners in blank as to the sum, cannot be paid as an award in virtue of the act of July 31, 1854, chap. 167, making appropriations for the execution of that treaty. Opinion of Feb. 26, 1855, 7 Op. 54. 31. The Patent Office made a deposit with S. W. C, bankers in Washington, subject to the draft of D. J. B., an agent of the ofSce in London, upon the certificate of which B. B. C, bankers in London, advanced money to D. J. B., after which, and before repayment of the advances made by B. B. C, S. W. C. suspended payment : Held that the Patent Office must indemnify B. B. C. Opinion of March 13, 1855, 7 Op. 64. 32. The Question whether the United States will pay according to their original tenor drafts drawn by the Mexican Government under the Mesilla convention, or suspend the payment at the subsequent request of said Government, is a matter of political, not of legal determination. Opinion of Nov. 25, 1855, 7 Op. 599. 33. The Government having once paid money to the commissary of Fremont's Cali- fornia Battalion, on exhibition of the receipt of a party, in the ordinary routine of account- ing at the Treasury, is not held to pay the same a second time to the party himself, the latter having his remedy against the commis- sary. Opinion of Jan. 9, 1857, 8 Op. 304. 34. When a payment has been made ille- gally at the Treasury on account of some spe- cific appropriation, that does not prevent pay- ment out of the same appropriation to the rightful party when he shall appear. Opinion 'of Feb. 9, 1857, 8 Op. 377. 35. Presumption of payment, arising from lapse of time, in the case of a draft for amount due ibr supplies of fodder furnished to the Army, which was dated February 25, 1852, but acceptance of which was relused on the 7th of April, 1852. Opinion of Sept. 15, 1858, 9 Op. 187. 36. The holder of an unindorsed pay certifi- cate issued to a soldier is not entitled to pay- ment of the amount. Opinion of July 24, 1860, 9 Op. 453. 37. An act of Congress (of March 2, 1857, chap. 66) directed the Secretary of War to settle, upon principles of justice and equity, the claim of certain persons named as officers, musicians, and privates of a militia company in South Carolina during the war of 1812, and to pay the amount adjudicated to be due to said p trties. It was discovered after the award that three of the persons named in the act were negro slaves. One of them, Mingal Crawford, at the time of rendering the military service, was: owned by Gabriel Crawford, since de- ceased, and his administrator claimed the amount found to be due to Mingal, who at the time of the adjudication of the Secretary was the property of another person: Held that neither the slave himself, nor his ibrmer owner, nor his second master could lawfully demand payment of the sum which was adjudicated to the slave. Opinion of Nov. 2, 1860, 9 Op. 502. 38. Under the act of March 3, 1865, chap. 77, " to provide ways and means for the sup- port of the Government," the Secretary of the Treasury has the option to pay contractors :[or materials and supplies the amount of money called for by the requisitions, or to give such contractors bonds issued under authoritj^ of the act, when they have exjpressed a desire to subscribe to the loan thereby authorized. Opinion of 3Iarcli 30, 1865, 11 Op. 180. 39. The holders of a United States note 318 PEA PATCH ISLAND — PENSION AGENCIES AND AGENTS. whicli was stolen before maturity, and, after an alteration by the thief of the number upon the note, was transferred to the holders for a valuable consideration, and without notice of the larceny, are entitled to receive payment of it from the Government. Opinion of June 24, 1865, 11 Op. 258. 40. The prize certificates Lssued to Samuel Harding, jr., as acting ensign, cannot be paid in the hands of Walter Taylor. Opinion of July 5, 1866, 11 Op. 519. 41. The Secretary of State has authority, under the joint resolution of July 5, 1866, to pay the moneys appropriated for the Paris Ex- position, to be expended in Europe, in coin. Opinion of Aug. 14, 1866, 12 Op. 9. 42. The moneys payable by the bonds and coupons issued by the Leavenworth, Pawnee and "Western Eailroad Company, in favor of the Delaware tribe of Indians, pursuant to the treaty ratified by the President on the 4th of October, 1861, may be lawfully paid in legal- tender Treasury notes. Opinion of Nov. 7, 1866, 12 Op. 84. PEA PATCH ISLAND. 1. The United States being in possession of the island of Pea Patch, under title derived from the Duke of York, may require a prose- cutor to show title in himself before any proof of title need be deduced; and a prosecutor, under a grant taking for its western boundary the east side of the Delaware River and Bay, ' can never reach the Pea Patch. Opinion of Jan. 5, 1820, 1 Op- 331. 2. From the papers submitted in relation to the Pea Patch, the title of the United States derived from the State of Delaware is a doubt- ful one; but.the Attorney-General finds it im- possible in the present state of the case to give- a decisive opinion. Opinion of Dee. 31, 1833, 2 Op. 590. PENNSYLVANIA RESERVE REGI- MENTS. The Pennsylvania Reserve regiments, organ- ized under the act of assembly of the State of May 15, 1861, should be formally mustered into the service of the United States. Opinion of Aug. 17, 1861, 10 Op. 100. PENSION AGENCIES AND AGENTS. 1. The agent for paying pensions is not the accounting of&cer intended by the fourth sec- tion of the act of 4th July, 1836, chap. 362. Opinion of April 13, 1837, 3 Op: 203. 2. The compensation allowed to pension agents by the second section of act of 20th February, 1847, chap. 13, does not extend to services rendered previous to the passage of the law. Opinion of July 19, 1852, 5 Op. 569. 3. The authority given to the Secretary of War by that act may be exercised, according to his discretion, otherwise than in pursuance of a general prospective rule established by the Department ; and where such rule was made subsequent to the enactment of the sec- ond section of the act, and did not provide for the time of service intervening between the date of the law and the date of the rule, the Secretary may now allow compensation for that intermediate period. Ibid. 4. The consolidation by the President, on the 23d of January, 1871, of the two pension agencies previously existing in the city of New York was within the competency of the Ex- ecutive, and a valid exercise of power. Opin- ion of Dec. 6, 1872, 14 Op. 147. 5. The authority given the President by the act of February 5, 1867, chap. 32, touching the establishment of pension agencies and the appointment of pension agents, may be exer- cised by him according to his judgment, sub- ject only to the restrictions imposed by the two provisoes in that act. Ibid. 6. The law concerning the establishment of pension agencies and the appointment of pen- sion agents, as it existed before and at the time of the adoption of the Revised Statutes, reviewed. Opinion of May 3, 1877, 15 Op. 247. 7. Sections 4778, 4779, and 4780 Rev. Stat. produce no change in the previous state of the law on that subject. Ibid. 8. The President has authority to consoli- dr.te two or more pension agencies into one, by discontinuing some agencies and transferring the business thereof to other's. Upon the dis- continuance of an agency the official functions of the incumbent cease; his hold on the office necessarily terminates with its extinguishment, and the tenure-of-ofiice law no longer applies. Ibid. 9. Incumbents of agencies, whose districts- PENSIONS, I. 319^ are subsequently enlarged by the transfer thereto of the business of discontinued agen- cies, are competent to perform the duties thereof as well after as before the enlargement, and new appointments are not made necessary by the change. It is otherwise with the in- cumbent of an agency which has been discon- tinued. The latter cannot be put in charge of another separate and distinct agency -without a new appointment. Ibid. 10. A bond conditioned for the faithful dis- charge of all the duties of the oiiice "accord- ing to the laws and instructions which are now in force, or which shall be in force at any time during ' ' the continuance of the agent in office, will, in the case of an agent whose agency Is enlarged during his term in the manner above indicated, and upon whom increased duties are thus devolved, subject the sureties thereon to liability after the enlargement of the agency. IMd. PENSIONS. See also Naval Pension Fund. I. GeneraUy. II. War of the Bevolution, including Pen- sions to Widows of Officers, dkc, who served therein. III. Invalid Pensions [Army] subsequent to the Bevolution. IV. Invalid Pensions (Navy) subsequent to the Bevolution. V. Widows, Children, &c. {Army and Navy). YI. For Service in War of 1812. VII. Virginia Half Pay. I. Generally. 1. It is irregular for the War Department to accept certificates of Navy surgeons instead of their "'affidavits,'' as required by the act of 3d March, 1819, chap. 81, regulating payments to invalid pensioners. Opinion of Jan. 17, 1822, 1 Op. 533. 2. Under the act of 15th May, 1820, chap. 109, pensions do not commence until the testi- mony in the case shall have been taken, au- thenticated, and in all respects completed, as the same is required to be in order to its recep- tion at the Department. Opinion of July 19, 1822, 1 Op. 562. 3. The act of 14th July, 1832, chap. 236, does nothing more than repeal the law of 3d March, 1819, chap. 81, and thereby the neces- sity of adducing proofs of continued disability is dispensed with. It does not restore to the pension roll any one who had been dropped Irom it. Opinion of Oct. 27, 1832, 2 Op. 539. 4. It is not obligatory on the Secretary of War to issue new pension certificates where- the parties have pledged them for debt and. creditors refuse to deliver them without pay- ment. The law does not require them in such cases to be renewed; nor ought the refusal of creditors to redeliver certificates to pensioners to prevent the payment of such pensions.. Ibid. 5. The act of May 20, 1836, chap. 77, placed pensioners on precisely the same footing as if the act to prevent defalcations, &c. , had never been passed; consequently all moneys which, have been withheld from pensioners under the- construction theretofore given to the act to pre- vent defalcations ought to be refunded. Opin- ion of June 27, 1836, 3 Op. 135. 6. Pensions, under the act of July 4, 1836, chap. 362, are not liable for the pensioner's- debts. Opinion of Oct. 24, 1836, 3 Op. 151. 7. The pension of Pigeon, the Cherokee chief, is allowable under the act of April 14, 1842, chap. 24, and should be paid to his per- sonal representatives. Opinion of June 23, 1842, 4 Op. 55. 8. If a person entitled to a pension be over- paid by mistake, or by the application of a wrong principle Of computation, and yet have a further claim against the Government, the claim may be set off against the said over-pay- ment. (But see opinion of October 24, 1832, 2 Op. 532.) Opinion of July 2, 1842, 4 Op. 70. 9., Where the husband of the applicant, Com- modore Porter, in his lifetime applied for a pension for disability incurred in 1803, and the same was allowed by the proper Department at the rate of $40 per month, to take effect from the 24th January, 1825, when he retired from service in the Navy; and then, in 1839, made an application for arrears from 1803, under the provisions of the act of 3d March, 1837, chap. 38, and received a reply from the Secretary of the Navy, deciding that there was due him a pension at the rate of $12.50 per month, from 1803 to 24th January, 1825, but did not receive the same in his lifetime; on the application for 320 it by his widow: Held that such an allowance exists in the form of a debt due to his estate, and that the legal representatives are entitled to receive it. Opinion of Aug. 28, 1843, 4 Op. 238. 10. The fourth section of theact of 3d March, 1845, chap. 71, providing that accounts ad- justed by the accounting officers of the Treas- ury shall not be reopened without authority of law, and that no account shall be acted upon at the Treasury unless presented within six years from the date of the claim, does not affect applications under a general law for pensions. Opinion of April 22, 1845, 4 Op. 366. 11. Pensions are gratuities, not clailns or accounts, within the meaning of the statute; yet when these are once placed on the pension roll they become claims to semi-annual pay- ments, which, if not asserted within six years, cannot be audited without the authority of Congress. IMd. 12. The second section of the act of May 7, 1846, chap. 13, was intended to facilitate ap- plications of widows to pensions, founded on their marital relations, by operating on the proof required. Opinion of June 23, 1846, 4 Op. 497. 13. To establish their claims it is sufficient for widows to prove that their husbands were entitled to pensions, and that they are the widows of such pensioners. Ibid. 14. The fact that the husbands were upon the roll and drew pensions is presumptive evi- dence that they were entitled to them; yet, if they were not, that lact may be proved. IMd. 15. General reputation and cohabitation are, in general, sufficient evidence of mar- riage; but as this is only presumptive, it may be rebutted by countervailing testimony. lUd. 16. The law should be construed liberally and favorably towards applicants. Ibid. 17. The act of 10th July, 1832, chap. 194, transferred to the Secretary of the Navy all the powers theretofore possessed by the com- missioners of the Navy pension fund to make regulations for the admission of persons upon the roll of Navy pensioners and for the pay- ment of such pensions. Opinion of Sept. 27, 1848, 5 Op. 41. 18. If it has been the settled rule of the De- partment that pensions shall commence at the time of completing the prools, it will be very diificult now to depart from it. Ibid. 19. The rule of the Pension Office that an application for a pension cannot be entertained after the lapse of twenty-five years from the time when the disability was incurred is unau- thorized by law, and therefore invalid. Opin- ion of Feb. 16, 1849, 5 Op. 62. 20. The power conferred upon the Secretary of the Navy to establish rules and regulations for the examination and adjudication of claims for admission upon the roll does not anthor- ii;e the enactment of a rule or statute of limit- ations. Ibid. 21. The commissioners of the Navy pension fund were authorized and directed to make such rules and regulations as should appear to them expedient for the admission of persons on the roll of Navy pensioners and for the pay- ment of such pensions; and they having pro- vided that pensions are to commence from the time of completing the proofs, and the same having been continued since their powers were transferred and devolved upon the Secretary of the Navy, the practice should be adhered to. Opinion of July ^4, 1849, 5 Op. 134. 22. It may he doubtful whether the provis- ions of the second section of the act of the 4th February, 1822, though general, are not to he confined to cases of claims for revolutionary pensions. Ibid. 23. When the statute provides pension for disability or death, occasioned by wounds or injuries received, casualty occurring, or disease contracted, in the line of duty, it intends that the performance of duty must have relation of causation or consociation, mediate or immedi- ate, to the wound, the casualty, the injury, or the disease which produces the disability or death. Opinion of May 17, 1855, 7 Op. 150. 24. To determine the right of pension, the question is not whether, when the cause of dis- ability or death occurred, the party was on duty or not, in active service, or on furlough or leave, in arrest or not, but whether, in any of the possible conditions of service, the cause of disability or death was appurtenant to, de- pendent upon, or connected with, acts within, or acts without, the line of duty. Ibid. 25. Upon the question of casualty, the opin- ions of experts are evidence, but they do not constitute either exclusive or conclusive proof; and the question is to be judged by the real facts, like any other matter of evidence. Ibid. 26. Where the proofs as to the question of PENSIONS, I. 321 actor and subject are balanced, and it is im- possible to determine by them whether the case be one of contemporaneity or collocation only, or of cause and consequence, it is a rea- sonable inference of public policy to presume in favor of the service. Ibid. 27. It is according to public policy to pre- sume in favor of the service, where the line of duty enters potentially into the causes of dis- ability or death, although it be not certainly provable that it was the exclusive or predomi- nant cause, md. 28. Where the pension acts omit to make mention of representative persons, the latter are not entitled, according to the tenor and true intendment of the acts. Opinion of Feb. 4, 1856, 7 Op. 619. 29. The revolutionary pension acts have been so long misconstrued in this respect that it seems too late to return to their proper con- struction. Ibid. .30. But no such misconstruction of the in- valid pension acts has obtained in practice, nor can it now be allowed. Ibid. 31. Cherokee Indians, entitled to invalid pensions by treaty, have no larger rights in this respect than officers and soldiers of the Army. Ibid. 32. Hence, a pension, claimable but not claimed by a Cherokee in his lifetime, does not descend as arrears to his legal representatives. IMd. 33. Arrearages of pensions claimed and ad- judicated belong to the representatives of the party on his decease as a debt due from the Government. Opinion of June 9, 1856, 7 Op. 717. 34. Secus, when the right to claim a pension exists but the right has not been asserted by the party in his lifetime. Ibid. 35. An exception to this rule has been es- tablished in practice by misconstruction of the statute in favor of the children of persons en- titled by reason of service in the Eevolutionary war. Ibid. 36. While it may be inexpedient to disturb this practice- now, it cannot be extended, by further misconstruction, beyond the case of children. Ibid. 37. The issue of a pension certificate to the wrong party does not justify the Commissioner in afterwards refusing a certificate to the rightful party. Opinion of Feb. 9, 1857, 8 Op. 377. 38. In order to entitle the persons named in the second, third, fourth, and eleventh sections of the pension act of July 14, 1862, chap. 166, to the benefit of its provisions, it is essential that the officers or other persons named in the first or tenth sections of the act should have died in the military or naval service of the United States. Opinion of June 11, 1863, 10 Op. 492. 39. A pensioner residing in an insurrection- ary State, who did not take up arms against the United States, or give encouragement to the rebellion, is entitled, upon the termina- tion of the hostile relation, to be paid the pen- sion money due him from the time the rebel- lion began. Opinion of March 17, 1866, 11 Op. 442. 40. The third proviso of the act of April 20, 1844, chap. 15, declaring that "no person in the Army, Navy, or Marine Corps shall be allowed to draw both a pension as an invalid and the pay of his rank or station in the serv- ice, unless the alleged disability for which the pension was granted be such as to have occa- sioned his employment in a lower grade, or in some civil branch of the service, ' ' is not re- pealed by the fifth and thirteenth sections of the act of July 14, 1862, chap. 166. Opinion of Aug. 8, 1872, 14 Op. 94. 41. The assignment of his pension certificate by an inmate of the National Home for Vol- unteer Soldiers, under section 4832 Eev. Stat., does not give to the managers of that institu- tion a right to collect or receive the pension therein mentioned for any period of time other than that during which he remains an inmate of the Home or receives its benefits. Opinion of Aug. 19, 1879, 16 Op. 374. 42. The Home is not authorized to collect or receive arrearages of pensions under the act of January 25, 1879, chap. 23, either on assign- ment or otherwise. Ibid. 43. Payment of arrears of pension to the Home for.prudential or other reasons, except when made in accordance with law, .will not relieve the Government of its obligation to the pensioner. Assignments not warranted by special enactment are forbidden by section 4745 Eev. Stat. Ibid. 44. The act of June 16, 1880, chap. 236, DIG- -21 322 ■which provides for an increase of pension for certain pensioners ''now receiving a pension of $50 per month" under the act of June 18, 1874, chap. 299, being in terms limited to those who at the time of its enactment were re- ceiving a pension of $50 a month under the act of 1874, its benefits cannot be extended to those who may thereafter become entitled to receive a pension of the same amount under the act of 1874. Opinion of Dee. 15, 1880, 16 Op. 594. II. War of the Revolution, including Pensions to Widows of OfEcers, &c., ■who served therein. 45. It was the intention of Congress to re- quire proof of indigence as well as of service under the act of March 18, 1818, chap. 19, on the part of those seeking its benefits. Opin- ion of Slarch 26, 1818, 5 Op. 711. 46. The form prescribed in the first section of the act of May 1, 1820, chap. 53, supple- mentary to. the act of March 18, 1818, chap. 19, in relation to certain indigent persons "who performed duty in the land and naval service of the United States during the revolutionary war, to verify the amount of property of the applicant, except the oath of the party and the certificate of the clerk, must he gone through with in open court. Opinion of May 9, 1820, 1 Op. 356. 47. The Secretary of War has not power to restore to the pension list the name of any person who may have been stricken off on the evidence of the schedule required by the act of May 1, 1820, chap. 53. Opinion of Feb. 19, 1821, 5 Op. 731. 48. It was the intention of Congress to make the amount of the schedule the test of the in- digence of the applicant; and that, conse- quently, the relief given by the act of 1818 is to be continued in every case in which the schedule shall exhibit proof of such indigence that the income of the property is inadequate to the support of the applicant. Ibid. 49. By the terms "untU the end thereof " (i. e., of the revolutionary war), contained in the pension act of March 18, 1818, chap. 19, is meant until the treaty of peace was ratified. Opinion of Feb. 12, 1825, 1 Op. 701. 50. The preliminary articles provided that there should be a peace when the terms of a peace should be agreed on between Great Britain and France, and His Britannic Majesty should te ready to conclude it; but as they were only preparatory to peace, there was no' peace in contemplation of law until the war of the revolution terminated by the ratifica- tion of the treaty in April, 1783. Ibid. 51. The Secretary of "War may pay to a pen- sioner the amount which Congress has directed to be paid him out of the general appropriation for revolutionary pensions for the current year, although the amount was not contained in the estimates on which the general appropriatioit was made. Opinion of June 2, 1830, 2 Op. 343. 52. The act of May 31, 1830, chap. 228, is- entirely prospective. It declares that the aeli of May 15, 1828, chap. 53, shall not be con- strued to embrace invalid pensioners; that the pension of invalid soldiers shall not be de- ducted from the amount receivable by them' under the said act. These enactments operate in future. They prescribe a rule which is to be applied to cases that may occur after their date, but do not relate to the past or give any authority to reopen accounts which m^ have been theretofore settled. They require the Department to abstain from making such de- ductions thereafter, but do not authorize the payment of such as have been theretofore made. Opinion of June 10, 1830, 2 Op. 350. , 53. The force of the act of May 31, 1830,. seems to be directed against the second section of the act of May 15, 1828, which is confined to the surviving ofiicers of the army of the rev- olution in the continental line, entitled to half- pay, &c. , and does ^ot extend to the non- commissioned officers, musicians, or privates of the Army. Ibid. 54. Pensioners whose means of support are sufdcient, independent of the pension granted by the act of March 18, 1818, chap. 19, may be dropped from the roll. Opinion of March 22, 1832, 2 Op. 502. 55. Persons who served on board privateers- are not embraced by the pension law of June 7, 1832, chap. 126. The act applies only to those in the public naval forces. Opinion of July 21, 1832, 2 Op. 531. 56. The first section of the pension act of June 7, 1832, chap. 126, embraces all surviving officers, musicians, soldiers, and Indian spies, who served in the continental line. State troops, volunteers, and militia, irrespective of PENSIONS, II. 323 their places of residence, except foreigners, ■who held commissions in the American Army. Opiimm of Oct. 27, 1832, 2 Op. 539. 57. If an applicant has served in different grades for a time sufficient to entitle him to a pension, it must be graduated by the respective terms of service in each grade. Ihid. 58. The pension act of June 7, 1832, chap. 126, does not exclude those who have received pensions under other acts of Congress, where the provisions of this act are more favorable to their interests. Opinion of Mny 18, 1833, 2 Op. 568. 59. A commissary is within the act of 1832, under the construction which it has received at the War Department, though he were ex- cluded by that of May 15, 1828, chap. 53. Ibid. 60. Invalid pensioners previous to the act of 18th March, 1818, chajt. 19, who relinquished their pensions as invalids, in order to receive the benefit of that act, cannot, since the act of 19th February, 1833, chap. 31, receive annui- ties under the act of June 7, 1832, chap. 126, and have a revival of their pensions as invalids. Opinion of Feb. 27, 1834, 2 Op. 612. 61 . By the terms ' ' invalid pensioners "and "invalid soldiers," used in the amendatory law of 1833, Congress meant those persons, and those only, who were borne as invalid soldiers on the invalid pension rolls ; where- fore, those not so borne on those rolls cannot he considered within the law. Ibid. 62. Nor is there any legal provision which authorizes the transfer^ of their names from the rolls of pensioners, under the act of 1818, to the invalid pension roll on which they originally stood. Ibid. 63. On consideration of questions arising upon the fourth section of the act of June 7, 1832, chap. 126, held that in case a pensioner died, leaving a widow, who also died without demanding the amount, the legal representa- tives of the widow only can demand the bal- ance due. Opinion of Feb. 28, 1834, 2 Op. 614. 64. Where there is no widow, but several children, some of whom die before payment, the surviving children, as such, are only en- titled to their distributive shares of the bal- ance due at the decedent's death ; and the legal representatives of the deceased child are enti- tled to receive his share. Ibid. 65. Where the soldier shall have died be- fore June 7, 1832, and subsequent to March 4, 1831, leaving n widow, who deceased before the former date, the children of the soldier, not of the widow, are entitled to the pension from the 4th of March, 1831, to the time of his- death. Opinion of April 13, 1837, 3 Op. 202. 66. The third section of the act of July 4, 1836, chap. 362, granting half pay to widows or orphans where their husbands and fathers- have died of wounds received in the military service of the United States, does not provide for widows of officers and soldiers who have died since the passage of the act. Opinion of April 13, 1837, 3 Op. 203. 67. It does extend to the widows of officers who were living at the time when the act of June 7, 1832, chap. 126, was passed. Ibid. 68. The right of a widow to a pension under the act of July 4, 1836, is a vested interest ac- cruing on the passage of the law, and is not defeated by her neglect to apply for it; and it goes to her personal representatives at her death, there being no special provision giving it a different direction. Ibid. 69. Where the husband received a pension at his death, the pension of the widow, under that act, commences only from the date of his death. Ibid. 70. Widows on the pension-roll and receiv- ing pensions under the third section of the act of July 4, 1836, chap. 362, are not entitled to pensions under the act of July 7, 1838, chap. 189. Opinion of Aug. 24, 1838, 3 Op. 367. 71. Widows of revolutionary soldiers, whose first marriage took place after the expiration of the last period of their service, and before January 1, 1794, who remarried anterior to the passage of the act of July 7, 1838, chap. 189, are not entitled to pensions. Opinion of Sept. 18, 1838, 3 Op. 376. 72. 'The act of March 3, 1837, chap. 42, and the joint resolution of July 7, 1838, have so far modified the act of July 4, 1836, chap. 362, that widows of revolutionary soldiers, who, having remarried, are again widows, irrespec- tive of the date of the death of the second husband, or whether the second husband was a revolutionary soldier or not, are entitled to half pay ; provided, said widows are otherwise entitled to the same. Opinion of Oct. 2, 1839, 3 Op. 477. 73. Where an act of Congress (that of March 3, 1839, chap. 164) directed the Secretary of o'2i PENSIONS, II. War to place the name of a widow of a revo- lutionary soldier, who was u, pensioner, upon the roll of pensions at the same rate which her husband received, to commence at a date ante- cedent to the passage of the act, and it is dis- covered that she actually died before the pas- sage of the act, leaving children surviving : Seld that the payment be made to the children, according to the provisions of the act of March 2, 1829, chap. 28. Opinion of May 25, 1840, 3 Op. 541. 74. The widows of ofiS.cers who actually re- ceived pensions under the act of June 7, 1832, chap. 126, are not entitled to the benefit of the act of July 7, 1838, chap. 189. Opinion of May 31, 1842, 4 Op. 46. 75. In consequence of the executive con- struction given to the act of July 7, 1838, chap. 189, Congress has declared, by resolution of Au- gust 16, 1842, that it embraces the cases of widows whose husbands died after the passage of the act of June 7, 1832, chap. 126, and be- fore the act of July 7, 1838, chap. 189. Opin- ion of Sept. 2, 1842, 4 p. 91. 76. Widows take for five years, beginning in 1836, and are to be paid, according to the let- ter of the law, from that time. Ibid. 77. All declarations for pensions made prior to the act of April 30, 1844, chap. 15, restrict- ing widows to only such part of the five years' pension as their husbands did not receive, are free from the infiuence of the restriction. Opin- ion of May 9, 1845, 4 Op. 376. 78. Widows who prepared their declarations prior to April 30, 1844, and filed them before January 23, 1845, from whom any part was withheld, on account of payment to their hus- bands, are entitled to the whole amount. Ihid. 79. There is no authority for making pay- ment of the arrears of pensions due widows of revolutionary officers at their death, who have left no children, to executors or administrators. Opinion of July 14, 1846, 4 Op. 504. 80. Even where widows have died leaving children, the arrears cannot be received by executors and administrators as assets for the payment ot the decedents' debts. Ihid. 81. Where the arrears of a pension due at the decease of the widow of a revolutionary officer were paid to the administrator appointed in one county of the State of Indiana, and an administrator subsequently appointed iu an- other county preferred u claim for the same amount: Held that the Secretary of War, who made the payment, executed all the power conferred by Congress in respect to it. Opinion of Jan. 15, 1849, 5 Op. 62. 82. The representatives of a widow of a sol- dier of the revolution, who received a pension under the act of July 7, 1838, chap. 189, from the period of her husband's death to her own, have no claim for further payment on the pre- tense that her pension should have commenced at an earlier date. Opinion of Aug. 28, 1850, 5 Op. 248. 83. The pension having been a personal bounty to the widow herself, and the decision fixing the time for its commencement having been acquiesced in by her, it cannot now be contested by her representatives. Ibid. 84. The acts of Congress granting pensions or pay in the nature of pensions, to officers and soldiers of the revolution, and to the widows of such officers and soldiers, did not confer any heritable rights descending to personal repre- sentatives, but by misconception those acts came to be construed otherwise at an early period so far as regards the children of such officers or soldiers and the children of such widows ; and it is too late now to retreat from this misconstruction. Opinion of Nov. 19, 1856, 8 Op. 198. 85. Where a revolutionary soldier, who has performed services which would have entitled him to a pension, has died without being placed on the pension-list, neither his children nor grandchildren are entitled after his death to make the application and get the pension which he might have got by taking the proper steps in his lifetime. Opinion of Sept. 19, 1857, 9 Op. 83. 86. The same rule is applicable to the case of a revolutionary soldier's widow who has died without being on the pension-list, and whose children or grandchildren make the ap- plication in her right. Ibid. 87. The acts of July 29, 1848, chap. 120, February 3, 1853, chap. 41, and August 5, 1854, chap. 267, do not authorize the payment of a pension to a widow for the period em- braced by her second coverture. Opinion of Kov. 2, 1858, 9 Op. 247. 88. Eliza B. Burr intermarried with Col. Aaron Burr, ii revolutionary pensioner, and afterwards obtained a decree of divorce abso- lutely dissolving the marriage : Seld that she PENSIONS, III. 3M5 was not entitled, on the death of Colonel Burr, to be placed on the pension-roll as his ■widow. Opinion of Nov. 6, 1863, 11 Op. 1. III. Invalid Pensions (Army) subse- quent to the Revolution. 89. Officers, privates, &c. , who, although not "wounded," have lost their health while in the line of their duty to such an extent as to he disabled from performing further duty, are within the meaning of the term "otherwise," in section 14 of the act of March 16, 1802, chap. 9, and are prima facie entitled to the charitable relief provided. Opinion of April 6, 1815, 1 Op. 181. 90. Every officer in full commission, and not on flirlongh, must be considered on duty, though at the moment no particular duty is assigned him. Ibid. 91. The cadets at West Point who have been, or may be, wounded whilst in the line of their duty, are entitled to be placed on the list of invalids, as provided in the acts of 16th March, 1802, chap. 9, 29th April, 1812, chap. 72, and 3d March, 1815, chap. 79. Opinion of April 8, 1820, 1 Op. 348. 92. The act of 11th January, 1812, chap. 14, does not provide pensions for aids-de-camp as such, regulated by their pay as such; and therefore, until further legislation, they can receive only the pensions to which their com- niissions entitle them. Opinion of Dec. 5, 1820, 1 Op. 413. 93. Col. E. M. Johnson's pension is (under the operation of the second section of the act of May 15, 1820, chap. 109) to commence from the time of the certifying of the testimony. Testimony is never complete until it comes fully authenticated. Opinion of July 19, 1822, 5 Op. 750. 94. The act of 2d March, 1821, chap. 13, to reduce and fix the military peace establish- ment, has neither repealed nor changed in any manner the claims for pensions given by the analogous act of March 3, 1815, chap. 79, and the acts to which it refers. The eleventh sec- tion of the former act recognizes all the objects provided for in the seventh section of the act of 1815. Opinion of Nov. 17, 1828, 2 Op. 188. 95. Whether or not a former Secretary of War committed an error in allowing a pension for a partial instead of a total disability, the decision can only be remedied by an applica- Opinion of Dec. 17, 1829, 2 tion to Congress. Op. 309. 96. An invalid soldier, who has proved his title to a pension and has been placed on the pension-list, but who has omitted for more than two years to produce the proof of two surgeons, as required by the act of 3d March, 1819, chap. 80, may receive his pension when- ever he offers such proof, without making an- other original application. Opinion of Dec. 9, 1831, 2 Op. 478. 97. In order, however, to entitle him to the pension for the whole of the time past, the proof must apply to his condition as an invalid at the expiration of every two years, and show that at those periods his disability continued. Ibid. 98. It rests with the President to prescribe the regulations under which a person shall be admitted as a pensioner, and the rate of pay which he shall receive, as well under the act of January 11, 1812, chap. 14, as that of March IG, 1802, chap. 9. Opinion of May 31, 1832, 2 Op. 519. 99. He may apply it to civil officers receiv- ing a certain amount of income from their offices, whilst he exempts others from its op- eration. Ibid. 100. A sergeant who is disabled by wounds inflicted on him by the officer of the guard, in 1813, whilst attempting to pass the guard, un- der the sanction of a written permit granted by his commanding officer, is entitled to a pen- sion under the invalid pension law, provided the wounds were given without sufficient justi- fication, and he had a permit to pass, and was passing the guard for some purpose growing out of, or connected with, the public service. Opinion of Dec. 20, 1833, 2 Op. 589. 101. The regulation restricting the com- mencement of pensions to the time when the papers shall be authenticated is repugnant to the act of May 15, 1820, chap. 109. Opinion ofllarch 31, 1836, 3 Op. 58. 102. An officer who, having lost a limb in the war of 1812, was mustered out of the serv- ice upon a, captain's pension, and afterwards appointed battalion paymaster, may be re- garded as having been appointed to the civil branch of the service within the meaning of the act of 30th April, 1844, chap. 15, and en- titled to receive both his pension and his pay. Opinion of Nui: 1, 1848, 5 Op. 51. 326 PENSIONS, IV. 103. The date of the invalid pension of an officer of the army depends on the lineal, not the brevet, rank of such officer. Opinion of Aug. 30, 1853, 6 Op. 88. 104. Volunteers, under act of July 22, 1861, chap. 9, vpho may be wounded or disabled in the service, are not within, or entitled to the benefit of, the provisions of the acts of January 29, 1813, chap. 16, and August 3, 1813, chap. 40. Ojnnion of March 11, 1862, 10 Op. 197. 105. Militia called out and mustered into service, under the President's proclamation of April 15, 1861, and who may be disabled in the service, are entitled to the pension benefits of the second section of the act of August 2, 1813. Ibid. 106. In March, 1865, a soldier received in battle a gunshot wound in the arm, resulting in the partial disability thereof. On October 3, 1867, an examining surgeon found that the injury to the arm occasioned the loss of four- teen-eighteenths of its original vigor, and there- fore certified that the soldier was unable to do any manual labor: Held that the disability in this case was not ' ' specific ' ' within the mean- ing of section 4698 J Eevised Statutes, and that no increase of pension was allowable to the soldier in respect of such disability, commenc- ing prior to the date of the examining surgeon's certificate. Opinion of May 17, 1879, 16 Op. 331. 107 The terms "specific disabilities," as used in that section, signify those disabilities which are specified in the pension laws — such as the loss of a hand, foot, or eye. Injuries requiring medical examination to ascertain and declare their nature and extent, and as to the effect of which there is room for difference of opinion, arenot comprehended thereby. I bid. IV. Invalid Pensions (Navy) subse- quent to the Revolution. 108. Navy pensioners are included in the act of 3d March, 1819, chap. 81, regulating pay- ments to invalid pensioners. Opinion of Jan. 23, 1821, 1 Op. 457. 109. A seaman disabled by punishment in- flicted by an enemy for endeavoring to escape from him after having been taken prisoner, is within the spirit and letter of the act 23d April, 1800, chap. 33, granting pensions to sea- men disabled whilst in the line of their duty. Opinion of April 17, 1821, 1 Op. 461. 110. The word "disabled," in the act of Congress of 2^d April, 1800, chap. 33, means any degree of personal disability which renders the individual less able to provide for his sub- sistence. Opinion of Dec. 17, 1832, 2 Op. 542. 111. The act of 10th July, 1832, chap. 194, devolved upon the Secretary of the Navy the duty of deciding whether the disability is such as to entitle applicants to admission on the roll of Navy pensioners and what amount they shal Ireceive. Ibid. 112. The disability mentioned in the act of April 23, 1800, chap. 33, in order to warrant an application to be admitted on the roll, is that degree of personal disability which renders the individual less able to provide for his sub- sistence. Ojnnion of Dec. 21, 1832, 2 Op. 545. 113. The act of March 3, 1837, chap. 38, for the more equitable administration of the Navy pension fund , ought not to be so construed as to include cases where the death occurred an- terior to the date of the law by which the fund was established. Opinion of June 12, 1837, 3 Op. 246. 114. The second section of the act of March 3, 1837, chap. 38, adopts the pay of the Navy as it existed January 1, 1835, as the standard for all cases coming within that section. Opin- ion of Nov. 10, 1837, 3 Op. 291. 115. The act of 23d April, 1800, chap. 33, does not authorize pensions for wounds received in the line of duty prior to the passage of the act; nor can the act of 3d March, 1837, chap. 38, be construed to embrace such cases. Opin- ion of Sept. 3, 1838, 3 Op. 373. 116. Arrears of pension due a Navy pensioner at the time of his death must be paid over to his legal representatives. It does not revert to the Navy pension fund. Opinion of Slarch 23, 1839, 3 Op. 435. 117. Commodore Porter, who is borne on the Nayy pension roll at the rate of $40 per month, is entitled both to his pension and his regular pay as minister at Constantinople. The case of the minister does not fall within the second section of the act of August 16, 1841, chap. 8, which seems confined to persons in the naval service. Opinion of May 26, 1842, 4 Op. 39. 118. The second section of the act of 23d Au- gust, 1842, chap. 189, repeals the first section of the act of 3d March, 1837, chap. 38, and no allowances can now be made under it. Ol>in- ion of April 15, 1844, 4 Op. 319. PENSIONS, V. 32V 119. The act of 1837 was coatinued in force, temporarily, by the act of 16th August, 1841, Iowa, are not prohibited by the act of June 8, 1872, chap. 335, from employing a private dispatch-company to carry and deliver, within the city limits, sealed letters on which no United States postage has been paid; it ap- POSTMASTEE-GENKRAL. 347 pearing that the free delivery of mail-matter has not been established there, and that, ac- cordingly, the streets of the city are not post- routes. Ojiinion of Dec. 18, 1872, 14 Op. 152. X. Detention of Mail Matter. 165. Letters transported on the mail routes by private carriers cannot be charged vrith postage. Nor is it competent to detain a car- pet-bag containing letters carried on a mail route contrary to law. Opinion of Kot: 15, 1844, 4 Op. 349. 166. All that the Department can do is to enforce the penalties to which all unauthorized •carriers of letters are subjected. Ibid. 167. Where parties are engaged in practic- ing gross fraud upon the public, through the agency of the mails, it is competent for the Postmaster-General to adopt measures and issue instructions to the end of preventing the postal service from being made a means for the accomplishment of the unlawful purpose. Opinion of May 5, 1868, 12 Op. 399. 168. No authority is conferred upon the Postmaster-General by the provisions of the three hundred and first and three hundred and second sections of the act of June 8, 1872, chap. 335, or by the provisions of any other section of that act, to order the detention of mail matter after it has reached its destination and been distributed by the postmaster ready for delivery, though there may be a well- grounded suspicion that it is or has been at- tempted to be circulated in violation of law. Opinion of Nov. 29, 1872, 14 Op. 143. XI. Mail Depredations. — Special Agents. 169. The appropriation of $35,000 for de- fraying expenses on account of mail depreda- tions and for special agents, contained in 'the act of the 3d of March, 1851, chap. 21, is for the fiscal year commencing on the 1st of July, 1851, and ending on the 30th of June, 1852. Opinion of April 18, 1851, 5 Op, 355. 170. And as that amount is all that was ap- propriated for mail depredations and special agents, the Postmaster- General is not author- ized to apply the whole of it to the payment of special agents, to the exclusion of such ex- penses as may be incidental to mail depreda- tions, but he should apportion and apply it to I both objects, according to his judgment and discretion. Ibid. 171. It is the duty of the Postmaster-Gen- eral to return money which has been regained from mail robbers to the owner, when there is evidence, direct or circumstantial, which estab- lishes the true ownership to a reasonable cer- tainty. Opinion of June 1, 1852, 5 Op. 557. 172. It is the duty of the Post-Office Depart- ment to take into its possession all money known to be stolen from the mail, and restore it to the rightful owner. Opinion of Aug. 20, 1857, 9 Op. 70. 173. When the officer who arrests the thief takes the stolen money from him, he has no right to hold it against the demand of the Post-Oflfice Department on the pretense that it is not absolutely and positively identified by the parties who claim to be its rightful own- ers. Ihid. 174. Where the fact of the theft is estab- lished, and the circumstantial evidence makes it reasonably clear that the money found upon the thief was the money stolen from tho mail, the oflScer cannot legally detain it. IMd. 175. Where the duties of ' ' special agents ' ' employed by the Postmaster-General, under section 4017 Eevised Statutes, concern the railway postal service, such agents may, so far (and so far only) as regards the performance of those duties, be placed under the supervision of one or both of the officers authorized to be appointed by the Postmaster-General by sec- tion 4020 Eevised Statutes, to superintend the railway postal service. Opinion of Oct. 9, 1876, 15 Op. 171. POSTMASTER-GENERAL. See also Postal Service. 1. Although Postmasters-General have no authority to bind their successors in matters of purely public concernment, the case is dif- ferent in respect to transactions with individ- uals. Opinion of Oct. 10, 1835, 3 Op. 2. 2. The Postmaster-General has no power to allow foreign steam packets to carry letters coastwise, even though he judge it expedient for them to do so. Opinion of llarch 11, 1842, 4 Op. 3. 3. He has power to establish a post-oflSce in 348 POST-OFFICE DEFAKTMBNT — POWER OF ATTOHNEY. the Cherokee country, provided it he upon a road constructed under the act of March 3, 1825, chap. 64, to establish a line of posts within it. Opinion of 3Iay 16, 1842, 4 Op. 29. 4. Where, by a private act, the Postmaster- General is required to cause to be re-examined the transportation account of a mail contractor, it is to be intended that the same shall be done in the statute routine of the accounting of the department. Opinion of Aug. 25, 1855, 7 Op. 439. 5. The Postmaster-General may lawfully contract, for any convenient time, with printers out of the city of Washington to execute such printing for the Post-Office Department as may he required ibr use out of Washington. Opin- ion of April 17, 1856, 7 Op. 680. 6. The Postmaster-General has no authority, under section 398 Revised Statutes, to negoti- ate a postal convention providing for the pay- ment of indemnity for the loss of registered articles or letters. To enable him to do so further legislation is required. Opinion of March 12, 1878, 15 Op. 462. 7. The Postmaster-General has authority, under section 2 of the act of July 24, 1866, chap. 230, to fix the rates at which telegraphic communications between the several Depart- ments of the Government and their officers and agents shall be carried over the line controlled by the Atlantic and Pacific Telegraph Com- pany. Opinion of May 27, 1879, 16 Op. 353. POST-OFFICE DEPARTMENT. See Executive Depaetmbnts; Postmastee- Geneeal. POST-TRADER. See also Sutlee. 1. A post- trader appointed for a military post under section 3 of the act of July 24, 1876, chap. 226, is removable at the pleasure of the Secretary of War. Opinion of May 19, 1877, 15 Op. 278. 2. Such trader is simply a person licensed by the Secretary of War, with the concurrence of the council of administration and command- ing officer, to carry on a certain traffic at a military post; and his removal would consist merely in a revocation of the license by the Secretary, in which the concurrence of the council of administration and commanding officer of the post is not required. Ibid. 3. A post-trader, located upon a Govern- ment reservation at a military post, within the boundaries of a Territory, cannot, because of the location of his business, claim exemption from the payment of a license tax imposed by the Territorial authorities, where his business extends to other than military persons. But whereiis business is confined to persons in the military service, it is not competent to the Territorial authorities to subject him to the payment of such tax. Opinion of Feb. 2, 1880, l6 Op. 657. 4. Post-traders at military posts, appointed under section 3 of the act of July 24, 1876, chap. 226, are by that section made subject to the regulations of the Army applicable to the occupation or business carried on by them, in like manner, and to the same extent, that sut- lers formerly were with respect to the same business or occupation. JSeld, accordingly, that a tax of five cents for each soldier at the post, imposed by the council of administration upon the post-trader at Fort Dodge, Kansas, is in accordance with law. Opinion of Feb. 2, 1880, 16 Op. 658. POWER OF ATTORNEY. See also PowBES and Teusts. 1. A power of attorney given to a cashier of a bank by name, or to his successors in office, authorizes the successors to act under it. Opin- ion of March 13, 1820, 5 Op. 723. 2. The power of attorney authorizing Joseph Bryain to receive certain moneys from the United States for professional services rendered in prosecuting the claim of the Creeks is suf- ficient for its purpose, if it appear that it was executed by those chiefs and headmen who had authority to execute such an instrument. Opinion of 3Iarch 21, 1849, 5 Op. 76. 3. When a letter of attorney forms part of a contract, and is to secure the repayment of money lent, or has other valuable considera- tion, even if not made irrevocable in terms, it is to be deemed so in law. Opinion of Nor. 13, 1854, 7 Op. 35. POWERS AND TRUSTS— PRESENTS. 349 4. During a professional visit of Madame Son tag Eossi to the United States she invested the sum of twenty-five thousand dollars in stocks of the United States in her own personal name, and after her decease administration upon this property, as legal assets in the State of New York, was granted by the surrogate of the county of New York to "George Christ, of the city of New York, the attorney in fact of Charles Count Eossi, husband of Henrietta Eossi, deceased, late of Vienna, Austria"; the power of attorney referred to having been exe- cuted by Count Eossi after the death of Madame Sontag Eossi, andglvingto Mr. Christ authority "to collect and receive any and all money due to me in any way, and to sell any stocks stand- ing in my name on the books of any company in the United States, and the dividends on the same to receive ' ' : Seld that this power of at- torney does not, by the laws of the State of New York, apply to the stocks in question, which stocks, having been invested in the name of the wife, and not having been reduced to possession by her husband during her lifetime, are not of necessity money or effects due or growing due to Count Eossi. Opinion of March 28, 1855, 7 Op. 68. 5. The power of attorney of Francis Iturbe to P. A. Hargous is sufl&ciently authenticated. Opinion of Dec. 14, 1857, 9 Op. 130. 6. A warrant of attorney to draw money from the Treasury upon a claim not trans- ferred or assigned, is within the first section of the act of February 26, 1853, chap. 81, and must be executed subsequent to the date of the warrant for the payment of the claim. Opin- ion of Aug. 17, 1858, 9 Op. 188. 7. Warrants of attorney executed before the date of that act are exempt from its provisions. lUd. 8. S. , having a contract with the Engineer Department for dredging in the Occoquan Eiver, by the terms of which the compensation named therein was to be paid to him from time to time, gave to I. a power of attorney (de- clared in the instrument to be irrevocable), ' ' to demand, receive, and receipt for, to the proper disbursing oificer of the United States, all moneys, warrants, drafts, vouchers, and checks that may become due and payable to me (S.) from the United States for work," &c. Sub- sequently S. notified the engineer officer in charge that he revoked the power of attorney: Held that by force of section 3477 Eev. Stat. said power of attorney was without legal effect with respect to the claim of the contractor against the United States for his compensation ; that he might at any time revoke it, and when revoked it is not for the officers of the United States to consider whether the revocation was rightful or wrongful. Opinion of Feb. 7, 1879, 16 Op. 261. 9. The provision in that section making void ' ' all powers of attorney, orders, or other au- thorities for receiving payment " of any claim upon the United States, or any part or share thereof, is not limited to powers of attorney, &c., relating to claims which are to be paid by Treasury warrant, but extends to those which relate to claims otherwise payable. Hid. POVVERS AND TRUSTS. See also Powee of Attoenby. 1. A mere naked power does not survive; but a power coupled with an interest or a trust does. Opinion of Nov. 19, 1830, 2 Op. 397. 2. P. and E., survivors of F., who by act of Congress were constituted trustees for B. and M., are entitled to receive and distribute the fund appropriated by the act of May 26, 1830, chap. 115. Ibid. 3. A power to sell, without further explana- tion, ordinarily implies a sale without credit, unless there is an established usage applicable to the subject matter to the contrary. Opin- ion of Oct. 4, 1866, 12 Op. 57. 4. The rule against a sale on credit is stronger, if the power to sell is at a fixed price. Ibid.. PRE-EMPTION. See Public Lands, III. PRESENTS. 1. The expense of recasting cannon, &c., to be presented to the Imaum of Muscat, in return for presents received, may be defrayed from the appropropriation for the contingent ex- penses of foreign intercourse. Opinion of April 11, 1845, 4 Op. 358. 350 PRESIDENT. 2. And asithasbeen the practice of our Gov- ernment, from its earliest history, to inter- change presents with the semi-barbarous na- tions of Asia and Africa, and as the Executive is vested witli a discretion respecting the man- ner in which friendly relations with them can be best maintained, it follows that if he shall be of opinion that the public interests will be promoted by tendering a present in return for one received he may legally do so, and cause the expense thereof to be defrayed from funds thus placed at his disposal. IMd. PRESIDENT. 1. A vessel under arrest, to prevent her from cruising against belligerent powers, may be discharged on the order of the President, com- municated to the marshal having her in cus- tody. But the expenses of arrest should be paid by the owner, and be made a condition of the discharge. Opinion of July 5, 1794, 1 Op. 48. 2. If the commandant of the island of Ame- lia were arrested in Georgia at the suit of an individual, the United States have no power to interfere ; if, however, the suit be a public prosecution in the name of the State of Georgia, or of the United States, it will be proper for the Executive to interfere. Opinion of Jan. 26, 1797', 1 Op. 68. 3. The President hasno constitutional power to interpose to prevent the arrest of a French consul-general. Opinion of Nov. 21, 1797, 1 Op. 77. 4. He may employ military force to remove from the batture or alluvial lands in New Or- leans persons who have taken possession of them since the act of 3d March, 1807, chap. 46. Opinion of Oct. 24, 1807, 1 Op. 164. 5. The relinquishment of duties to be ex- acted under the customs laws is not within the remitting power coniided to the President. Opinion of April 16, 1814, 1 Op. 176. ,'). The President has no power to direct a person, under prosecution for an offense against the United States, to be bailed, or to be dis- charged without bail, on his own bond; the question of bail being a judicial, not an execu- tive one. Opinion of June 23, 1818, 1 Op. 213. 6. He will issue death warrants in order to give effect to the laws, in cases where they are necessary by the practice of the State in which the sentence is passed. Opinion of Aug. 19, 1818, 1 Op. 228. 7. He has no authority to cause an arrest to be made except upon probable cause, supported by oath or affirmation. Opinion of Sept. 8, 1818, 1 Op. 229. 8. The President may issue his proclamation against an offender who hasonce been regularly arrested and made his escape; for, in such case, the regularity of the arrest implies that the probable cause has been furnished on oath, ac- cording to the Constitution. (Amend, art. 4. ) Hid. 9. Under the act of March 3, 1817, chap. 114, the power of the President to discharge public debtors from imprisonment is expressly limited to cases in which the person is impris- oned upon execution; the judgment which shall have been obtained is to remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor. The act is not applicable to the case of a debtor against whom there has been yet no judgment, and who is imprisoned, not upon execution, but upon mesne process. Opinion of Sept. 8, 1818, 1 Op. 231. 10. Where, in his opinion, a court-martial erred on the first trial in excluding proper tes- timony, the President can order a new trial. Opinion of Sept. 14, 1818, 1 Op. 233. 11. The general power given to the Presi- dent to lease the saline on the "Wabash, carries with it all the incidental powers necessary to a settlement with the lessees to transfer the kettles to a subsequent lessee, or to a former- one, for a debt growing out of a lease of the works. Opinion of April 22, 1820, 1 Op. 352. 12. The President ought not to interfere with the judiciary whilst it is in the regular course of giving construction to acts of Con- gress, by directing a noUc prosequi of a proceed- ing against a British vessel for a breach of the navigation act of 18th April, 1818, chap. 70, after the district court has condemned her to forfeiture. Opinion of May 15, 1820, 1 Op. 366. 13. The orders issued by the Secretaries of War and of the Navy are, in contemplation of law, the orders of the President of the United States. Opinion of July 6, 1820, 1 Op. 380. 14. As commander-in-chief of the Navy and Army, the President can modify, suspend, or PEESIDEKT. 35t. rescind an order issued to the Marine Corps. Ibid. 15. He will not interfere in a matter of pri- vate and individual litigation. Ojnnion of Nov. 28,1820, 1 Op. 405. 16. The President has power to order a nolle prosequi in any stage of a criminal proceeding in the name of the United States. Opinion of Jan. 30, 1821, 5 Op. 729. 17. The President advised not to remove the marshal of Ohio on the ex parte statements of the complainants, hut to inclose the papers to the district attorney of Ohio, with instructions to proceed or not, as the evidence shall direct him. Opinion of Feb. 23, 1821, 5 Op. 732. 18. Exceptto avert extreme injustice, which cannot be otherwise avoided, the Executive should not interfere in a civil suit between two citizens. Opinion ofA'ou. 5, 1821, 5 Op. 742. 19. In the case of Captain Bell, who is under arrest at the suit of Fairbanks, in Florida, the subject may be referred to Governor Jackson, or his representative, to ascertain the extent of the Executive power under the laws as they exist in the premises, and to exercise the power, or report to the President for further consider- ation. Ibid. 20. Where it isclaimed by a foreign minister that a seizure made by an American vessel was a violation of the sovereignty of his Govern- ment, and he satisfies the President of the fact, the latter may, where there is a suit pending for the seizure, cause the Attorney-General to file a suggestion of the fact in the cause, in order that it may be disclosed to the court. Opinion of Nov. 7, 1821, 1 Op. 504. 21. The power of the President over accounts is only appellate in its nature, to be exercised after the accounting officers shall have per- formed their duty in the matter. Opinion of March 7, 1823, 1 Op. 597. 22. The report of a committee accompanying a bill, which has passed into a law, may be re- ferred to as well by the President whilst exer- cising his revising power as by the accounting ■ officers in their examination of the accounts submitted, for the principles to govern settle- ments under such law. Ibid. 23. The foreign intercourse fund being under the direction oi'the President, he may advance to a minister going from the United States to Chili such part of his salary as he shall deem necessary lo the propel rullillment of public en- gagements in respect to him. Opinion of Oct. 14, 1823, 1 Op. 620. 24. Although it is the duty of the President; to take care that the laws be faithfully executed, he is not required to audit and allow public ac- counts, but to see that the officers assigned to that duty perform it faithfully. The auditors, and comptrollers are assigned to that duty.. They constitute the accounting department, and so long as they continue to discharge their duties faithfully the President has no author- ity to interfere. Opinio-n of Oct. 20, 1823, 1 Op. 624. 25. There is no law which renders the decis- ion of the court of Georgia upon a claim of the marshal of that State for supporting negroes taken from a vessel brought in for adjudica- tion, under the laws prohibiting the slave trade, binding on the Executive, so as to make it the duty of the executive department of the Government to pass an account which it considers unreasonable and unjust. Opinion of Dec. 30, 1823, 1 Op. 635. 26. The President cannot interpose in the settlement of accounts by the Comptroller, and require him to allow a credit to an indi- vidual in the settlement. Opinion of Jan. 13, 1824, 1 Op. 636. 27. The power of the President to order the discontinuance of a suit commenced in the name of the United States is a high and deli- cate one, to be exercised only with the great- est circumspection and care; and never in a. case in which a court of the United States, free from suspicion of impurity, has taken cogni- zance of the matter, and thereby given coun- tenance to the claim. Opinion of July 37, 1827, 2 Op. 53. 28. The case of the United States r.s. the mayor and aldermen of New Orleans, com- menced by petition for an injunction to restrain them from selling unoccupied land (the cor- poration claiming property), is not a proper case for the interference of the President. Ihid. 29. The controversy arising under the treaty of Indian Springs, between the people of Geor- gia and the Creek nation, having been ad- justed by President Monroe, the award made by him must be regarded as final; the power of the President over the same is funetas officio. Opinion of July 28, 1828, 2 Op. 110. 30. The President hsis no power to order 352 PRESIDENT. moneys paid into the treasury upon judgment and execution, upon the penalty of a bond, to be refunded several years after the payment was made. Opinion of Jan. 10, 1829, 20p. 189. 31. The general provisions of the twenty- seventh section of the judiciary act of Septem- ber 24, 1789, chap. 20, confer no authority upon the President to appoint marshals in districts ■created subsequently to the passage of that law. Opinion of Aug. 27, 1829, 2 Op. 253. 32. The President cannot cause a quarantine to be established at Alexandria. Opinion of Sept. 5, 1829, 2 Op. 263. 33. The President has imposed on him the duty of fitting out and directing the employ- ment of the public armed vessels; and where Congress fails to provide for disbursements in- dispensable to the performance of this branch of public duty, he may make such allowances to of&cers acting in higher stations than those to which they vpere appointed by their war- rants or commissions. Opinion of Oct. 24, 1829, 2 Op. 284. 34. He cannot discharge a debtor to the United States imprisoned on a warrant of dis tress issued from the Treasury Department by the letter of the act of March 3, 1817, chap. 114; yet where the debtor will confess judg- ment, and will submit to a capias thereon at once, and to be thereby brought within the description of the act, the President may legally discliarge him. Opinion of Oct. 26, 1829, 2 Op. 285. 35. The power of the President over a sen- tence of court-martial is a power over the whole of it, and he may approve, reject, or mitigate thesameat pleasure. Opinion of Nov. 3, 1829, 2 Op. 287. 36. In exercising this revisory power over sentences, the President may consider the pro- vocation, if any, which led to the offense, and all the facts and circumstances which properly bear upon the justice or injustice of the sen- tence. Ihid. 37. The President has no authority per se, except in the recess of the Senate, to appoint any permanent navy agents other tlian those enumerated and referred to in the act of 3d of March, 1809, chap. 28. Opinion of MarcJi 10, 1830, 2 Op. 320. 38. The appointment of a navy agent during the recess of the Senate, made in the case of a vacancy occurring during the recess, is in the exercise of the constitutional power of the President, and not by force of the act of 3d of March, 1809, chap. 28. Opinion of April 2, 1830, 2 Op. 333. 39. The President has determined to leave the execution of sentences of the law in aU cases to the direction of the courts, in full con- fidence that they will give a reasonable time for the exercise of executive clemency in cases where it ought to be interposed. Opinion of June 4, 1830, 2 Op. 344. 40. 'l"he President having, as commander- in-chief, satisfied himself that an exchange of artillery and marine corps is conssistent with the good of the service, and that theolficers to be transferred have respectively assented to it, will then take care not to prejudice the rank of any officer of the regiment to which the transfer is made, by nominating the officers transferred to take the same rank in that regi- ment which was held by the officers whom he substitutes. Opinion of June 28, 1830, 2 Op. 355. 41. The President cannot order the delivery of diamonds and precious stones of the Princess of Orange, referred to in the note of Chevalier Huygens. Opinion of Aug. 4, 1831, 2 Op. 452. 42. Nor will he be justified in directing the surrender of the person upon whom a part of the stolen articles may have been found, as there is no stipulation between the two gov- ernments for the mutual delivery of fugitives from justice. Ihid. 43. Where an account has been settled, and a suit commenced on the balance found due, the President cannot enter into the correctness of the account for the purpose of repairing any errors which the accounting officers may have committed. Opinion of April 5, 1832, 2 Op. 508. 44. He cannot order the sale of a square of land in the city of New Orleans. The act of April 24, 1820, chap. 51, refere to lands of a different description. Opinion of Sept. 19, 1833, 2 Op. 586. 45. Payment of the claims of the citizens of Georgia under the Creek treaty of 1821, and the act concerning them of June 30, 1834, chap. 145, may be made by the President to the State of Georgia for the use of the claim- ants. Opinion of Dec. 20, 1834, 2 Op. 691. 46. He has power to expel intruders from the lands secured to the Chiekasaws east of PRESIDENT. 353 the Mississippi by military force, though such lands have been leased by them. Opinion of July 6, 1837, 3 Op. 255. 47. The President does not possess the power to order any portion of a specific appropriation for the mileage and pay of members -of the House of Representatives to be transferred to the contingent fund of that body. Opinion of April 8, 1839, 3 Op. 442. 48. He cannot lawfully interpose an opinion respecting a claim until the accounting officers shall have passed upon and settled all the items of the account. Opinion of March 16, 1840, 3 Op. 500. 49. He has no authority to cause buildings to be erected for the reception of transported Africans. Opinion of Dec. 24, 1842, 4 Op. 139. 50. Nor to remit the forfeiture of a bail bond. Opinion of Feb. 20, 1843, 4 Op. 144. 51. Nor has he power to prevent the exhi- bition of Indians. Opinion of Feb. 21, 1843, 4 Op. 144. 52. He is required to see that the laws are faithfully executed, but is not obliged to exe- cute them himself. Opinion of Aug. 4, 1846, 4 Op. 515. 53. The law has designated the ofScer to decide upon applications for pensions, and has provided for no appeal to the President ; wherefore he will not undertake to revise the decisions of the Commissioner. Ibid. 54. The President is not authorized to direct a surplus of an appropriation for the Winne- bago Indians to be transferred to meet ex- penses in the Department of the Interior for which the appropriation is inadequate or for which none had been made. Opinion of April 25, 1849, 5 Op. 90. 55. Where several midshipmen had been dis- missed by the sentence of a, naval court- martial, which was approved by President Taylor, who afterwards reconsidered his ap- proval and announced his determination to restore them, but failed to do so before his death, it is within the competency and power of the present Executive to restore them to their former rank in the Navy, provided it can be done without increasing that class of oflcers beyond the number limited by law. Opinion of Sept. 19, 1850, 5 Op. 259. 56. The President is under no official obli- gation to interfere with the disputed question as to the legal effect of a decision of a former DIG ^3 Secretary of the Treasury concerning the ex- tent of the grant of land on the Des Moines river to Iowa. Opinion of Dec. 2, 1850, 5 Op. 275. 57. Nor to interfere with the subject-matter of the memorial of Fellows & Co. , who have invoked the aid of the Executive to compel the Secretary of War to file the report of the arbitrators between the Seneca Indians and themselves. Ibid. 58. Although it is the duty of the President to take care that the laws are faithfully exe- cuted, it is not, in general, judicious for him to interfere with the iuuctions of subordinate officers further than to remove them for any neglect or abuse of their official trust. Opin- ion of Jan. 17, 1851, 5 Op. 287. 59. He has no proper authority to employ counsel, at the expense of the Government, to advise, protect, and defend the marshal of the southern district of New York in cases arising under the fugitive slave law. Ibid. 60. He is invested with authority to remove the chief justice of the Territory of Minnesota from office ; and it is his duty to do so if it appear that he is incompetent and unfit for the place. Opinion of Jan. 23, 1851, 5 Op. 288. 61. That the President has the constitu- tional power to remove civil officers appointed and commissioned by him, by and with the advice and consent of the Senate, where the Constitution has not otherwise provided by fixing the tenure during good behavior, has long been settled beyond controversy or doubt. Ibid. 62. The power is reposed in the President in order that he may enforce the execution of the laws through the agency of competent and faithful subordinate officers. Ibid. 63.. The President of the United States has no jurisdiction to entertain appeals in matters of account, either on the application of the Commissioner of Customs, or of the Comp- trollers, or of the Auditors, or of the individual claimants ; he is "to take care that the laws be faithfully executed," not by his own per- sonal examination of accounts, but by the agents and means provided for him by the Constitution and the laws. Opinion of Nov. 13, 1852, 5 Op. 630. 64. The President and subordinate execu- tive officers, whether military or civil, possess 354 PRESIDENT. a limited power to establish regulations, pro- vided these be in execution of and supple- mental to the statutes and statute regulations ; but not to repeal or contradict existing stat- utes or statute regulations, nor to make pro- visions of a legislative nature. Hence the "System of Orders and Instructions" for the Navy, issued by President Fillmore as "Ex- ecutive of the United States," February 15, 1853, is without legal validity, and in deroga- tion of the powers of Congress. Opinion of April 5, 1853, 6 Op. 11. 65. The President of the United States has the constitutional power to pardon as well be- fore trial and conviction as afterwards ; but it is a power only to be exercised with reserve and for exceptional considerations. Opinion of April 15, 1853, 6 Op. 20. 66. It is in the discretion of the President ■whether or not to require bonds of an offieer of the Engineer Corps employed as disbursing agent of the Government. Opinion of April 20, 1853, 6 Op. 24. 67. In general, where the Constitution or an act of Congress requires the President to do ii thing which requires the expenditure of money, he may lawfully do it, or contract to have it done, in the absence of any adequate appropriation' for the object, and the cost of the thing becomes a lawful charge on the Gov- ernment. Opinion of May 6, 1853, 60p. 27. 68. Where, by the special provision for a particular work commenced and in progress, it was provided that nothing in the act should be so construed as to authorize any officer of the Government to bind the United States by contract beyond the amount of existing appro- priation : Held that if the public interest re- quired the President to make a contract for the work exceeding such amount he might lawfully do so, subject to the chance of future appropriations for the object, without which the contract would not bind the United States. Ibid. 69. A special provision of law enacted that "all contracts now existing" in relation to a given object, "not made according to law, are hereb.y canceled": Held that, under this law, the President is to judge whether such contracts were made "not according to law, "and that the law does not determine this point. And qusere whether it could be deter- mined by act of Congress. IMd. 70. When an officer of the Army or Navy is sued on account of acts alleged to have been performed in the line of his duty, the Execu- tive is to judge, in his discretion, whether the case is one of which the defense is to be as- sumed by the Government. Opinion of July 27, 1853, 6 Op. 75. 71. The unlimited discretion of the Presi- dent as to the quantity of land to be reserved for public purposes, conferred by the fourteenth section of the act of September, 27, 1850, chap. 76, has been taken away by the ninth section of the act of February 14, 1853, chap. 69, wliieh. provides "that all reservations heretofore as- well as hereafter made, &c., shall, for maga- zines, arsenals, dock-yards, and other needful public uses, except for forts, be limited to aa amount not exceeding twenty acres for each and every of said objects at any one point ori place, and for forts to an amount not exceeding six hundred and forty acres at any one point or place. " Opinion of Oct. 15, 1853, 6 Op. 157. 72. A legislative act of the British colony of New South Wales, enacting that certain pro- ceedings may be had in the court as to desert ing seamen of any foreign country in that col- ony, provided its government assents: Held that the President cannot give such assent on the part of the United States, but that it can oidy be done by treaty or act of Congre-ss. Opinion of Oct. 28, 1853, 6 Op. 209. 73. In general, it is not the duty of the- United States to assume the legal defense by counsel of marshals and other ministerial offi- cers of the law, where these are sued for official acts. But the President of the United States, in the discharge of his constitutional duty to- take care that the laws be faithfully executed, may, in his discretion, well assume, in certain cases, the defense of such ministerial officers. Opinion of Nov. 14, 1853, 6 Op. 220. 74. The right to do this cannot be limited to cases in which the property of the United States is concerned, but extends to other cases, more especially those affecting the constitutional security of tlie Government, whether in the relation of the United States to foreign gov- ernments, or that of the States among them- selves, or that of the States to the United States. Ihid. 75. When combinations exist among the citizens of one of the States to obstruct or de- feat the execution of acts of Congress, and the PRESIDENT. 353 qmestioB of the constitutionality of such laws is made in suits against a marshal of the United States, the President is justified in assuming his defense on behalf of the United States; Hence, a marshal being harassed with suits on account of his official action in the extradition of a fugitive from service, his defense may well be undertaken by the United States. Ibid. 76. The President has no power to afford . pecuniary redress to a party who alleges abuse of power against him by the attorney of the United States for one of the Territories. Opin- ion of march 23, 1854, 6 Op. 392. 77. An act within the jurisdiction of the President of the United States, lawfully done by him, cannot be revised by one of his suc- cessors. Opinion of June 30, 1854, 6 Op. 603. 78. Whether the President can lawfully dis- charge a prisoner confined for non-payment of a penalty accruing as indemnification to the iudividual inj ured by the prisoner's act, dubi- tatur. Opinion of July 19, 1854, 6 Op. 615. 79. A provision of an act of Congress (section 27 of the act of March 3, 1855, chap. 175), as it stands on the rolls, enacts that a certain sum of money be paid to E. W. T., according to contract between him and the Menomonee In- dians; but, in fact, as the act passed to be en- acted it contained the following proviso, namely : ' ' Provided that the same be paid with the consent of the Menomouees": Hdd that, in his discretion, the President may abstain from proceeding to act under the general en- actment, unless with consent of the Menomo- ■nees, and submit the matter to Congress. Opinion of May 21, 1855, 7 Op. 166. 80. As a general rule, the direction of the President is to be presumed in all instructions and orders issuing from the competent Depart- ment. Opinion of Aug. 31, 1855, 7 Op. 453. 81. Official instructions issued by the heads of the several Executive Departments, civil and military, within their respective jurisdic- tions, are valid and lawful, without containing express reference to the direction of the Presi- dent. Ibid. 82. The President of the United States has lawful authority summarily to remove in- truders from lands duly held by the Govern- ment for the site of a light-house or for any other competent purpose. Opinion of Sept. 21, 1855, 7 Op. 534. 83. In the early period of the Government, there was irregularity in the practice regarding capital sentences under acts of Congress, that is, upon the point whether the convict should be executed on a warrant of the court by which he was tried, or of the President. Opinion of Oct. 19, 1855, 7 Op. 561. 84. But, in the administration of President Jackson, it was determined, and made known by circular from the office of the Attorney- General, in all cases to leave the execution of the sentence of the law to the discretion of the court, in confidence that the court will give a reasonable time for the interposition of Execu- tive clemency in cases where it ought to be interposed. Ibid. 85. The President of the United States alone has the power to pardon offenses committed in a Territory in violation of acts of Congress. Ibid. 86. He cannot restore a convict to the rights of citizenship any further than the operation of a general pardon. Opinion of July 9, 1856, 7 Op. 760. 87. The President has no power to make advances to the governor of Kansas otherwise than by draft on funds appropriated by law for some branch of public service in the Territory. Opinion of Oct. 27, 1856, 8 Op. 137. 88. The President may appoint a private secretary at a salary of §2,500; a secretary to sign patents at a salary of $1,500; and desig- nate a clerk in the Land Office to assist the latter officer. Opinion of Axml 14, 1857, 9 Op. 17. 89. An official act done by the head of a De- partment is the act of the President, and no appeal lies from the former to the latter. Opin- ion of July 31, 1860, 9 Op. 463. 90. As commander-in-chief it is the right of the President to decide, according to his owu judgment, what officer shall perform any par- ticular duty, and as supreme executive magis- trate he has power of appointment. Ibid. 91. If Congress should attempt, by a provis- ion in a statute, to make a military officer in- dependent of the President, he might execute the law in disregard of such unconstitutional provision. Ibid. 92. The President can use his power only in the manner prescribed by Congress. Opin- ion of Nov. 20, 1860, 9 Op. 517. 93. Where the law directs a thing to be done without prescribing the means, the Presi- 356 PRESIDENT. dent may use such means as may be necessary and proper to accomplish the end of the legis- lature; but where the mode of performing a duty is pointed out by statute, that is the ex- clusive mode. IMd. 94. The President has the right to take such measures as may be necessary to protect the public property, as well as to retake public property in which the Government has been carrying on its business, and from which its officers have been unlawfully expelled. Ibid. 95. By the acts of February 28, 1795, chap. 36, and March 3, 1807, chap. 39, the President may employ the militia and the land and naval forces for the purpose of causing the laws to be duly executed; but when a military force is called into the field for that purpose, its opera- tions must be purely defensive, and the mili- tary power on such an occasion must be kept in strict subordination to the civil authority. lUd. 96. Where an act of Congress, establishing a general system, confers on the President the authority to do a specific act for the purpose of perfecting the means by which that system shall be carried into effect, the act of the Presi- dent, when performed according to the terms of the statute, has all the validity and author- ity of the statute itself. Opinion of March 19, 1862, 10 Op. 469. 97. The President has no authority to per- form personally the duties appropriate to the office of an auditor orcomptroller of the Treas- ury, but it is his duty, and he has authority, to see that each performs the duties required of him by law. Opinion of Oct. 8, 1864, 11 Op. 109. 98. There is no statute under which the President may forgive, discharge, or reduce generally debts due to the United States. Opinion of Nov. 21, 1864, 11 Op. 124. 99. The President has no authority under the eleventh section of the act of August 31, 1852, chap. 1U8, to allow the payment of an account of a United States marshal for extra- ordinary expenses, without a special previous taxation of the proper district or circuit court. Opinion of July 7, 1866, 11 Op. 522. 100. Where an officer of the Army has been reported to, and found unfit for the proper dis- charge of his duties by, the board of officers constituted under the provisions of the eleventh section of the act of July 15, 1870, chap. 294, and, after having been allowed ahearing before the board, is recommended by the board to be mustered out of the service, it is the duty of the President to carry such recommendation into efifect. Opinion of Dec. 14, 1870, 13 Op. 353. 101. The fund appropriated by the act of March 3, 1871, chap. 114, for the expenses of the commission to settle claims of citizens of the United States against Spain, may be paid to the commissioners and advocate on the part of the United States, from time to time, at the discretion of the President. Opinion of April 29, 1871, 13 Op. 416. 102. The act establishing the Department of Justice does not prohibit the designation by the President of an advocate on the part of the United States. Hid. 103. The Executive has no authority to re- store to the former owner certain lands in South Carolina which the United States hold under a title acquired by purchase of the prem- ises at a tax sale under the provisions of the direct-tax law. (SeeNoTE, 13 0p. 507.) Opin- ion of Aug. 15, 1871, 13 Op. 506. 104. It is competent to the President, on the presentation for his approval (under section 9 of the act of July 1, 1862, chap. 120) of a map of the route of the contemplated extension of the Central Branch Union Pacific Eailroad west of the meridian of Fort Eiley, to make a provisional approval of the route solely for the purpose of withdrawing the lands from private entry along the same, without prejudice to his . right of ultimately disapproving it; such a course would not at all commit him in regard to his final action upon the matter. Opinion of March 17, 1873, 14 Op. 607. 105. In the exercise of his general adminis- trative superintendence, the President may in- terfere to restrain an officer from assuming an authority that does not belong to him, as well as to compel the officer to perform a duty that does belong to him. Opinion of May 15, 1876, 15 Op. 94. 106. Hence it is competent to the President to entertain an appeal from the head of a De- partment which concerns the authority of a subordinate officer in the Department. lUd. 107. The President has poyer to authorize the commissioner, appointed under the joint PRESIDENTIAL MANSION — PRIOEITT. 357 resolution of February 16, 1875, to represent the Government at the International Peniten- tiary Congress to he held at Stockholm. Opin- ion of March 31, 1877, 15 Op. 618. PRESIDENTIAL MANSION. 1. The original reservation in the plat of the city of Washington for the President's man- sion extended south to the bank of the stream called Goose Creek. Opinion of May 4, 1854, 6 Op. 444. 2. There is no public street lawfully exist- ing across the reservation south of the Presi- dent's mansion. Ibid. PRINTING. See also CoNGBESSiOJf al Peintee. 1. The person entitled to the printing of the Treasury Department, generally, under the late biddings, should execute all the printing required by it, whether on paper or parchment, notwithstanding the error of the clerk in er- roneously stating to the bidder for parchment that his bid for the printing of it was accepted. Opinion of July 17, 1839, 3 Op. 469. 2. The requisitions of the Superintendent of Public Printing are to be made by him directly on the Secretary of the Treasury, and do not require to be approved by the Secretary of the Interior. Opinion of Dec. 14, 1853, 6 Op. 228. 3. The Postmaster-General may lawfully contract, for any convenient time, with printers out of the City of Washington, to execute such printing for the Post-Ofifice Department as may be required for use out of Washington. Opin- ion of April 17, 1856, 7 Op. 680. 4. The certificate of the Superintendent of Public Printing, given to a person who is not the Public Printer, is not conclusive on the accounting ofi&cers of the Treasury. They may inquire into the accuracy of the facts stated. Opinion of March 1, 1861, 10 Op. 5. 5. The certificate of the Superintendent is absolutely necessary to authorize payment of the Public Printer, and if he wrongfully with- holds it he renders himself liable to an action by the party injured. Ihid. 6. The proviso to the third section of the joint resolution of June 23, 1860, in effect re- strains the Superintendent of Public Printing from paying higher prices for work by the day or week than is paid in the private establish- ments of Washington for work by the day or week, and from paying higher prices for piece- work than they pay for work of that kind. Opinion of Feb. 18, 1862, 10 Op. 187. 7. Nothing in that proviso prohibits the Su- perintendent from fixing such number of hours for labor in the office as he thinks proper. Ibid. 8. Section 10 (third^rowso) of the act of March 2, 1867, chap. 167, does not require "printing" ordered by Executive Departments to be per- formed at such newspaper offices only as are designated by the Clerk of the House of Repre- sentatives under section 7 of the same act. Opinion of July 24, 1873, 14 Op. 616. PRIORITY. 1. Where the estate of any deceased debtor in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due the United States shall be first satisfied; but whether the United States have priority over mortgages executed on land of the debtor, whilst a debtor to the United States, qusere. (See acfr March 3, 1797, chap. 20.) Opinion of Dec. 8, 1820, 1 Op. 414. 2. A prior lien on a policy for the premium of an insurance is overreached by the right of preference of the United States, even though the preference be founded on a subsequent act of insolvency. Opinion of June 2, 1823, 1 Op. 616. 3. Where one of two partners had given bonds with sureties to the United States for duties on merchandise imported by the firm upon which there was subsequently found to be due the sum of |30,000, and deeds of trust to a third person were afterwards executed, conveying, among other property and claims, a certain debt due the firm from the Govern- ment of Naples on account of the seizure of a schooner and cargo in which they had an in- terest, which, under the convention of the King of the two Sicilies, had been awarded to them, and now claimed and demanded by the trust- ees under the deeds of trust, they alleging that the debt of the United States for duties 358. PRISONBES OF AVAE ; PEIVILEGED COMMXJNICATION. had been extinguislied by the taking of the bond of one partner with sureties: ITeld, that, notwithstanding the decision of Judge M'ash- ington in the case of the United States rs. Ast- ley & Brooks,' the debt remains against the firm, and must be first deducted from the amount awarded to them before payment can be made to them or their assignees. Opinion of June a-i, 183.5, 2 Op. 719. 4. Where a receiver of public moneys at Kalamazoo received in payment for public lands the notes of a specie-paying bank that afterwards suspended specie payments, and then took from the bank ^ draft on another bank which was returned dishonored, and a receiver of assets having been appointed under the laws of Michigan, with whom the receiver of public moneys filed a claim for this debt: Held that, notwithstanding the acts of the lat- ter, the legal priority of the United States to payment still exists. Opinion of March 3, 1841, 3 Op. 625. PRISONERS OF "WAR. Union soldiers, made prisoners by the enemy and discharged under parole, but not ex- changed, cannot, under the terms of the cartel of July 22, 18G2, agreed to between Major- General Dix and General Hill, be employed by the Government in suppressing an insurrec- tionary war of Indian tribes. Opinion, of Oct. 18, 1862, 10 Op. 357. PRIVILEGED COMMUNICATION. 1. Official correspondence between the Com- missioner of Internal Eevenue and a district attorney, in relation to cases of violation of the internal-revenue laws and to prosecutions thereunder, belong to that class of communi- cations which, on grounds of public policy, are regarded as privileged, and the production of ■which in evidence, in a suit between private parties, the law will not enforce. Oxnnion of Oct. 12, 1877, 15 Op. 378. 2. A sulpmna duces tecum, issued by a State court, was served upon a district attorney, re- quiring him to appear as a witness in a private suit and bring with him all letters and tele- grams received from the Commissioner of In- ternal Revenue relative to certain: causes then pending in a United States court on indictments under the internal-revenue laws: Advised that it would be proper for the attorney to appear before the State court in obedience to the writ, and there object to produce the papers on the ground that they are privileged, if, in his judg- ment or in that- of the Commissioner, their production would be prejudicial to the public interests, Ihid. 3. An ofScer, under authority of the Treas- ury Department, advertised for jaroposals to furnish fuel. C, a bidder, addressed a com- munication to the officer relating to the respon- sibility of H. , another bidder. The officer, in obedience to his instructions, submitted to the Department the bids received by him, and with them he forwarded the said communication. An action for libel having been brought by H. against C. , and interrogatories therein concern- ing said communication filed in the Depart- ment: Held that the communication cannot properly be treated by the Secretary as a priv- ileged one. Opinion of Dec. 17, 1877, 15 Op. 415. 4. In general, only such communications as are made in the course of their official duties by the persons making them come within the rule of privileged communications, and are confidential under all circumstances. But in certain cases (indicated in the opinion) com- munications other than those of officials may be treated as confidential, and in these cases the Department would be justified, upon pub- lic considerations, in declining to furnish copies of such communications on the order of a court. Ihid. 5. The defendants in a suit on a distiller's bond, instituted for the recovery of internal- revenue taxes assessed under section 3253 Eev. Stat. , have no legal right to the use at the trial of the reports, documents, and other papers on file in the office of the Commissioner of Inter- nal Eevenue, upon which the Commissioner acted in making the inquiries and determina- tions contemplated by section 3182 Rev. Stat., and from which he derived the information that, in whole or in part, formed the basis of the assessment. Nor has the court authority to comjjel the production of such jjapers. Opin- ion of May 31, 1878, 16 Op. 24. PKIZE. 359 PRIZE. See also Captube. 1. It is reasonable in itself, as applicable to all nations, to permit a portion of a prize cargo to be sold, under the actual superintendence of our ptiblte officers, for the necessary repara- tion of the prize-ship; and as to France, it is within the fourteenth article of our treaty of 1778 with that nation. Opinion of Kov. 15, 1796, 1 Op. G7. 2. The prize-ship should be permitted to sail whenever the captors wish ; a deception on the revenue officers affords no ground for detaining it. Ibid. 3. A captured vessel must be brought within the jurisdiction of the country to which the •captor belongs before a regular condemnation can be awarded. Opinion of Dec. 19, 1797, 1 Op. 78. 4. If a prize-ship be regularly commissioned as a ship-of-war, the officers and crew are to be detained as prisoners, except such as are citi- zens of the United States. Opinion of Sept. 20, 1798, 1 Op. 85. 5. Proceedings against a prize-ship are to be had in the district court of the United States. Ibid. 6. Where a vessel, captured and condemned « as prize of war, was afterwards taken at a valuation and placed in the service of the Gov- ernment : JScld that the captors were entitled to their prize interest at the hands of the Gov- ernment, and that the portion of the prize to which the Government was entitled should, as in other cases, be applied to the use of the Navy pension fund, as directed by the ninth section of the act of April 23, 1800, chap. 33. Opin- ion ofllarch 27, 1816, 1 Op. 186. 7. Where a captured fleet was condemned as a prize of war and afterwards purchased by the President for |255,000, under an act of ■Congress directing such purchase, and the dis- tribution of that amount between the captors and their heirs : Held that it was not intended to alter the mode of distribution, nor to de- prive the widow of a, seaman slain in the struggle from claiming and receiving the same share that she would have received had the prize been sold under a decree of court. Opin- ion of Oct. 17, 1820, 1 Op. 403. 8. The profits of a capture made by indi- viduals, acting without a commission, inure to the Government, but it has not been the practice to exact them. It has been their practice to recompense gratuitous enterprise, courage, and patriotism by assigning the cap- toj-s a part and sometimes the whole of the prize. Opinion of April 24, 1821, 1 Op. 463. 9. The 4th section of the act of 3d March, 1800, chap. 14, refers to the prize law lor the proportion of the salvage which the officers and crew shall take in a given case, as well as for the mode in which the share, so taken by them, shall be distributed. Opinion of Feb. 20, 1823, 1 Op. 594. 10. The rules for the distribution of prize- money are: that the whole of the prize be- longs to the captors when the. vessel captured is of equal or superior force to the vessel mak- ing the capture; and when of inferior force the prize is directed to be divided equally be- tween the United States and the officers and men making the Capture. Ibid. 11. As the act of 14th July, 1832, chap. 269, for the relief of Captain Stevens and others, does not expressly authorize the President to depart from the general regulations on the subject of prize-money, the act of April 23, 1800, chap. 33, for the better government of the Navy, must be taken as a guide in the execution of the law. Opinion of July 5, 1834, 2 Op. 656. 12. Where an American vessel had entered and cleared from a port under blockade, and, whilst returning to New Orleans, was captured by a vessel belonging to the French block- ading squadron, from which the captain of the former rescued her and brought her into the port of New Orleans, to which he was destined; and demand subsequently being made on the Executive to deliver up the vessel and cargo, both on account of the said breach of blockade and the rescue : Held, that the captors have no right of property in said vessel and cargo ; and that the liability of the vessel to condemna- tion, if it ever existed, has ceased by the ter- mination of her voyage at the port of her des- tination. Opinion of Oct. 11, 1838, 3 Op. 377. 13. Distribution of certain moneys appro- priated by Congress as prize-money among the officers and crew of two gunboats must be made in the proportions and to the persons pointed out by the general laws and regula- tions of the Navy applicable to the subject. Opimon of April 13, 1839, 3 Op. 451. 360 PKIZE. 14. -The act abolishing the office of prize agent, and requiring all incumbents thereof to deposit all moneys in their hands in the Treas- ury of the United States, divested prize courts of all powers to distribute prize-moneys, and relieved the agents of all responsibility to comply with their orders directing distribu- tion made subsequent to the passage of the law. Opinion of July 24, 1849, 5 Op. 142. 15. "Where a prize agent refuses to deposit certain prize-moneys in the Treasury, in con- formity with the act of 3d March, 1849, chap. 103, on pretense that the act is no(; applicable to the case, and the Attorney-General has de- cided that he ought to make the deposit, it is proper to institute proceedings in the prize court to compel a compliance with the law. Opinion of Oct. 7, 1850, 5 Op. 266. 16. It is the duty of prize agents to deposit all moneys in their hands in the Treasury of the United States. Opinion of Oct. 24, 1853, 6 Op. 197. 17. It is the settled jpractice of prize courts to award costs for or against claimants, at dis- cretion. Opinion of Sept. 19, 1862, 10 Op. 347. 18. After a regular condemnation of a vessel and cargo in a prize court, for breach of block- ade, the President cannot remit the forfeiture and restore the property or its proceeds to the claimant. Opinion of Feb. 9, 1863, 10 Op. 452. 19. After such condemnation the share ap- portioned to the captors becomes a vested right, and the part which belongs to the United States is vested by law in the Navy pension fund ; and neither can be rightfully withdrawn from its legal destination by any Executive act under authority of the pardon- ing power. Ihid. 20. The 2d section of the prize act of March 3, 1863, chap. 86, authorizing the taking by the Government of any captured property and the deposit of its value in, the Treasury, sub- ject to the jurisdiction of the prize court in ■which proceedings may be instituted for con- demnation of the property, is a valid exercise of the power of Congress to make rules con- cerning captures. Opinion of Sept. 14, 1863, 10 Op. 519. 21. The provision of that section is not in conflict vrith the public law of war, and does not impair the just rights of neutrals under that law. Ibid. ' 22. But if it were thus in conflict with the public law it would be none the less binding upon the courts of the United States, though such conflict might lead to diplomatic reclama- tions and possibly to war. Ibid. 23. The commander of a squadron is not entitled to share in prizes taken by a vessel or squadron after he has transferred the command to his successor, although the captures were made in pursuance of instructions issued by such commander before the tranter of his command. Opinion of March 4, 1864, 11 Op. 9. 24. The flag-officer of a squadron is not en- titled to the share of prize-money accruing to the captain of his flag-ship from captures made by that ship while her captain was de- tached on account of illness, and the flag- officer was de facto in command of her. Ibid. 25. On a question as to the distribution of the proceeds of certain prize property captured by the United States steamer Santiago de Cuba, Captain Glisson, on the 29th and 30th of June and the 1st of July, 1864 : Held that the capturing vessel was under the ' ' imme- diate command" of Admiral Lee, as com- mander-in-chief of the North Atlantic block- ading squadron, and that Admiral Lee was entitled, under the act of July 17, 1862, chap. 204, to one-twentieth part of the prize-money awarded to the vessel making the capture. Opinion of Sept. 27, 1864, 11 Op. 94. 26. The act of June 30, 1864, chap. 174, does not alter the rule of distribution of prize- money in cases of maritime captures pending at the date of the act, but the proceeds in those cases are distributable according to the law existing at the time of the captures. Opinion of Sept. 30, 1864, 11 Op. 102. 27. The law regulating the distribution of prize-money among naval captors is a condi- tional grant by Congress, and as soon as the conditions are fulfilled the grant becomes ab- solute. Ibid. 28. There is no power in the Executive to revise and reverse the judgments of the prize or other courts of law of the United States, or to criticise and condemn their supposed errors. Opinion of Oct. 20, 1864, 11 Op. 117. 29. When the courts have acquired jurisdic- tion of cases of maritime capture the political department of the Government should post- pone the consideration of questions concerning PRIZE. 361 reclamation and indemnification until the judiciary has finally performed its functions in those cases. Ibid. 30. Commodore Wilkes having, without au- thority, and in disobedience of the orders of the Navy Department, usurped command of the United States steamer .Vanderbilt, cannot claim any share of the prizes captured by that vessel. Opinion of Jan. 19, ISGcj, 11 Op. 147. 31. Commander Wyman cannot share in those prizes while acting under orders of Com- modore Wilkes, on board of that vessel. Ibid. 32. Share of commander of capturing vessel. Md. 33. An officer of a fleet absent with leave from the command to which he is attached, for the purpose of attending to his private affdirs, is not entitled to share in prizes cap- tured daring his absence. Opinion of Aug. 24, 1865, 11 Op. 327. 34. After condemnation of a vessel libeled in prize the President cannot affect the decree by directing a discontinuance of the proceed- ings. Opinion of April 2, 18G6, 11 Op. 445. 35. The President cannot, by any exercise of his pardoning power, remit or mitigate the forfeiture of property confiscable as prize of war. Ibid. 36. The facts of this case showing that Com- modore Wyman, at the time of the capture of the prize-steamer Gertrude by the United States steamer Vanderbilt, was "doing duty on board" the latter vessel within the contem- plation of section 3 of the act of Juiy 17, 1862, chap. 204, and was borne on the books thereof: EeM that he is entitled to participate in the proceeds of the prize according to the rate of his pay in the service at that period. Opinion of Dec. 7, 1872, 14 Op. 150. 37. A corporal of a volunteer regimen t was detached from his company for service in the "Mississippi Marine Brigade," and while in that service participated in the capture of a prize, whereby he became entitled to share in the residue of the proceeds thereof, after mak- ing certain deductions, in proportion to the rate of his pay. He alleges that, when the prize was taken, he was acting as a first lieu- tenant by direction of the commander of the brigade. A few days before that event, a com- mission was issued appointing him a first lieu- tenant in the brigade; but owing to causes be- yond his control he did not receive it, and had no knowledge of its existence until several months afterward. He claims a share of the proceeds of the prize as a first lieutenant, though he is entered only as a private upon the prize-list of the vessel on which he served. Meld that if, as claimant alleges, he was per- forming the duties of first lieutenant at the period of the capture, then, inasmuch as in such case he would be entitled to the pay of that grade under the provisions of the joint resolution of July 11, 1870, amendatory of the joint resolution of July 26, 1866, he would be equally entitled to share in the prize in pro- portion to the rate of that pay. Opinion of Feb. 6, 1874, 14 Op. 365. , 38. Where a district court, by its decree, ordered certain money to be distributed as pro- ceeds of prize, one-half to the captors and the other half to the "Navy pension fund"; and at a subsequent term of the court, the distri- bution of the money having in the meantime been made as thus ordered, altered its decree by ordering all the money to be paid to the captors as military salvage: Held that, as to the money in question, viz: the amount dis- tributed to the "Navy pension fund", the modified decree was of no effect and void; the funds having then already passed out of the jurisdiction and control of the court. {Cf. opinions of Attorney-General Akerman of August 1 and December 6, 1870, in 13 Op. 2'J9, 348. ) Opinion of Feb. 5, 1875, 14 Op. 524. 39. The words, "their respective rates of pay in the service, ' ' as used in section 10, par- agraph numbered "fifth," of the prize law of June 30, 1864, chap. 174, signify the rates of pay actually established, and to which the par- ties concerned were entitled, at the time of the capture of the prize. Opinion of Dec. 10, 1875, 15 Op. 64. 40. Accordingly, the promotion of a naval officer to whom prize-money is distributable under said paragraph, conferred after the date of the capture of the prize, cannot affect the distribution of the fund, even though by the promotion he became entitled to increased pay from and including that date. In such case the rate of pay which the officer was in receipt of when the capture was made, not the in- creased pay resulting from the promotion after- wards bestowed, is the measure of his allow- ance under that provision. Ibid. 41. The commander of a single ship is by 362 PROCESS — PEOPBRTY OF UNITKD STATES. the prize law aforesaid restricted to one-tentli or tliree-twentieths (as the case may be) of the prize-money awarded to his vessel , and can- not share according to his rank, where that would give him more. Ibid. 42. Under a decree, in prize, of the district court of the United States for the southern dis- trict of Illinois, passed at its June term, 1868, Certain moneys were paid into the Treasury to the credit of the naval pension fund. At its November term, 1869, in a proceeding for the reformation of that decree, due notice of which was given to the proper representative of the United States in the cause, the court modified its decree so far as to require the said moneys to be distributed to the captors named therein: SeUl that the decree as thus modified is the only final decree of the court in the cause, and should alone be regarded as the decree of the court, for the purpose of distribution of the funds, within section 16 of the act of June 30, 1864, chap. 174 (section 4641 Revised Statutes), and that it is the duty of the Secretary of the Navy, and of all officers of the United States concerned, to give effect thereto. Opinion of July 27, 1876, 15 Op. 576. 43. Opinions of Attorney-General Akerman and Attorney-General Williams in same mat- ter (13 Op. 299, 348; 14 Op. 524), considered, and the apparent conflict between the view there taken and that here adopted explained by a material difference between the state of facts as then and that as now presented. IMd. PROCESS. See also State Process. 1. The judicial power of a nation extends to every person and every thing in its terri- tory, excepting only such foreigners as enjoy the right of exterritoriality, and who, conse- quently, are not looked upon as temporary subjects of the state. Opinion of 31arch 11, 1799, 1 Op. 87. 2. The lawfulness of serving j ndicial process upon a person on board a foreign ship of war within the United States is imdeniably ac- knowledged by necessary and unavoidable im- plication in the seventh section of the act of June 5, 1794, chap. 50. Ihid. 3. The executive officers are not subject to suit for acts done in the regular discharge of their official duties. Opinion of April 8, 1823, 5 Op. 759. 4. The Treasurer of the United States is not liable to the process of attachment for the sal- aries of clerks in the Departments. Ibid. 5. It may be doubted whether a circuit court has power to send criminal process be- yond the limits of the district in which the court is held. Opinion of Feb. 9, 1859, 9 Op. 265. 6. The warrant of a judge of a circuit court of the United States will run throughout the United States. Opinion of Dee. 10, 1864, 11 Op. 127. 7. The Government of the United States should not interfere with process issued out of a State court in Kentucky for the arrest of " paroled rebel prisoners," charged with rob- bery on the occasion of "Morgan's raid." Opinion of 3Iay 27, 1865, 11 Op. 240. PROMOTION. See Aemy, II; Navy, II. PROPERTY OF UNITED STATES. 1. .AH collections of objects of natural his- tory and the like, and all field-notes or other like local information, taken or obtained by any public officer, civil or military, in ihe line of his duty, belong to the Government. Opinion of June 26, 1854, 6 Op. 600. 2. But officers of the Government, civil or military, may lawfully make collections and take notes for their own use; provided the same be done without neglect of public duty or expense to the Government; and provided also, that it be done without violation of su- perior order in their respective departments. lUd. 3. An injunction, or any other judicial pro- cess, is not necessary to prevent a railway com- pany from taking possession of a fort or other military property of the Government. If such an invasion is threatened, the officer at the post ought to be instructed to resist it by force. Opinion of Sept. 29, 1857, 9 Op. 106. 4. An officer in command of a military post PROPOSALS — PUBLIC BUILDINGS. 363 las the right to protect it by force from occu- pation or injury at the hands of trespassers. Opinion of Sept. 24, 1860, 9 Op. 476. 5. An officer in command of such a post has no authority to lease the lands for private pur- poses to persons who are not in the employment of the Government. Hid. G. Property of the United States, transferred by rebel authorities, in the hands of persons ■within the jurisdiction of a friendly foreign state, may be recovered by appropriate judicial proceedings instituted by the United States in thecourts of the foreign government. 02nnion of July 13, 1865, 11 Op. 292. PROPOSALS. See CoNTEACT, III; Postal Seevice, II. PUBLIC ARMS. See also Sale of Arms. The Secretary of War has no povper to sell to a State serviceable arms belonging to the United States. These and other munitions of war are held by him for the public purposes of the Government, without any authority to dis- pose of them by sale. Opinion of March 27, 1880, 16 Op. 477. PUBLIC BUILDINGS. 1. Public buildings are not legally in the possession of the head of Department, military or naval commandant, or other public of&cer on duty therein, but in the possession of the United States. Hence, an ejectment brought against such otficer, under pretence of his being tenant in possession, is without jurisdiction in law, as a means of trying the title of the United States. Opinion of Dec. 4, 1854, 7 Op. 44. 2. The United States having assumed the defense of such a suit, the public of&cer is to be considered as a nominal party, and the suit is subject to the control of the Government. Md. , 3. The direction of the entire work on the new State, War, and Navy Department build- ing, and the disbursement of the appropriations provided therefor, are by law devolved upon the Secretary of State. Opinion of July 3, 1874, 14 Op. 409. 4. The condition in the deed of the city of New Yorls, conveying to the United States the site (viz, the lower part of the City Hall Parli) of the new post-ofBce and court-house build- ing, by which the title is subject to forfeiture in case the ground conveyed ceases to be used for the purposes of a post-office and court-house or either, or in case it is used for any other public purpose, is not violated by the occu- pancy and use of some of the rooms in the new building by certain officers of the internal rev- enue, steamboat inspection, and other service under the control of the Treasury Deparrment. Opinion of March 30, 1878, 15 Op. 477. 5. Under the provision in the act of June 18, 1878, chap. 263, authorizing the Secretary of War, ' ' in his discretion, to expend the sum of $60,000, or so much thereof as may be nec- essary, in the construction of suitable build- ings for store-houses and offices at Omaha, Nebr.,".he would not be warranted in ac- cepting a gift of land on which to erect such buildings; it appearing that the Government already owns land at Omaha which is available for the purpose, and it being fairly inferable that Congress intended to provide for the con- struction of the buildings thereon. Opinion of Aug. 9, 1878, 16 Op. 119. 6. The supervisors of Ontario County, New York, by authority of an act of the legislature of that State dated April 12, 1859, demised to the United States by a perpetual lease a certain part of the county court-house in the city of Canandaigua, some of the rooms within which part are used by the Post-Office Department for a post-office: Seld that the law applicable to property of that description owned by the United States applies to the property perpetu- ally leased as aforesaid. Semble, however, that an expenditure for lock-boxes for the post-office therein is one that appertains to the Post-Of- flce Department and is properly chargeable to its appropriation. Opinion of Jan. 18, 1879, 16 Op. 255. 7. Opinion of January 18, 1879 (16 Op. 255), reconsidered, and in view of the fact that ex- penditures for providing and repairing lock- boxes in public buildings occupied for post- 364 PUBLIC LANDS, I. offices have hitherto been made, and are still being made, from an appropriation under the control of the Secretary of the Treasury, and other circumstances: Advised that no immedi- ate change of this practice be made, it not be- ing so clearly without warrant of law as to render an immediate change imperative. Opin- ion of Feb. 10, 1879, 16 Op. 265. 8. The Secretaries of State, "War, and Navy have no authority to modify the approval given by them undersection 2 of the act of March 3, 1871, chap. 113, of the plans of the building now being erected for the use of those Depart- ments. Opinion of Dec. 19, 1879, 16 Op. 651. 9. "Where laud, at the city of Omaha, Nebr., was donated to the United States for the pur- pose of a site for a certain public building, for the construction of which an appropriation was made by the act of June 23, 1879, chap. 35: Seld that the consent of the legislature of the State to the grant is required by force of sec- tion 355 Eev. Stat, before any part of the ap- propriation can be lawfully expended in the erection of the building. (See j oint resolution No. 9, of February 5, 1880. ) Opinion of Jan. 7, 1880, 16 Op. 414. PUBLIC LANDS. See also Land-Grant Eoads; Pacific Eail EOADS. I. Generally. II. Disposal of. — PuMc Sales. — Private Entries. III. Pre-emption. IV. Purchase by Aliens. "V. Refunding Purchase Mmiey. TI. Land Warrants and Scrip. — Virginia Military Scrip. VII. Land Warrants obtained by Fraud. VIII. Surveys. IX. New Madrid Certificates. — Location. X. Town Sites. XI. Suspended Entries. XII. Patent. XIII. Statutory Grant. XIV. School-Land Grants. XV. Swamp-Land Grants. XVI. Grants in aid of Canals; Railroads, &c. XVII. Indemnity for Lost Granted Lands. XVIII. State Selections under Grants thereto. XIX. Salt Springs. XX. Mineral Lands. XXI. Reservations for Public Use. — Sale of Military Sites. XXII. Claims under Indian Treaties. XXIII. Private Land Claims in California. XXIV. Private Land Claims in Florida. XXV. Private Land [including Back Land Pre-emption) Claims in Louisiana. XXVI. Private Land Claims in Michigan. XXVII. Private Land Claims in Mississippi Territory. XXVIII. Private Land Claims in Missouri and Arkansas. XXIX. Private Land Claims in New Mexico. XXX. Private {including Donation) Land Claims in Oregon. XXXI. Missionary Stations. XXXII. Indian Title. XXXIII. Intruders. — Cutting or Removal of Timber. XXXIV. Construction of Road through. XXXV. Registers and Receivers. I. G-enerally. 1. The act of 3d of March, 1791, chap. 27, directing the laying out of tracts of land to the inhabitants of Vincennes, did not authorize either the President or the governor to make conveyances for the allotments; and, if patents are necessary to confirm the titles, it yet re- mains with Congress to direct by whom tliey shall be issued. Opinion of March 25, 1794, 1 Op. 44. 2. The governor of Indian Territory cannot confirm unauthorized grants, unless actual im- provements were made under them previous to 3d March, 1791, chap. 27; nor can he dis- criminate between the persons still holding their original grants and those who have had such grants confirmed by former governors, or have purchased under such confirmations, and have made improvements, unless such im- provements were made previous to the 3d March. Opinion of Dec. 29, 1801, 1 Op. 95. 3. Under the act of 3d March, 1791, chap. 27, entitling the heads of families who had re- moved without the limits of the Northwestern Territory to the donation lands specified therein, PUBLIC LANDS, II. 365 those persons only who returned to the Terri- toiy and occupied the lands within five years from the passing of the act are entitled to its benefits. Opinion of March 14, 1803, 1 Op. 124. 4. It is competent for the Secretary of the Treasury to deduct the expenses of surveys of the lands of the United States lying within the State of Ohio before computing the 3 per cent, to which that State is entitled under the act of March 3, 1803, chap. 21, and to calcu- late the percentage for Ohio on the balance. Opinion of Mardi 31, 1824, 1 Op. 640. 5. In the matter of the Yazoo claims, the delendant's title to the lands having been de- rived from the United States, his main ground of defense will be the cession by Georgia to the United States, the several acts of Congress touching the claims, and the proceedings of commissioners under them. Opinion of June 24, 1826, 2 Op. 36. 6. The laws on the subjectof public landsare all in pari materid, and are all to be construed together. No particular law should be con- strued as an insulated act upon its own letter, but as having relation to the general system. Opinion of Dec. 31, 1826, 2 Op. 44. 7. A land certificate may, under the act of May 23, 1828, chap. 71, for the relief of Messrs. E. & M. , issue to A. M. , the survivor of the firm, which had purchased public lands at the sales in New York. Opinion of 3Iay 11, 1829, 2 Op. 203. 8. Acts in pari materid are to be considered as one law ; and those of May 24, 1828, chap. 108, and of January 6, 1829, chap. 2, are such statutes so far as settlers on land west of the territorial limits of Arkansas are affected. Opinion of Dec. 8, 1829, 2 Op. 306. 9. Fractional quarter sections selected by the governor of Arkansas Territory under the special acts of March 2, 1831, chap. 67, and July 4, 1832, chap. 172, must each be taken instead of an entire qxtarter section. Opinion o/4m(7. 8, 1836, 3 0p. 148. 10. Additional selections to make the com- plement in quantity of ten sections need a confirmatory act of Congress. Ibid. 11. Where there is a conflict between two titles derived from the same source, either of which would be good if the other were out of the way, the elder must prevail. Opinion of Nov. 10, 1858, 9 Op. 254. II. Disposal of.— Public Sales.— Private Entries. 12. Although the act of 3d March, 1803, chap. 21, was the affirmance of a compact be- tween the United States and the State of Ohio, it must have been within the contemplation of the contracting parties at the time that Congress should retain the power of regulating the terms of the sales to be made. Opinion of March 31, 1824, 1 Op. 640. 13. The act of 22d May, 1836, chap. 143, for the relief of Alfred Flournoy, did not author- ize an entry of reverted lands before they had been again offered at public sale; nor lands relinquished after the passage of the act. Opinion of Dee. 31, 1826, 2 Op. 44. 14 Sales of lands excepted from sale by act of Congress are void for want of authority. Opinion of Oct. 22, 1828, 2 Op. 18S. 15. The decision of a court as to the inva- lidity of the claim causing the exception will not correct the error. Ihid. 16. A purchaser of a tract, as to part of which there was authority to sell, and as to the other part there was not, has the option to avoid the entire contract, or to receive a patent for such part as could be sold. Ibid. 17. Lands struck off on the last day of a public sale, and not paid for, are not subject to private entry prior to being again offered at public sale. Such tracts are not unsold lands at the close of the public sale, but are to be regarded as reverted lands. Opinion of April 1, 1829, 2 Op. 201. 18. The several acts of 3d March, 1819, chap. 98, of May 18, 1824, chap. 88, and of 24th May, 1828, chap. 96, authorize the cor- rection only of entries of lands by money pur- chasers ; and entries by Canadian volunteers are not such. Opinion of Jane 2, 1830, 2 Op. 341. 19. The first section of the act of 2d July, 1836, chap. 266, confirms sales that are fair and regular in all respects other than those provided for in the second section. To bring a case within the second section, it must ap- pear that an entry has been made under the pre-emption laws, pursuant to instructions sent to the register and receiver from the Treas- ury Department, and that the proceedings have been, in all other respects, fair and rrgular. The Commissioner has to judge of the proof. 3C6 PUBLIC LANDS, II. and may receive farther evidence in support of the fairness and regularity of the claim. Opinion of Aug. 10, 1836, 3 Op. 149. 20. Where the purchase money is paid di- rectly to the Treasurer, the specific tract of land must be stated the same as if applied for at the office of the land district, and the same form must be pursued. Opinion of Oct. 24, 1836, 3 Op. 150. 21. "Where H. and F. applied at a land office to enter certain lands, but not being able to comply with the regulations of the Depart- ment, procured them to be marked and re- served from sale to T. , who, soon thereafter, applied to purchase and pay for them and was refused ; and afterwards H. and F. made payment and obtained a certificate of pur- chase : Held that the land officers should have complied with T. 's offer ; and that, as a patent has not yet issued, the matter is yet under control of the General Land Office. Opinion of June 5, 1837, 3 Op. 240. 22. It is the duty of the Executive to secure to all persons a fair and equal opportunity of purchasing the public lands. Opinion of July 14, 1837, 3 Op. 274. 23. Lands that have been temporarily with- held from private sale should not be allowed to be entered until suitable notice has been given of the removal of the cause of suspension. Ibid. 24. The Treasury Department has no au- thority to require a certificate that notice has been given, or that lands are liable to entry ; noi' can the Treasurer refuse pay for a specific tract, unless he have oiBcial evidence that it is not subject to sale. Ibid. 25. "Where a lot of land offered at auction at a public sale of land was struck off to A, who advanced the money and took a receipt there- for, and B on the same day offered evidence to prove that he nodded to the auctioneer, and that his nod was equivalent to a bid for said land above that of A, and that thereupon the land officers put up the land again on a sub- sequent day, and struck off the same to C, who conveyed it to B, who disputes A's title : Held that if B intended his nod at the first sale to be a bid above A he should have promptly disclosed it at the time and invoked the land officers to remedy the inobservance or neglect of the auctioneer ; and that, as this was not done, the patent must issue to A, to whom it was struck off at the first sale. Opin- ion of April 10, 1839, 3 Op. 448. 26. It has been the position of the United States since the delivery of the opinion of Mr. "Wirt (dated September 13, 1827, 2 Op. 57) that the acts of 26th March, 1804, chap. 38, erect- ing Louisiana into two Territories, and that of the 2d March, 1805, chap. 26, for ascertaining and adjusting the titles and claims to lands within the Territory of Orleans and the dis- trict of Louisiana, extended to the country west of the Perdido, to which the United States have always assented, and at length enforced their right under the treaty With France in 1803, and that between the Govern- ment and Spain in 1800. Opinion of Nov. 1 , 1841, 3 Op. 697. 27. The Indian right of occupancy having been fairly extinguished by treaty, and the Government having come to be in full and complete possession of the lands in question, it had become both expedient and necessary that they should be surveyed and put into market. Ibid. 28. The surveyor of lands of the United States south of Tennessee was authorized to cause the surveys to be made ; and his ap- proval of the plats thereof is a sufficient authentication of both the survey and the plats. Ibid. 29. The President had a. discretionary au- thority to proclaim these lands for sale imme- diately upon being informed that the surveys were made and proper laud officers appointed to conduct them. Ibid. 30. Purchasers are chargeable with notice of the law respecting all former grants by Spain and France; and in relation to pre- emptions. Ibid. 31. In the case of an erroneous sale, in any respect other than failure of consideration by reason of want of title in the United States, the Secretary of the Treasury has no power to refund the purchase money, but relief must bo sought at the hands of Congress. Nor ought a patent to issue so long as the surveys remain confused ; but the same may be prop- erly suspended until a report can be had or the facts concerning the lauds be more fully ascertained. Ibid. 32. The lands of the Chickasaws were put on thfe same footing as the public domain, and. are, therefore, not subject to private entry PUBLIC LANDS, III 3G7 until the same shall have been proclaimed to be in market. Opinion of March 29, 1843, 4 Op. 167. 33. The great fundamental principle of our land sales is that private entries shall never be permitted until after proclamation is made that the lands are in market. The reason of this rule applies in all cases where, from any cause, land has been temporarily taken out of commerce. Ibid. 34. The words of the tenth article of the treaty, concerning the gradual fall of the price, did not contemplate a fall to be regulated by mere lapse of time. The plain sense of the provision is that lands, after having with due notice been one year exposed in open market, at a fixed price, may be for another year offered at a reduced price, and so on. Hid. 35. But private entries are not in order until the land shall have been proclaimed to be, and shall have been, properly put in mar- ket. Lands which have never been in com- merce at all cannot be treated, at the end of the term designated in the treaty with the Indians, as lauds for which nobody would bid. Ibid. 36. As the location of the certificate issued under the act of July 20, 1840, chap. 96, must be according to sectional lines, it follows that no proper application for a location thereof on the Wyandot lands could have been made be- fore such lands had been surveyed. Opinion of Sept. 25, 1845, 4 Op. 442. 37. Nor were the Wyandot lands subject to pre-emption or private entry. They were re- quired to be offered at sale at not less than 12.50 per acre. Ibid. 38. The act of 11th February, 1847, chap. 8, granting bounty lands to non-commissioned of- ficers and soldiers serving in the war with Mexico, does not authorize locations of land- warrants upon lands, the price of which is fixed at f 2 per acre by the act of 3d August, 1846, chap. 77. The provision of the act of 1847, referred to, was intended to operate on the public lands which are subject to sale at the minimum price. Opinion of Jan. 18, 1848, 4 Op. 714. 39. Where a section of public laud was in- cluded with other lands in the President's proclamation for sale, and the sale took place, but the section in question was not sold, the presumption is that such section was cried by the auctioneer; and an applicant to enter the- saine, at private sale, need not be required by the register to prove that it was actually cried in the hearing of the bidders. Opinion of Nov 29, 1851, 5 Op. 477. 40. An application for the purchase of laud was rejected by the register, and the applicant, then tendered the purchase-money to the Treasurer of the United States, who refused to- receive it: Held, that the neglect of the ap- plicant to appeal to the General Land Office was not an abandonment of his application. Ibid. III. Pre-emption. 41. The rights of pre-emption, given to set- tlers by the act of 12th April, 1814, chap. 52, attach to settlers on lands set apart for bounties- by the act of 6th May, 1812, chap. 77, who- settled thereon prior to the surveys, but not to those who settled thereon subsequently. Opinion of Aug. 28, 1819, 1 Op. 291. 42. The pre-emption claims cannot be ascer- tained and decided upon by any other agency than that of registers and receivers of the land districts in which they are situate. Ibid. 43. The language of the act 26th May, 1824, chap. 154, granting pre-emptions in the Law- rence district, is in the present tense. There- fore, lands ceded to the United States by the- Quapaw treaty of January 18, 1825, although within the Lawrence district, are not subject to pre-emption. Opinion of Dee. 4, 1826, 2 Op. 42. 44. Pre-emptions under contract with John C. Symms could not be entered on lands lying between Eoberts's and Ludlow's lines. Con- gress could not have intended that Symms's contract should interfere with the Virginia military reservation. Opinion of July 20, 1829, 3 Op. 246. 45. Lands relinquished and reverted are not subject to pre-emption under the act of May 29, 1830, chap. 208. Opinion of Aug. 23, 1830, 2 Op. 367. 46. Where first settlers have rented their improvements toothers, landlords, not tenants, are entitled to pre-emptions. The object of the law was to secure improvements to those making the expenditures. Ibid. 47. It would be unsafe for the land officer.* to permit entries and to receive purchase- moneys from persons not claiming pre-emption 368 PUBLIC LANDS, III. rights, without first ascertaining whether there is a settler on the land entitled to pre-emption; but such right is inchoate, and can only be- come complete by making the proof and pay- ment required by the act during its continu- ance, and, consequently, will not prevent the emanation of a patent after the act has ex- pired if these requisites have not been com- plied with. Ihid. 48. Proof and entry may be made at any time within the life of the act of 29th May, 1830, of lands subject to private sale at its passage. Ibid. 49. A claim entered by a honafide purchaser, although at private entry and without notice, is not forfeited. IMA. 50. Where a settler has obtained a right of pre-emption to one quarter section, and has made improvements on another tract of laud which he has leased, the lessee, as such, is not entitled to the pre-emption. Opinion of Sept. 16, 1830, 2 Op. 383. 51. No pre-emption claim set up by any per- son will justify the cutting of timber from such lands, until title to the land claimed is ac- knowledged by the Government, or main- tained by the j udgment of the court. Opinion of June 9, 1832, 2 Op. 524. 52. The revival of the pre-emption act of May 29, 1830, chap. 208, by the act of the 19th June, 1834, chap. 54, embraces the provisions ingrafted thereon by the supplementary act of January 23, 1832, chap. 9. Opinion of March 6, 1835, 2 Op. 701. 53. Pre-emption accrues to aliens under the acts of May 29, 1830, chap. 208, and June 19, 1834, chap. 54, especially where the local law authorizes them to hold and convey real es- tate. Opinion of April 18, 1836, 3 Op. 90. 54. The assignee of a pre-emption certificate takes it subject to the equities subsisting be- tween the settler and the United States. The legal title is in the United States, until a pat- ent issues; and where the equities are equal, the legal title will prevail. Opinion of April 18, 1836, 3 Op. 92. 55. There is reason to doubt whether a pre- emption to an accumulation of land in the Mississippi can be allowed to exist. Opinion of April 23, 1836, 3 Op. 102. 56. The lands ceded by the Quapaw treaty of August, 1818, are not subject to pre-emp- tion under the act of April 12, 1814, chap. 52. The Indian title not having been extinguished, they could not have been settled prior to the ' date of that law, consistently with the claim of the Quapaws. Opinion of May 3, 1836, 3 Op. 106. 57. Legal evidence from competent sources (excluding the oaths of claimants and all in- terested parties) is what is intended by the word "proof," contained in the act of the 29th May, 1830, chap. 208. The Commissioner of the General Land Office may prescribe the mode and kind of proof ; how and by whom it should be taken ; but cannot prescribe any- thing as proof which is not such in fact, nor any rule as to its weight and force. Opinion of June 21, 1836, 3 Op. 126. 58. Any entry allowed by the register and receiver, upon the affidavit of the interested party, and only corroborated by facts within their knowledge, is only erroneous and void- able, not void as against the United States. Ibid. 59. Settlers or occupants within the mean- ing of the law, are those who resided person- ally on the public land in question, or who occupy and use it. Settlement and occupancy cannot be effected by proxy. Ibid. 60. Pre-emption floats mislaid on lands sub- ject to another right of preference may be raised, and properly relocated at any time prior to the public sale of the lands, including the tract on which the original right accrued, but not afterwards. Opinion of June 24, 1836, 3 Op. 133. 61. By the terms "settlers" and "occu- pants" used in the pre-emption acts, is meant those who personally cultivate and reside on, or who personally cultivate, use, and manage the public lands. Opinion of March 29, 1837, 3 Op. 182. 62. Actual residence on the land is not in- dispensable, yet, with cultivation, it is the highest evidence of that persotial connexion which is indispensable. Ibid. 63. The head of a family whose dwelling is not on the land, but who improves and culti- vates by the application of his personal labor, or that of his family, hired men, servants, or slaves under his direction, is entitled to the benefits of the law. Ibid. 64. The law of landlord and tenant is inap- plicable to the subj ect of pre-emptions ; yet, as it has been made the basis of instructions, the PUBLIC LANDS, III. 369 rule ought to be followed. The act of 2d July, 1836, chap. 2G6, confirms such entries. Ibid. 65. A pre-emptor cannot he undermined by a subsequent fraudulent purchaser. Ibid. 66. Pre-emption acts of May 29, 1830, chap. 208, and June 19, 1834, chap. 54, re-examined and e:!^p]ained. Ibid. 67. The actof July 14, 1832, chap. 246, is an amendment of the act of May 29, 1830, chap. 208, which is revived by the act of June 19, 1834, chap. 54, and is to be considered a part thereof Opinion of April 8, 1837, 3 Op. 195. 68. A failure to pay for a pre-emption before a public sale of the lands in which it is situ- ated forfeits the right, and consequently the right to select eighty acres plsewhere ; it may he saved, however, by a tender of payment in due time. Opinion of April 27, 1837, 3 Op. 211. 69. A tender for the original tract and for the tracts selected, with a condition that the first shall not be received without the latter, is a good tender, provided all the tracts are liable to he selected; otherwise, not. Ibid. 70. A pre-emptor may float a tract returned as a regular half-quarter section, and two pre- emptors may float tracts that do not in the aggregate exceed 160 acres. He may select subdivisions of fractions where the land dis- trict contains no regular half-quarters, but in such cases should be confined to those contain- ing the least excess over 80 acres. Ibid. 71. Where the district contains regular half- quarters, the two floats cannot take fractions, which, united, amount to over 160 acres. Ibid. 72. Designating a tract before the coming in of a plat, so as to enable the proper officer to locate, is sufficient. Error in description is not fatal if tiie tract be identified. Ibid. 73. A person who inhabited one quarter sec- tion and cultivated another, of which he was in possession on the 19th June, 1834, is enti- tled under the first section of the act of June 19, 1834, chap. 54, to enter the same after six months from the date of that act. Opinion of July 10, 1837, 3 Op. 258. 74. But the option of entering either quar- ter section, under section 2 of that act, is lost by neglecting to malie the application within six months. Ibid. 75. An ofiScer of the Army of the United States in actual service may have a valid pre- DIG 24 emption claim as settler or occupant of public lands, although it may seem to be incompatible with the condition of an officer in actual serv- ice. Opinion of Jan. 19, 1838, 3 Op. 303. 76. As to the personal residence and inhab- itancy on public lands necessary to confer the right of pre-emption, former opinions on the subject are referred to, indicating that where there is but a partial cultivation under the im- mediate personal direction of the claimant as the head of a family by himself, hired men, servants, or slaves, and a settlement and occu- pation actually intended to be made, and is subsequently made, by the claimant, he is en- titled to the benefit of the laws. Opinion of March 10, 1838, 3 Op. 309. 77. Where the improvement is oh a frac- tional section containing over 160 acres, the claimant may enter, in conformity with the legal subdivisions recognized by the acts of May 29, 1830, chap. 208, and June 19, 1834, chap. 54, a quantity of land not exceeding 160 acres. Opinion of 3Iareh 16, 1838, 3 Op. 313. 78. A 40-acre lot created by the operation of the act of April 5, 1832, chap. 65, is not such a legal subdivision, and cannot be taken in addition to the fractional quarter containing the preemptor's improvement. Ibid. 79. The third article of the circular of the Commissioner of the General Land Office, dated July 22, 1834, and the third and eighth article of the circular of October 21, 1834, are not in- consistent with the law. Ibid. 80. The right of pre-emption attaches only to such public lands as are subject to the oper- ation of the general land system of the coun- try, and not to those which have by the act of Congress been taken out of the class of public lands and appropriated to specific objects, or reserved for particular purposes, as for the cul- tivation of the vine and olive. Opinion of April 18, 1839, 3 Op. 456. 81. The dwelling house of a pre-emptor be- ing on a fractional section, and his improve- ments extending over upon another fractional section and upon an entire one, his right of pre-emption cannot be admitted to the three, but is limited to his domicile and one of the other two sections of land. Opinion of July 8, 1840, 3 Op. 564. 82. The permissive possession of twenty- seven years may give the party strong equities, which may he addressed to the legislature; yet 370 PUBLIC LANDS, III. the land officers can only be governed by exist-, ing acts of Congress. Hid. 83. The right of pre-emption, if otherwise mature, may be allowed to lands reserved from sale, under the supposition that they fell within the limits of the grant in aid of the Milwau- kee and Rock Eiver Canal, but subsequently found not to be included. Opinion of July 25, 1840, 3 Op. 577. 84. The disallowance ofa pre-emption claim made by an assignee ofa certificate of purchase by the register and receiver, who had compe- tent authority to judge of its validity, on grounds satisfactory to them that it was un- founded, is conclusive against the claim. Opinion of Oct. 19, 1841, 3 Op. 664. 85. The acquittal of McDonald and Norton for perjury, charged to have been committed in swearing to the affidavit upon which the claim of pre-emption was grounded, is not conclusive upon the United States in the land department. JUd. 86. Certain pre-emptioners in the Cherokee country are entitled to a year to make proof and complete entries. Opinion of April 27, 1842, 4 Op. 20. 87. The acts of June 22, 1838, chap. 119, and June 1 , 1840, chap. 32, revived the law of May 29, 1830, chaiD. 208; and the principle laid down in the opinion of the Attorney General, dated April 8, 1837 (3 Op. 195), is applicable to the claimants in the present case. Ihid. 88. Pre-emptioners, under the act of June 19, 1834, chap. 54, have not the right to a sur- vey and patent of land surveyed for town lots and streets, under the acts of July 2, 1836, chap. 262, and March 3, 1837, chap. 36, in the Territory of Iowa. Opinion of April 29, 1842, 4 Op. 23. 89. The pre-emption grants give to the pre- emptioner a Jiis ad rem, but not a, jus in re; and such aright, resting in contract, cannot always be carried out by specific performance. IMd. 90. The Secretary of the Treasury has no power to order surveys of these town lots and streets into thrm lots to suit the wishes of pre- emptioners, in order to perform specifically one act of Congress which is in conflict with later acts requiring a different survey. Ihid. 91. Certain claims of pre-emption rights to lands acquired by the treaty with the Miamies of November 6, 1838, held not allowable under the acts of Congress. Opinion of Aug. 19, 1842,. 4 Op. 89. 92. The sales made to pre-emptioners within the admitted or ascertained limits of the Houma grant are entirely void under the sixth section of the act of Feb. 15, 1811, chap. 14. Patents should therefore be refused on all cer- tificates on sales which fall within that cate- gory. In the cases of patents issued there is no remedy except in the courts. Opinion of Sept. 2, 1842, 4 Op. 92. 93. Free colored persons are entitled to the benefits of the pre-emption act of Sept. 4, 1841, chap. 16. The plain meaning of the act is to give the right of pre-emption to all denizens. Aliens only, in the proper accepta,tion of the term, are excluded from the right. Free col- ored people are distinguished from aliens, even where slavery exists, and are capable of all the rights of contract and property. Opinion of March 15, 1843, 4 Op. 147. 94. The residence required by act of June 1, 1840, chap. 32, is limited to the date of that act, and need not have continued for four months next preceding it, as required by the actof June 22, 1838, chap. 119. Opinion of July 29, 1843, 4 Op. 198. 95. Pre-emptioners under the act for the armed occupation and settlement of the unset- tled part of the peninsula of east Florida, ap- proved August 4, 1842, chap. 122, have no right to cut live-oak or other timber for any purpose other than to clear, improve and fence their land, until after the five years' occupa- tion shall have enabled them to acquire a per- fect title. Opinion of July 16, 1845, 4 Op. 405. 96. All lands within the prescribed limits as to boundary and quantity were open for such settlement, with the single reservation con- tafned in the third section, which prohibits any such settlement within two miles of any permanent military post of the United Slates, established and garrisoned at the time such set- tlement and residence was commenced. IMd. 97. Settlers upon the public land must com- ply with the conditions of the land laws in order to avail themselves of the privilege of pVe-emption. Opin ion of April 25, 1846, 4 Op. 493. 98. They must give the written notice of their settlement and intention to claim the right of pre-emption within thirty days &om PUBLIC LANDS, III. 371 the date of their entering personally on the land with the intention of settling there. Ihkl. 99. They must also inhabit, improve, build, pay, and make proof, within twelve months, to be entitled to preference over those who may have entered the same lands at the land office. Ihid. 100. Where a settler upon certain public lands on the east bank of the Mississippi River — which, when subsequently surveyed, was des- ignated as the southwest fractional quarter of section 25 — failed to make payment therefor prior to the day appointed for the public sale of lands in that vicinity, and by his agent, on that day, refused to enter and pay for the same unless he could be permitted also to enter the southeast fractional quarter section ; and not being gratified in that respect (the land officers refusing his request, and offering all the lands at public sale, and actually sell- ing the southeast fractional quarter, and after- ward obtaining a confirmation of their pro- ceedings), by his agent having applied to the Secretary of the Treasury for a hearing in re- spect to his claim of pre-emption: Held, that he abandoned his claim by refusing to make payment unless he could be permitted to enter the southeast fractional quarter section, and that by such refusal he forfeited all right which he had previously acquired to the premises. Opinion of October 27, 1847, 4 Op. 637. 101. The pre-emption act of June 19, 1834, chap. 54, expressly declares that its provisions shall not be available to those who fail to make the proof and payment required before the day appointed for the commencement of the public sale. Ibid. 102. The claim presented having no merit in law or equity, the decision of the Commis- sioner of the General Land Office, approving the proceedings of the register and receiver, should be affirmed. Ibid. 103. By treaty between the United States and several tribes of Indians in the Territory of Kansas, the latter ceded certain lands to the United States on condition that a part of the same should be held in trust by the United States to be sold at public auction for the bene- fit of such Indians. Afterwards, by act of Congress, all the lands in the Territory to which the Indian title had been extinguished were made subject to the laws of pre-emption: Held, that the provision does not include the lands thus reserved by the treaties for public sale for the benefit of the Indians. Opinion of Aug. 12, 1854, 6 Op. 658. 104. Indians are not capable of pre-empting the public lands of the United States. Opinion of July 5, 1856, 7 Op. 746. 105. Where a person claiming a pre-emption right was shown to have located Louisiana in- ternal-improvement scrip on more than 320 acres of other land at the time he made his entry of the land in question, it was held that his title thereto was defeated. Opinion of Nov. 15, 1880, 9 Op. 499. 106. The affidavit of a party claiming a pre- emption right denying the ownership of other land is only one means of ascertaining the fact. It is not conclusive, and the contrary may be shown by other evidence. Ibid. 107. Where a settler made a mistake in his declaratory statement as to the particular tract intended to be claimed, but failed for three years to make the necessary proof and pay- ment, and during his lifetime the land in con- troversy was granted away by Congress, it was Mid that a pre-emption entry of his heirs was not oonfirmable by the Commissioner of the Land Office. Opinion of Nov. 26, 1860, 9 Op. 515. 108. Where a person in 1829 entered upon public land and occupied and improved the same continuously until the passage of the act of May 29, 1830, chap. 208, but took no steps to enter with the register of the land otfice, under that act, the land so occupied and im- proved until 1838: Be?(?, that by operation of the act of April 20, 1832, chap. 70, exempting from sale or appropriation the land in ques- tion, he had lost his right of entry. Opinion of June 12, 1861, 10 Op. 56. 109. The aforesaid act of May 29, 1830, which granted pre-emption rights to settlers on the public lands, did not vest in a settler any right to the land occupied and improved by him. It gave him only a contingent right to become the first purchaser of the land, without competition, when it should be brought into general market. And the Gov- ernment had a right, at any time before proof and payment were made by such settler, to reserve the land from sale and deprive him of the privilege conferred by that act. Ibid. 110. The decision of the register and re- 372 I'UBLIC LAKDS, IV-VI. ceiver of the land office that a claimant had settled upon and occupied land in accordance with the act of May 29, 1830, is not of neces- sity final and conclusive. Hid. IV. Purchase by Aliens. 111. A party, prima facie entitled to pre- emption, should not be precluded from receiv- ing a patent for the land by the mere allegation of his being an alien. Opinion of May 27, 1852, 5 Op. 551. 112. Under the land laws of the United States, aliens are entitled to purchase the pub- lic lands, subject only, as to their tenure, to such limitations as particular States may en- act; with this exception, however, that pre- emptions are secured to aliens who have de- clared their intention to become naturalized according to law, and to citizens whether na- tive-born or naturalized, and to none others. Opinion of July 28, 1855, 7 Op. 351. 113. The same distinction is maintained in the graduation acts, with the further condi- tion that the limited quantity of land pur- chasable by any person at the reduced prices can be purchased only for personal use and for actual settlement and cultivation. Ihid. V. Refunding Purchase-Money. 114. Repayment of purchase-money should be made in cases where the purchase of land from the United States is found to be void by reason of a prior sale, or by the confirmation or other legal establishment of a prior, British, French, or Spanish grant, or for want of title in the United States from any other cause (see act of January 12, 1825, chap. 5). Opinion of Aug. 14, 1843, 4 Op. 228. 115. Instances where there is a deficiency in the quantity of land purchased, and where an entry has been made of land to which another had a pre-emption right, are cases falling within the terms of the act of 12th January, 1825, chap. 5, and call for repayment. Ihid. 116. But in cases of error arising from mis- calculations of the amount to be paid, where the money paid has not been returned by the receiver, the excess should not be paid from the treasury ; but i he error should be corrected by the receiver. Where, however, the excess or over payment shall have found its way into the Treasury, it cannot be withdrawn except iu strict fulfillment of the requisitions of law, which the "administrative power" cannot control. Ihid. 117. The case of Wilson Shannon does not come within the provisions of the act of the 12th January, 1825, chap. 5, and, therefore, the Treasury Department has no authority to re- fund to him. Opinion of Sept. 29, 1843, 4 Op. 253. 118. Even though the fun ds of Shannon were not received into the public treasury, and it be conceded that the United States have no equitar ble claim upon them, there is no act authoriz- ing repayment of money wrongfully or erro- neously paid, except the act of 12th January, 1825, which applies to certain specified cases. Ihid. 119. It would not do for the Department to refund money which has erroneously found its way there, simply on the ground that it is just that it should be repaid, for the reason that it would require the Department to disregard a most wholesome and salutary restraint, upon the due and strict observance of which the most important interests depend. IMd. VI. Land-'Warrants and Scrip. — Vir- ginia Military ditto. 120. If the Government issue a land-warrant for a claim on which it had granted a former one, the circumstance does not deprive the first warrantee of his rights. Opinion of March 22, 1815, 5 Op. 702. 121. The bounty lands mentioned in the act of January 11, 1812, chap. 14, may be com- muted under the act of April 16, 1816, chap. 55, notwithstanding the death of the soldier. Opinion of June 17, 1816, 5 Op. 702. 122. Land-warrants, by the laws of Virginia, are not mere chattels, but are regarded as a kind of inchoate title to lands, and descend to heirs. Opinion of Oct. 8, 1819, 1 Op. 311. 123. A land-warrant held in the right of a feme covert must be assigned by her with her husband in order to transfer it. Ihid. 124. Military bounty land- warrants to Cana- dian volunteers, under the act of March 5, 1816, chap. 25, are not assignable. Such war- rants, when fraudulently obtained, may be canceled so as to prevent their use for any mischievous purpose. Opinion of Dec. 26, 1819, 1 Op. 326. 125. Canadian volunteers may locate lands for which warrants have been issued to them, PUBLIC LANDS, VI. 373 by attorney, the same as others similarly en- titled have been accnstomecl to do. Opinion of Dec. 29, 1820, 1 Op. 424. 126. Land-warrants, issued under the act of 3d March, 1807, chap. 32, must be received at the rate of |2 per acre in payment for any lands west of the Mississippi. The act of 24th April, 1820, chap. 51, does not affect their value. Opinion of Jan. 29, 1822, 1 Op. 536. 127. As the owner of a land-warrant may locate it in as many several parcels as he pleases, he may demand and take a grant for each. Opinion of April 19, 1826, 2 Op. 26. 128. He may assign any portion of his war- rant to a third person, who may, upoii the au- thority of such assignment, make entries in his own name and take out grants to himself therefor. Ibid. 129. Four out of ten children may assign their rights in an unlocated warrant issued to their father, and the assignee may enter the lands in his own name and demand grants therefor in severalty. Ihid. 130. The provisions of section 1 of the act of 20th May, 1826, chap. 138, are not limited to Virginia military laud-warrants obtained after the passage of the act. Opinion of Oct. 22, 1829, 2 Op. 280. 131. The terms "any such vrarrant" relate to Virginia military land-warrants issued pre- vious, as well as subsequent to the act. Void. 132. Congress intended to subject these claims, in their progress from entry to patent, to the supervision of the Secretary of War. Ihid. 133. Land scrip issued upon the surrender of warrants issued for bounty lands granted by the United States, and by the State of Vir- ginia for services in the Revolution, should is- sue to the parties nominatim, and to heirs on due proof of heirship. Opinion of Oct.l, 1830, 2 Op. 385. 134. When issued according to the terms of the warrant, in certain cases, they must be as- signed by all the heirs by name and accompanied with proof of identity, heirship, and proof of assignment. Ihid. 135. It must issue to the heirs or assignees, and not to executors nor administrators ; for it is to be considered as belonging to the realty. Hid. 136. A warrant for bounty land should issue to the applicant really entitled thereto, not- withstanding a warrant and patent for the same land may have been fraudulently obtained by another person who personated the proper claimant. Opinion of March 19, 1832, 2 Op. 501. 137. Land-warrants for bounty landsarereal estate, and where parties first entitled have died, they must, in general, issue to heirs or devisees, not to administrators vfith wills an- nexed. Opinion of March 28, 1832, 2 Op. 506. 138. Virginia land scrip is so far the repre- sentative of money as to be subject to the same equitable deductions, in case of indebtedness to, or frauds committed upon, the Government, as may be made in the case of a sum of money due from the Government to one of its debtors. Opinion of Fch. 9, 1836, 3 Op. 35. 139. Land scrip issued pursuant to the act of 30th of May, 1830, chap. 215, for the relief of certain officers and soldiers of the Virginia line and navy, must be made out in the names of the persons jjr(»ia facie entitled to it. Opin- ion of April 23, 1836, 3 Op. 98. 140. If there be equitable assignees of the whole or any part of the scrip which may be issued, and they shall claim the same in hos- tility to the parties originally entitled, the scrip, if delivered at all, ought to be delivered to the parties originally entitled, their heirs, devisees, or other agent or agents, as contra- distinguished from persons claiming interests, as assignees or otherwise, by contract. Ibid. 141. But where the Department sees that the just claims of other persons will be liable to be defeated by such delivery of the scrip, it may lawfully suspend the actual delivery until claimants can have time to apply to a court of equity for an injunction; and if it be procured, to retain the scrip until the rights of the par- ties can be judicially determined. Ibid. 142. The Treasury Department may suspend the issuing of all or any portion of the scrip claimed on a warrant issued for a greater number of acres than may appear to be due, until the true amount can be ascertained. Opinion of April 28, 1836, 3 Op. 103. 143. Scrip for revolutionary land-warrants may be issued; and for that purpose the first section of the act of May 30, 1830, chap. 215, is now in force. Opinion of June 14, 1837, 3 Op. 246. 144. Land scrip issued in satisfaction of mili- tary bounty land-warrants must be regarded 371 PUBLIC LANDS, TL as real estate, which upon the death of the holder goes to the heirs- at-law, and not to the executors and administrators. Opinion of A'o v. 9, 1838, 3 Op. 382. 14.5. Scrip may be issued, under the act of Marcli 3, 1835, chap. 30, on a Virginia land- warrant dated subsequent to September 1, 1835, in cases where it shall appear that such warrant is not an original one, but was only issued in place of one issued improvidently to wrong heirs prior to September 1, 1835, and canceled by Virginia, as it is in the nature of an exchange warrant;, and may be treated as if issued within the time provided by law. Opinion of Feb. 18, 1840, 3 Op. 499. 146. The heirs of Captain Kirkwood, who entered the revolutionary service in the Dela- ware regiment in the year 1776, and continued in service until the end of the war, are enti- tled to scrip on a warrant issued for three hun- dred acres of land on account of his services, whether they were properly entitled to scrip on a warrant for four thousand acres, issued by the executive of Virginia, or not. Opinion of July 1, 1840, 3 Op. 557. 147. It appears that by a construction given to certain acts and resolutions of Congress, and of Virginia, such of the troops from other States as werein the courseof the warattached to the Virginia State establishment, and con- tinued in service to the end thereof, were en- titled to the same bounty from Virginia as if they v.ere originally raised In that State. J bid. 148. In case the Secretary of the Treasury shall have 'any good reason to believe that such warrants have been issued in error or mistake, he may suspend the issue of scrip; or, if issued, cause measures to be taken to have it canceled. Ibid. 149. "Where a land- warrant issued -to the administrator dc bonis non of a deceased col- onel of the Virginia line for services rendered by him in the Revolutionary War, and the said administrator proposed to surrender it, and to receive scrip in lieu thereof, for the benefit of the devisees named in the decedent's will, pursuant to the act of Congress for the relief of certain of&cers and soldiers of the A'irginia line and navy, and of the Continental Army: Ilvhl, that as the warrant issued to the administrator with the will annexed, for the benefit of the devisees, scrip in exchange may issue in the same manner and for the same pur- pose. Opinion of March 24, 1851, 5 Op. 308. 150. The Commissioner of Pensions cannot lawfully issue more than one warrant on a soldier's claim for bounty land. Opinion of June 28, 1851, 5 Op. 388. 151. If, through mistake or fraud, he shall issue more than one warrant upon the same claim, he will have transcended his authority, and performed an act having no legal validity. Ibid. 152. The regulation, established by the Commissioner of the General Land Office, re- quiring holders of land- warrants to make afli- davit that there is no settlement on the land intended to be located, is inconsistent with the act of February 11, 1847, chap. 8, and void. Opinion of Aug. 7, 1852, 5 Op. 609. 153. Where a volunteer was regularly /mus- tered into service according to the act of May 13, 1840, chap. 16, but honorably discharged before marching to the seat of war, or perform- ing any warlike duty: Held, that he is entitled to bounty laud under the act of February 11, 1847, chap. 8. Opinion of Sept. 2, 1852, 5 Op. 617. 154. The United States have assumed all unsatisfied outstanding military land- warrants of the State of Virginia, issued by the proper authorities thereof, for revolutionary services of its officers, soldiers, seamen, and marines, such warrants having been fairly and justly issued in pursuance with the laws of the State. Opinion of Jan. 7, 1854, 6 Op. 243. 155. Persons called in the laws of Virginia ' ' supernumerary officers, ' ' and in the resolves of Congress ' ' deranged officers, ' ' are to be treated as in service, and warrants issued to them by the State for additional land on ac- count of such services are entitled to be ex- changed for land scrip of the United States. Ibid. 156. By the laws of the State of Virginia, the legal representatives, the heirs, or devisees of any one of her officers or privates who fell or died in service during the Revolutionary war are entitled to the same quantity of bounty-land as would have been due to him had he continued to live and to serve to the end of the war, and warrants therefor lawfully issued are to be satisfied by scrip of the United States. Opinion of Jan. 9, 1854, 6 Op. 258. 157. An unliquidated claim to bounty-land PUBLIC LANDS, VII, VIII. 375 scrip in Virginia passes by a clause of general residuary devise. Opinion of Sept. 13, 1854, 6 Op. 716. 158. An administrator of the estate with such ■willannexed,who, as such,received the bounty- land warrant under the authorities of the State of Virginia, is entitled to receive the scrip in exchange from the United States. Ibid. 159. Land scrip of the United States, issued in exchange for bounty-laud scrip of the State of Virginia, has in some respects the qualities of real and in some of personal estate; but the determination of who is entitled is independent of that question, being specially defined by acts of Virginia or of the United States. Opinion of Nov. 11, 1854, 7 Op. 32. 160. The act of March 3, 1855, chap. 207, section 1, embraces not only militia or volun- teers whose military services were performed nnder the general command of the United States and in time of war, but also such as rendered military service, whether in war or not, and whether under the immediate author- ity of the United States or of a State or Terri- tory, but who shall have been paid for such service by the United States. Opinion of Dec. 14, 1855, 7 Op. 606. 161. The decisions of the court? of Virginia in regard to conflicting claims to bounty-land warrants under the laws of that State are to be considered as determining their relative rights, and to be respected by the United States. Opinion of March 10, 1856, 7 Op. 652. 162. But where it has not been satisfactorily •determined by the courts of Virginia which of two persons "presenting" themselves is the true party entitled, the Secretary of the Inte- rior may well refuse to issue scrip to either. Ibid. 163. Unlocated land scrip of the State of Virginia belonging to the estate of the Baron Steuben, being personal estate, is subject to the testamentary provisions of Baron Steuben's will, proved in the State of New York, and therefore demaudable, on the failure of testa- mentary trustees, by a trustee duly appointed by the courts of New York. Opinion of May 21, 1856, 7 Op. 688. VII. Land-Vyarrants Obtained by Fraud. 164. Evidence sufficient to raise a presump- tion of fraud in obtaining a Canadian volunteer land-warrant having been furnished, the patent should be withheld until ordered by Congress or the judiciary. Opinion of April 27, 1822, 5 Op. 745. 165. A land-warrant fraudulently obtained from the Commissioner of Pensions in the name of a person deceased without heirs or widow, or of a fictitious person, is a mere nullity, in- capable of lawful assignment, and may be re- jected or canceled by the Commissioner of Public Lands. Opinion of March 15, 1856, 7 Op. 657. 166. But when the Commissioner has duly issued a military land-warrant, valid on its face, to a person in esse and capable of assign- ing, and such warrant has passed by lawful assignment to a bona fide purchaser for value without notice, the government cannot cancel such warrant on the ground that the Commis- sioner issued it in misapprehension or on im- perfect or false evidence. Ibid. VIII. Surveys. 167. The surveyor of public landsin the Ter- ritories of Illinois and Missouri, under the power conferred to engage surveyors as his deputies, and to perform all and singular the duties which were required by law to be per- formed by the surveyor-general, may let the work by contract. Opinion of June 10, 1824, 1 Op. 661. 168. It is his duty to fix the compensation of the deputy surveyors, chain-bearers, and ax- men; and it is not perceived how this can be done but by contract, for no deputy surveyor is under any obligation to accept or retain his place, unless the compensation shall be satis- factory./ Ibid. 169. Fixing compensation by contract is doing all the law requires of the surveyor in that respect; he fixes the compensation. Ibid. 170. The Government will not complain of a practice which it has sanctioned, and which does not appear to have been attended with any injurious consequences. Ibid. 171. The President had authority to direct a survey of the public land lying south of the thirty-first degree of latitude. Opinion of Sept. 13,1827, 2 Op. 57. 172. The surveyor south of Tennessee and the surveyor of the State of Alabama are the proper officers to authenticate the township plats, and not the principal deputy, under the act of March 3, 1819, chap. 100. Ibid. 376 PUBLIC LANDS, IX, X. 173. The act of April 24, 1820, chap. 51, and the instructions issued under it, directing the manner of subdividing fractional sections con- taining over 160 acres, did not require the ab- solute platting of every quarter or half-quarter of which the section was susceptible; but con- templated the exercise of discretion so as to prevent small and inconvenient fractions of a fractional section. Opinion of Aug. 2, 1837, 3 Op. 281. 174. It is the duty of the surveyors-general to subdivide fractional sections in conformity to law, and without reference to the existence of the pre-emption acts of May 29, 1830, chap. 208, and June 19, 1834, chap. 54. lUd. 175. It is the duty of surveyors-general to divide fractional sections containing over 160 acres into lots approaching as nearly as prac- ticable to the form and quantity of half-quar- ter sections; and it is competent for the de- partment to direct the performance of the duty. Opinion of Avg. 5, 1837, 3 Op. 285. 176. The survey is to be made without ref- erence to pre-emptions; but pre-emptors are entitled to a legal survey. Ihid. 177. The surveyor of lands of the United States south of Tennessee was authorized to cause the surveys to be made (of the country west of the PerdidoJ; and his approval of the plats thereof is a sufflcient authentication of both the survey and the plats. Opinion of Nov. 1, 1841, 3 Op. 697. 178. There has been no form for the sur- veyor's approval of plats prescribed. The substance and spirit of the whole policy in respect to approvals were that the surveyor should not only cause the lands to be sur- veyed and platted, but should see to it and satisfy himself that the plats corresponded with the field-notes, and when satisfied to return the plats to the proper office. Ibid. IX. New Madrid Certificates. — Loca- tion. 179. Where the register af Kaskaskia had issued two certificates for the same land to two different persons: Jield, that the first had pref- erence. Opinion of Aug. 8, 1816, 1 Op. 191. 180. In the location of certificates issued under the act of February 17, 1815, chap. 45, the general plan of surveying the public lands must be adhered to. Opinion of May 11, 1820, 1 Op. 361. 181. When the holder of a New Madrid certificate calls for a quantity of land greater than 160 acres, and less than 640, and it be- comes necessary to subdivide a quarter section, it should only be done by making the subdi- viding line parallel and coextensive with the line of the contiguous quarter. Opinion of June 19, 1820, 1 Op. 373. 182. Such certificates 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. Hid. 183. Holders of certificates may take less than 160 acres, if they can find such a tract liable to, sale. Ibid. 184. Locations made in a square previous to the sectional lines being run, &c. , are inad- missible, as the sale is unauthorized until the sectional lines are run. Ibid. 185. Patents may notissue on the New Mad- rid locations which were made on lands not authorized to be sold. Opinion of June 22, 1820, 5 Op. 727. 186. No person can locate over 160 acres under a New Madrid certificate, unless the ag- gregateoflandslostexceeds 160 acres; in which case he can locate not exceeding 640 acres. Opinion of Jan. 22, 1822, 1 Op. 534. 187. New Madrid certificates located on lands, the claims to which had been previously filed with the recorder of laud titles in Missouri, are invalid. The acts of 3d March, 1811. chap. 46, and 17th February, 1818, chap. 12, perma- nently reserved such lands. Opinion of Oct. 10, 1825, 2 Op. 15. 188. A New Madrid location of lands upon a tract confirmed to the heirs of James Mackay must yield to the title of the confirmees, as the " sale or other disposition " referred to in the 11th section of the act of May 26, 1824, chap. 173, is to be understood to mean a sale or dis- posal inconformitytolaw. OpinionofAug. 8, 1838, 3 Op. 354. X. Town Sites. 189. Portions of the public lands, to the amount of 320 acres, may be taken up by in- dividuals or pre-emptioners for city or town sites. Opinion of July 2, 1856, 7 Op. 733. 190. The same rules as to proof of occupa- tion apply in the case of municipal as of agri- cultural pre-emption. Ibid. 191. The statute assumes that the purposes PUBLIC LANDS, XI, XIL 377 of a city or town have preference over those of trade, and still more over those of agriculture. Yet individuals m ay take for either of the latter objects: a fortiori they may take for a city or town. Ibid. 192. Under the act of May 23, 1844, chap. 17, the mayor of a town has authority to make an entry of the public lands occupied as the town site, as the official organ ot the corporate authorities. Opinion of March 21, 1859, 9 Op. .308. XI. Suspended Entries. 193. Where certain lands were withdrawn to supply certain land grants, as to a part of which lands the Commissioner of the General Land Office afterward ordered notice to be given, by advertisement, restoring the same to private entry, and, pending the advertise- ment, erroneously instructed the register and receiver that certain other lands were included in such notice, in accordance with which in- struction the latter were offered at private sale by the register and receiver, and were thereupon entered and paid for by S. and W. : Seld, that these facts are sufficient to give the board of adjudication of suspended entries jurisdiction of the claim of S. and W. to a patent for the land entered by them, and that if, upon investigation, the board should find that due publicity had been given to the fact of restoration, it might disregard the forms (though adopted inadvertently) by which that publicity was attained. Opinion of March 1 1 , 1874,14 Op. 637. 194. Scmhle that notice of restoration of land to private entry, after having been once with- drawn therefrom, is not necessary (as assumed in the opinion of March 11, 1874) to enable the board of adjudication of suspended land entries to take jurisdiction of aprivate entry on snch land and confirm it. Opinion of April 4, 1874, 14 Op. 646. XII. Patent. 195. Persons having land allotted to them under resolve of Congress of 29th August. 1787, are not entitled to patents till provision is made for issuing them. Opinion of April 29, 1794, 1 Op. 45. 196. Patents, under act of June 9, 1794, chap. 62, for lands in Virginia, cannot he issued until the claimant shall have first com- plied with the laws of Virginia to which the act refers. Opinion of Bee. 21, 1797, 1 Op, 79. 197. A patent issued under a mistake, in consequence of a Virginia military land-war- rant being located on lands which had been previously and regularly located by others, is null and void. Opinion of June 10, 1807, 1 Op. 159. 198. "Where the identical land, by the same m^tes and hounds, has been previously granted according to law by the United States to other individuals, no sub.sequent act on the part of the United States can possibly affect the prior title to the premises derived from their own patent. Ibid. 199. Where the local law authorizes a trans- fer of the right to a patent at sheriff's sale, a, patent may issue to the purchaser at such sale. Opinion of Aug. 15, 1816, 1 Op. 191. 200. The holder of an unpatented location cannot dispossess one holding under a patent I'rom the United States by any common-law proceeding, but he may institute a proceeding in chancery for the purpose of rescinding a pat- ent improperly granted. Opinion of Aug. 31, 1819, 1 Op. 300. 201. The general standard of remuneration, where title I'ails, is^the purchase-money and interest, the improvements to be paid for by the successful party. Ibid. 202. By the act of March 1, 1800, chap. 13, the Secretary of the Treasury was required to number the 100-acre lots of the fifty quarter- townships progressively, and that the patent issued for each should inter alia give the num- ber of the lot located. Such description can- not be departed I'rom, for no form of descrip- tion varying therefrom will pass the title of the United States ; nor can any patent be is- sued until the lots shall have been numbered. " The .system which has been adopted for the arrangement and appropriation of these lands is beautiful and perfect as it stands; no minis- terial officer should be permitted to touch or al- ter it in any of its parts." Opinion of Dec. 15, 1819, 1 Op. 323. 203. Patents, ujider the act of 17th February, 1815, chap. 45, must issue to the owner at the date of the act, if alive, and if dead to the heirs or devisees. The act attaches no assign- able quality to the charity which it bestows. ^78 and being the only authority for issuing a pat- ent, its terms must be strictly pursued. Opin^ ion of May U, 1820, 1 Op. 361. 204. Land patents issued by mistake for lands to which other persons have pre-emp- tion rights may be returned and canceled, or repealed by scire facias or bill in chancery, at the instance of the United States, or of the pre- •emptioners in the name of the United States. Opinion of Jan. 27, 1821, 1 Op. 458. 205. Land patents may, and ought to, be withheld where the confirmations have been obtained by fraud. If actually issued, the courts will cancel them. Opinion of Nov. 25, 1824, 1 Op. 699. 206. The issuing of a patent is not so purely a ministerial act as to follow a patent certifi- cate as a matter of course. Opinion of Oct. 10, 1825, 2 Op. 15. 207. The relocation and survey having been made in the name of the original patentee, after the alleged transfer of his right to others, the patent must be issued granting lauds to him, his heirs, &c., according to the sugges- tion in the fifth section of the act of the 10th of August, 1790, chap. 40. Opinion of April 10, 1826, 2 Op. 25. 208. A patent issued by mistake may be corrected before delivery. If delivered, and the patentee refuse to surrender it for cancel- lation, the President may issue a new one, re- citing the error committed in the former as the cause. Opinion of Nov. 13, 1826, 2 Op. 41. 209. Where a patent was issued by mistake for a whole instead of a quarter section of land, and the patentee sold the same: Advised that the vendee be immediately notified of the mistake, and that both be made parties to a suit for the canceling of the patent. Opin- ion of Jane 7, 1827, 2 Op. 53. 210. Patents should not issue for lands in- advertently sold. Opinion of Oct. 22, 1828, 2 Op. 186. 211. Where application is to be made to the Supreme Court for redress, in a land-patent case, in the mean time it may be as well to sus- pend the patent. Opinion of Oct. 27, 1828, 2 Op. 187. 212. The Commissioner of the General Land Office is bound to issue the patent to the orig- inal beneficiary, his heirs or assigns, and must, therefore, have satisfactory evidence of assign- ment before he issues to assigns. Opinion of Oct. 13, 1829, 2 Op. 276. 213. Purchasers of lands reserved by the 2d and 3d articles of the Creek treaty of March 24, 1832, must have patents to complete their title. Opinion of Feb. 26, 1836, 3 Op. 40. 214. Patents must issue under the 14th and 19th articles of the Choctaw treaty of 1830 and the Chickasaw treaty of 1834, in order to divest the United States of title in the reservations. Opinion of March 19, 1836, 3 Op. 49. 215. Patents for reserves, under former treat- ies, may issue to Indian residents or assignees — under the latter only to the reservees. Ibid. 216. Patents are requisite to divest the title of the United States to the Ottawa, Chippewa, and Pottowatomie reserves, and should be so issued as to disclose the estate granted. Opin- ion of March 26, 1836, 3 Op. 55. 217. In cases of doubt, patents may be sus- pended until the question shall have been de- termined by a competent tribunal. Opinion of April 23, 1836, 3 Op. 102. 218. The terms employed in the patent to E. L. are not so vague as to render the patent void for uncertainty. In construing public grants, issued in great numbers by the officers of the Government, and in accordance with a certain formulary deliberately adopted by those officers, the courts may resort to contempora- neous documents on file in the proper depart- ment, for the purpose of ascertaining the in- tent of the grantors. Opinion of May 7, 1836, 3 Op. 111. 219. Certain lands having been actually en- tered under the pre-emption laws, pursuant to instructions sent to the register and receiver from the Treasury Department, the case is clearly brought within the terms of the sec- ond section of the act of July 2, 1836, chap. 266, and the patent should issue accordingly. Opinion of July 6, 1836, 3 Op. 139. 220. The recorder of the General Land Office only has power to attest and seal patents for public lands, the former law in this respect having been repealed by the act of July 4, 1836, chap. 352. Opinion of July 25, 1836, 3 Op. 140. 221. All patents emanating from the Gen- eral Land Office, whether of land sold, or of lands in respect to which private claims are recognized by acts of Congress, must be certi- PUBLIC LANDS, XII. 379 fied or count ersiKnecT by the recorder. Opinion ■of December 23, 1836, 3 Op. 167. 222. The United States are bound by their -treaty stipulations with France, and by the universal usage among civilized nations, to go on and perfect the title of the heirs of Thomas F. Reddick to a tract of land on the bank of the Mississippi, held under a Spanish grant, and relinquished by act of 1st July, 1836, ■chap. 250, unless the same shall be taken by an older and better claim not emanating from the United States; and no such title having heen set up, u patent ought to issue to the Slid heirs. Opinion of Jan. 2, 1839, 3 Op. 398. 223. On completion of payment for Creek reserves conveyed by the reservees to other persons, certified by some person appointed by the President for that purpose, and approved by the President himself, patents must issue to the purchasers. Opivion of Feh. 7, 1839, 3 Op. 413. 224. It vpill not be a compliance with the treaty of 24th March, 1832, between the United ■States and the Creek tribe of Indians to issue patents in such cases, where the right is con- troverted, to the original reservees to abide the result of suits and to inure to the success- ful parties. Ibid. 225. .Where an assignee in blank of the float- ing right of pre-emption to a specific quantity of land is in conflict with an assignee of the same right, which has been actually located, and the Commissioner of the General Land Office is satisfied that the assignment in blank is not clearly fraudulent, he ought to issue the patent to the original pre-emptor, leaving the conflicting claims to be settled by courts of justice. Opinion of Dec. 18, 1840, 3 Op. 608. 226. It is a sufficient compliance with the provisions of the act of July 4, 1836, chap. 352, for the engrossing clerks to write the name of the President to patents, and for the Secretary thereafter to attest them by his sig- nature. Opinion of Feb. 27, 1841, 3 Op. 623. 227. All the duties respecting the execution of patents, except the attestation, are ministe- rial, and may be performed either by the clerks or by the Secretary. Ibid. 228. The counter signature of the recorder of land patents, and seal of the office thereto attached, constitute a sufficient authentication of a patent for land. Opinion of April 1 0, 1841, 3 Op. 630. 229. Patent^ for reserve lands under the Creek treaty of 1832 are to be issued to pur- chasers, owners, assignees, or transferees; apd claimants must show themselves to be within the description of persons entitled, by exhib- iting authentic evidence (tC the fact. Opinion of July 26, 1841, 3 Op. 644. 230. The Commissioner of the General Land Office properly refused to issue a patent for land entered by Governor Shannon, in Ohio, and withdrawn from private entry in order to pro- vide for executing the grant by Congress, by act of 24th May, 1828, chap. 108, of lands to the State of Ohio, for the purpose of aiding that State to- extend the Miami canal from Dayton to Lake Erie, because it did not ap- pear whether or not the land for which the patent was claimed was situated within the limits of the reservations, and because, if it was, the requisite notice had not been given by the register and receiver, as provided for in the regulations concerning the public lands. Opinion of Aug. 4, 1841, 3 Op. 650. 231. The execution of a patent for land to a soldier in the war of 1812 by the Commissioner of the General Land Office passes the title, al- though the same had not been delivered to the patentee. Opinion of Sept. 7, 1841, 3 Op. 653. 232. It is a matter of discretion with the Department as to whom the patent should be delivered. Ibid. 233. On a certificate to A. and company, as- signed by A. alone, a patent may issue to A. 's assignees; and his partners must seek relief, if they shall be entitled to any, in the courts. Opinion of Oct. 20, 1842, 4 Op. 96. 234. The proper mode of proceeding to va- cate an erroneous land patent is by bill in equity ; the regularity of proceeding by scire facias in this country is doubted. Opinion of Nov. 26, 1842, 4 Op. 120. 235. In England letters patent are of record on the law side of the chancery; wherefore there is a propriety there for a writ of scire facias to vacate a patent that does not exist in the United States. Ibid. 236. Patents erroneously issued, or rendered invalid by an act of Congress confirming ad- verse titles, must be canceled, or judicially 380 PUBLIC LANDS, XIII. avoided, before another can be issued for the same land, even to confirmees. Opinion, of March 15, 1843, 4 Op. 150. 237. After one patent has issued for lands, the executive department is fundus officio in respect to such lands until its former act is judicially set aside. Jbid. 238. The issuing of new patents whilst others are outstanding will lead to infinite mischief and confusion, by the blending of executive and judicial functions in a manner unknown to the laws and the Constitution. Ibid. 239. A patent cannot issue to one of two purchasers of a quarter section of land, or for any unspecified portion of the same. Where such conditions exist as will permit a partition of the land held in common, a patent may be issued to the purchaser entitled after the divis- ion. Opinion of April 16, 1844, 4 Op. 319. 240. It is not competent or proper for the Commissioner of the General Land Office to make alterations in the dates of patents for lands, after the delivery thereof to the grantees. Opinionof Jvnc 8, 1844, 4 Op. 329. 241. "Whether patents irregularly issued shall have effect from their date or time of delivery may be determined by parol testi- mony. I!>id. 242. Where, upon the application of a set- tler on public land in Iowa for a iDatent for his entered location, it was made to appear, that after having executed a deed of a portion of the land to another person, he made the afld- davit required by law, that no person other than himself had any interest therein, and that he had made no* contract, &c. ; and that such grantee had obtained a patent for his land un- der the act of 4th September, 1841, chap. 16, and claimed to hold it, notwithstanding the settler's deed to him had been decreed by a court of chancery, having jurisdiction, to have been obtained by duress, and for such reason to be void : Held, that a second patent for the same land ought not to be issued whilst the flj-st remains outstanding. Opinion, of April 7, 1847, 4 Op. 558. 243. It is not the duty of the Government to institute proceedings to vacate the first pat- ent, as it is in no wise responsible for the act which embarrassed the settler's pre-emption and caused the existing difiiculty. Ibid. 244. The applicant should seek relief in the court of chancery, which has full jurisdiction of the case, and ample power to administer the remedy to which he shall be entitled. Ibid. 245. He may, however, be permitted to use the name of the United States in his proceed- ings, if the Secretary of the Treasury shall deem it discreet to authorize it. Ibid. 246. A patent may properly issue to pre- emptors, notwithstanding others to ordinary purchasers may have been issued for the same land, andremain outstanding. Opinion of July 29, 1848, 5 Op. 8. 247. A patent should issue to H. M. E. pur- suant to a certificate issued to him on the 24th of November, 1818, and located on land at the Hot Springs in Arkansas; he being entitled thereto under the act of March 1, 1843, chap. 50. Opinion of April 29, 1850, and May 2, 1 850, 5 Op. 236, 2S7. 248. A patent should issue to C. for land in fractional section No. 11, township 4, range 1, in the State of Ohio. Opinion of Nov. 29, 1851, 5 Op. 477. 249. It is proper to withhold patents for land in cases where the claim on which they are demanded, under final decrees of the United States courts, are identical with the title or claim now in controversy before the Supreme Court. Opinion of Oct. 30, 1852, 5 Op. 628. 250. Where a patent for public land has once issued, it cannot afterward be canceled or an- nulled by the mere act of the Department; the intervention of a court is necessary for that purpose. Opin ion of June 20, 1 871 , 13 Op. 457. 251. A second patent should not issue for the same land so long as the prior patent re- mains unrevoked by a j udicial tribunal. Ibid. XIII. Statutory Grant. 252. An act of Congress confirming land titles of two or more individuals, or granting land, must be taken altogether; and if there be not land enough to answer all the grants, and there be a conflict of claims, it must be recon- ciled by reference to the report of the commis- sioners on which the act was founded; and if two parts of the same act cannot be recon- ciled, semble that the latter of the provisions must prevail. Opinion of May 28, 1842, 4 Op. 40. 253. A grant by Congress does of itself, pro- pria vif/iirc, pass to the grantee all the estate of PUBLIC LANDS, XIV-XVI. 381 the United States, except what is expressly excepted. Opinion of Nov. 10, 1858, 9 Op. 254. 254. A grant of public land by .statute is the highest and strongest form of title known to our law. It is stronger than a patent, which may be annulled by the judiciary upon a proper case shown; whereas even Congress cannot repeal a statutory grant. Opinion of May 27, 1864, 11 Op. 47. XIV. School Land Grants. 255. In a certain class of cases provided for in the act of May 20, 1826, chap. 83, where the sixteenth section has been interfered with by confirmed private claims and donations, se- lections of other lands may be made in lieu thereof by the Treasury Department under the provisions of that act. Opinion of April 25, 1844, 4 Op. 322. 256. The State of Minnesota, by the grant to her of sections 16 and 36 in every township of pu blic lands in the State, acquired no title to township sections 1 6 and 36 within the Sioux half-breed reservation, west of Lake Pepin, as against the holders of scrip issued to the half- breeds of the Sioux Nation in exchange for their interest in the said reservation under the act of Jul} 17, 1854, chap. 83. Opinion of July 21, 1864, 11 Op. 59. 257. The Government, like an individual, has no power to withdraw or annul its grant of land. The first lawful grant must standi and the second cannot operate as a conveyance, for the reason that the grantor, when he made it, had no estate to convey. Ihid. XV. S'wamp Land Grants. 258. Under the act of September 28, 1850, chap. 84, granting to the State of Arkansas all the swamp lands within her limits the title vested in the State before a patent issued. Opinion of Nov. 10, 1858, 9 Op. 254, 259. The general description of all swamp lands within the limits of the State was cer- tain and definite enough for purposes of notice. Ihid. 260. Where Congress after the grant of Sep- tember 28, 1850, made another grant to the State of Arkansas to aid in the construction of a railroad, under which a part of the lands previously granted under the denomination of swamp lands was included, it was held that the State took the lands under the first grant. Ibid. 261. The State of Iowa is entitled to the purchase-money of swamp lands within her limits, which were entered with cash prior to the passage of the act of March 3, 1857, chap. 117. Opinimi of April 20, 1866, 11 Op. 467. 262. She is also entitled to indemnity in land for such swamp lands as were located with war- rant or scrip prior to the passage of that act. Ihid. XVI. Grants in Aid of Canals, Rail- roads, etc. 263. The State of Ohio having refused to obligate herself to complete the canal within a reasonable time or to construct it further than the avails of the lands proposed to be granted her by the United States will do so, and as the act of Congress did not authorize the grant upon such conditions, the executive depart- ment cannot properly make the transfer. Opin- ion of Jan. 26, 1833, 2 Op. 550. 264. If the General Government shall^make the transfer after the manifesto of Ohio as to her obligations, it will have no right to call on her either to complete the contemplated work or to restore the money for which the lands may sell. Ibid. 265. The proposed extension of the canal fr Dm Lake Erie to the Wabash, from the mouth of the Tippecanoe to Terre Haute, is author- ized by the act of Congress of March 2, 1827 chap. 56 ; and when the same shall have been agreed on and located, the additional lands pro- vided by the act, so far as the United States are in a condition to provide them, may be le- gally claimed by the State of Indiana. Opin- ion of Aug. 14, 1838, 3 Op. 359. 266. But the Commissioner of the General Land Office, under the direction of the Presi- dent, cannot make an additional selection from public lands beyond the limits of five sections in width on each side of the extended portion of the canal, in lieu of land which has been sold or otherwise disposed of within these lim- its, without the assent of Congress. Ibid. 267. Whatever might, under other circum- stances, have been the effect of a non-compli- ance on the part of Indiana with the provisions of the second section of the act of 26th May, 1824, chap. 165, upon the right of the State to 90 feet of land on each side of the Wabash and 382 PUBLIC LANDS, XVI. Erie Canal, the forfeiture has been waived by the passage of the acts of 2d March, 1827, chap. 56, 27th February, 1841, chap. 12, 3d March, 1845, chap. ,42, and 9th May, 1848, chap. 36, recognizing the continuing efficacy of the original grant, and evincing the intent to waive every antecedent cause of forfeiture to which the act of 1824 may have been subject; so that the State of Indiana has a title to the 90 feet on each side of the said canal as absolute as she would have had in the contingency of a full performance. Opinion of Nov. 15, 1849, 5 Op. 179. 268. Such of the feeders of the said canal as are navigable, are to be regarded as constituent portions of the work contemplated in the acts of Congress, and are comprehended in the grants for its construction. IMd. 269. The grant of alternate sections of land on Des Moines Eiver to Iowa, by the act of 8th August, 1846, chap. 103, extends the entire length of the stream as well above aa below Eaecoon Fork. Opinion of July 19, 1850, 5 Op. 240. 270. The purpose of the grant was to im- prove the navigation of the said river from its mouth to the Raccoon Fork; but the grant itself is not limited to the .section to be thus improved. Ibid. 271. The question of the extent of the grant was disposed of by a former Secretary of the Treasury while the Land Office belonged to his Department, and the subject is now res judicata and beyond the control of the Secre- tary of the Interior. Hid. 272. The act of Congress of 8th August, 1846, chap. 103, granting to the Territory of Iowa, for the purpose of aiding to improve the navigation of the Des Moines Eiver from its mouth to the Eacooou Fork, one equal moiety in alternate sections of the public lands, in a strip 5 miles in width on each side of said river, to be selected, &c., subject to the ap- proval of the Secretary of the Treasury, did not include the land above Eaecoon Fork. Opinion of June 30, 1851, 5 Op. 390. 273. The opinion of the Secretary of the Treasury on this subject, expressed on the 2d March, 1849, has no obligatory effect on the power of his successor to reject the selections made undtr it, in the event of a disagreement as to the proper construction of the act. Ibid. 274. A survey, by which the Chicago branch of the railroad from Chicago to Mobile was to diverge from the main track at a point not north of the parallel of thirty-nine and a half degrees north latitude, is in accordance with the act of 20th September, 1850, chap. 61. Opinion of March 10, 1852, 5 Op. 518. 275. The United States granted to Illinois by that act, in aid of the railroad from Chicago to Mobile, every alternate section of land des- ignated by even numbers of six sections in width on each side of said road and branches; but the claim for six sections for every linear mile of the road and its branches, including all its sinuosities and deflections from a straight line, is not tenable. Ibid. 276. By the act of June 18, 1838, chap. 114, 138,996 acres of land were granted to Wiscon- sin in aid of a canal, on the condition that if it was not completed within ten years the State should be liable to the United S .'ates for all moneys received upon the sale of the land, at a rate not less than $2.50 per acre. After disposing of all but 13,564 acres, the canal was incomplete and its constructionabandoned: Held, that for all the land so disposed of the State was responsible to the United States in money, which a, deduction from the 500,000 acres granted by the eighth section of the act of September 4, 1841, chap. 16, could not offset. Opinion of July 24, 1852, 5 Op. 574. 277. The act of 20th September, 1850, chap. 61, granting the right of way and land to the States of Illinois, Mississippi, and Alabama, in aid of a railroad from Chicago to Mobile, does not grant a right of way through the States of Kentucky and Teimessee. Opinion of Aug. 7, 1852, 5 Op. 603. 278. No part of the sections within the Chickasaw country can be claimed by Missis- sippi under the grant, but an equivalent is allowable. Ibid. 279. Congress, by actof August 8, 1846, chap. 103, for the purpose of improving the naviga- tion of the river Des Moines "from its mouth 1 o the Eaecoon Fork, ' ' granted to the Territory of Iowa alternate sections of land " in a strip- 5 miles in width on each side of said river." As construed by the Government at the time and as accepted by the State of Iowa, this grant extended only to the Eaecoon Fork. Subse- quently to this, the Secretary for the time be- ing (Walker) expressed an opinion that the grant extended up the river to its source: but PUBLIC LANDS, XVI. 383' went out of office the next day without this opinion having yet received execution. The succeeding Secretary (Ewing) entertained a different opinion, and refused to approve selec- tions above the Fork. Eeference being made to the Attorney-General (Johnson) he expressed opinion that the grant extended to the source of the river; but the Secretary did not act on that opinion. Eeference was then made to the succeeding Attorney - General (Crittenden), who held that the grant did not extend above the Fork. The Secretary (Stuart) entertained and officially expressed the same opinion; but without changing his opinion, and in his order expressly saying itwas unchanged, he ordered selections to be allowed above the Fork, up "to the north boundary of the State." On ques- tion of the duty of the present Secretary (McClelland) in these circumstances: .HeMthat the true construction of the act, and its inten- tion, were to grant lands from the mouth of the river Des Moines to the Eaccoon Fork and no farther. Opinion of May 29, 1856, 7 Op. 691. 280. Even if, by construction heretofore, the grant be extended above the Fork, it cannot pass beyond thelimits of the State of Iowa into Minnesota. Ibid. 281. The opinion expressed by Secretary Walker being opinion only, did not conclude any of his successors or bind the Government. Ibid. 282. The action of Secretary Stuart cannot he reversed by his successors in so far as regards selections made and approved by him, but is not obligatory any further on himself or his successors. Ibid. 283. The opinion of the Attorney-General for the time being is in terms advisory to the Secre- tary who'calls for it ; but it is obligatory as the law of the case, unless, on appeal by such Sec- retary to the common superior of himself and the Attorney- General, namely, the President of the United States, it be by the latter over- ruled. Ibid. . 284. Inthe present state of this question, the actual Secretary is free to elect either to act on the opinion of Secretary Walker as construed by Secretary Stuart, and approve up to the north boundary of the State and no higher, or to return to the true and original construction of the act, refusing to allow further selections above the Eaccoon Fork. Ibid. 285. But the Secretary cannot lawfully ac- quiesce in and abide by the rule of action of Secretary Stuart, unless that rule be also ac- cepted by the State of Iowa; it no more binds one than the other; and, unless the State ex- tinguish all claini to land above its north boundary, the Secretary is bound to reiuse to permit selections above the Raccoon Fork. Ibid. 286. The grants of public lands to the State of Iowa for railroad purposes by the act of May 15, 1856, chap. 28, are conditional grants m prxsenti, in the nature of a float, which do not attach to any particular parcel of the public lands until the necessary determinative lines of railroad shall have been definitely fixed. Opinion of Dee. 19, 1856, 8 Op. 244. 287. The grant of public land to the State of Michigan for the construction of a ship-canal aroilnd the Falls of Ste. Marie by the act of August 26, 1852, chap. 92, vested immedi- ately, under condition, as a floating title; such title to acquire precision of locality by selec- tions of the State, subject to the approval of the Secretary of the Interior. Opinion of Dec. 20, 1856, 8 Op. 247. 288. The title vests in virtue of the act; it, not being a case in which the President is re- quired, or has authority, to issue the ordinary letters patent. Ibid. 289. The grant of land to the Territory of Wisconsin by the act of August 8, 1846, chap. 170, was a conditional grant in fee, to take effect as a grant on the admission of Wisconsin into the Union and the acceptance of the same by the legislature of that State. Opinion of Dtc. 22, 1856, 8 Op. 256. 290. That grant by its terms is of a quantity of land equal to one-half of three sections in width on each side of a line deflned; andupon acceptance of the grant the State became tenant in common with the United States, with pro- vision to effect partition through the means of selections by the State, approved by the United States. Ibid. 291. By surveying and marking on the ground the lines of proposed railroads those lines are definitely fixed so far as to give the State of Iowa, under the act of May 15, 1856, chap. 28, an equitable or inchoate title to the dependent land. Opinion of Feb. 16, 1857, 8 Op. 390. 292. The State may lose this inchoate title by change of the location of the railroad. Ibid. 384 PUBLIC LANDS, XVI. 293. The State perfects its inchoate title by filing the location plots in the Land Office. Ibid. 294. The act of February 9, 1853, chap. 59, granting certain lands to the States of Mis- souri and Arkansas for railroad purposes, vests in those States a fee-simple by lorce of the act itself and without a patent. Opinion of June 7, 1857, 9 Op. 41. 295. The act of August 3, 1 854, chap. 201, has no application to the lands granted in this case. The definite location of the road will locate the grant, and then the title to each particular sec- tion will be as complete as if it had been granted by name, number, or section. Ibid. 296. By the act of August 8, 1846, chap. 103, granting to the Territory of Iowa land on each side of the Des Moines River, for the improve- ment of that river from its mouth to theEac- coon Fork, the Territory was entitled to land only along that part of the river which runs below the Eaccoon Fork. Opinion of Nov. 22, 1858, 9 Op. 273. 297. All public, especially legislative, grants of property, money, or privilege are to be con- strued most strictly against the grantees. Ibid. 298. When the United States by a legislative grant, viz, by act of August 8, 1846, chap. 170, gives land for public purposes, all the title which the United States had at the time of the grant or may afterwards acquire vests in the grantee, unless the latter has done something in the mean time which estops him from claim- ing. Opinion of June 3, 1859, 9 Op. 346. 299. A State to which land is granted by act of Congress cannot accept the benefits of the grant and repudiate its restrictions. Ibid. 300. The Union Pacific Eailroad Company, eastern division, cannot after the expiration of three years from the date of the act of July 1, 1862, chap. 120, abandon the original route from Fort Riley to the one hundredth meridian and claim the withdrawal from pre-emption en- try and sale of lands within fifteen miles of a proposed new route designated on a map filed in the Department of the Interior. Opinion of April 16, 1866, 11 Op. 462. 301. Alternate sections of public lands, though unsnrveyed, which fall within the op- eration of the act of March 3, 1863, chap. 98, entitled ' 'An act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State, ' ' may be withdrawn from pre-emption, homestead, and other dis- posal along the lines of the railroads thus aided, where the same are located through such un- snrveyed lands. Opinion of .Feb. 4, 1871, 13 Op. 378. 302. The grants made by the act of May 4, 1870, chap 69, to the Oregon Central Eailroad Company cannot be transferred by that com- pany to another company; the above-named company being alone within the contempla- tion of Congress in res))ect of the donations made and daties imposed by that act. Opinion of Feb. 20, 1871, 13 Op. 382. 303. The pendency before the proper tribu- nals of a private land claim in California, under the act of March 3, 1851, chap. 41, brings the land covered by the claim within the meaning of the term " reserved" in section 3 of the act of July 1, 1862, chap. 120, though the claim is ultimately decided to be invalid ; and con- sequently such land is excepted from the grant contained in the latter act. Opinion of March 7, 1871, 13 Op. 387. 304. The railroad between the towns of Mc- Gregor and Colmar, in Iowa, formerly owned by the McGregor Western Eailroad Company, and now forming a part of the line of the Mil- waukee and Saint Paul Eailway Company, is not a ' ' land-grant ' ' road. Ojiinion of June 14, 1871, 13 Op. 445. 305. By the seventh section of the act of September 20, 1850, chap. 61, granting public lands in aid of the construction of a railroad from Chicago to Mobile, such railroad became a public highway for the purposes mentioned in said section for its whole length, and not merely for that part of the road along which the granted lands were located. Opinion of Nov. 21, 1871, 13 Op. 536. 306. Consideration of the claims of the Sioux City and Saint Paul Railroad Com- pany and the McGregor and Missouri River Railroad Company, respectively, to the odd- numbered sections of lands at the intersection of their projected roads, under the act of March 12, 1864, chap. 84, granting lands to the State of Iowa to aid in the construction of railways. Opinion of Dec. 26, 1872, 14 Op. 157. 307. It was not the design of that act to au- thorize the issue of patents for lands lying beyond the point to which either of the roads PUBLIC LANDS, XVI. 385 mentioned, while in the process of construc- tion, should by sections of ten consecutive miles be from time to time Completed. Ihid. 308. Priority of construction, and not pri- ority of location, gives priority of right under the act; and hence the lands in controversy should be patented for the use of that company which shall first construct its road to the point of intersection with the projected road of the other company, though the latter may have been first located. Ibid. 309. The Wisconsin Central Railroad Com- pany is entitled, under the provisions of the act of May 5, 1864, chap. 80, and the joint reso- lution of June 21, 1866 [No. 53], to receive patents for the lands conterminous with each section of 20 miles of road north of Ste- ven's Point, duly certified to be completed according to the requirements of said act, with- out reference to the commencement or con- struction of the road from Portage City to Steven's Point. Opinion of April 3, 1873, 14 Op. 203. 310. The rights derived by the South and North Alabama Railroad Company under the act of March 3, 1871, chap. 123, reviving the land-grant act of June 3, 1856, chap. 41, in fa- vor of that company, are subject to all vested interests which had already intervened in fa- vor of the Alabama and Chattanooga Railroad Company under the act of April 10, 1869, chap. 24, reviving the same land-grant act in favor of the latter company. Opinion of Feb. 7, 1874, 14 Op. 617. 311 . Such a vested interest, at the date of the act of March 3,' 1871, had already inter- vened in favor of the Alabama and Chattanooga Railroad Company as to the public lands lying at the point of intersection of the two roads, within the overlapping limits of the same; and hence these lands should (following the prac- tice of the Interior Department in similar cases) be certified to the State in favor of the last-named company solely. Ibid. 312. SemUe, however, that under neither of the acts mentioned, including also the act of Augusts, 1854, chap. 201, is a certificate re- quired. Review of the various land-grant acts with reference to the point just adverted to. Hid. 313. The act of June 3, 1856, chap. 43, grant- ing public land to the State of Wisconsin, to aid in the construction of a railroad "from DIG 25 Saint Croix river or lake to the west end of Lake Superior and to Bayfield," considered and construed. Opinion of Aug. 6, 1874, 14 Op. 431. 314. The provision in the fourth section, viz that if the road mentioned is not completed within ten years "no further sales shall be made, and the laud unsold shall revert to the United States, ' ' contains two conditions — one affecting the power to dispose of the laud by the State, and the other affecting the iille of the State to the land. By the former, upon the happening of the contingency referred to (the non-completion of the road within the time limited), the authority of the State to dispose of the land is ipso facto determined. By the latter, upon the happening of the same contin- gency, all of the land then remaining unsold is to revert to the United States; but whether the title thereto is divested out of the State and revested in the United States immediately upon default in the condition, or whether some act on the part of the United States, showing an intention to take advantage of the default, is necessary first to be done in order to defeat the title of the State, qussre. Ibid. 315. Authorities touching the operation and effect of conditions-subsequent in legislative grants, together with the doctrine of the com- mon law respecting the operation and effect of such conditions generally, adverted to and commented on. Ibid. 316. Distinction drawn between a legisla- tive grant upon condition-subsequent and a grant by an individual upon a similar condi- tiim, where the common law prevails: thus, in the latter case the condition cannot be made by the grantor to operate otherwise than in subordination to the rule of the common law; while in the former ease it may. be made to operate contrary to and irrespective of the com- mon-law rule, if that should be thought ex- pedient by the legislature. Ibid. 317. The following conclusions accordingly arrived at: 1. The operation of conditions-sub- sequent in Congressional land grants does not depend upon the rules of the common law ap- plicable to such conditions, but upon the inten- tion of Congress as gathered from the language of the grant itself. 2. Hence, whether the non-fulfillment of the condition in the Wiscon- sin land-grant act of June 3, 1856, ipso facto avoids the title of the State to the unsold lands 386 PUBLIC liANDS, XVI. and revests them in the United States, or whether it n[ierely renders such title voidable and liable to be defeated thereafter when the United States, by some act, manifest their de- sire to resume the lands, is purely a question of statutory interpretation. 3. Looking at the whole of that act, and taking into considera- tion the peculiar features of the grant contained therein, the particular provision in which the said condition is found may reasonably be con- strued to have the effect, propria vigore, of avoiding the title of the State and of reuniting the unsold lands to the public domain of the United States immediately upon the non-ful- fillment of the condition. 4. Yet, assuming (as is done here, for the purpose of this case) the correct construction of such provision to be that the lands do not, by the non-fulfillment of the condition, ipso facto revert to the United States, but that some action on the part of the latter showing an intention to take advantage of the default is necessary besides in order to revest the land therein, an act of the executive branch of the Government is sufficient for the accomplishment of that result. 5. Such act may consist simply in the promulgation of an order restoring the lands to settlement and to market, which order it is competent to the Secretary of the Interior to issue. Ibid. 318. The mortgage to Nathaniel Thayer and others, trustees, executed by the Missouri Eiver, Fort Scott and Gulf Railroad Company (formerly the Kansas and Neosho Valley Eail- road Company), on the 1st of January, 1869, to secure payment of bonds of the company to the amount of $5,000,000, is a lien upon the lands granted to the State of Kansas for the company by the act of July 25, 1866, chap. 241, so far as, and no farther than, those lands were patented to it at the date of the act of March 3, 1877, chap. 125. Opinion of July 1, 1878, 16 Op. 50. 319. The trustees in the mortgage, 'how- ever, having instituted proceedings in the United States circuit court for Kansas against thesaid company, pray ing for the appointment of a receiver and the foreclosure of the mort- gage, the court made a decree appointing a receiver, and also a further decree, by consent of both parties to the suit, authorizing the re- ceiver to execute and deliver to the United States a quitclaim deed for the lands con- veyed by said company to the United States under the requirements of the act of March 3^ 1877, chap. 125, which deed, by the terms of the decree, should release said lands from the mortgage: Seld that the quitclaim deed, when executed and delivered by the receiver, will effect a valid discharge of the lien upon the said lands created by the mortgage. Ibid. 320. The act of July 27, 1866, chap. 278, made a grant of lands to the Southern Pacific Railroad Company (of California), which would acquire precision only upon the loca- tion of the line of the road. But the line designated upon the map filed by the company in the Interior Department January 3, 1867,- was a line which, at the time, it had no au- thority to adopt, although subsequently (by an act of the California legislature of April 4, 1870) such authority was obtained by it. Hence the grant did not, upon the filing of that map, become attached to any of the lands along the line designated thereon. Opinion of July 16, 1878, 16 Op. 80. 321. The company was subsequently au- thorized, by the resolution of June 28, 1870, to construct its road upon the line indicated by the map filed as aforesaid; and thus it was enabled to place the grant upon lands along the line so indicated. Ibid. 322. The withdrawals of lands along the line designated upon said map (by order of Secretary Browning, March 19, 1867, and Au- gust 20, 1868, and by order of Secretary Cox, December 15, 1868, and July 26, 1870) were made by competent authority, and the lands thereby put in a state of reservation, so that no legal rights therein could be acquired un- der the general land laws. Ibid. 323. But the resolution of June 28, 1870, expressly saves and reserves all the rights of actual settlers, together with the other condi- tions and restrictions provided for in the third section of the act of July 27,1866, chap. 27S. By this saving clause it was intended that act- ual settlers then upon the lands, in addition to those who Were rightfully pre-emptors and homesteaders, should have their ' equitable rights respected, and be allowed, upon making proper proof of their actual settlement, to ob- tain title to their lands under the general land laws. Ibid. 324. The act of May 26, 1824, entitled "An act to authorize the State of Indiana to open a canal through the public lands to connect PUBLIC LANDS, XTI. 387 the navigation of the rivers Wabash and Miami ■of Lake Erie," examined and considered with reference to the subject of whether there has been a forfeiture of the right of way (includ- ing 90 feet on each side of the canal) granted to the State of Indiana, by said act, and, ifso, whether the United States can now assert any claim to the lands covered by said right of way. Opinion of Jan. 16, 1879, 16 Op. 251. 325. The provision in the first section of said act, namely, that " ninety feet of land, on each side of said canal shall be reserved from sale on the part of the United States, and the use thereof forever be vested in the State afore- said, for a canal, and for no other purpose whatever, " is a grant not of the land within 90 feet on each side of the canal, but of an easement therein, which is restricted to a par- ticular purpose, the fee remaining iu the United States. Ibid. 326. Where the legal subdivisions out of which that estate was carved were sold or granted by the Government, the purchaser or grantee took the title thereto subject to the easement, unless the 90 feet ' ' on each side of said canal ' ' were excepted out of the patent. Ibid. 327. Semble that iu patenting these subdi- visions no such exception was made ; and there- fore the United States no longer have any in- terest in the lands subject to the easement; but upon forfeiture of the easement the absolute property in such lands would become vested in the patentees. Ibid. 328. A forfeiture may be declared (either by judicial proceedings authorized by law or by legislative act) in case the lands have ceased "to be used and occupied for the purpose of constructing and keeping in repair a canal, suitable for navigation;" but it can only be declared by or in behalf of the United States. Congress may in such case declare the forfeit- ure, or direct that proper legal proceedings be instituted to the end of having it declared. Ibid. 329. Patents may be issued to the State of Minnesota, under the land-grant act of July 4, 1866, chap. 168, forlands opposite that part of the railroad line from Houston, &c., to the western boundary of the State which has been constructed in ten-mile sections sirece February 26, 1877 (the date at which, in the event the railroad was not completed, it was provided by section 4 of said act that the lands not patented should revert to the United States), no action, legislative or judicial, having been taken to re- vest the lauds in the United States. Opinion- of Nov. 29, 1879, 16 Op. 398. 330. The provision in that section, adverted to, is a condition subsequent, and does not work a forfeiture of the grant and revest the lands in the United States until proceedings, either legislative or judicial, are had to enforce it. Ibid. 331 . A location of said railroad line was made iu 1866, after the passage of said land-grant act, and maps thereof were transmitted by the governor to the Secretary of the Interior iu December of that year. The act of the State legislature accepting the grant was not passed until February 25, 1867, and it required the line to be run to Fremont and thence to Jack- son, which involved a deviation from the loca- tion of 1866. The constructed road deviates from that location only to such extent as was necessary to conform to the requirement of the last-mentioned act. Held, (1) that the road cannot be regarded as having received an offi- cial definite location until after the act of ac- ceptance, which required a modification of the original location; (2) thatthe Secretary of the Interior should accept proof of the construction of the road upon the line as modified in, aeeord- ance with the act of acceptance. Ibid. 332. By act of May 12, 1864, chap. 84, a grant of lands was made to the State of Iowa to aid in the ' ' construction of a railroad from a point at or near the foot of Main street, South McGregor, in said State, in a westerly direction, by the most practicable route, on or near the forty-third parallel of north latitude, until it shall intersect the said road running from Sioux City to the Minnesota State line, in the county of O'Brien, in said State." Sub- sequently, in 1864, a map was filed in the Gen- eral Land Office designating the general route of the road from McGregor to a point in O'Brien County, so as to form a junction with the line of the proposed road from Sioux City to the Minnesota State line. In 1869 a partial change in the location of the road was made by di- rection of the Commissioner of the General Land Office, and the location thus made, from the point where it departed from the location of 1864 on to the western terminus, became the recognized line of the road by the Interior 3S8 PUBLIC LANDS, XVI. Department west of that iioint, and the public lands along the same were accordingly with- drawn. The road, however, having since been constructed upon a line different from the line located in 1869, the question considered is, whether, assuming that the location of 1889 was the definite location of the line of the road, but that the road has been constructed upon a different line, the State is entitled to the benefit of the grant; and, if so, then whether, in adjusting the grant, the line of definite lo- cation is to be regarded, or the line upon which the road was actually constructed: Held, that, in contemplation of the statute, the road was to be constructed upon the line of definite lo- cation; that the effect of such location, when made, is to give precision to the grant, and to define the limits within which the lands granted could be at once ascertained by the public surveys; and that whatever adjust- ment of the grant is made must therefore be made according to the line of definite loca- tion of the road. Yet held, further, that if the road has not been constructed on the line of its definite location — and it is for the Secretary of the Interior to determine whether or not the road has been constructed on that line — • the State is not entitled to the benefit of the grant, although the line of the constructed road would answer the terms of the grant had it been the line of definite location. Opinion of Feb. 9., 1880, 16 Op. 458. 333. Whether deflections from the line of definite location, made in the actual construc- tion of the road, have identified it with a dif- ferent line, or whether in its construction there has been substantial conformity to the line of definite location, is a matter for the Interior Department to determine. But advifted that where the deflections are in their character immaterial — e. g., if made for the purpose of avoiding engineeringobstacles which could not otherwise be avoided without enormous ex- pense, or of remedying defects in the original location — such deflections would not destroy the identity of the constructed road with the line of definite locati.on. Ibid. 334. The grant to Minnesota made by the act of March 3, 1857, chap. 99, to aid in the construction of certain railroads, viz, of "every alternate section of land, designated by odd numbers, for six sections in width on c:ich side of each of said roads and branches," was a grant of particular .sections of land lying within prescribed lateral limits to the road, to each of which the grant attached (on the definite location of the road) by distinct terms of description. And the indemnity provision in the same grant, giving other lands (to be selected within fifteen miles from the line of the road) in lieu of such of the granted lands as should appear, when the road was definitely located, to be sold by the United States or to be pre-empted, was equally precise: Held, accordingly, that the grant made by said act of 18d7 was not one of quantity as distinguished from a grant of specified lands in place, and that a claim thereunder for an amount of land equal to one-half of six sections in width on each side of the road, or for six sections of land for every linear mile of road, including all sinuosities and deflections from a straight line, would be inadmissible. Opinion of June 5, 1880, 16 Op. 504. 335. The act of March 3, 1865, chap. 165, which declares (section 1) that "the quantity of lands granted to the State of Minnesota" by the said act of 1857 "shall be increa.sed to ten sections per mile for each of said railroads and branches, subject to any and all limita- tions contained in said act and subsequent acts, ' ' &c. , in effect only extended the lateral limits of the grant as made by theact of 1857 from "six" sections in width to "ten" sec- tions in width on each side of the several roads and branches. The amendment thus intro- duced by the act of 1865 did not alter the character of the previous grant; this remained thereafter what it was before, a grant of lauds in place as distinguished from a grant of quan- tity. Ibid. 336. The act of July 27, 1866, chap. -378, provided (in section 3) "that there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, &c., for the purpose of aid- ing in the construction of said railroad, &c.. every alternate section of public land, not mineral, designated by odd immbers," to the amount of ten and twenty alternate sections per mile as therein set forth. ' ' whenever, on the line thereof, the United States have full title, not reserved, sold, granted, &c., at the time the line of said road is designated by a plat thereof filed in" the General Land Oflfice. Section 8 declared the grant to be "upon and subject to the following conditions, namely. PUBLIC LANDS, XVII. 389 that the said company shall {inter alia) com- plete not less than 50 miles per year after the second year (i. e., from the date of the act), and shall construct, equip, furnish, and com- plete the main line of the -whole road by July 4, 1878 " ; and by section 9 the grant was de- clared to be " upon the further condition that if the said company make any breach of the conditions hereof, and allow the same to con- tinue for upwards of one year, then, in such case, at any time hereafter, the United States may do any and all acts and things which may be needful and necessary to insure a speedy completion of said road." Section 4 provided that on completion of 25 consecutive miles of any portion of the road the President should appoint three commissioners to examine the same, and upon their report, on oath, that the section of 25 miles has been completed ,as re- quired by the act, patents for the granted lands conterminous therewith are to be issued. Prior to 1871 the company constructed its road from Springfield, Mo., to the western boundary of that State; and this portion of the road was examined in conformity to section 4 of said act, and accepted, and patents for the conter- minous granted lands issued. A small por- tion of the road was also constructed in the In- dian Territory. But during the period from the year 1871 down to August, 1880, no part of the road was constructed. A section of 25 miles of the road west from Albuquerque, N. Mex., having since been constructed, the company now makes application for the ap- pointment of three commissioners to examine and report upon the same, under said sec- tion 4. Held, (1) that the graut made by said act to the said company is a grant in prcc- senti (which acquired precision when the plat of the line of its road was filed as required by the statute) ; (2) that the conditions in section 8 of the act are conditions subsequent, and that the grant has not beeji forfeited by the failure of the company to perform the same, or any of them, no action to enforce a forfeit- ure by reason of such default having been taken by authority of Congress; (3) that the company has still a, right to proceed with the construction of the road, and, until in some way authorized by Congress advantage is taken of the breach of the conditions, it is the duty of the executive department of the Govern- ment to give the company the benefit of the grant; (4) that the application of the company for the appointment of commissioners to ex- amine the section of road constructed west of Albuquerque should be granted, and, if the road shall be found to be completed in all re- spects as required by said act, it should be ac- cepted, and patents for lands conterminous therewith be issued. Opinion of Oct. 26, 1880, 16 Op. 573. XVII. Indemnity for Lost Granted Lands. 337. A survey of section 16, in fraud of the treaties with the Cherokees of 1817 and 1819, does not divest the title of the United States, and consequently does not give the State a right to select another section in lieu thereof. Opinion of Aug. 12, 1830, 2 Op. 360. 338. Where a part of section 16 is disposed of the State is not bound to select the residue, but may take an equivalent on other sections. The act of selection of a section in lieu of sec- tion 16 is that by which the tract becomes ap- propriated for school purposes. IMd. 339. The indemnity lands in Ohio provided for by the act of June 30, 1834, chap. 137, to make up the full quantity of lands previously granted for the construction of a canal from Lake Erie to the "Wabash, where such granted lands were sold or otherwise disposed of by the Government, must be selected from the alter- nate sections reserved to the United States, or from other lands in the neighborhood near to the canal. Opinion of June 26, 1840, 3 Op. 553. 340. Those parts of sections which are cut by the parallel line five miles distant from the canal may be located; and quantities equal to the computed area of the out sections may be located according to any of the usually recog- nized minor subdivisions of a section among the alternate sections accruing to the State along the exterior limits of the belt. IMd. 341. If obstacles shall be found to exist to the location of sufficient land on the exterior limits of the belt in minor divisions the com- plement may be made up from full alternate sections. Il>id. 342. The Secretary of the Interior has uo power, under the act of July 12, 1862, chLip. 161, to set apart to the State of Iowa, from the public lands within her limits, an amount 390 PUBLIC LANDS, XVII. equal to so murh of the alternate sections of public lands, in a strip 5 miles wide on each side of the Des Moines Eiver, between its mouth and the Raccoon Fork, as was sold or disposed of by the United States at the date of the act of August 8, 1846, chap. 103. Opinion of April 6, 1806, 1 1 Op. 453. 343. The Commissioner of the General Land Office is authorized to receive proofs of the swampy character of lands disposed of by the United States between March 9, 1855, and March 3, 1857, with a view to allowing the States the indemnity provided by the act of March 3, 1857, chap. 117, notwithstanding the omission in the Revised Statutes (section 2484) of that part of the act which granted the in- demnity. Opinion, of July 25, 1877, 15 Op. 340. 344. The right to indemnity, under that act, for swamp lands thus disposed of, is a right that ' ' accrued ' ' to those States in which such lands are situated prior to the adoption of the Revised Statutes, and is saved by section 5597 Rev. Stat, from being affected by the repeal of the omitted indemnity provision under the op- eration of section 5596 Rev. Stat. Ibid. 345. The words ' ' reserved for public uses, ' ' as employed in section 7 of the act of March 3, 1853, chap. 145, and section 6 of the act of July 23, 1866, chap . 219, were not meant to apply to lands which passed to the State of California under the swamp-laud act of Sep- tember 28, 1850. That State is not entitled to indemnity under those enactments for school sections falling within the swamp-land grant. Opinion of March 4, 1878, 15 Op. 454. 346. The words ' ' or otherwise defective or invalid, ' ' as used in the second section of the act of March 1, 1877, chap. 81, relating to in- demnity school selections in the State of Cali- fornia, refer to indemnity selections which are invalid or defective for some other reason than tliat the lands in lieu of which they were made are not included within the final survey of a Mexican grant. Thus, where a selection made by the State was of laud then in reserve, and the selection was for that reason defective or invalid, the words quoted above apply to this case, and such selection is confirmed hy said act to the State. Opinion of July 12, 1878, 16 Op. 69. 347. Where there was no sixteenth or thirty- sixth section, in lieu of which an indemnity selection has been made, no title to the land embraced by such selection passes to the State. Ibid. 348. Semble that where two or more indem- nity selections have been made in lieu of the same sixteenth or thirty-sixth section, the State is entitled to but one of the indemnity selec- tions; there being nothing in the act of March 1, 1877, from which it can be fairly inferred that double selections were meant to be rati- fied, and that the .State should thus obtain a greater quantity of land than had originally been allowed by law for school purposes. Ibid. 349. By article 2 of the treaty of December 29, 1835, with the Cherokee tribe of Indians, certain lands, now situate within the bounda- ries of the State of Kansas, estimated to con- tain 800,000 acres, were sold and conveyed to said tribe in consideration of §500,000. Sub- sequently, by the treaty of July 19, 1866, with said tribe, the same lands (known as the ' ' Cherokee neutral lands ' ' ) were ceded to the United States in trust, to be sold for the benefit of said Indians, and in accordance with that treaty and the supplemental treaty of April 27, 1868, were surveyed and subdivided as are the public lauds, and sold, and the proceeds placed to the credit of said Indians. Held, (1) that under the sale and conveyance by the treaty of 1835 the Cherokee tribe of Indians acquired a title in fee-simple to the said lands, which thereupon ceased to be public lands of the United States; nor did they afterwards become public lands by reason of their cession to the United States by the treaty of July 19, 1866; (2) that neither section 34 of the act of May 30, 1854, chap. 59 (which reserved for school purposes the sixteenth and thirty-sLxth sections in each township of public lands in the Territory of Kansas, when the same were surveyed preparatory to bringing them into market), nor section 3 of the act of January 29, 1861, chap. 20 (which granted to the State of Kansas "sections numbered 16 and 36 in every township of public lauds in said State " for the use of schools, and provided for indem- nity "where either of said sections, or any part thereof, has been sold or otherwise dis- posed of"), could have any effect upon the said lands of the Cherokees; (3) that the State of Kansas is not entitled, under the provis- ions of the school-land grant contained in the act of January 29, 1861, to indemnity for the sixteenth and thirty-sixth sections falling PUBLIC LANDS, XTIT. 301. within townships into which the said lands of the Cherokees were subdivided and sold as aforesaid. Opinion of Jan. 21,1880, 16 Op. 432. 350. The United States, by treaty with the Delaware Indians dated September 24, 1829, granted to that tribe certain lands lying in the fork of the Kansas and Missouri Rivers, and now within the boundaries of the State of Kansas, for their permanent residence, pledg- ing ' ' the faith of the Government to guarantee to the said Delaware Nation forever the quiet and peaceable possession and undisturbed en- joyment of the same against the claims and assaults of all and every other people what- ever. " By a subsequent treaty, which took effect July 17, 1854, the same tribe ceded to the United States all of said lands (excepting a certain part theretofore sold to the Wyan- •dots, and also excepting a certain other part specifically described) to be surveyed and sold, the proceeds, after deducting cost of survey- ing, &c., to go to the tribe. The lands thus <;eded were surveyed, and were principally sold during the year 185G; and afterwards, under the provisions of a treaty with the Dela- wares, dated May 30, 1860, a portion of the tract excepted from the cession of July 17, 1854, and retained by the Delawares, was sold to the Leavenworth, Pawnee and Western Eailroad Company. The whole of the lands sold under the treaties of 1854 and 1860 con- tained upwards of thirty townships : Held, (1) that the grant to the Delawares, by the treaty of 1829, conveyed only a right of occu- pancy [i. e., the ordinary Indian title), the fee remaining in the United States — the lands thus continuing to be public domain, but sub- ject to the Indian title ; (2) that the lands covered by that grant came within the scope of section 34 of the act of May 30, 1854, chap. 59, though its operation npon them was liable to he indefinitely postponed by reason of the existence of the Indian title, or to be pre- vented by measures necessary to be taken in •order to extinguish the Indian title; (3) that section 3 of the act of January 29, 1861, chap. 20, should be construed in connection with section 34 of the act of 1854, both sections be- ing in pari materia, and that when thus con- ■strued it must be deemed that the grant to the •State for school purposes made by said section 3 was meant to be as broad as the reservation for the same purposes contained in said section 34; (4) that, therefore, the indemnity pro- vision in the grant applies to such sixteenth and thirty-sixth sections as constituted a part of the public domain at the date of the reser- vation, and were within its scope; and hence it is applicable to sections 16 and 30 in those townships within the lands of the Delawares which ^vere disposed of under the provisions of the before-mentioned treaties of 1854.and 1860; (5) that the State of Kansas is accord- ingly entitled to indemnity for the sixteenth and thirty-sixth sections within the townships last mentioned. Ibid. 351. By a treaty with the Kickapoo Indians, dated October 24, 1832, certain lands, now within the boundaries of the State of Kansas, were set apart as a permanent place of resi- dence I'or that tribe. By a subsequent treaty with the same Indians, dated May 18, 3854, those lands were ceded to the United States, saving 150,000 acres thereof, which were re- served for a future home for the tribe, and which were afterwards set off by proper metes and bounds. A part of this diminished reser- vation was, under the provisions of a later treaty with the same Indians, dated June 28, 1862, allotted to individual members of the tribe, and the remainder sold to the Atchison and Pike's Peak Eailroad Company for the ben- ent of the tribe. The question being whether the State of Kansas is entitled, under the school-land grant in section 3 of the act of Jan- uary 29, 1861, chap. 20, to indemnity for sec- tions 16 and 36 within the diminished reserva- tion thus disposed of, or to such sections in place: Held, (1) that the title of the Kickapoos to the lands within that reservation, when said act of 1861 was passed, was one of occupancy only (the ordinary Indian title), and the effect of the act was to grant to the State sections 16 and 36 in the reservation subject to that title; but this grant was also subject to certain rights reserved to the United States in the proviso to the first section of that act, by which the Gov- ernment was authorized to make, and subse- quently did make, other disposition of the lands by treaty; (2) that when such other dis- position was made under the treaty of 1862, a case arose which is provided for in the said act of 1 861, namely, of lands that have ' ' otherwise been disposed of" by the United States, and which entitled the State to indemnity there- 392 PUBLIC LANDS, XVIII. under; (3) that, therefore, if the sixteenth and thirty-sixth sections within the diminished reservation of the Kickapoos are not now to be found in place, by reason of the disposition of them made as aforesaid under the treaty of 1862, the State of Kansas is entitled to indem- nity therefor. Ibid. 352. Under the provisions of the acts of March 3, 1857, chap. 99, and March 3, 1865, chap. 105, the State of Minnesota is entitled to indemnity for lands lying within the limits of the grant (i. e., within 10 miles from the line of definite location of the road) which it shall have lost by reason of the fact that such lands were sold by the United States or were pre- empted, whether the sale took place or the right of the pre-emptor attached before or af- ter the date of the grant, provided the indem- nity lands can be found within the proper in- demnity limits (viz, within 20 miles from the line of the road) . Opinion of June 5, 1880, 16 Op. 504. 353. But those provisions do not entitle the State to indemnity for lands which were never included within its grant, such as lands re- served to the United States by any act of Con- gress, or in other manner by competent au- thority, and excepted out of the grant. The indemnity is limited strictly by the sections lost in place, i.e., sections which came within the terms of the grant, but which were pre- viously, or have been subsequently, sold by the United States or pre-empted. It is not made in order that the State shall have neces- sarily a hundred sections of land for each 10 miles in length of constructed road, but in or- der to make the grant good. IMd. 354. Accordingly, if there were reservations to the United States within the limits of the grant, or if the State were not entitled to one hundred sections of land within these limits for any 10-mile division of constructed road in consequence of the curvatures or sinuosities of the road in such division, no right would ex- ist for a deficiency thus arising. Ibid. XVIII. State Selections under Grants thereto. 355. Where a part "of section 16 is dis- posed of the State is not bound to select the residue, hut may take an equivalent on other sections (under Cherokee treaties, July, 1817, and February, 1819). The act of selection of a section in lieu of section 16 is that by which the tract becomes appropriated for school purposes. Opinion of Aug. 12, 1830, 2 Op. 360. 356. A valid pre-emption, under act of May 29, 1830, chap. 208, however, cannot be avoided by the selection. Ibid. 357. A quarter section is 160 acres ; less than that the governor of Arkansas cannot select under the act granting land to the State. Opinion of Aug. 30, 1833, 2 Op. 578. 358. The States to which 500, 000 acres of land were given for internal improvements are not entitled to take any land to which pre-emp- tion rights exist. Opinion of July 11, 1842, 4 Op. 71. 359. Under an act of Congress (the act of May 20, 1826, chap. 90), granting to the State of Michigan a certain number of sections of laud for the use of a university therein, the State selected, applied for, and received the requisite number of sections, some of the sec- tions, thus deliberately selected, being frac- tional sections: Held, that the State cannot revise its selections, and obtain additional lanils to make the sum total of acres what it would have been if all the selections had been complete sections. Opinion of Sept. 15, 1854, 6 Op. 725. 360. Conflicting claims to a particular sec- tion of the public lands arising between the State of Michigan, in virtue of selection made by it under the act of Aug. 20, 1852, chap. 92, and the alleged entry of a private purchaser in the forms of the general law is not a case of conflicting entries, such as the act of 1820 provides for, and requiring to be solved by oflering the disputed tract at public auction. Opinion of Dee. 20, 1856, 8 Op. 247. 361. Such selections by the State, in a par- ticular land district, do not require to be made during the time when the public lands of that district are withdrawn from private entry by proclamation of the President. Ibid. 362. The State of Wisconsin having selected the odd sections, under the grant made by the act of Aug. 8, 1846, chap. 170, and that selec- tion having been approved by the United States, the State acquired a vested interest in such odd sections, notwithstanding that the lands had not yet been surveyed, and con- tinued for some time afterward in the aborici- PUBLIC LANDS, XIX, XX. 393 nal occupancy of the Menomonee Indians. Opinion of Dec. 22, 1856, 8 Op. 256. 363. Selections of the public lauds, made hy theState of California under the twelfth section of the act of March 3, 1853, chap. 145, required the approval of the Secretary of the Interior be- fore title passed from the United States to the State by the grant therein contained. Opinion of June 7, 1872, 14 Op. 50. 364. Under the act of July 23, 1866, chap. 219, selections theretofore made by the State, and disposed of in good faith under the laws of the State, are not confirmed, nor does the title pass until the lands are certified over to the State by the Commissioner of the General Land Office. lUd. 365. Hence, where the President in 1866 and 1867 reserved for light-house purposes a piece of land in California which had previously been selected by the authorities of that State under the twelfth section of the act of March 3, 1853, and by them granted to a private party in ac- cordance with the laws of the State, but the selection has never received the approval of the Secretary of the Interior, nor has the land ever been certified over to the State by the Commis- sioner of the General La;nd Office: Held, that the legal title to the premises is still in the United States. Hid. 366. Under the Michigan land-grant act of July 3, 1866, chap. 161, in aid of the construc- tion of a ship-canal at Portage Lake, &c. , the lands to be selected by the State are not re- quired to be those "nearest" the contemplated line of that improvement, as in the prior land grant made to the same State by the act of March 3, 1865, chap 102. Opinion of March 11, 1874, 14 Op. 637. 3a7. The right of selection under the former act being only a "float," it could not be ad- verse to the right of any one who, while it re- mained in that condition, had acquired a legal or equitable right to any specific tract subject, in a general way, to such float. Ihid. 368. Reconsideration of the subject of the Portage land grant, heretofore examined in opinion of March 11, 1874 (see ante p. 637) upon an amended statement of facts, and ques- tions thereon, subsequently submitted to the Attorney-General. Opinion of April, 4, 1874, 14 Op. 646. 369. View expressed in that opinion that the lands to be selected by the State of Michigan under the act of July 3, 1866, chap. 161, are not required to be those ' ' nearest " the con- templated line of improvement, reaffirmed. lUd. 370. Selections of lands by the State under- that act are subject to the approval of the Sec- retary of the Interior. Ihid. 371. Authority of the Secretary to reject • certain selections of the State, and reinstate certain entries of the same lands previously made by private parties, considered;^ Ibid. XIX. Salt Springs. 372. The grant of salt springs contained in the act of April 18, 1818, chap. 67, admitting Illinois into the Uuion, includes all salt springs, discovered and undiscovered, to which the President of the United States has thought, or shall think, it necessary to annex lands for the purpose of working them, and no other. Opinion of Dec. 28, 1820, 1 Op. 420. 373. The discretion previously exercised by the President in declining to withhold from ale such springs as were supposed to be of little value, is neither impaired nor taken away by the act admitting Illinois into the Union. Ihid. 374. The effect of the grant is merely to place the State of Illinois, in regard to these springs and reservations of land, exactly on the ground which had been previously occu- pied by the United States. Ibid. XX. Mineral Lands. 375. The President has unrestricted power to lease the lead mines, on such conditions as he may think proper, for any term not exceed- ing three years, provided the leases be not in- consistent with existing laws. Opinion of June — , 1822, 1 Op. 593. 376. There is no material difference between the two acts concerning the lead mines (viz, the act of March 3, 1807, chap. 46, and the act of March 3, 1807, chap. 49), only that leases under the one are limited to three, and under the other to five years. Opinion of April 3, 1835, 2 Op. 708. 377. The power to lease the mines necessa- rily includes the power to collect rents, and to take all proper measures to effect that object. Ihid. 378. The President has the power to reserve from public sale any or all of certain mineral 394 lands in Wisconsin, and may, if he deem it ad- visable, lease them. Opinion of July 21, 1837, 3 Op. 277. 379. Where, from want of proper and nec- essary information, he shall have failed to make the necessary reserTation prior to the public sale, it is competent for him then to di- rect the reservation. IMd. 380. The several acts of Congress relating to the saline and mineral lands confer a general authority upon the President to lease the lead mines. Opinion of Oct. 14, 1842, 4 Op. 93. 381. The President has no authority, under the Constitution, to dispose of, by lease or otherwise, anyportion of the public lands with- out authority of law; and the authority to lease mineral lands is limited by law to salt springs and lead mines, and the necessary con- tiguous sections. Opinion of April 18, 1846, 4 Op. 480. 382. Wherefore the President is without au- thority to lease, or cause to be leased, lands which contain mines of copper or silver as the predominating mineral. Ibid. 383. Whether or not certain locations made under permits given by the superintendent of mineral lands, and the expenditure of moneys there, entitle claimants to leases, if there were authority to execute tnem, quosre. IMd. 384. The practice of leasing salines and lead mines has so long prevailed, under a construc- tion of the laws which has received a very gen- eral assent, that the Executive would not now be justified in declining to exercise the power, and thus deprive the Treasury of the revenues to be derived from the mining operations no- toriously going on at the lead mines in Iowa. Opinion of Juty 7, 1846, 4 Op. 499. 385. Lands containing iron ore merely are not to be considered as "mineral lands" vsd th- in the meaning of the act of 1st March, 1847, chap. 32, but they are to be disposed of accord- ing to the laws in relation to the disposition of other public lauds. Opinion of Aug. 28, 1850, 5 Op. 247. 386. Mines of the precious metals belong to the eminent domain of the poll tical so vereignty, as well by the laws of Spain as by the common law of England and the public law of the United States. Opinion of Feb. 14, 1856, 7 Op. 636. 387. The terms "valuable mineral depos- its," used in the act of May 10, 1872, chap. 152, to promote the development of the min- ing resources of the United States, include diamonds; and the title to public lands con- taining these minerals may, accordingly, be acquired by individuals or associations under the provisions of that act. Opinion of Aug. 31, 1872, 14 Op. 11.5. 388. Four persons, citizens of the United States, located 1,000 feet on the Hed Pine Lode, in Utah Territory, in July, 1871. One of them, in July, 1872, assigned to S., an alien, 400 feet of the same mine. In January, 1874, S. assigned the said 400 feet to D., a cit- izen of the United States, who has obtained the remainder of the 1,000 feet by proper as- signments. Application is made by D. for a patent for the whole thousand feet: Ekld, that D. , by reason of the alienage of S. , derived no right through him to a patent for the 400 feet referred to, and that he is entitled to a patent for only the 600 feet obtained from the other assignors. Opinion of Aug. 6, 1875, 15 Op. 29. 389. The Secretary of the Interior, by a de- cision dated August 4, 1871, rejected an appli- cation of the New Idria Mining Company, made under the act of July 26, 1866, chap. 262, for a patent of certain mineral lands in California. Subsequently the company filed an application for a rehearing, accompanied by affidavits ob- tained for the purpose of curing defects in the original application. The application for re- hearing was denied by the Secretary April 27, 1872, but was reinstated by him June 15, 1872, since which time no action has been taken thereon. On March 3, 1875, Congress passed an act (chap. 130) requiring the Secretary of the Interior to furnish to that body at the be- ginning of its next session certain information respecting the lauds in question, in compliance with which the Secretary made a, report to Congress December 8, 1876 ; but thus far Congress has not acted further in the matter. In the mean time an ejectment suit, brought against the company by an adverse claimant of said lands, has been brought before the Su- preme Court of the United States on a writ of error, and is still pending there. The com- pany now ask that their case be taken up and reviewed upon the proofs originally made, the affidavits filed with the application for a re- hearing, and the provisions of the act of May 10, 1872, chap. 152: ffeld, (1) that the appUca- tion for rehearing is fairly before the Depart- PUBLIC LAKDS, XXI, XXII. 395 ment and can properlj* be considered; (2) that the action of Congress (in 1875) presents no obstacle to a determinatiop of the matter of the application; (3) that the applicants are en- titled to have their case adjudicated upon the law as it exists, and that, So far as any antici- pated legislation is concerned, it is the duty of the Secretary of the Interior now to proceed •with all reasonable expedition and determine the case: But lield, further, that in view of the bearing which a decision in the case pending before the Supreme Court iriay have upon the matter, and also of other circiimstances, the Secretary may, if he thinks justice requires it, properly delay his determination until that de- cision is rendered. Opinion of Nov. 12, 1877, 15 Op. 389. S.'Sl. .Reservations for Public Use. — Sale of Military Sites. 390. The act of 3d March, 1819, chap. ■88, extends only to such military sites as be- longed to the United States at its date; and such sites when they have, or whenever they may, become useless for military purposes may be sold under said act, whether situated in a State or Territory. Opinion of May «, 1836, 3 Op. 108. 391. Decision as to the quantity of laud to be reserved for public use, and the places where to be located, rests in the discretion of tbe President, subject to such regulations as may, from time to time, be provided by law, either as to the particular public use, the quantity, or the subsequent disposal thereof for private use. Opinion of Oct. 15, 1853, 6 Op. 157. 392. At present the statute limitation in Oregon Territory (see actof February 14,1853, chap. 69) as to quantity is not exceeding six hundred and forty acres for forts, and twenty acres for any other public use. Subject to this condition, the military reservation of Fort Vancouver, in the Territory of Oregon, is valid, notwithstanding any pre-existing dona- tion claim of an inhabitant of the Territory, and notwithstanding the provisional govern- ment of Oregon had located the county seat of justice at Fort Vancouver. lUd. 393. Where the President, in 1854, directed that a tract of land in California be reserved for light-house purposes and there was a sub- sequent judicial confirmation of a claim to this tract under a grant from Mexico, and the United States, in 1860, issued a patent to the grantee in pursuance of this confirmation, which patent did not mention the fact of the existence of this reservation: Held, that the patentees were entitled to the possession of the land as against the United States. Opin- ion of April 3, 1868, 12 Op. 379. XXII. Claims under Indian Treaties. 394. A negro cannot take a reservation under the Cherokee treaties of July, 1817, and Feb- ruary, 1819, although thehusband of an Indian woman. Opinion of Aug. 12, 1830, 2 Op. 360. 395. The reservation, under the Choctaw treaty ofl830, of "sections "refers to quantity; but that is to be taken and patented in refer- ence to the established system of our land sur- veys, in parallelograms of fixed extent and uniform character. Opinion of Hay Z\, \Si2, 4 Op. 45. 396. By the Choctaw treaty of DancingEab- bit Creek, of 1830, if any portion of a section on which a claimant under the fourteenth article of said treaty resided at the date thereof had been sold by the United States prior to the passage of the act of Aug. 23, 1842, chap. 187, the commissioners were not authorized to award to said claimant scrip instead of land, unless it was then impossible to give to said claimant the quantity of land to which he was entitled, including his improvements, or any part thereof, on the adjoining lands. Opinion of Oct. 21, 1844, 4 Op. 344. 397. If two ormoreclaimantsunderthefour- teenth article resided, a,tthe date-of the treaty, upon the same section, and a portion of it had been sold by the Government, there existed no authority to issue scrip, unless it were impos- sible to give them the quantity of land to which they were entitled, including their im- provements, or any part thereof, agreeably to the terms of the third section of the act of 1842, on adjoining lands. Ibid. 398. A claimant who, having complied with the fourteenth article, has been expelled from or induced to leavehis land by the fraud of the Government agents, and kept out of possession by a sale thereof by the Government, has not forfeited his rights. Hid. 399. If two grants have been made for the 396 PUBLIC LANDS, XXIII. same land to the same claimant, under two separate articles — one /or six hundred and forty acres, upon conditions with which he complied, and another for three hundred and twenty acres — his acceptance of the larger grant, if prior in point of time, will render the smaller grant unavailing; and where the smaller was made first the larger will he available only for the excess. IHd. 400. Locations under the nineteenth article, before the passage of the act of 1842, worked a forfeiture under the fourteenth article in cer- tain cases. Ibid. 401. All assignments, or agreements to as- sign claims, undertheChoctawtreaty of Danc- ing Rabbit Creek, of 1830, previous to the ex- piration of five years from the ratification thereof, are causes of forfeiture, without refer- ence to the consideration.upon which they may be founded; and these matters are specially cognizable by the commissioners, whose judg- ment respecting such assignments is conclu- sive. Opinion of Oct. 28, 1844, 4 Op. 346. 402. Where an Indian reservee under the second article of the treaty of March 24, 1S32, contracted to sell his reservation to A, who paid therefor §100, and then permitted B to go into possession thereof; and A afterwards died, and B, offering to pay the balance of the valuation of the land, claims a patent: Held, thatB may be regarded as the last hona fide transferee within the act of .July 5, 1838, chap. 161, and that a patent be issued to him on payment by him of the balance of the purchase-money. Opinion of April 25, 1846, 4 Op. 491. XXIII. Private Land Claims in Cali- fornia. 403. The commissioners for the adjudication of private land claims in California are a quasi court. Opinion of June 30, 1855, 7 Op. 304. 404. No patent can be issued by the Com- missioner of Public Lands to any private land claimant in the State of California until after final decree in the case. Opinion of tiept. 18, 1855, 7 Op. 491. 405. Patents, granted by the United States for lands confirmed by the commissioner to adjudicate private land claims in California, do not confer title save as against the United States. The legal effect of conBrmatiou dates back to the time of the cession of California to the United States, and decides that the land confirmed was not public domainatthat time. The rights or claims of third parties remain to- be determined by the proper courts. Opinion of Feb. 14, 1856, 7 Op. 636. 406. Such patents do not carry, nor do they reserve, any right a,s to mines, all which re- mains to be determined by the laws of Cali- fornia. Ihid. 407. Where lands are confirmed by the com- missioner described as being "comprehended between" certain limits, but confirmed "to the extent and quantity of four square leagues and for no more; provided that so much be contained within the boundaries called for by the grant ' ' : Held, that the patent cannot is- sue for more than four square leagues of land, whatever may be the quantity within the bounds designated. Opinion of April 24, 1856. 7 Op. 681. 408. The adoption of special measures to de- fend the title of the Government to certain lands in California, awarded by the commis- sioners to one Liihantour, recommended. He- port to President 3Iay 24, 1856j 8 Op. 474. 409. Conclusion and legal effect of the revis- ion of private land claims in California by the Attorney-General. Heport to President Jlurch 4, 1857, 8 Op. 515. 410. A claimant for land in California under a Mexican title, is entitled under the thirteenth section of the act of March 3, 1851, chap. 41, to a patent upon showing that his claim has been finally confirmed and the survey of it approved by the surveyor- general. Opinion of Sept. 29, 18.57, 9 Op. 108. 411. Neither the decree of the court nor the survey nor the patent is conclusive upon any- body but the Government and the patentee. Jbid. 412. Third parties have their remedy by in- junction in the Federal courts and by action in the State courts. Ibid. 413. The Attorney-General has no right to interfere except in the judicial investigation betw een the claimants and the Government. Ibid. 414. In the case of a private land claim in California based on an alleged grant from Mex- ico the counsel for the United States should not be directed by the President to consent to the admission of evidence which they believe to be corrupt and false. Opinion of Mcirek 28 1859, 9 Op. 321. ' PUBLIC LANDS, XXIII. 397 415. If there are original documents in the archives of the Mexican Government vehich tend to support the case • of the claimant the President should not solicit that government to furnish them, but the Government of the United States should wait until that of Mex- ico shall make a voluntary tender of the docu- ments, and then examine into their character with great care, holding Mexico responsible for any aid she may willfully give in support of a false claim against the United States. Ibid. 416. The declaration contained in the tenth article of the treaty with Mexico, that no grant whatever of land in California had been made by the Mexican Government after May 13, 1846, although the same was eliminated by the Senate and also the terms of the protocol, signed by the commissioners on the exchange of ratifications on May 26, 1848, constituted a solemn and impressive averment by the Mex- ican Government that no grant whatever of lands in the Territory of California had been made after 13th of May, 1846; and the United States cannot with propriety ask the Eepub- ic of Mexico to assert the va lidity of a grant alleged to have been made subsequently to that date. Ibid. 417. The Mexican claimant was bound by the affirmation made by his government, and should look to it and not to the United States for redress for the injury, if any, which was inflicted. Ibid. 418. The affirmation thus made by the Mex- ican Government is overwhelming evidence that no grant purporting to have been made subsequently to the 13th of May, 1846, was in existence among the Mexican archives at the date of the treaty. Ibid. 419. Although the existence of papers in certain of&ces of the Mexican Government sup- porting such an alleged grant may have been established by the certificate of American offi- cials, and their genuine character proved by the oaths of Mexican witnesses, the experience of the Government in similar cases show that the claim may be wholly false. Ibid. 420. The United States should not permit the confirmation of a spurious claim to a mine in Calilbrnia, even though it should be made to appear that the price of the product of the mine has risen and may continue to rise in the market in consequence of the restriction of the privileges of claimants. The cause should be determined by the rules of law and not by the principles of political economy. Ibid. 421. Where two grants of land in California lay afoul of one another, the claimant who has the prior grant, and obtained the first judicial confirmation, ha.s a title better in law and equity than the other. Opinion of Noo. 9, 1859, 9 Op. 397. 422. In such a case the surveyor-general of California should locate the whole of the sen- ior grant as it would have been located if no opposing claim to the land existed. Ibid. 423. In such a case the owners of the junior grant are entitled to the residue of the land within the limits of their grant, after satisfying the calls of the senior grant. Ibid. 424. The act of March 3, 1H51, chap. 41, sec- tion 13, authorizes the surveyor-general to de- termine, in case of conflicting claims to the same land, which of the two claimants has a better right according to the principles of jus- tice. Ibid. 425. The Secretary of the Interior has no power to review the survey of a private land claim in California, upon the application of in- dividuals interested in the land, after the sur- vey has been approved by decree of the dis- trict court. Opinion of 3Iarch 15, 1860, 9 Op. 420. 426. The Jimeno granf being the elder in point of time, is entitled to a preference in lo- cation. Opinion of Dec. 17, 1860, 9 Op. 527. 427. A patent should be issued on the Jim- eno survey, although the interfering Coins sur- vey may have been returned into the' district court of the United States for the northern dis- trict of California. Ibid. 428. A patent may be issued to the Jimeno claimants, saving the rights of the Colus claim- ants, if they are willing to accept it. Ibid. 429. Congress had power to dispose of lands claimed by settlers upon the Soscal Ranch, California, under the pre-emption laws, at any time before the proof and payment required by those laws were made. Opinion of May 26, 1866, 11 Op. 490. 430. Settlement on the public lands of the United States confers, of itself, no right against the Government. It gives the settler, under the pre-emption laws, a right to enter the lands occupied and improved, when they are 398 PUBLIC LANDS, XXIII. open to sale and he has complied with thelaws in respect to proof of settlement and payment of the prescribed consideration. Hid. 431. Congress had power, as against persons who, before the passage of the act of March 3, 1863, chap. 116, had settled upon the lands in that ranch, but who had not perfected their right of entry, to confer upon claimants, under the Vallejo title, an absolute title to all the laud purchased from Vallejo or his assigns. lUd. 432. It was the intention of Congress to ena- ble any iona fide purchaser from Vallejo, whether resident or not of California, who should prove that he had effected, either per- sonally or through a tenant, settlement of part of the tract embraced by his claim, to acquire title thereto from the United States. Ibid. 433. The act of July 1, 1864, chap. 194, does not apply to surveys which had become final by lapse of time or approval of the district court before it went into operation. Opinion of Feb. 15, 1867, 12 Op. 116. 434. A patent should be issued upon a sur- vey which became final and conclusive before the passage of that act. Ibid. 435. A patent may he issued for land which has been surveyed and the survey of which has been acted upon by the district court, before the time limited by the act of July 23, 1866, chap. 219, for appeM to the circuit court, if all the parties of record in the case in the district court expressly waive, by agreement of record, their right of appeal. Opinion of Feb. 25, 1867, 12 Op. 121. ■ 436. Where a survey and plat of a confirmed California land claim were made by the sur- veyor-general, and notice of the same, with his approval, was given by publication, con- formably to the act of June 14, 1860, chap. 128, but the surveyor-general failed to trans- mit the survey and plat to the General Land OfSce until after the passage of the act of July 1, 1864, chap. 194, repealing the act of June 14, 1860: Held, that it was theduty of the Com- missioner to issue a patent according to the survey and plat transmitted to him by the sur- veyor-general of California. Opinion of Sept. 30, 1867, 12 Op. 251. 437. No steps having been taken to invoke the jurisdiction of the district court, the title to the land covered by the survey and plat vested absolutely in the claimant, and the re- peal of the statute, after the title so vested, cannot be construed to have divested that title. Ibid. 438. A title vested by statute is just as com- plete as one vested by the issuance of a patent, and where the title is vested prior to a patent, the only ofiSce of the patent is to aiford the party more convenient evidence in establishing his right when brought in contest. Ibid. 439. The authority to issue a patent for con- firmed grants in California, after the repeal of the act of June 14, 1860, is given hy the thir- teenth section of March 3, 1851, chap. 41. Ibid. 440. The Secretary of the Interior has su- pervisory power over the acts of the Commis- sioner of the General Land Office in the mat- ter of granting or refusing a patent on a Cali- fornia land claim, or any action of the Com- missioner approving or disapproving of the survey. Ibid. 441. Section 13 of the act of March 3, 1851, chap. 41, to ascertain and settle private land claims in California, directs the issue of a pat- ent by the General Land Office only where the claim has been finally confirmed as therein stated, and thus in effect withholds authority to issue one where the claim has never been before the commission constituted by that act. Opinion of May 2, 1872, 14 Op. 39. 442. Accordingly, -where it appeared that an applicant for a patent for the island of Yerba Buena, claiming title thereto under a Mexican grant, had never presented his claim to said commission: Held, that this circumstance alone furnished sufficient ground on which to deny his application. Ibid. 443. A- survey of a private land claim in California was made in 1867, and forwarded by the surveyor-general for that State to the Com- missioner of the' General Land Office, who ap- proved the same, but from whose decision an appeal was taken to the Secretary of the In- terior, by whom the survey was disapproved and a new one ordered, which has not been made: Held, upon these facts, that it was com- petent to the successor in office of the Secre- tary who ordered the new survey to set aside or revoke that order. Opinion of Aug. 2, 1872, 14 Op. 74. 444. Inthecaseoftherancho "Guadalupe" (which involves the validity of two patents- issued upon a California private land claim PUBLIC LANDS, XXIV, XXV. 39» one in 1866 and the other in 1870, hoth, how- eyer, having been afterward recalled by the Land Department) upon the facts submitted: Beld, that there was no legal authority for is- suing the second patent, and that the first patent should be delivered to the confirmees of the claim. Opinion of March 10, 1873, 14 Op. 602. 445. The provision in the act of June 14, 1860, chap. 128, that notice of the survey and plat made by the surveyor-general of Califor- nia be given by advertisement, requires a pe- ried of four weeks to elapse between the first insertion and the act to be done (i. e., the re- moval of the plat, &c. , from the surveyor-gen- eral's office) which such notice is to precede, the insertions being repeated once a week in each week during the same period. IbicJ. 446. Advertisement of said notice was made at Santa Barbara, in a newspaper^called the "Santa Barbara Gazette," which was printed in San Francisco and thence immediately sent to Santa Barbara for distribution, where it was distributed : Held, that Santa Barbara may be regarded as the ' ' place of publication ' ' of the paper, and (as far as that is material) the requirement of the statute complied with. nid. XXIV. Private Land Claims in Florida. 447. The King of Spain had ample power to grant lands in Florida while the province was his, and the Eoman Catholic Church was capa^ ble of taking his grants ; but whether the lands in. question were granted prior to the time stipulated is a question of fact to be de- termined. Opinion of July 19, 1 822, 1 Op. 563. 448. A Spanish grant, made upon false sug- gestions, would have been canceled by the Spanish sovereign, and an American court of equity should not lend its aid to enforce it. Opinion of April 1, 1829, 2 Op. 191. 449. A grant made December 2, 1820, was in violation of the eighth article of the treaty of cession. Hid. 450. The settled policy of Spain was to par- cel out her colonial domain with reference to the single object of population; and grants for the purpose of speculation were not tolerated. lUd. 451. It is competent only for the sovereign making the grant to release the condition on which it is made. Matters in excuse of non- compliance are not the subject of judicial in- quiry. Hid. 452. The claimants of certain lands in Flor- ida, under a grant known as the ' ' Arredondo- grant," having instituted proceedings under the act of May 26, 1824, chap. 173 (made ap- plicable to Florida by the act of May 23, 1828^ chap. 70), to establish its validity, and hav- ing obtained a decree confirming the same, provided it could be located according to its description, which decree was substantially affirmed by the Supreme Court on appeal, with the qualificatioii that unless certain points and locations could be made it would be void for uncertainty; and a mandate to that effect having been sent to the court be- low, before which all proceedings were sus- pended until a report was made by the sur- veyor-general to the General Land Office that the grant could be located under the said opinion, are not entitled without completing their legal proceedings and obtaining u ju- dicial decision upon all the questions neces- sary to be decided, to take the like quantity of land in parcels from other lands in Florida subject to entry and sale. Opinion of June 4, 1849, 5 Op. 110. 453. The validity of the grants embraced by the act of 1824, as well as their extent and boundaries, were to be submitted to and be determined by the courts as judicial ques- tions; and they must be so determined before the executive department can act in the premises. Ihid. XXV. Private Land (including Back Land Pre-emption) Claims in Louisi- ana. 454. The Ursuline nuns of New Orleans have possessory title to their inclosure that cannot be disturbed. Opinion of April 11, 1820, 1 Op. 3.30. 455. Claimants are liable for the expenses of surveys of private land claims only where there had been no survey of the claim under the French or Spanish Governments previous to the delivery of possession of the territory, and where surveys are deemed necessary by the commissioners to enable them to decide on the validity of the claims. Opinion of April 8, 1824, 1 Op. 655. 456. The concession in favor of William Mu- sick is a valid claim under the first section of 400 I'UBLTC LANDS, XXV. the act of March 2, 1805, chap. 26, to the whole amount of the survey made in 1796. Opin- ion of April 8, 1824, 1 Op. 656. 457. A concession confirmed under the fourth section of act of March 3, 1807, chap. 36, where the commissioners issued a certificate lor eight hundred arpents, according to the original plat, without ordering a resurvey under the seventh section, is good for the quantity contained in the plat, though it exceeded the quantity specified. Ibid. 458. The first section of the act of April 12, 1814, chap. 52, confirmed the claim according to the survey, where a survey had been made. A mistake of the commissioners was immate- rial, as the confirmation was effected by the act solely. The commissioners only reported upon, did not decide, the claims. The third section required surveys only where none had been made by the foreign government. Ibid. 459. The right to enter back lots is not lim- ited to proprietors whose lands front on navi- gable streams. If there be a perennial flow of water, they may be rivers, creeks, bayous, , or water-courses, within the meaning of the law. Opinion of July 3, 1838, 3 Op. 336. 460. The register and receiver, under the power given them in section 12 of the act 3d March, 1819, chap. 100, may examine the claim of De Feriot, and the evidence on which it was founded, for the purpose of ascertaining whether it was founded on a real or fabricated grant; and, also, for the purpose of ascertaining whether or not the confirmation was fraud- ulently obtained; and if satisfied that fraud has been practiced, they ought not to make the survey nor issue the certificate. Opinion of July 21, 1838, 3 Op. 343. 461. The President may withhold a patent in such case, even though a certificate shall have been issued. Ihid. 462. In case of an equitable claim in favor of an innocent purchaser, the land should be reserved from sale in order to give him an op- portunity to apply to Congress. Ibid. 463. Back land pre-emptions cannot be law- fully claimed by those who were not owners of land on a river, creek, &c., at the time of the approval of the act of June 15, 1833, chap. 140; and individuals entitled to lands, but who had not located them at the date of said act, can- not be considered to have perfected a title to any specific lands so as to be regarded as own- ers within the meaning of the act. Opinion of April 16, 1839, 3 Op. 452. 464. The land in controversy was not sub- ject to pre-emption, for the reason that the claimant did not own the front lands in 1832. Ibid. 465. The report of the land officers of 20th December, 1817, and the confirmatory act of Congress of the 11th May, 1820, chap. 87, ought to be regarded as confirming the title of Morgan to the full extent of his grant issued by Governor Galvez on the 24th January, 1777. Opinion of March 20, 1840, 3 Op. 501. 466. The claim of P. to a patent for 17,084 arpents of land in Mississippi, on pretense that his title is founded on a legal British grant made previous to 1783, and recognized and confirmed by the Spanish Government in 1810, cannot be recognized at the General Land Office. Opinion of July 16, 1840, 3 Op. 569. 467. His claim having been reported and confirmed as one founded on a private convey- ance for 1,280 acres only, as a donation, a pat- ent for that quantity only can issue, unless further legislation shall authorize it. Ibid. 468. The right of H., who derived title from McD. , to a tract of land on Bayou Sara, in Alabama, was confirmed by the act of 2d March, 1829, chap. 40, to the extent of 1,280 acres. Opinion of Feb. 23, 1841, 3 Op. 618. 469. The provisions of the act entitling a confirmee to a patent are positive; and it ought to be issued for the tract as located, unless it shall be made satisfactorily to appear that the bayou, which is the chief landmark, does not exist at the place described. Ibid. 470. The error as to the date of a certain re- port of the Commissioner of the Land Office, embracing the Maison Rouge claim, set out in a confirmatory act of April 29, 1816, chap. 159 (being December 4, 1812, when it should read December 14, 1S12), is not fatal to claims men- tioned in the said report. Opinion of Nov. 27, 1841, 3 Op. 715. 471. The construction of a statute is placed by the law in very much the same category as that of wills, and such erroneous recitals are susceptible of correction by parol evidence. Ibid. 472. The " league square " is the extent of the satisfaction granted to claimants under the PUBLIC LANDS, XXV. 401 act of April 29, 1816 ; and whatever may be the extent of the claim, this satisfaction may be had under the act. Ibid. 473. In respect to the Maison Rouge claim it maybe said: The claim to all beyond a league square is unconfirmed, and stands, in every re- spect, as if the act of Congress had not been passed, except that the fact that Congress has refused to aclsnowledge it further has the effect to raise a presumption that Congress, by a par- tial confirmation, did not mean to admit the justice of the claim, but only to buy its peace; and that the executive department must regard the claim, whatever may be its extent, as sat- isfied by the acceptance of a league square. Opinion of Dec. 22, 1841, 3 Op. 737. 474. By an act approved March 3, 1819, chap. 100, there were confirmed to J. F. & Co. 310 arpents of laud near Mobile; and the question of the extent of the claim confirmed was acted upon many years ago. Opinion of March 20, 1843, 4 Op. 157. 475. The survey, as executed by the surveyor- general, which recognizes the claim of J. F. & Co. to hold the strip of land not embraced in the original British grant, ought not to be dis- turbed. Ibid. 476. It is the Spanish grant, enlarging the English grant, that is confirmed, whereby the strip of land between the latter and the river is added./ Ibid. 477. Concessions of crown lands to individ- uals in Louisiana, executed in conformity with the laws and usagesof the Government of Spain whilst that territory was under her dominion, and which were reserved in the treaty of Paris of 1803, must, in general, be held to have been limited to such surveys, descriptions, and de- marcations as were sufficient to sever them from the body of the public domain. There is no recognized principle of law to justify a con- struction extending them beyond the actual surveys and locations upon which they were made. Opinion of Dec. 31, 1847, 4 Op. 643. 478. The title of M. C. to the lands known as the ' ' Houmas tract, ' ' situate on the left bank of the Mississippi Eiver, above New Or- leans, which were once possessed by the Bayou Goula and Houmas Indians, and granted with their assent by Governors Unzaga and Galvez, in front and back concessions, prior to the ces- sion of Louisiana to the United States, was DIG 26 valid to the extent of the surveys and loca- tions, and no further. Ibid. 479. The two patents issued by the Execu- tive on the22d of August, 1844, upon the Don- aldson, Scott, and Clarke claims, so called, were unauthorized by law, and are void. Ibid. 480. But as the original concessions cannot be recognized to have conveyed any lands be- yond the limit of 42 arpents from the Missis- sippi Eiver, those in the rear thereof, and which had not been otherwise granted, were vested by the treaty in the United States. Ibid. 481. Pre-eniptors for back lands in Louisi- ana, under the act of 3d March, 1811, chap. 46, continued by that of 11th May, 1820, chap. 87, which reserved such lands from sale for three years, who made the entry, gave the notice, and paid for the same as therein pro- vided, are entitled to t)atents, although others may have obtained patents for the same land pursuant to private entry. Opinion of July 29, 1848, 5 Op. 8. 482. As against pre-emptors who have com- plied with the conditions of the law, the ex- ecutive department has no right to convey to others; and whenever it does so the grants are void. Ibid. 483. Claim of entry by location of a land warrant of the State of Louisiana on lands re- served from entry by reason of their belonging to the contested grant of Maison Rouge. Opin- ion of July 23, 1856, 8 <.)p. 16. 484. Claim of pre-emption in the same lands by entry for the purpose of pre-emption. Ihid, 485. By the act of June 15, 1832, chap. 140, authorizing the inhabitants of Louisiana to enter back lands, the right of back land pre- emption is not given to a person whose front land does not border upon a stream, but is a tract through which the stream runs. Opin- ion of Nov. 26, 1860, 9 Op. 511. 486. The river, creek, bayou, or watercourse must be navigable. Ibid. 487. Where entry was made of lauds border- ing on an unnavigable stream, by mistake of law, a patent should not be granted to the claimant. Ibid. 488. Under the act of June 26, 1856, chap. 47, erroneous or informal entries or locations of lands made in ignorance or mistake of mat- ters of law and not of fact cannot be confirmed. Ibid. 402 489. The ownership of the front lands on a river, creek, bayou, or water course at the date of the passage of the act of June 15, 1832, chap. 140, is essential to the right of back land pre-emption. Opinion of Nor. 26, 1860, 9 Op. 514. 490. Where the grantor of a claimant of a right of back land pre-emption under that act was, on June 15, 1832, the ownerof a confirmed Spanish claim, which was not located on the tract in question fronting on a navigable stream, till the year 1835: Held, that the grantor of the claimant was not the owner of the tract fronting on such stream at the date of the act of 1832. Ibid. 491. The claimauts under Spanish grants have no title to any specific tract until their grants are lawfully located upon it. Ibid. 492. The ownership at the date of the pas- sage of the act of 1832, contemplated by the statute, is that of some specific piece of land bordering on a navigable stream. Ibid. XXVI. Private Laud Claims in Mich- igan. 493. P. Bonhomme has no claim to any lands within the military reservation on which Fort Gratiot stands, which the executive depart- ment will recognize. Whatever right the pri- ority of his location may have given him, the same has not been recognized by Congress, under whose authority only can a patent issue for so much of the land embraced in his claim as lies without the limits of the military res- ervations. Opinion of June 16, 1829, 2 Op. 207. 494. It having been decided by a former At- torney-General (Butler) that the Catholics, as well as the Baptists, have an interest propor- tionate to their improvements in the net pro- ceeds of the sales of the 160 acres of land upon Grand river, ceded to "the missionary society," in the treaty with the Ottawas, ratified May 27, 1836; and since it appears, from the papers produced, that the Catholics have a small es- tablishment there, the Department is advised to distribute the fund in proportion to the ap- praised value of their respective improvements. Opinion of March 17, 1843, 4 Op. 153. 495. Therefore the Baptist society is not en- titled to a patent for the whole laud unless the Catholics will consent to take a pecuniary indemnity in satisfaction of their proportion of the appraised value of the improvements. Ibid. 496. But the above opinion is one of acquies- cence, from expediency, in the views of Mr. Butler, and not the judgment of the present Attorney-General, if the question were res in- tegra. Ibid. 497. The sale of the missionary lot to the- Baptist mission being irregular and unsatisfac- tory to the Catholic mission, it should be re- scinded and the property placed in the situa- tion in which it existed before any proceedings were had in regard to it, and be resold upon, such notice and terms as shall be satisfactory to all the parties concerned. Ojiinion of Oct. 2, 1843, 4 Op. 255. XXVII. Private Land Claims in Mis- sissippi Territory. 498. Grants made by the Spanish Govern- ment after the ratification of the treatj' by which the land was ceded tx) the United States, are void; and though a patent were dated be- fore, unless it were delivered before, it fails to carry the title. Opinion of March 26, 1802, 1 Op. 108. 499. Although ^jrima /acie every deed may be presumed to have been delivered on the day of its date, the presumption may be removed, by proof. Ibid. 500. Where there are interfering grants, and the question is which was first made, or when they were respectively made, and there is no registry at hand to decide it by, nor any statute mode of ascertaining the matter, the greatest latitude should be given for the admission of evidence, and especially in the suppression of fraud, tbid. 501. The third section of the act of February 19, 1831, chap. 30, does not conler the right of purchase and consequent title to the widow and children of A. Follin, deceased, to the ex- clusion of his assignees claiming under the provisions of the second section of the act of 1831 and also under the act of February 19, 1833, chap. 30. Opinion of Dec. 5, 1835, 3 Op. 28. XXVIII. Private Land Claims in Mis- souri and Arkansas. 502. The third section of the act of April 12,. 1814,chap. 52, makesitthedutyof theCommis- PUBLIC ILATMDS, XXYIII. 403 sioaei of the General Land Office to examine whether the certificate of the recorder of land titles in Missouri was fairly issued to an as- signee according to the true meaning and in- tent of that act; and if found not to have been S0( to withhold a patent. Opinion of April 13, 1825, 1 Op. 718. 503. The act of May 26, 1824, chap. 173, concemiiig land claims in Missouri and Ar- kansas, required the district attorney to make out a statement containing the facts of the case, and the points of law on which the same was decided. A copy of the record is not enough. Opinion of Dec. 8, 1827, 2 Op. 64. 504. The act of January 6, J.829, chap. 2, relative to location of land claims in Arkansas, is confined to the settlers dislodged by the Cherokee treaty of May, 1828. Opinion of Jan. 17. 1829, 2 Op. 190. 505. The individual who appeared before the board of commissioners, and whose claim was favorably reported upon by them (not the original grantee), is to be regarded as the con- firmee under the act of 4th July, 1836, chap. 361, and is authorized to make the location. QpmoB of Aug. 6, 1838, 3 Op. 351. 506. Patents are unnecessary to complete title to an unsold portion of the confirmed claim. A grant may be as effectually made by law as by a patent issued in pursuance of law. Ibid. 507. The location spoken of in the second and third sections of that act must be confined to one land district and made at onetime; but the party may enter separate tracts, conforma- bly to legal divisions and subdivisions, for which a patent must be issued. Ihid. 508. Sales made by officers of the United States of lands afterwards confirmed to a Span- ish claimant must yield to the confirmed claim, unless such sales have been made by authority of law. Opinion of Aug. 8, 1838, 3 Op. 354. 509. The inhabitants of the village of Saint Charles, under the laws of the 13th June, 1812, chap. 99, the 26th May, 1824, chap. 184, and the 27th January, 1831, chap. 12, have preced- ence and priority over Peter Chouteau, whose claim to land was confirmed 4th July, 1836, and the claim of the latter must be located elsewhere upon the public domain. Opinion of March 18, 1839, 3 Op. 427. 510. All sales and locations made of lands claimed under unconfirmed titles derived from France or Spain between the 26th May, 1830, and the 9th July, 1832, are void. Hid. 511. The claim of the heirs of Mackay, founded on a special grant made in the year 1799, containing an exact description of the land, and accompanied with uninterrupted possession ever after, having been submitted to the district court of Missouri, and by ap' peal to the Supreme Court of the United States, and adjudged to be a valid and lawful grant, a patent should issue to the heirs for it, not^ withstanding New Madrid sufferers may have located upon it. Opinion of 3Iarch 27, 1840, 3 Op. 506. 512. But to protect any adverse rights that may exist, the patent should contain a clause reserving the rights, now or heretofore exist- ing, of all just and legal adverse claimants to the whole or any portion of the land patented. Ibid. 513. The confirmatory act of July 4, 1836, chap. 361, gave to the sons of Benito Vasquez an absolute claim to lands; but the same was a floating right and cannot be located on any of the public land of the United States until further legislation shall be had in the prem- ises. Opinion of Feb. 5, 1841, 3 Op. 615. 514. The confirmees under the treaty of 1803 with France, under which their claims are asserted, do not claim the dominium of the civil law, but the doing of what is necessary to complete title and convey property. The lands to which they lay claim form a part of the public domain; and, although the United States acknowledge themselves bound to pro- vide for them, the whole subject remains in contract. Opinion of Dec. 7, 1841, 3 Op. 721. 515. The acts of May 26, 1824, chap. 184, and July 4, 1836, chap. 361, which confirm the French and Spanish grants, are not re- quired to be carried into specific performance, if it cannot be done without unsettling titles in the country in question. Ibid. 516. Prior confirmations, school sections, ordinary sales prior to the confirmatory act of 4th July, 1836, and the New Madrid locations under the act of 17th February, 1815, chap. 45, are valid as against the claim confirmed by the act of 4th July, 1836. Ihid. 517. A lot of land in the Saint Louis common- fields having been set otf as vacant by the sur- veyor-general for the use of schools, it not having been entered on the lists of the re- 404 PUBLIC LANDS, XXIX. corder, as required of private claims in such cases, and the United States having relin- quished all their right, title, and interest in and to all out-lots and common-field lots re- served for the support of schools to the State of Missouri, and the same now being claimed by heirs of one Vifvarenne: Held, that the ex- ecutive department cannot administer relief in such a case; that the parties must assert their rights before the judiciary. Opinion of July 23, 1846, 4 Op. 510. 518. The decision of the Commissioner of the General Land Office respecting the location of certain Spanish concessions to Esther, Bra- zeau, Labaume, and Chouteau, respectively, are correct, and patents should be issued in conformity therewith. The appeals from the decisions' of the Commissioner were not well taken. Opinion of 3Iay 6, 1851, 5 Op. 367. 519. In the matter of the claim for a tract of land near Saint Louis, Mo. , confirmed to An- gelica Chouvin, assignee of Jean P. Perry, in 1811, the facts presented showing that two surveys of the claim have been made, but that both of them have been rejected by former heads of the Land Department: ifeM, that it is competent to the present head of that depart- ment to order a new survey. Opinion of Aug. 9, 1872, 14 Op. 95. 520. The seventh section of the act of March 3, 1807, chap. 36, entitles the claimant to a survey that will determine the location and boundaries of the land, and enable him to ob- tain the patent provided for by the sixth sec- tion of the same act. Ibid. 521. In November, 1799, a concession of four square leagues of land, in territory now within the State of Missouri, was made by the Spanish authorities to M. for certain purposes. In February, 1806, the land was surveyed, and the survey certified to by the surveyor-general for Upper Louisiana. In June, 1806, and again in May, 1810, claim for the land under said concession and survey was presented by M. to the board of laud commissioners for Louisi- ana Territory and was rejected. M. died on the 28th of May, 1814. On the 27th of April, 1816, Congress passed an act for the relief of certain nephews of M., which relea.sed to and vested in them all the right, title, and inter- est of the United States in and to any real es- tate whereof M. died seized. The land in- c'.nded in said survey having since been sur- veyed by the United States as public lands, and a large part thereof disposed of, the heirs of the nephews aforesaid have applied for .scrip under the act of June 2, 1858, chap. 81, in lieu of the land: Held, (1) that M.'s seizure of the land referred to, at the time of his death, may be proved by traditionary or hearsay evidence; (2) that by the presentation of the concession and survey to the board of commissioners, and from the recognition by Congress of possession and claim according thereto as existing in claims of the same class from 1811 to 1829, M. must be regarded to have been seized of the land when he died; (3) that accordingly M. "died seized" of the land within the mean- ing of the act of 1816; (4) that this act is equivalent to a patent for a specific tract of land, and both located and satisfied the in- choate claim of M. ; (5) that the act of 1858, being limited to land claims not located or sat- isfied, is inapplicable. Opinion of Nov. 5, 1875, 15 Op. 519. XXIX. Private Land Claims in Ne-w Mexico. 522. Private land claim for the rancho ' ' Los Trigos," in New Mexico, was confirmed (as No. 8) by the act of June 21, I860, chap. 167, but which act made no provision for the issu- ing of a patent to the confirmees. The latter, however, contend that they are entitled to have a patent issued to them therefor, first, by virtue of the provisions of art. 8 of the treaty of Guadalupe Hidalgo (9 Stat., 929); and, second, by virtue of the provisions of section 2 of the act of March 3, 1869, chap. 152: Held, that the treaty provisions referred to do not make it obligatory upon the Government to issue patents in such cases ; but that, under the provisions of the act of March 3, 1869, the con- firmees are entitled to a patent for the claim mentioned. Opinion of Feb. 21, 1874, 14 Op. 624. 523. The action of the register and receiver of the proper land district, in passing upon claims of derivative claimants to lands there- tofore claimed by Vigil and St. Vrain, under the provisions of the act of February 25, 1869, chap. 47, amendatory of the act of June 21, 1860, chap. 167, was final, and not subject to revision by the Land Department. Opinion of May 15, 1876, 15 Op. 94. PUBLIC LATN-DS, XXX-XXXIII. 405 524. Col. William Craig, a derivative claim- ant under Vigil and St. Vrain, having estab- lished his claim "to the satisfaction " of the register and receiver of the proper land dis- trict, thereby became entitled to have fur- nished to him by the surveyor-general of Col- orado, as evidence of title, an approved plat of the land which was awarded to him by the register and receiver aforesaid. In view of which: Advised, that the President direct the Commissioner of the General Land Office to instruct the surveyor-general of Colorado to deliver to Colonel Craig an approved plat of the land so awarded. Ibid. XXX. Private (including Donation} Land Claims in Oregon. 525. Under the fourth section of the act of September 27, 1850, chap. 76, a married man who settled upon a tract of land in Oregon, and complied with the provisions of the law, is entitled to a patent for six hundred and forty acres, one-half to himself and the other half to his wife, notwithstanding the fact that she did not reside with him, or on the land, daring the four years of occupancy required. Opinion of Nov. 25, 1862, 10 Op. 380. 526. The act of August 14, 1848, chap. 177, to establish the Territorial government of Oregon, vests in each religious society a per- fect title to the land (not exceeding six hundred and forty acres) occupied by it in the Territory of Oregon on the day of the date of the act as a missionary station among the Indians; and all that a claimant of land under that act is required to prove to establish a perfect title is that upon the 14th of August, 1848, it did occupy the land as a missionary station among the In- dian tribes in said Territory. Opinion of May 27, 1864, 11 Op. 47. 527. The question of fact upon which the title of claimants under the act depends should be left by the Land OfSce to the de- cision of the courts. Ibid. 528. No executive ofScer has power to de- termine that question definitely. The claim- ants may recover the land in the courts even after a decision against them by the Land Office. Ibid. 429. The Land Office should refuse to issue a patent to claimants of land under the act of August 14, 1848, and thus decline jurisdiction of the questions of fact on which their title depends. Ibid. XXXI. Missionary Stations. 530. The provision in the acts of Congress establishing Territorial governments respect- ively for Oregon and Washington Territories (viz, acts of August 14, 1848, chap. 177, and March 2, 1853, chap. 90) confirmed the title of the Saint James Mission to the lands occu- pied by it in those Territories at the date of either of the acts. Opinion of May 24, 1859, 9 Op. 339. 531. The subsequent declaration of a mili- tary reserve, embracing the buildings and en- closed grounds of the Mission, could not divert the right thus perfected. Ibid. 532. The claim of the Mission cannot law- fully extend to the lands or improvements which at both the dates mentioned were claimed, inclosed, and used by otherparties ad- versely to the church and which the Mission had never actually or constructively occupied. Ibid. 533. It is within the competency of the Land Department of the Government to deter- mine whether the Roman Catholic Mission of Saint James has acquired title to the land claimed by the latter at Fort Vancouver, Washington Territory, under the first section of the act of August 14, 1848, chap. 177. Opinion of March 2, 1872, 14 Op. 12. XXXII. Indian Title. 534. According to the public law of all the American states founded by Europeans, the aboriginal inhabitants have only a usufruct- uary interest in the soil, the fee-simple and the eminent domain of which are in the Gov- ernment, and which may be granted in fee to private persons as well before as after the ex- tinguishment of the occupation rights of the Indians. Opinion of Dec. 22, 1856, 8 Op. 256. XXXIII. Intruders. — Cutting or Re- moval of Timber. 535. The reservations mentioned in the treaty concluded with the Cherokees on the 7th of June, 1806, are not lands from which intruders may be expelled by military force under the provisions of the act of the 30th of March, 1802, chap. 13. Opinion of April 11, 1812, 5 Op. 699. " 406 PUBLIC LANDS, XXXIT. 536. Intruders on public lands without title subsequent to the date of the act of March 3, 1807, chap. 46, may be removed under the pro- visions of that act without three months' pre- vious notice. If the marshal fail to effect such removal the President may employ military force. Opinion of April 4, 1815, 1 Op. 180. 537. Intruding settlers on the public lands may be removed by military force, under act of March 3, 1807, chap. 46. The United States have, also, all the common law and chancery remedies of individuals, under similar circum- stances, for protection and redress. Opinion of J!fa2/27, 1821, lOp. 47L 538. The President may direct the marshal to remove intruders from lands the title of which has not passed out of the United States. Opinion of June 25, 1821, 1 Op. 475. 539. Where persons are in possession of lands under a Spanish title, which has been reported by the register of the proper land office to the Secretary of the Treasury, and are at law con- testing their titles as against claimants, they are not intruders within the meaning of the act of March 3, 1807, chap. 46, to prevent set- tlements being made on lands ceded to the United States until authorized bylaw. Opin- ion of Feb. 14, 1825, 1 Op. 703. 540. Proceedings may be taken under the first section of the act of 2d of March, 1831, chap. 66, against any person who shall have cut and removed any ship timber from lands acquired by the United States. Opinion of June 9, 1832, 2 Op. 524. 541. The President may employ such mili- tary force as he may judge necessary and proper to remove persons who may intrude upon any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession from any individual State; and may adopt that method in respect to the lands in ceded to the United States by the Creek treaty of March 24, 1832. Opinion of Aug. 22, 1833, 2 Op. 575. 542. The President has power to expel in- truders from lands secured to Chickasaws east of the Mississippi, by military force if neces- sary. Opinion of July 6, 1837, 3 Op. 255. 543. The President may authorize the mar- shal to remove all persons who have fixed their residence on the public reservations, without authority, beyond the lines of the posts of Tampa Bay, for the purpose of selling liquor to the troops, and the_ suspected purpose of supplying the Indians with ammunition. Opi7iion of July 9, 1840, 3 Op. 566. 544. Settlers on the public lands in East Florida under the act to provide for the armed occupation and settlement of the unsettled part of the peninsula of East Florida, havenot a right to cut live-oak and other timber, ex- cept for the purpose of clearing, . until they comply with all the conditions of the law. Opi7iion of Auff. 11, 1843, 4 Op. 221. 545. They have all the rights necessary to enable them to perfect their title by clearing, improving, and inclosing the land, but have no right to cut, or to have cut, valuable tim- ber for sale or export. Opinion of July 16, 1845, 4 Op. 405. 546. The President of the United States has lawful authority summarily to remove intrud- ers from lands duly held by the Government for the sight of a light- house or for any other public purpose. Opinion of Sept. 21, 1855, 7 Op. 534. 547. The President should not exercise the power conferred by the act of March 3, 1807, chap. 46, to remove squatters from lands of the United States over which a right of way has been granted by Congress to a railroad com- pany. Opinion of June 2i, 1861,- 10 Op. 71. 548. The President, under the authority con- ferred by the act of March 3, 1807, chap. 46, may direct the marshal of the United States to remove summarily all intruders and depre- dators from the public coal and other mineral lands in California. Opinion of Feb. 11, 1862', 10 Op. 184. 549. Sections 4 and 5 of the act of June 3, 1878, chap. 151, entitled "An act for the sale of timber lands in the States of California, Ore- gon, Nevada, and in Washington Territory," construed in connection with section 2461 Eev. Stat., punishing the cutting or removal of tim- ber growing on the public lands. Opinion of Oct. 22, 1878, 16 Op. 189. XXXIV. Construction of Road Through. 550. For the construction of a Territorial road authorized by Congress it is lawful to take timber and other materials from land claimed for pre-emption but not yet patented. Opin- ion of Sept. 2, 1856, 8 Op. 71. PUBLIC LANDS, XXXV; PUBLIC LOANS. 407 XXXV. Registers and Receivers. 551. The President cannot appoint registers .and receivers for tlie land districts until there shall he sufficient land surveyed to authorize the opening of land offices. Opinion of Aug. 28, 1819, 1 Op. 291. 552. Decisions of registers and receivers upon -the facts offered to establish pre-emption rights under the acts of 29th May, 1830, chap. 208, and 19th June, 1834, chap. 54, are conclusive. They act in a judicial capacity in weighing and deciding upon the sufficiency of the evi- dence offered ; and although they are to observe the rules prescribed by the Commissioner of the Land Office, they cannot be compelled to act upon any judgment but their own. The issuing of patents, however, depends on the Commissioner, who may suspend them, where the decisions were obtained by fraud or founded in material errors of feet or law, until -the decision of the judiciary or the direction of •Congress can be obtained. Opinion of April 21, 1836, 3 Op. 93. 553. Under the act of the 19th February, 1833, chap. 30, registers of land districts are made judges of the validity of purchases made under the first section thereof, and the Treas- ury Department has no power to revise or re- Terse their decisions. Opinion of April 30, 1836, 3 Op. 104. 554. Except in the mode specially provided "by statute, registers of the land offices cannot lawfully be concerned in the purchase of pub- lic lands. They are agents of the Government to sell; and upon principle, as well as by the express terms of the act of May 10, 1800, chap. 55, creating their offices, they are precluded from entering on their books any application for lands in their own names, or in the name of any other person in trust for them . If they wish to purchase land, they are required to make application to the surveyors-general, who are authorized to make the proper entries and returns in such cases. Opinion of Aug. 12, 1843, 4 Op. 223. 555. But receivers being a different class of officers, and standing in relations to the Gov- ernment different from those sustained by reg- isters, may purchase the public lands the same ^ other citizens. The law has imposed no re- Jitraints upon receivers in this respect; and the nature of their public duties indicates no ne- ■cessity for any. Ibid. 556. The executive department may enforce by regulations the prohibitions of the law as to purchases by registers; but it is not com- petent to that department to make regulations to restrain receivers of public moneys from purchasing the public lands like other citi- zens. Ibid. 557. Registers by express terms of statute, and receivers by legal construction, may pur- chase public lands at private entry. But neither registers nor receivers can purchase such lands by pre-emption within their respective districts. Opinion of March 7, 1856, 7 Op. 647. 558. A receiver of public moneys is not en- titled to an allowance for extra clerk hire, un- der act of August 18, 1856, chap. 129, in the absence of an appropriation from which it can be paid. Opinion of Feb. 11, 1863, 10 Op. 456. 559. A receiver is entitled to mileage for transporting money to a place of deposit, even if the journey be made by his agent, and not by himself. Ibid. PUBLIC LOANS. See also Bonds of the United States; Funded Debt. 1. Althougb the thirteenth section of the funding act of Aug. 4, 1790, chap. 34, admits subscriptions to the loan payable in the prin- cipal and interest of certain State certificates or notes, redeemed notes cannot be used for that purpose. Opinion of Nov. 9, 1791, 1 Op. 25. 2. Where certificates of United States stock, with coupons of interest attached (issued un- der the acts of April 15, 1842, chap. 26, and March 31, 1848, chap. 26), transferable by de- livery, have been lost, it is impossible for the Secretary of the Treasury to issue any other security which would be truly its representa- tive or substitute, without a legislative act au- thorizing what, in such cases, would be equiv- alent to the issue of new stock. Opinion of Jan. 17, 1849, 5 Op. 66. 3. But in case of the total destruction of cer- tificates, it is competent for the Secretary to furnish the holder, at the time of the destruc- 408 PUBLIC MONEYS. tion thereof, with new evidence of his claim upon the Government. Hid. 4. A valid transfer of ceitiiicates of coupon stock, issued under the second section of the act of March 31, 1848, chap. 26, may be made by an indorsement in blank; the object of that part of the section referring to coupons being to enable the certificates to pass by delivery. Opinion of May 12, 1849, 5 Op. 100. PUBLIC MONEYS. See also Deposit of Public Funds; Dis- BUESEMBNT OF PUBLIC MONEYS. 1. Under the act of June 23, 1836, chap. 115, to regulate the deposits of the public money, the deposit banks are required to pay interest upon any sum of public deposits which may re- main in them to the credit of the Treasurer of the United States over and above three-fourths of their capital, respectively, for the period which may elapse before the Secretary of the Treasury shall find it expedient to transfer it to another bank, whether the same have beeii used or left unemployed. Opinion of Aug. 1, 1836, 3 Op. 141. 2. Deposit banks, from which a transfer is ordered, are liable for interest until the moneys transferred shall be actually placed to the credit of the Treasurer in those to which the transfers shall be made. Ibid. 3. Money held by the agencies of deposit banks must be regarded, in respect to liability for interest, as well as in all other respects, pre- cisely as if no agencies existed, and as if the money were held at its ordinary place of busi- ness and in the ordinary way. Interest should be charged upon the amount which may be held by both the bank and its agencies above one- fourth of the capital stock. Ibid. 4. Transfers of money to the Mint, by order of the President, for the purpose of coinage, in execution of the proviso to the twelfth section of theactof June23, 1836, chap. 115, should be made by drafts in the same manner as from one deposit bank to another, the money so tranferred remaining to the debit of the Treas- urer as money in the Treasury. Opinion of Aug. 2, 1836, 3 Op. 144. 5. The expression "a whole quarter of a year," in sectionll of theactof June 23, 1836, chap. 115, means a whole fiscal quarter as known at the Department from its organiza- tion. Opinion of Oct. 27. 1836, 3 Op. 156. 6. Banks employed as depositaries before thepassageoftheactofl836, which havehad an amount exceeding one-fourth of their capital, during the whole of the fiscal quarter elapsed since the act, are chargeable with interest for the quarter, although their agreements were not executed until a part of the term had ex- pired. Ihid. ' 7. But in order to make them liable for the interest, the deposits must have exceeded one- quarter of the capital for the whole quarter. Ibid. 8. The bill, entitled "An act designating and limiting the funds receivable for the rev- enues of the United States," forbids the re- ceipt of any bank notes, except of such specie- paying banks as shall from time to time con- form to certain conditions therein mentioned in regard to small bills, and re-strains the Sec- retary of the Treasury from making any dis- crimination in this respect between the differ- ent branches of the public revenue. [The above-mentioned bill passed both houses of Congress at the close of President Jackson's second term, but was retained in his hands until after the adjournment of Congress and thus failed to become a law.] Opinion of March 3, 1837, 3 Op. 172. 9. No part of the moneys deposited with the States should be called for by the Secretary of the Treasury except to meet such wants of the Treasury, under appropriations made by law, as may exist after exhausting the five millions reserved in the Treasury by the deposit act ; yet a requisition may be made before the Treas- ury shall be actually exhausted. But in such case the time of payment to be named should be about the time when the available means on hand will have been exhausted. Opinion of May 22, 1837, 3 Op. 227. 10. Under the order of the Treasury Depart- ment, approved by the President on the 5th October, 1833, disbursing officers may legally keep the public moneys intrusted to-them on deposit in the banks heretofore selected by the Treasury, and which now have the public money. Opinion of May 26, 1837, 3 Op. 233. 11. Disbursing officers may legally make special deposits of their funds in non-specie- paying banks, if so directed by the President, PtTBLIO PAPERS ; PUBLIC WORKS. 409 where they will agree to receive the funds in that way. Ibid. 12. Any bank not restrained by its charter) or other statutory enactments, nor by judicial process, from receiving special deposits, is com- petent to enter into a contract for the safe- keeping and return of a special deposit in such way and on such terms as may be agreed on. Hid. 13. Moneys collected for customs and de- posited to the credit of the Treasury, but not actually brought into the Treasury by covering warrants, are not so blended with the moneys in the Treasury as to require a special appro- priation by law, in order to apply them to tlie payment of current expenses, but may be ap- plied as if they had been retained in the hands of the collectors. Opinion of June 10, 1837, 3 Op. 244. 14. All banks are disqualified to be selected as banks of deposit, under the act of June 23, 1836, chap. 115, which shall have issued or paid out any note or bill of their own or other banks of a less denomination than $5. Opinion of July 13, 1838, 3 Op. '341. 15. The act of June 23, 1836, chap. 115, authorizes only the selection of banking cor- porations chartered by the acts of the legis- latures of the different States, &c., as deposi- taries, plainly excluding private banking asso- ciations and such associations as the North American Trust and Banking Company. Opin- ion of Nov. 17, 1838, 3 Op. 385. 16. The Bank of America having paid out bills of other banks of u, denomination less than $5, has incapacitated itself from being a depository of the public money under the pro- visions of the act of June 23, 1836, chap. 115. Opinion of Feb. 4, 1839, 3 Op. 411. 17. An agent of the Government cannot re- quire it to receive the credit of a bank, or any other third party, in the place of that of him- self and his sureties. Opinion of Feb. 27, ■ 1854, 6 Op. 314. 18. A bank cannot lawfully take public funds which have been deposited with it, knowing them to be such, and divert them from a public debt to the payment of the pri- vate debt of the public agent, or to a debt contracted by him in violation of law and of his duty to the Government. Ibid. 19. A debtor, in paying money to a bank, has the right to prescribe to which of two existing debts it shall be credited. Ibid. 20. Where a disbursing agent of the United States had paid public money into a bank, the Government will not undertake to settle inci- dental matters of controversy between him and the bank, but leaves all such questions to the courts of justice. Ibid. 21. Where a sum of money, standing in the name of A, had been enjoined in a suit in equity by B, and by due order, not appealed, the inj unction was dissolved as to a part of said sum, and its payment ordered to C: Held, that the Secretary of the Treasury might law- fully pay to C according to such order. Opin- ion of 3Iay 14, 1854, 6 Op. 460. 22. The Secretary of the Treasury has au- thority to deposit the moneys received by the sale of bonds under the acts of July 14, 1870, chap. 256, and January 14, 1875, chap. 15, with public depositaries designated and selected by him under the provisions of section 5153 Rev. Stat., taking such security as the statute re- quires. Opinion of Aug. 30, 1877, 15 Op. 359. 23. The Secretary of the Treasury has au- thority, under section 3699 Rev. Stat. , to fix a currency price for disposing of gold within a limited period, subject to his power at any time to terminate the period for which the limit was made, or to change such price so as to con- form to the market rate. His authority to dispose of the gold is subject to no limitation as to amount, except that which is imposed by the same section. Opinion of Dec. 17, 1877, 15 Op. 413. PUBLIC PAPERS. Suggestions as to the method of disposing of useless papers appertaining to the Treasury Department. Opinion of Dec. 31, 1856, 8 Op. 280. PUBLIC -WORKS. 1. The oversight and inspection of a public work, requiring science and skill to construct it, is the appropriate duty of an engineer, as also the disbursement of public moneys appli- cable to any such work about the execution of which an engineer may be engaged. Opinion of July 31, 1860, 9 Op. 463. 410 PUGET SOUND AGEICULTUKAL COMPANY ; PURCHASE OF LAND. 2. The word ' 'plan, " in all statutes and con- tracts concerning buildings and public works, when not otherwise defined, means a draught, sketch, plot, or representation of anything on a plane surface, and not a scheme, project, or con- trivance of the mind, not put on paper or other- wise made visible. Ibid. 3. The ^'superintendence" of a work means its oversight, direction, care, or inspection, and does not imply the power of contracting for the work or paying the hands. Ibid. 4. Where Congress appropriated a sum of money for the completion of a public work, to be expended according to the plans of a par- ticular officer and under his superintendence: Scld, that the statute was fully executed by an order appointing another oflScer chief engineer of the work, and requiring it to be constructed under the superintendence of the officer named in the statute, and according to Ms plans and estimates. Ibid. PUGET SOUND AGRICULTURAL COMPANY. 1. The proviso to the appropriation made by the act of February 21, 1871, chap. 61, for paying to the British Government the last in- stallment of the amount awarded by the com- missioners under the treaty of July 1, 1863, in satisfaction of the claims of the Puget Sound Agricultural Company, which requires all taxes legally assessed upon property of that company covered by the award to be satisfied, or the amount thereof to be withheld from the sum appropriated, is applicable only to such taxes as have been imposed by the laws of the United States. Opinion of Aug. 7, 1871, 13 Op. 503. 2. Accordingly, taxes assessed upon the prop- erty of the company by the authorities of Pierce County, Washington Territory, under the Ter- ritorial laws, should not be so withheld. Ibid. PURCHASE OF LAND. .See also Cession of Jueisdiction; Lands AcftuiEED for Public Uses. 1. A legislative act of a State consenting to the purchase of land within the same by the United States, for a specific purpose, expressly ceding jurisdiction, is not rendered insufficient by providing, in addition, that the Federal ju- risdiction shall cease with the proposed use, and that meantime lawful process of the courts of the State may continue to be served within the limits of the land, j urisdictiou of which has been ceded to the United States. Opinion of Feb. 12, 1857, 8 Op. 387. 2. Construction of a legislative act of the State of North Carolina, consenting to the pur- chase, by the United States, of land within the same for the site of a marine hospital. Opiii- ion of Feb. 13, 1857, 8 Op. 388. 3. The act of the legislature of Georgia giv- ing consent to the purchase of Blythe Island in that State for naval purposes is sufficient to authorize expenditure of money in its pur- chase. Opinion of Nov. 23, 1857, 9 Op. 129. 4. There is nothing in the Constitution which prohibits the United States purchasing land within a State without the consent of the State legislature ; but when land is purchased by them in a State without such consent the United States cannot ejercise "exclusive leg- islation " over the place. Opinion of May 6, 1861, 10 Op. 35. 5. The joint resolution of Sept. 11, 1841, does not forbid the payment of the purchase money of any site or land acquii-ed for the purpose of erecting public buildings, before the consent of the legislature of the State is given to the pur- chase; but it does prohibit the expenditure of public money upon the improvement of the land by the erection thereon of the needful public buildings untU that consent is given to the purchase. Ibid. 6. That resolution does not require the At- torney-General to inquire into and report upon the factin question, whether the State in which the land lies has consented to the purchase. Ibid. 7. If the legislative act of the State wherein the land lies amounts to a consent to the pur- chase of the property by the United States, any exceptions, reservations, or qualifications con- tained in the act are void. Ibid. 8. There is nothing in the joint resolution ol September 11, 1841, that forbids the purchase of land encumbered by outstanding liens which have not yet matured; but in such case the Department making the purchase should stip- ulate with the vendors that the amount ot purchase money necessary to pay off the in- PURPKESTURE: QUARANTINE: RANK. 411 cumbrances shall be withheld until they are — had built and paid for a house on section 31, in town- ship 16, range 1 east, and had no other improve- ments i n the nation , but resided with his mother onanotherlot: Seld, that his residence withhis mother does not deprive him of the right to the said section. Opinion of March 19, 1834, 2 Op. 617. 4. Under that treaty, where two reservees shall be found to have improvements on the same lot, the same may be divided, and the deficiency made up from contiguous land not otherwise appropriated. Ibid. 5. The President may properly give his con- sent and approval to the conveyance by will made by Indians La Gros and Waises-kea, his daughter, to General Tipton, to four sections of land, reserved to said La Gros in the treaty with the chiefs and warriors of the Miamies, concluded 23d October, 1826, subject to all legal questions in respect to the capacity and right to make conveyances by will, and to the execu- tion, validity, and effect of those instruments. Opinion of March 29, 1834, 2 Op. 631. 6. Whether Indian reservees are capable in law of devising their reservations to third per- sons in any case, quxre. Ibid. 7. The twenty-nine sections reserved to Creeks under the treaty of 24th March, 1832, may be lawfully located either before or after- assignment thereof by the tribe; with this qualification in respect to locations made before such assignment, that should any of those sec- tions be located to persons who possess im- provements not already allotted to them under , other provisions in the treaty, such persons shall be entitled to insist that the tracts as- signed to them shall be located in such manner as to include their improvements. Opinion of Dec. 26, 1834, 2 Op. 696. 8. Transfers of Creek reservations by assign- ees whose assignments express them as a firm, are not valid when executed by one member thereof, but only when executed by all, unless the partner assigning exhibits authority to as- sign from all. Opinion of March 16, 1839, 3 Op. 423. 9. But where the reservee assigned toa iirm, as to M., W., P. & Co., and the transfer by the firm was assigned in that manner, the assign- ment is valid, and the patent may issue to the assignee. Ibid. 10. Where there are two assignors, and the names of both to the assignment are in the same handwriting, the assignment is invalid as to him who did not sign, unless the other ex- hibits authority from him to sign. Ibid. 11. The approval of the President to a sale of a Choctaw reservation is required only to contracts between the Indian reservees and their vendees. Opinion of May 25, 1842, 4 Op. 37. 12. The patents ought to issue to the first vendees in trust for the equitable proprietors, or subsequent assignees, and bear on their face a declaration of trust. Ibid. 1 3. The President should confirm those sales of Creek reservations only where the law of the State of Alabama has been complied with — such having been the practice. Opinion of July 23, 1842, 4 Op. 75. 14. The former opinion (of July 23, 1842, 4 Op. 75), on new facts stated, and assurances that the practice has not conformed to the opinions of Attorneys-General Butler and Gil- pin, reconsidered ; and held that, in all cases where the provisions of the treaty of March 24, 1832, have been fulfilled, the sales shown to have been fair, and the consideration adequate, the salesmay be confirmed, even though, under the law of Alabama, they may have been in- formal and irregular. Opinion of July 28, 1842, 4 Op. 77. 15. Congress did constitutionally confer orig- inal authority upon administrators to make sales, withoutreference to the law of Alabama. Ibid. 16. The names of assignors need not be written in full in assignments of Creek Indian contracts; and the fact that they do not im- port a consideration does not render them in- suflScient. Opinion of Aug. 17, 1842, 4 Op. 85. 17. The patents heretofore issued to the parents of Choctaw children, for such chil- dren, must stand for what they shall be found by the judiciary to be worth; but patents for reservations to Indian children, under the four- 416 KESBRVATIONS, I. teenth article of the Choctaw treaty of 1830, hereafter to be issued, should be made to the children and not to their parents: care being taken that they show on their face that they are issued to the children independently of their father, in fulfillment of the fourteenth article of that treaty. Opinion of -Nov. 2, 1842, 4 Op. 107. 18. The treaty of 1817 with the Cherokees gave to the heads of Cherokee families an elec- tion to go or stay and become citizens; and until their election to stay the reservations do not vest in them or their children. Opinion of Nov. 21, 1842, 4 Op. 116. 19. The President has power to cause the lands reserved for orphans under the Choctaw treaty of Dancing Eabbit Creek of 1830, to be sold, and to cause patents to be issued to pur- chasers. He may, on application of the or- phans for whom the provision was made, cause the proceeds of land located for them to be applied to some purpose beneficial to them ; wherefore the sales already made of these lands are valid. Opinion of May 27, 1844, 4 Op. 326. 20. The commissioners to carry into effect the treaty with the Choctaws of 1830, called the treaty of Dancing Eabbit Creek, did not have authority to take proof of any claim in favor of an assignee of an Indian who trans- ferred his claim within the five years mentioned in the ninth section of the act of August 23, 1842, chap. 187, inasmuch as they were ex- pressly denied any authority to recognize or allow to an Indian, or to the assignee of an Indian, any claim which had been so assigned, in whole or in part. Opinion of May 20, 1845, 4 Op. 381. 21. The five per cent. Alabama stocks trans- ferred from the Chickasaw to the Choctaw fund in compliance with the treaty of 24th March, 1837, between those nations did not fully come up to what the Choctaws might have reasonably required. Opinion of Aug. 1, 1845, 4 Op. 419. 22. But as the consentof the Senate wasand is requisite to any transfer or investment for them, it will be requisite to the making up of the deficiency. Ihid. 23. The Cherokees remaining in the States of North Carolina and Tennessee are not en- titled to the commutation for removal and sub- sistence given by the eighth article of the Chero- kee treaty of December, 1835, to those who have removed west of the Mississippi. Opin- ion of Sept. 19, 1845, 4 Op. 435. 24. They can only receive their due portion of personal benefits accruing under the treaty for their claims, improvements, and per capita, whenever an appropriation shall have been made to carry it into effect. Ibid. 25. As the official acts of President Van Buren and his successor in office, in relation to the confirmation of sales of reservations under the Choctaw treaty of Dancing Eabbit Creek of 1830, were predicated on a construction of that instrument which forbids certain sales, and as certain questions arise which ought to be adjudicated, it is recommended that a case to test the validity of sales made by the com- missioner be brought before the Snpreilie Court. Opinion of May 2, 1846, 4 Op. 495. 26. The President's consent to sales of laud reserved to the Indians by the Pottawatomie treaty of 17th October, 1826, and the Miami treaty, concluded on the 23d of the same month, is only necessary in cases where the sales shall have been made by the reservees. Opinion of Aug. 28, 1846, 4 Op. 530. 27. Where the reservees shall have died, and sales are made under an order of court granted pursuant to the laws of the State in which the lands are situated, the President's consent is not necessary to their validity. Hid. 28. Those treaties not only extinguished the Indian right of occupancy, but granted the re- served lands as effectually to all interests and purposes as if patents had been issued to the so called reservees; and as the State laws are operative upon lands thus held in fee-simple, and have applied to those in question by caus- ing their transfer for the payment of the debts of their decedent owner, the title of the pur- chaser is perfect without the President's con- sent. lUd. 29. But as the rights of the heirs cannot be affected injuriously by the giving of the Execu- tive consent, and as the sale in this case ap- pears to have been fairly made and for a satis- factory price, and as it may possibly relieve the title from doubt, and thereby prevent liti- gation, it may nevertheless be given. lUd. 30. The certificate of an award to a claimant under the treaty of 1835-'6 with the Cherokees cannot be so amended as to include a, claim which was presented and allowed undei' the thirteenth article of that treaty, within the RESERVATIONS. I. 417 third article of the " supplementary articles " thereto. Opinion of June 17, 1847, 4 Op. 598. 31. All Cherokee reservees who were obliged to abandon their reservations by the laws of the State in which they were situated, were expressly provided for in the thirteenth article of the treaty, and expressly excluded from the third article of the supplement. Ibid. 32. Neither the wife of a white man, who ■entered a reservation to her under the Chero- kee treaty of 1817, and within the limits of the grant of North Carolina to the Cherokees in 1783, and the treaty of 181 9 with the Cherokee agent, in her right, nor her children, are en- titled to compensation for the value of such reservation, if it appear that tlie same were voluntarily sold and abandoned prior to the ratification of the treaty of 1835-' 36. Opinion of July 22, 1847, 4 Op. 615. 33. The reservation in this case having been sold and abandoned long before the ratification of the said treaty, the claim made for its value ought to be rejected. Ibid. 34. The; lands reserved to certain half-breeds of the Kansas Nation of Indians, named in the sixth article of the treaty of June 3, 1825, and afterwards surveyed and allotted to them re- sptiotively in accordance with the provisions of the treaty, are lands the claims to which were "confirmed by law" before the pas- sage of the act of December 22, 1854, chap. 10, and, as such, may be patented under that act to the reservees. Opinion of July 20, 1863, 10 Op. 508. 35. The act of May 26, 1863, chap. 61, which explicitly confirms the title of the persons named in the sixth article of the treaty of June 3, 1825, with the Kansas Indians, was entirely superfluous as an act of confirmation; for the title reserved and guaranteed to the half-breeds by the treaty was a perfect title, and did not need the aid of any subsequent act of Congress to impart to it validity or strength. Ibid. 36. The words ' ' confirmed by law ' ' mean confirmation by the act of that power which, under our system, enacts law, and not confir- mation by mere construction of law; and the act of December 22, 1854, chap. 10, authorizes the issue of a patent in every case where, 'by valid enactment, the law-making power had befor» its date declared the title to be in the person named. Ibi4. 37. A confirmation by treaty is a confirma- DIG 27 tion by law, within the meaning of the act of 1854; inasmuch as a treaty is to be regarded as an act of the legislature, whenever it oper- ates without the aid of a legislative provision. Ibid. 38. The stipulations in the sixth article of the treaty of June 3, 1825, with the Kansas Indians, in favor of the half-breeds, were not mere voluntary grants of lands, but guarantees of the existing right and title of the persons named to the land set apart to them. Ibid. 39. The President has power, under the second section of the act of June 12, 1858, chap. 155, on the requisition of the Commis- sioner of Indian Affairs, with the approval of the Secretary of the Interior, to direct the mil- itary force to co-operate with the proper Indian agent in effecting the removal of intruders from the tribal reservations in Kansas. Opinion of Sept. 20, 1866, 12 Op. 51. 40. In the absence of authority conferred either by treaty or by statutory provision, itis not competent to the Secretary of the Interior to set apart a portion of the public domain in Washington Territory for the purpose of an Indian reservation. Opinion of Feb. 8, 1873, 14 Op. 181. 41., Under the provisions of section 2149 of the Revised Statutes, the Commissioner of Indian Affairs, with the approval of the Sec- retary of the Interior, and also the superin- tendent of Indian affairs, Indian agents, and sub-agents, may remove from said reservation all persons found thereon contrary to law; and the President is authorized to direct the mili- tary force to be employed in effecting their re- moval. Opinion of Sept. 1, 1874, 14 Op. 452. 42. An order directing the military to be thus employed need not be issued by the Pres- ident by his own hand ; it would be sufficient if issued by the Secretary of War. Ibid. 43. The title of the American Board of Com- missioners for Foreign Missions to the mission- ary station within the limits of the Nez Perc6 Indian reservation, derived under the acts of August 14, 1848, chap. 177, and March 2, 1853, chap. 90 (assuming that a title passed to said board by virtue of those acts), was then, and has ever since continued to be, subject to the Indian right of occupancy in the Nez Perc6 tribe of Indians ; and until this Indian right is extinguished, the present holder of that title has no right, merely by virtue of such title, to 418 KESERVAXIONS, II. enter upon and take possession of thepremises. Opinion of May 3, 1875, 14 Op. 569. 44. L. , who claimed title to the tract of land included by said station, as assignee of said board, recovered judgment by default in the Territorial court in an action to recover posses- sion of the premises brought against an Indian agent occupying the same, and obtained actual possession thereof under a writ issued upon said judgment: Held, that the judgment de- termined nothing adverse to the Indian right; that the writ founded on such judgment was ineffectual to give L. legal possession of land to which the Indian right still adheres; and that in entering upon the reservation there- under. he was simply an intruder, and may be summarily removed therefrom in the mode provided by section 2118 of the Eevised Stat- utes. Ihid. 45. On April 27, 1869, the lands within the limits of Camp Wright, in California, were set apart as a military reservation by order of the President. That order was revoked by a subsequent order of the President, dated July 26, 187G, which reserved said lands for the use and occupancy of the Indians of the Pound Valley Indian reservation. The limits of the latter reservation were defined by and under the act of March 3, 1873, chap. 333, and the lands of Camp Wright lie outside of those limits. Held, that the limits of the Indian reservation cannot be enlarged by the Presi- dent by annexing said lands thereto ; but that the President may permit said lands to be used iu connection with such reservation, so long as no action is taken by Congress for their disposal. Opinion of Aug. 10, 1878, 16 Op. 121. 46. By the act of June 14, 1880, chap. 211, an appropriation is made for the construction of a dam at Lake Winnibigoshish, with a pro- i:iso ' ' that all inj uries occasioned to individuals by overflow of their lands shall be ascertained and determined by agreement or in accordance with the laws of Minnesota, and shall not ex- ceed in the aggregate §5,000." The land to be overflowed, as is ascertained by actual survey, lies within the limits of the reserva- tion of the Chippewa Indians, secured to that tribe by the treaty of February 22, 1855. Held, that the said proriso, being in terms limited to the lands of individuals, cannot be extended to lands of the Chippewa tribe, and that Congress has not otherwise, in said act, manifested an intention to exercise the right of eminent domain in or upon lands in said, Indian reservation, or to authorize the over- flow of any part of that reservation, or the taking of timber or materials therefrom. Opinion of Aug. 13, 1880, 16 Op. 553. II. Military. 47. Decision as to the quantity of land to be reserved for public use, and the places where to he located, rests in the discretion of the President, subject to such regulations as may from time to time be provided by law, either as to the particular public use, the quantity. or the subsequent disposal thereof for private use. Opinion of Oct. 15, 1853, 6 Op. 157. 48. At present the statute limitation as to- quantity in the Territory of Oregon is not ex- ceeding six hundred and forty acres for forts and twenty acres for any other public use. Subject to this condition, the military reserva- tion of Fort Vancouver in that Territory is valid, notwithstanding any pre-existing dona- tion claim of an inhabitant of the Territory, and notwithstanding the provisional govern- ment of Oregon had located the county seat ot justice at Fort Vancouver. Ibid. 49. The Chicago and Eock Island Eailroad. Company and Railroad Bridge Company can- not lawfully enter upon and use, for the pur- pose of a road, or for any other object, the mil- itary reservation of Rock Island, under pretense of authority from the State of Illinois. Opin- ion of Aug. 21, 1854, 6 Op. 670. 50. An act of Congressgivingto railroad com- panies a right of way through the public lands does not apply to or include the military reser- vation of Rock Island. Ibid. 51. Under the act of March 3, 1819, chap. 88, authorizing the Secretary of War to cause to be sold such military sites as maj' become useless for military purposes, the Secretary has power to annul and set aside a sale made by commissioners appointed to carry the act into execution at any time before final confirmation by him, for any just cause. Opinion of March 17, 1859, 9 Op. 298. ■52. The Leavenworth Coal Company, on payment of the purchase money of the land embraced by their lease, will be entitled to a patent therefor in fee, and with it a grant also of the exclusive right of mining the coal un- KESERVATIONS, II. 419 derlying the rest of the military reservation, for the period limited by the terms of the lease authorized to be extended by the act of July 20, 1868, chap. 199. Opinion of Oct. 7, 1868, 12 Op. 504. 53. The Secretary of War has authority, vmder the resolution of Congress of May 4, 1870, to carry out the agreement entered into by him respecting the military reservation at Fort Snelling, Minnesota, by making convey- ances and accepting releases as provided in that agreement. Opinion of Nov. 30, 1870, 13 Op. 345. 54. In view of the circumstances appearing in the case considered, it is recommended that the claim of the Eoman Catholic Mission of - Saint James to certain land at or near Fort Vancoviver, Washington Territory,, used by the United States for military purposes, be re- sisted, and possession of the premises be re- tained by the Government, until the Mission shall have established its title by the judg- ment of a competent court of law. Opinion of My 3, 1871, 13 Op. 467. 55. Jurisdiction over the lands lying within the limits of the military reservation of Fort Leavenworth passed from the United States to the State of Slansas under the operation of the act of June 29, 1861, chap, 20, admitting that State into the Union; and to restore exclusive jurisdiction to the United States over the same, , a cession of jurisdiction by the State is neces- sary. Opinion of April 19, 1872, 14 Op. 33. 56. Buildings erected on military reserva- tions by post-traders, under a license from the War Department, for the purposes of trade, are not to be regarded as such buildings vvould be if placed thereby trespassers; that is to say, as constituting a part of the realty. Opinion of Oct. 3, 1872, 14 Op. 126. 57. A trader, when he removes from his post at a military reserve, has a right to remove the buildings which were erected thereon by him under such license, and is at liberty to dispose of the materials thereof as his own property. IMcl 58. But the license to erect such buildings being purely personal to the trader, does not carry with it any right to lease or convey the same to others for their occupation and use, without the permission of the military author- ities; his rights are confined solely to that of removing the buildings from the premises. Ibid. 59. The provisions of the acts of July 20, 1868, chap. 179, and July 27, 1868, chap. 268, granting to railroad companies rights of way through the Fort Leavenworth military reser- vation, are to be construed strictly as against the grantees of such rights. The grant made by those acts does not impart to the railroad companies referred to the right to establish cat- tle yards or pens, or build structures for a like purpose, either in the roadway or elsewhere upon said reservation. Opinion of Nov. 5, 1872, 14 Op. 135. 60. The military post of Fort Reading, in California, is within the operation of the sixth section of the act of June 12, 1858, chap. 156, reserving from sale or pre-emption lands that belong to useless military sites until otherwise ordered by Congress. Opinion of May ^i, 1873, 14 Op. 244. 61. The ' 'Chicago, Detroitand Canada Grand Trunk Junction Railroad Company" has ac- quired under the actof February 8, 1859, chap. 26, a valid right to use, or easement in, so m uch of the Fort Gratiot military reservation as is described in the deed to that company executed by the Secretary of War on the 8th of March, 1859, for railroad purposes. Opinion, of Oct. 18, 1873, 14 Op. 320. 62. The "Port Huron Street Railway Com- pany ' ' has no right by virtue of the grant made thereto by the Secretary ol War under the joint resolution of January 31, 1866 [No. 5], to use any part of the land within said reser- vation which is covered by the right or ease- ment held by the former company. Ihid. 63. Where certain land (now constituting part of the Fort Porter military reservation at Buffalo, N. Y.) was granted to the United States under an act of the legislature of New York, dated February 28, 1842, "for military purposes, reserving a free and uninterrupted use and control in the canal commissioners of all that may be necessary for canal and harbor purposes ' ' : Held, that the right of the State, under the reservation in the grant, is limited by the purposes of the grant, and that the State is not entitled to use the land for any purpose, if thereby its use for the military purposes of the United States will be interfered with; yet that the State has a right to use so much of the 420 RESIGNATION; BES JUDICATA. land as may be necessary for canal and harbor purposes, where such use does not interfere with its use for the military purposes of the Government. Accordingly, held, thatthe Sec- retary of "War may permit the State of New York to use so much of the premises for canal purposes as will not interfere with the use thereof for military purposes. Opinion of Dee. 14, 1880, 16 Op. 593. RESIGNATION. See Aemy, VII; Office, X. RES JUDICATA. See also Claims, XXI, XXII. 1. Where a claim has been rejected by the accounting officers and their decision has been confirmed by the Secretary of War, on appeal, it is doubtful whether the successor of the latter can review his decision. The party may carry his appeal to the President, who may affirm or reverse the decision. If he affirm, the claimant has no remedy except at the hands of Congress, the decision being conclu- sive, so far as the Executive is concerned, un- less there shall have been some mistake in matters of fact arising from errors in calcula- tion or the absence of material testimony after- wards discovered. Opinion of Sqjt. 10, 1831, 2 Op. 463. 2. Unless claims finally decided by the proper Department shall in general be consid- ered res judicata, every change in the officers thereof will produce a new hearing of the same, and the accounts of the Government ■ will remain open and undecided. Ibid. 3. The decision of the question as to the payment of commutation to the Cherokees having been concurred in by two successive Secretaries of War, and also considered by one house of Congress and acted on there, ought properly to be regarded as res judicata before the Executive. Opinion of Sept. 26, 1841, 3 Op. 657. 4. A subject once disposed of by the proper executive Department, except underpeculiarly strong circumstances, ought to be regarded as settled. Stare decisis is a most salutary rule for the executive department in cases of claims. Opinion of Oct. 18, 1844, 4 Op. 341. 5. Where a final decision has been made by the proper Department against one who claims to be a public creditor, such decision cannot be opened after a change has taken place in the head of the Department. Opinion of June 4, 1857, 9 Op. 33. 6. But a deduction from the pay of a con- tractor, made by' the Auditor and Comptroller of the Treasury, merely upon the ex parte rec- ommendation of the Postmaster-General, is not a judgment against the contractor. Hid. 7. It appearing that the same question pro- posed in the case of Eear- Admiral Goldsbor- ough was considered in the year 1867 by the then President and Cabinet, including the At- torney-General, and decided by them; that the decision was adopted by the Secretary of the Navy, and has been acted upon up to the present time; that application was made for legislation to change the result announced; and that Congress has not evinced any dissat- isfaction with such result, or an intention to modify it: iJecomme«(?C(Z, that the decision men- tioned be followed as a rule already settled, without a new inquiry into the validity of the reasons upon which it is founded. Opinion of April 26, 1869, 13 Op. 33. 8. The deliberate decision of a former ad- ministration, of a question involving private rights and interests (no new facts being shown to exist which were not known when that de- cision was made), cannot with propriety be reconsidered by its successors. Ibid. 9. A decision made by a former head of De- partment, after having heard the parties in interest, and after careful and thorough con- sideration of the case — there being no allega- tion that any material fact can be shown which was not before him — should be regarded by his successor as final, and be left undisturbed. Opinion of March 7, 1871, 13 Op. 387. 10. The principle that the iinal decision of a matter before the head of a Department is binding upon his successor in the same Depart- ment, under certain well-defined exceptions, has been so frequently declared that it is now entitled to be regarded as a settled rule of ad- ministrative law. Opinion of June 20, 1871, 13 Op. 457. 11. The rule that a final decision, upon a knowledge of all the facts, made by an officer EETIEED OFFICEE ; EEVENXJE-MAEINE SEEVICE. 421 authorized to decide dn claims against the Government, is not to be reopened and re- viewed by his successors in office, except for the correction of mistakes such as errors in calculation, &c., reaffirmed, and applied to cases acted upon by the Commissioner of In- terndl Eevenue under the forty-fourth section of the act of June 30, 1864, chap. 173. Opinion of July 16, 1873, 14- Op. 275. 12. After a review of the history of the case of Lieut. Col. B. S. Roberts, which is founded upon the alleged invalidity of an appointment in the Army made above twenty-seven years ago: Advised, that the case ought to be con- sidered as finally determined by the decisions of the executive department of the Government heretofore given, and the action of the Senate heretofore had, affirming, directly or indirectly, the validity of that appointment, and should accordingly be regarded as res adjitdicaia. Opinion of Dec. 18, 1873, 14 Op. 344. 13. "Where an application was made to the Secretary of the Interior to review a decision of his predecessor, but it did not appear that any new facts in the case were presented, nor that any change in the law had taken place since the decision was made: BeW, that the principle of res judicata applies, and advised, that the former decision be adhered to. Opinion of June 15, 1877, 15 Op. 315. 14. Soon after the passage of the act of May 18, 1872, chap. 172, H. filed in the Treasury De- partment, under the fifth section of that act, a claim for the proceeds of 2,835 bales of cot- ton. In March,- 1875, the then Secretary of the Treasury (Bristow) finally acted thereon, allowing the claimant a certain sum as the pr'oceeds of 104 bales, and formally rejecting the remainder of the claim. Subsequently the claimant made application to the next suc- ceeding Secretary (Morrill) for a reopening of the case, which was denied. Application for a reopening being again made, upon substan- tially the same grounds as before: Seld, that the action heretofore had thereon by the Treas- ury Department should be deemed conclusive, and that the case cannot legally and with pro- priety be reopened by the present Secretary. Opinion of Jan. 11, 1878, 15 Op. 423. 15. Upon consideration of the facts set forth in the opinion: Held, that the settlement of the claim of the State of Pennsylvania for re- imbursement of funds expended for pr.yment of militia in the .service of the United States, authorized by the atft of April 12, 1866, chap. 40, was a matter intrusted by that act to the Secretary of War, and that the award which was made by the Secretary in favor of the State on June 16, 1866, must be treated as res adjudicata and binding upon his successors. But held, further, that if an error appear in the settlement which is merely clerical in its character, or which involves a matter of com- putation only, the Secretary of War may now reopen the same to the extent of rectifying such error, but no further. Opinion of May 18, 1880, 16 Op. 489. RETIRED OFFICER. See Aemy, XT; Marine Corps, IV; Navy, IX. REVENUE-MARINE SERVICE. 1. The Secretary of the Treasury is not re- strained to the use of sails for the revenue service, but may adopt such of the improved modes of navigation as he shall deem indis- pensable at this time. Opinion of Feb. 21, 1843, 4 Op. 145. 2. He is, however, restricted as to the amount and description of military and naval force, and (by the equity of the act) in regard to the sum to be laid out in building and equipping the vessels. Hid. 3. D., a third lieutenant in the Revenue-Ma- rine Service, was suspended in October, 1878, by the President, who, during the ensuing ses- sion of the Senate, submitted his name thereto for its consent to his removal. The session of the Senate ended without any action by that body upon the removal. Held, (1) that officers of the Eevenue Marine are in the civil service of the Governinent as contradistinguished from the naval and military service (reaffirming opinion of November 13, 1877, 15 Opin. 396), and their suspension and removal are governed by the law applicable to civil officers; (2) that upon the adjournment of the Senate, D., by virtue of section 1768 Rev. Stat. , became re- instated as an officer of the Revenue-Marine. Opinion of March 22, 1879, 16 Op. 288. 4. Upon the facts presented, the cadet in the 422 EEVISED STATUTES. Eevenuc-Marine Service who was appointed after the suspension of D. , under the act of July 31, 1876, chap. 246, is not affected by D. 's re- instatement; there having been at the time of the appointment an actual vacancy in the serv- ice which the Secretary of the Treasury vras authorized thus to fill. Jhkl. REVISED STATUTES. The following sections of the Revised Stat- utes are construed, commented on, cited, or re- ferred to: Sec. 1_.. 28.-. 30_-. 34-. 161-- 169... 177__. 178._. 179-_. 180. _. 191. _. 201_-. 213__. 216--- 235 _.. 256... 269.-- 273-.- 277-.- 299-.- 300B- 313--- 317-.- 322--- 327--- 351--- 355--- 356... 357-.. 361.-- 363.-- 366.-- 398--. 403... 404. _- 406.-. . 15 Op. -16 Op. -16 Op. -16 Op. -15 Op. -15 Op. -16 Op. .15 Op. -15 Op. -15 Op. -15 Op. 197, -15 Op. -15 Op. -15 Op. .15 Op. .15 Op. -15 Op. .15 Op. .15 Op. -16 Op. -15 Op. -15 Of. -15 Op. -15 Op. -15 Op. -15 Op. .15 Op. 543. -15 Op. . 15 Op. .15 Op. -15 Op. -15 Op. .15 Op. .15 Op. .15 Op. .15 Op. 230, 233, 594. 274. 274. 274. 343. 5, 6. 596. 458; 16 Op. 596, 617. 458; 16 Op. 596. 458; 16 Op. 596. 143, 192, 193, 195, 196, 198, 596, 627, 628. 6. 343. 293. 6. 135, 136. 194. 41, 141, 194, 196. 41, 42, 141, 194. 99, 100, 101, 102. 36. 194. 194. 6. 6. 6, 132. 213; 16 Op. 372, 391, 414, 138, 461, 575; 16 Op. 404. 461. 461. 169. 169. 462. 484. 484. 485. Sec. 409. 421. 432. 459. 460. 461. 490. 491. 492. 515. 574. 753. 771. 793- 802- 825. 827. 828. 829. 834. 838. 850. 853. 854- 856. 882. 989- 1024- 1063- 1094- 1096. 1112- 1113- 1119- 1131- 1132- 1170- 1182- 1191- 1205- 1216- 1219- 1222- 1223. 1224- 1229. 1230. 1252. ...16 Op. 484, 485. --.16 Op. 656, 657. ...16 Op. 127. -.-15 Op. 343. ---15 Op. 343. --.15 Op. 343. .-15 Op. 541. .--15 Op. 541. .--15 Op. 541, 544, 548, 549. ..-15 Op. 343. .-.15 Op. 578. ._ 15 Op. 181. .--16 Op. 99, 101. ...-16 Op. 538, 539, 540. .-.15 Op. 343. .--15 Op. 388, 566, 567. -.-15 Op. 277; 16 Op. 99, 101, 102. .--15 Op. 566, 567. ...14 Op. 681, 684;15 Op. 347,537, 566, 567; 16 Op. 165, 166,167, 168, 169. -.16 Op. 102. ---15 Op. 523. -.16 Op. 113, 147. .--15 Op. 282, 595,633. -.15 Op. 282,283, 633. .--15 Op. 387. .--15 Op. 343. .--14 Op. 562. ...15 Op. 635. -15 Op. 26; 16 Op. 479. --15 Op. 408; 16 Op. 14, 15, 16. -.16 Op. 551, 552. -.16 Op. 451. --15 Op. 279. ..15 Op. 161. --16 Op. 638. --16 Op. 16. --16 Op. 605. --16 Op. 419. --15 Op. 211; 16 Op. 39. --14 Op. 501. .-16 Op. 9. --15 Op. 334; 16 Op. 652, 655. --14 Op. 573; 15 Op. 306, 307, 405, 552, 553, 554; 16 Op. 499. -.15 Op. 306, 307, 408, 409, 410. -14 Op. 574; 15 Op. 405, 406; 16 Op. 499, 500. --16 Op. 298. -.16 Op. 599, 600, 601. -.15 Op. 444. --15 Op. 444. REVISED STATUTES. 423 Sec. 1258— .16 Op. 26, 27. Sec. 1594... .15 Op. 317, 16 Op. 22, 23. 1259— .15 Op. 307. 1622... -15 Op. 444. 1260— _15 Op. 307. 1623... .15 Op. 444. 1274 — .15 Op. 443,444. 1624... .15 Op. 165, 598, 635; 16 Op. 315, 1275— .15 Op. 44. 578, .579, 580. 1285- -16 Op. 9. 1628... .14 Op. 493. 1291 — .15 Op. 273. 1661... .14 Op. 492, 494; 16 Op, 478. 1292-. .15 Op. 332, 333. 1667... .14 Op. 492, 497; 16 Op. 478. 1309 — .16 Op. 17. 1670... .14 Op. 492, 493. 1310- ..15 Op. 110,112. 1736... .16 Op. 269. 1314 — .15 Op. 110,111,112. 1761.. 16 Op. 531. 1331- -15 Op. 111. 1763.. .15 Op. 307, 308; 16 Op. 7, 8, 565, 1342- ..15 Op. 153,157,330; 16 Op. 14, 566. 16, 107. 1764.. ..15 Op. 307, 308, 536; 16 Op. 7, 8. 1343- ..16 Op. 15, 294. 1765.. -.15 Op. 71, 307, 308, 536; 16 Op. 1347- -16 Op. 15. 7,8. 1360- ..16 Op. 15. 1767.- -.14 Op. 563; 15 Op. 406. 1361- ..16 Op. 14, 15, 292, 293, 295. 1768.- .-14 Op. 563; 15 Op. 62,63, 376, 1362- ..15 Op. 635; 16 Op. 416. 377, 381, 406; 16 Op. 266, 268, 1363- ..16 Op. 589. 288, 289. 1375- ..15 Op. 259. 1769- .-15 Op, 207, 377, 399, 400, 401, 1390- ..16 Op. 417, 419. 406; 16 Op. 522, 523, 524. 1394- -15 Op. 635. 1781.. ..14 Op. 484. 1410- ..15 Op. 561,565. 1782.. -14 Op. 484. 1412- ..15 Op. 635. 1785. . ..15 Op. 609. 1413- ..15 Op. 165, 597; 16 Op. 203,204. 1795.- ..15 Op. 56. 1447- ..16 Op. 20, 21. 1838.. ..15 Op. 213. 1454- ..15 Op. 445. 1841- ..16 Op. 27, 28. 1474- -.16 Op. 415. 1994.. -.15 Op. 116, 600. 1475- -16 Op. 414, 415, 416. 1999.. -.15 Op. 16. 1476- ..15 Op. 635; 16 Op. 417, 419. 2035- -.16 Op. 239. 1478- _.15 0p. 597; 16 Op. 203, 204. 2037.. -.16 Op. 630. 1480- ..16 Op. 415, 416, 655. 2045- . -15 Op. 406. 1484- ..15 Op. 337. 2053— -15 Op. 405, 406. 1486- ..15 Op. 336, 337, 338. 2058.. -15 Op. 67. 1493- -16 Op. 20, 21, 588. 2059.. ..15 Op. 405, 406. 1496- ..16 Op. 588. 2062.. -.14 Op. 573; 15 Op. 405, 406. 1500- ..16 Op. 21. 2079- -16 Op. 555. 1503- ..16 Op. 21. 2089- -15 Op. 67. 1505- ..16 Op. 20, 21, 587, 588, 590. 2103-. -.15 Op. 351, 588, 589. 1514- ..16 Op. 622, 623. 2104.. ..15 Op. 590. 1515- -.16 Op. 621, 623. 2117.. -16 Op. 569. 1516- -.16 Op. 622. 2132.. -.16 Op. 141, 142, 143. 1519- ..15 Op. 636. 2147.- -14 Op. 453. 1521- -15 Op. 635. 2149- -14 Op. 452. 1525- -15 Op. 636. 2165- ..14 Op. 510. 1547- -.16 Op. 494. 2167- -.14 Op. 510. 1562- ..16 Op. 592. 2172.. ..15 Op. 115, 116. 1588- -.15 Op. 318, 319, 320; 16 Op. 22, 2236.- -.15 Op. 62. 23. 2304.- -.16 Op. 148, 149, 151, 153. 1590- -.15 Op. 319, 320. 2306- -15 Op. 315. 1593- ..15 Op. 318, 319, 320, 321, 322, 2390- -15 Op. 211. 445. 2461- -15 Op. 437. 424 EEVISEB STATUTES. Sec. 2462.. -.15 Op. 438. Sec. 2930- -15 Op. 656. 2463.. -.15 Op. 439. 2931.. -14 Op. 472; 15 Op. 119, 121; IS 2482- -115 Op. 340, 342 Op. 197, 198, 277, 355, 356. 2484.. -.15 Op. 341, 342 2932.. -15 Op. 119, 121. 2499.. -16 Op. 648. 2950- -_16 Op. 266, 267. , 2503.. -15 Op. 13; 16 Op. 650. ' 2971- -14 Op. 575. , 2504- -.15 Op. 13, 33, 51, 74, 80, 173, 174, 2979- -.14 Op. 575, 576. 200, 201, 491, 492, 493,629, 657, 2981- -16 Op. 74, 75. 658; 16 Op. 94, 269, 270, 359, 2983- ..16 Op. 674. 445, 449, 450, 648, 660. 2984 - ...14 Op. 562; 15 Op. 9. 2505.. ..15 Op. 113, 125, 201; 16 Op. 354, 2989- -15 Op. 131, 132. 486. 2990.- -15 Op. 9, 12, 129; 16 Op. 548. 2513.. -15 Op. 114, 369 371, 2991- -15 Op. 10, 12, 129, 130. 2514.. -15 Op. 369, 371. 2992- . _15 Op. 129, 130. 2536.. -.15 Op. 449. 2993- ..15 Op. 129, 130; 16 Op. 74, 75. 2549 -.16 Op. 266, 267. 2994- ..15 Op. 10, 11, 128, 129, 130, 131. 2608.- ..15 Op. 260, 261, 262. 2995- .-15 Op. 10, 12. - 2625.. -.15 Op. 399, 400. 2996- -15 Op. 10. 2629- -15 Op. 401; 16 Op. 565, 566. 2997- -16 Op. 548, 549. 2630.. -15 Op. 399. 3000- ...15 Op. 129, 130. 2632.. -.16 Op. 566. 3001- -15 Op. 129, 130. 2634.. -15 Op. 286, 287, 356. 3012 . -.16 Op. 103. 2647-. -15 Op. 117. 3012J- ..14 Op. 469, 471, 472, 562; 15 Op. 2648- -15 Op. 654. 121, 127. 2652.. -14 Op. 562. 3013- - 14 Op. 469, 471, 472, 562; 15 Op. 2659- -15 Op. 259. 121, 127. 2660.- -.15 Op. 259. 3019- -14 Op. 578, 580; 15 Op. 147. 2675- -15 Op. 654, 655. 3020- -15 Op. 147, 148. 2697- -15 Op. 286. 3090.. -15 Op. 388. 2705.- -15 Op. 286. 3140- -_15 0p. 230, 233. 2721- -16 Op. 565. 3182- -16 Op. 24. 2722- -15 Op. 286. 3186- -16 Op. 634, 635, 636, 637. 2726- - 15 Op. 260, 261, 262. 3208- -16 Op. 144, 145, 146, 185, 186. 2728- -15 Op. 260, 261, 262. 3216- -15 Op. 387. 2745- . .15 Op. 286, 357. 3217.- -16 Op. 143, 145, 146. 2746.- -16 Op. 565. 3220- -15 Op. 428, 429; 16 Op. 667, 668. 2752- -15 Op. 396. 3228- -14 Op. 513, 514; 15 Op. 427, 428, 2760- -.15 Op. 396. 429, 430; 16 Op. 249. 2767- -15 Op. 166. 3229- -.16 Op. 249, 250. 2793— -15 Op. 166. 3236... -16 Op. 89, 90, 91. 2864- -16 Op. 158, 161. 3244- -.16 Op. 89, 90. 2872- -16 Op. 473, 474. 3247- --15 Op. 231. 2874- —16 Op. 473, 474. 3251- -15 Op. 559; 16 Op. 11, 634, 636. 2900- -15 Op. 335, 656; 16 Op. 65, 66, 3253- -16 Op. 24. 158, 159, 160, 161, 472, 677. 3258- - . 15 Op. 231. 2907.- -15 Op. 77, 105, 174. 3259.- -.15 Op. 231. 2908- -15 Op. 73, 74, 77, 80, 105, 106, 3260- --15 Op. 231. 174. 3293.- -16 Op. 10, 11. 2926- .-15 Op. 8, 11. 3312. - -16 Op. 563. 2927- -15 Op. 8, 11, 12. 3330.. -16 Op. 635. 2928- -15 Op. 8. 3334.- --15 Op. 566, 567. 2929- ..15 Op. 335. 3362.. -16 Op. 89, 91. EBVISED STATUTES. 425 Sec. 3363- -16 Op. 89. Sec. 3704 15 Op. 468, 469. 3387- -16 Op. 89, 91. 3705—15 Op. 469. 3390- -.16 Op. 89, 91. 3709— .14 Op. 683; 15 Op. 227, 256, 257, 3392- -16 Op. 89, 91. 419, 484, 544, 545, 547. 3397- -.16 Op. 443, 444. ,3722.-15 Op. 227. 3406- -16 Op. 443, 444. 3732.— 15 Op. 124, 210, 239, 257. 3408- -15 Op. 218, 374, 375, 453; 16 Op. 3733.-. 15 Op. 151, 241, 257. 187, 188, 189. 3734— -15 Op. 151. 3426- -14 Op. 514; 15 Op. 427, 428, 429, 3736—16 Op. 544. 430., 3737—15 Op. 151, 227; 16 Op. 62, 261, 3430- -.14 Op. 461. 264, 278, 279. 3432- -14 Op. 461. 3738—16 Op. 58, 59, 60. 3437- -14 Op. 461. 3739.— 14 Op. 484; 15 Op. 151, 281. 3445- -15 Op. 191. 3741.— 15 Op. 151, 281. 3446- -15 Op. 191; 16 Op. 443, 444. 3742.. -15 Op. 151. 3456- -.15 Op. 192. 3743 — .15 Op. 151. 3463- -15 Op. 88, 134, 136. 3749 16 Op. 144, 145, 386. 3469- -16 Op. 259, 260, 385, 386, 570, 3750— .16 Op. 144, 145. 617. 3780.— 15 Op. 544. 3477- -15 Op. 272; 16 Op. 191, 192, 231, 3823—15 Op. 528. 232, 261, 262. 3826 14 Op. 577; 15 Op. 282, 595. 3480- -14 Op. 527; 15 Op. 451, 452. 3827-— 15 Op. 529. 3482- -15 Op. 42. 3828—16 Op. 6, 16. 3483- -14 Op. 538; 15 Op. 42, 652, 653; 3830 16 Op. 18. 16 Op. 242, 243, 247. 3852--.16 Op. 19. 3489- -16 Op. 284, 287. 3853.— 16 Op. 19. 3491- -15 Op. 562. 3854 16 Op. 19. 3576- -14 Op. 528, 530. 3872—16 Op. 233. 3585- -15 Op. 234. 3880 15 Op. 224, 226. 3586- -15 Op. 234; 16 Op. 138, 139, 141. 3894—15 Op. 203; 16 Op. 5. 3617- -15 Op. 387, 654, 655. 3895— 16 Op. 5, 6, 7. 3618- -15 Op. 323. 3896 16 Op. 6. 3620- -15 Op. 289, 303. 3900— 16 Op. 6. 3621, —15 Op. 289. 3915 15 Op. 263. 3622- -16 Op. 222, 224. 3929 16 Op. 6. 3624- -16 Op. 143, 144, 146. 3941 15 Op. 484, 528. 3625- -16 Op. 143, 144, 146. 3942 15 Op. 484. 3639- -.15 Op. 289. 3944—15 Op. 651. 3651.. -16 Op. 381. 3962 15 Op. 70, 441, 442. 3660.. -16 V 214. 3963—16 Op. 62, 485. 3661.. .-16 Op. 128. 3990 16 Op. 6. 3665. —16 Op. 214. 3998 15 Op. 442. 3669.. .-16 Op. 214. 3999—15 Op. 397. 3672. —15 Op. 323. 4000 15 Op. 603. 3673- —15 Op. 196. 4001—15 Op. 397. 3679. ...15 Op. 124, 151, 209, 210, 271. 4002 15 Op. 169, 603. 272. 4005 15 Op. 169. 3682- .-15 Op. 434, 435, 436. * 4017— -15 Op. 75, 76, 82, 171. 3689- .-14 Op. 562. 4020—15 Op. 171, 172. 3699. .-15 Op. 413. 4051 16 Op. 256. 3702- ...15 Op. 439, 440, 468, 469. 4052 16 Op. 256. 3703. —15 Op. 469. 4121—14 Op. 523. 426 KBVISED STATUTES. Sec. 4125 -.-.14 Op. 524. Sec. 4818.— 16 Op. 408, 409, 410, 411, 412. 4132— .16 Op. 563, 564. 4820 16 Op. 375, 376. 4136 15 Op. 403, 404. 4824— -16 Op. 5, 14. 4219 -._ 14 Op. 451; 15 Op. 35. 4832 16 Op. .374, 375, 376. 4223 14 Op. 451. 4835 — 16 Op. 14, 15. 4224 14 Op. 451. 4873 16 Op. 13, 16. 4225.___15 0p. 35. 4874-. ..-16 Op. 13, 16. 4371. ...15 Op. 35, 52; 16 Op. 247, 248, 4937 —16 Op. 586. 563, 564. 5138 15 Op. 607. 4381-__15 0p. 44, 45. 5140- -.15 Op. 607. 4400— .16 Op. 647. 5153 15 Op. 360, 361; 16 Op. 96. 4418— -16 Op. 681. 5154— -15 Op. 607, 608. 4421 — .16 Op. 681. 5157 15 Op. 606. 4428 — -16 Op. 680, 681. 5159. ...16 Op. 663. 4438. -.15 Op. 61. 5160.-_.16 Op. 663, 665, 666, 667. 4439 .....15 Op. 61. 5189 15 Op. 606. 4442 16 Op. 647. 5191... -15 Op. 606. 4539 14 Op. 521. 5214 16 Op. 174, 176, 177, 178, 187, 4545.. ..14 Op. 521. 188, 189. 4580 16 Op. 268. 5215- .16 Op. 174, 177. 4581 16 Op. 268. 5260 — .16 Op. 516, 518, 519. 4583.. _-16 Op. 268. 5267—15 Op. 555. 4584. ...16 Op. 268. 5270... -16 Op. 643. 4597 14 Op. 521. 5275—15 Op. 504. 4599... -14 Op. 521. 5280-. ..16 Op. 358. 4604 14 Op. 521. 5292--. -14 Op. 454, 456. 4610— .14 Op. 521. 5293--14 0p. 454, 455. 4624 16 Op. 340. 5298 16 Op. 162, 164. 4639— 15 Op. 388. 5300-.. 16 Op. 162, 164. 4641 15 Op. .578. 5320 16 Op. 642, 643. 4660.... 16 Op. 372. 5339 14 Op. 559. 4661__..16 0p. 328, 329. 5341 14 Op. 559. 4672.. ..15 Op. 349. 5348 14 Op. 559. 4684 15 Op. 283, 284. 5356 14 Op. 559. 4688..-. 15 Op. 283,284. 5385-... 14 Op. 559. 4693..— 16 Op. 151. 5413 14 Op. 528, 529, 530. 4695 16 Op. 334. 5414.— 14 Op. 529. 4697— .16 Op. 332,334. 5430. ...14 Op. 529. 4698 16 Op. 333. 5431 — .14 Op. 529. 4698 J.. -16 Op. 330, 334, 335. 5439...-15 0p. 211. • 4699 16 Op. 334. 5455 15 Op. 223. 4702— 16 Op. 640. 5474— .15 Op. 70. 4705-._.16 Op. 630. 5488.... 15 Op. 289. 4718 15 Op. 592, 593, 594; 16 Op. 640. 5489 15 Op. 289. 4722..-.16 Op. 151. 5492-. .-15 Op. 289. 4723—15 Op. 474. 5497 15 Op. 289. 4745-__.16 Op. 374, 375, 377. 5498— -16 Op. 478. 4751 15 Op. 436, 437, 438. 5505 15 Op. 495. 4778.. ..15 Op. 247, 252. 5595 15 Op. 528,529. 4779 15 Op. 247, 232. 5596—15 Op. 261, 331, 341, 450, 628. 4780 15 Op. 247, 252. 5597—15 Op. 320, 341. 4782.. ..15 Op. 269. 5601 15 Op. 311. EIGHT OF WAY — ROCK ISLANB BRIDGE. 427 RIGHT OF -WAY. See also Easement; Public Lands, XXXIV. 1. The Chicago and Eook Island Eailroad -Company and Eailroad Bridge Company can- not lawfully enter upon and use, for the pur- pose of a road, or for any other object, the mili- tary reservation of Eock Island, under pretense of authority from the State of Iowa. Opinion of Aug. 21, 1854, 6 Op. 670. 2. An act of Congress giving to railroad com- panies a right of way through the public lands does not apply to or include the military res- ervation of Kock Island. IMd. RIPARIAN RIGHTS. 1. The right of the United States, as owner of lot 3 in section 3, township 14 north, range 5 east, at the mouth of Saginaw Eiver, Michi- gan, to its proportion of the adjoining soU that has appeared above the surface of the river since 1839 is the same, whether such appear- ance is owing to alluvial deposits or to a reces- sion of the water. Opinion of Sept. 20, 1875, 15 Op. 47. 2. Rules suggested for determining the ex- tent and boundaries of that portion of said soil which belongs to the United States as owner ■of said lot. Ibid. 3. Proprietorship of the adjacent^ lots is not necessary, nor is any permission from riparian proprietors required, to give the United States a right to erect range lights in the waters of Saginaw Eiver. This is a matter between the United States and the State, and not one that concerns the shore-owners. Ibid. RIVERS AND HARBORS. See also Commerce and Navigation, IX; Lands under Navigable Waters ; Shores and Beds of Navigable Waters. 1. The right and title to the lake shore of the great lakes is in the several States, not in the United States. Opinion of Oct. 19, 1853, 6 Op. 172. 2. In general, breakwaters and other harbor improvements constructed by the United States, of late years, have been constructed without purchase of land and cession of juris- diction from the several States in which the works are placed, and the land under them belongs to the respective States. Ibid. 3. Lawful authority exists for the protec- tion of the works thus constructed from pil- lage or appropriation by individuals or corpo- rations. Ibid. 4. Obstructions to navigation in the naviga- ble waters of the United States, whether by States or by individuals, constitute acts of purpresture. There is remedy in such case by ex officio information in the name of the At- torney-General of the United States. Ibid. 5. The Topographical Bureau, in charge of the pier and breakwater constructed by the United States for the improvement of the har- bor of Cleveland, may lawfully enter into contract for the use of the same by railway companies. Opinion of Oet. 26, 1853, 6 Op. 199. 6. The banks and shores of navigable wa- ters, whether sea, lake, or river, in ^ny of the States, belong either to the State or to in- dividuals, as the case may be, and not to the United States. Opinion of July 3, 1855, 7 Op. 314. 7. When by act of Congress a pier or break- water is constructed for the improvement of a harbor, no right to the land on which it is constructed accrues to the United States by that fact alone, and without purchase and ces- sion from the State. Ibid. 8. If, in consequence of any such construc- tion, land is made by accretion, such accretion belongs to the owner of the land to which it attaches, and not to the United States. Ibid. ROCK ISLAND BRIDGE. The act of March 2, 1867, chap. 170, mak- ing appropriation for the construction of a bridge at Eock Island requires that the Eock Island and Pacific Railroad Company shall agree to pay and shall secure the payment of half the cost of the erection of the projected bridge over the west or main channel, and half the expenses of keeping the same in repair. The other portions of the work, viz, the con- struction of a new track across the island, and the building of a bridge, if necessary, over the east channel of the river, are left subject 428 ROCK ISLAND SHLITAET RESEEVATION— SALVAGE. to further legislative provision. Opinion of Sept. 11, 1867, 12 Op. 231. ROCK ISLAND MILITARY RES- ERVATION. 1. The unsold lands of Rock Island, in the State of Illinois, are not subject to pre-emp- tion under the laws of the United States. Opinion of Nov. 8, 1862, 10 Op. 360. 2. The reservation of Eoek Island for mili- tary purposes derives its validity not alone from the act of selection performed by the President, nor from • any of the later acts of the Secretaries of War, but primarily from the act of June 14, 1809, chap. 2. Ibid. 3. It was not in the power of the President to relinquish that reservation, and thus throw the island back into the general body of the public lands, without the consent of Congress. Hid. 4. The facts in relation to the case of this reservation show that the theory that it has been relinquished, and reverted to the body of the public lands, has never been accepted by either the legislative or executive department of the Government. Ibid. 5. The authority of the decision of Mr. Jus- tice McLean, in the case of the United States TO. The Railroad Bridge Co. (6 McLean, 517), questioned. Ibid. ROGATORY COMMISSION. Prior to the enactment of the act of March 2, 18.55, chap. 140, no law existed for the exe- cution of foreign rogatory commissions to take testimony in the United States. Opinion of Feb. 28, 1855, 7 Op. 56. SAFE-CONDUCT. There is no law authorizing the Secretary of State to furnish the owners of the Meteor with a letter of safe-conduct to the American ministers and naval officers in the East. Opin- ion of Oct. 4, 1866, 12 Op. 65. SALE OF ARMS. See also Public Abms. The War Department can properly make no sale of arms, except at auction, and on due public notice. Opinion of Sept. 12, 1859, 9 Op. 391. SALE OF MILITARY SITES. See also Public Lands, XXI. By the act of March 3, 1819, chap. 88, pro- viding for the sale of such " military sites " as are found useless for military purposes, the Secretary of War is authorized to sell a part of the land included in the site of the armory at Harper's Ferry. Opinion of May 14, 1852, 5 Op. 550. SALVAGE. See also Militaey Salvage. 1. The recaptors of American vessels from pirates are entitled to salvage, but the rate rests in the discretion of the court before which the eases shall be brought. Opinion of Jan. 8, 1822, 1 Op. 531. 2. The general maritime law sanctions a claim for salvage in the case of a recapture from pirates; and by the act of March 3, 1800, chap. 14, n/itional ships are entitled to salvage from the ships of friendly powers, rescued from their enemies; which act, in spirit, applies to rescues from pirates. Opinion of Nov. 30, 1822, 1 Op. 577. 3. The rate of salvage to which recaptors of an American vessel from pirates are entitled is governed by the act of Congress of March 3, 1800, chap. 14, giving, where the vessel shall have been sent forth and armed as a vessel of war, one-half of the vessel, but only one-sixth of the cargo. As to other vessels, the only general rule that can be suggested is one-sixth of vessel and cargo, except where the vessel has been, since her capture, fitted out as a vessel of war, and is recaptured in this condition, in which case one-half of the vessel and her arma- ment aud one-sixth of her cargo may be allowed. Opinion of Dec. 9, 1822, 1 Op. 584. 4. If the recaptured vessel had been louo- in the hands of pirates, and had been used as SCHOOL LANDS; SEAMEN. 4-29 their own, a higher salvage ought to be al- lowed than if she were recaptured in the mo- ment of her capture, having just struck, and her crew still in the capacity to make resist- ance. Ibid. 5. The of&cers and crew of a United States vessel are not entitled to salvage as against the Government for saving the property of the United States wrecked on the Florida reef, they having done no more than their duty. Opinion of July 22, 1824, 1 Op. 675. 6. The salvage decreed to the officers and crew of the United States brig "Washington, for the capture of the Amistad, should be divided, not among those who were on the books of the brig, but among those who were actually on board of her at the time of the capture. Opin- ion of Aprils, 1842, 4 Op. 17. 7. The ofScers and crew of a vessel in the naval marine service of the United States are entitled to salvage for saving a French ship whilst on the rock of El Eiso, near the anchor- age of Anton Lizardo, the objection that gov- ernment vessels are not thus entitled being in- valid. Opinion of June 20, 1849, 5 Op. 116. 8. The rule is universal in the United States that salvage rendered by the naval marine is to be compensated in like manner as that ren- dered by the private marine. Ibid. 9. Officers and crews of the public ships of the United States are not entitled to salvage, civil or mOitary, as of complete legal right. Opinion of July 8, 1856, 7 Op. 756. 10. The allowance of salvage, civil or mili- tary, in such cases, like the allowance of prize money on captures, is against public policy, and ought to be abolished in the sea service, as it was long ago in the land service. Ibid. 11. In the case of derelict property, saved Tinder no unusual circumstances, a moiety is the maximum allowance made to the salvors. Opinion of July 26, 1859, 9 Op. 374. SCHOOL LANDS. See Public Lands, XIV, XVII. SEAMEN. See also Shipping. 1. Mariners may be said to be citizens of the world, and it is usual for them, of all coun- tries, to serve on board any merchant ship that will take them into pay. They may serve on board any merchant vessel engaged in contra- band trade, without incurring liability to pros- ecution or punishment for so doing. Opinion of Jan. 20, 1796, 1 Op. 61. 2. The master of a vessel belonging to the United States, sold in a foreign country in consequence of her being stranded, is not lia- ble for three months' unearned pay to the seamen within the meaning of the third section of the act of February 38, 1803, chap. 9, for such sale was the result of a disastrous Provi- dence. Opinion of Dec. 31, 1804, 1 Op. 148. 3. That section, which requires of the mas- ter of a vessel belonging to a citizen of the United States, on a sale of such vessel and a discharge of her crew in a foreign country, &e., a payment of three months' wages be- yond what may be due at the time of the dis- charge, does not include all cases where there may be a sale of the vessel, but embraces those sales in the common course of merchan- dise only, where, on the sale, both freight and wages have accrued. Ibid. 4. Seamen left behind in a foreign country on account of inability, from sickness, to re- turn in the vessel in which they went out, are within the provisions of the act of 28th of February, 1803, chap. 9, supplementary to the act concerning consuls; and for them the mas- ter should deposit with the consul three months' pay over wages, &c. , as in other cases of voluntary discharge. Opinion of Feb. 18, 1823, 1 Op. 593. 5. The three months' pay, over and above the wages due mariners, provided tor by the act of February 28, 1803, chap. 9, in certain cases, establishes a necessary connection be- tween the pay so to be advanced to the consul by the shipmaster and the rate of wages then accruing to the seamen. Opinion of Aug. 28, 1829, 2 Op. 256. 6. The policy of that act was to discourage the discharge of American seamen in foreign ports. Hid. 7. Where the vessel had been wrecked ori the coast of Spain, and the captain, exercising the authority vested in him under those cir- cumstances, sold her on account of the under- writers and discharged the company: Held, that the case was not within the act of Feb- ruary 28, 1803, chap. 9, and that, therefore. 430 SEAMEN. the consul of the district cannot retain three months' extra wages for the seamen. Opinioiiof March 22, 1831, 2 Op. 419. 8. The provisions of the act of 28th February, 1803, chap. 9, in relation to the extra wages of American seamen, to be paid to the consul where the ship is sold and her crew discharged in a foreign country, are confined to vessels owned by citizens of the United States, and constituting a part of our mercantile marine by sailing under our flag. American seamen on foreign vessels must look to the laws of the country under whose flag they sail for remu- neration and protection in such emergencies. Opinion of April 2, 1831, 2 Op. 448. 9. The public interestrequiringthat Ameri- can seamen should not be discharged abroad, nor set on foreign shores in foreign ports, where they may be tempted to enter into foreign em- ployment, to the loss of our service, the Gov- ernment has given instructions to commanders to send home their discharged seamen at the exjjense of the United States. Opinion of Nov. 3, 1831, 2 Op. 468. 10. Seamen on board vessels of war are not entitled to pecuniary assistance from consuls abroad under act of 28th of February, 1803, chap. 9. Opinion of Oct. 27, 1841, 3 Op. 683. 11. The moneys in the hands of the Secre- tary of State were raised from the wages of merchant seamen only, and should be applied only for the relief of that class of seamen which have contributed to the fund. Jbid. 12. Seamen on board ships of war are not en- titled to pecuniary assistance from consuls under the acts of April 14, 1792^ chap. 24, and February 28' 1803, chap. 9. Opinion of Oct. 28, 1841, 3 Op. G8.-,. 13. The act of February 2'^, 1803, chap. 9, requiring masters of vessels belonging to citi- zens of the United States, and bound to some port of the same, to take, at the request of the consul, destitute seamen on board, and to trans- port them to the port of the United States to which such vessel may be bound, is limited to such A-essels as shall be bound from the port where the re(iuest is made direct to some port in the UnitedStates. Opinion of July 10, 1843, 4 Op. 1K,5. 14. To require all American vessels in for- eign ports, whether bound directly to some port of the United States or not, to receive desti- tute searnen would in many cases be very op- pressive upon masters and owners. Jbid. 15. American seamen shipped in a Britislt^ vessel, and, inconsequenceof its being wrecked, were left in a foreign port destitute: JJeld, tha1> they were entitled to the relief provided in the fourth section of the act of 28th of February, 1803, chap. 9. Opinion of May 12, 1852, 5 Op. 547. 16. Expenditures for the ransom of the crew and passengers of a wrecked American vessel, held prisoners by the Indians of Queen Char- lotte!s Island, do not come within the scope of the appropriations for the relief of American seamen, administered by the Secretary of State. Opinion of Sept. 22, 18.53, 6 Op. 126. 17. The statute provision (see act of March 2, 1829, chap. 41) for the surrender of desert- ing seamen applies only to the seamen of gov- ernments with which a treaty exists to that eff'ect. Opinion of Oct. 14, 1853, 6 Op. 148. 18. There is no express provision to that ef- fect in existing treaties between the United States and Denmark. Jbid. 19. A legislative act of the British colony of New South Wales, enacting that certaia proceedings may be had in the court as to de- serting seamen of any foreign country in that colony, provided its government assents: Jlcld, that the President cannot give such assent on the part of the United States, but that it can only be done by treaty or act of Congress. Opinion of Oct. 28, 1853, 6 Op. 209. 20. Masters of American vessels cannot law- fully discharge seamen in foreign ports without intervention of the consul. Opinion, of Jult/ 17, 1855, 7 Op. 349. 21. It does not help the matter to allege that the seamen consent, or have misconducted themselves, or are not Americans; of all that it is for the consul to j udge. Jbid. 22. There is punishment by statute for the act of a shipmaster in unlawfully putting a seaman on shore in ;i. foreign port. But not f r an assault on a seaman on board ship or otherwise in a foreign port. Opinion of June 21, 1856, 7 Op. 721. 23. Shipmasters in foreign ports are subject, on the requisition of theconsul, totakeon board and convey to the United States distressed mariners; but not seaman or other persons ac- cused of crimes, and to be transported to the- SECRETARY OF STATE. 431 United States for prosecution. Opinion of June 25, 1856, 7 Op. 722. 24. No indictment lies against a master of a ship for discharging irregularly, in a foreign port, a seaman shipped irregularly, in the "United States. But a qui tarn suit lies for the irregular shipment. Opinion of Jane 27, 1856,, 7 Op. 730. 25. The master of a ship is indictable for acts of violence to a seaman on board the ship in the harbor of Charleston. Opinion of June 27, 1856, 7 Op. 732. 26. Under the treaty of 1819 with Spain, and the act of March 2, 1829, chap. 41, which was made to carry out that and other treaties of the same kind, the apprehension and delivery of a seaman, who is alleged to be a deserter from a Spanish ship, is a judicial duty, and the State Department cannot change what a judge has done. Opinion of Sept. 24, 1857, 9 Op. 96. 27. To prove the factof desertion, the treaty requires the exhibition of the ship's roll with the name of the deserter upon it, and this is not met by the' mere certificate of a Spanish consul. Ibid. 28. The master of a vessel is a "mariner" within the meaning of the third and fourth sections of the act of February 28, 1803, chap. 9. Opinion of April 9, 1866, 11 Op. 458. 29. He is entitled, if a citizen of the United States, to three months' additional wages on being discharged in a foreign port, as in the case of a like discharge of any other seaman or mariner. Hid. 30. Where the crew of an American ship had been shipped by the master in the United States, and the shipping articles contained a clause that "all moneys were to be paid in United States currency or its equivalent in gold at the current rate of exchange ": Held, that, in settling some accounts with the mas- ter, at Singapore, India, for the wages of his crew, the United States consul there should have allowed a deduction from the pay of the seamen of the difference between "green- backs" and gold or silver, the currency of Singapore, and the cost of exchange thereon between India and America. Opinion of Jan. 4, 1872, 13 Op. 557. 31. Though the law is liberal in construing contracts in favor of seamen, still it holds them capable of contracting, and bound like other persons by their contracts when . no fraud is practiced upon them. Ibid. 32. Four seamen deserted from an American merchant-vessel in a foreign port, leaving in the hands of the master, besides what was due them as wages, some clothing and other effects, all of which the master delivered to the United States consul at the port on the demand of the latter. By instructions from the State Depart- ment, the consul sold the clothing, &c., and forwarded the proceeds thereof, with the amount due the seamen as wages, to that De- partment. No proceedings have been insti- tuted against the seamen for the offense of desertion. Upon the question as to wliat dis- position should be made by the Department of the money: Advised, that the funds, together with a statement of such facts touching the case as may be in the possession of the De- partment, be transmitted to the circuit judge for the district wherein the port is in which the vessel is owned or at which her voyage terminated. Opinion of Jan. 28, 1875, 14 Op. 520. 33. A consul has no authority to demand and receive from the master of a vessel the money and effects belonging to a deserter from the vessel. Ibid. 34. The steps which should be taken by the master with reference to the disposition of such property indicated. Ibid. 35. Section 5280 Eev. Stat., which provides- for the restoration of seamen deserting from vessels of foreign governments which have treaties with the United States stipulating therefor, applies only to cases of desertion that occurred while the vessel was in a port of the United States and wherein the person charged with desertion is not a citizen of the United States. Opinion of June 12, 1879, 16 Op. 358. SECRETARY OP STATE. See also State Depabtmbnt. 1. It is the duty of the Secretary of State, under the act of March 3, 1843, chap. 100, to prescribe to the contractor for publishing docu- mentary history of the American Revolution the contents of the several volumes, that the selection of materials may not be altogether at 432 SECEETAEY OF THE INTEEIOK — SECRETARY OP THE TREASURY. the discretion of the compilers. Opinion of May 26, 1847, 4 Op. 585. 2. He may signify his approval of the ma- terials, either before or after the manuscript shall be prepared for publication, as may be most convenient. The law will be answered by an approval at any time previous to the pub- lication. Ibid. 3. The Secretary of State has no power to appoint a commission or board to determine how much money a foreign prince shall pay to counsel in the United States for professional services. Opinion of March 17, 1854, 6 Op. 386. SECRETARY OF THE INTERIOR. See also Executive Departments. 1. The authority of the Secretary of the In- terior to supervise the Patent OfiSce compre- hends the power to appoint such temporary clerks to be employed therein as shall be au- thorized by law, and to cause their salaries to be paid out of any money appropriated for that purpose. Opinion of Dec. 7, 1850, 5 Op. 283. 2. The Commissioner of Patents, therefore, is subordinate to, under the superintendency of, and subject to the control of, the Secretary of the Interior in the appointment and pay- ment of such clerks; and his authority is the same whether the money disbursed be appro- priated from fees, or from the agricultural or from any other fund. Ibid. 3. The twenty-fifth section of the act of 26th of August, 1842, chap. 202, having been con- strued to repeal the enactments which con- ferred the power, the Secretaiy of the Interior is without authority to appoint agents to ex- amine into the condition of the local land oflSces. Opinion of Jane 23, 1851, 5 Op. 377. 4. The expenses incurred in the examina- tion of the books, accounts, &c., of the re- ceivers of public money, arising from the sale of the public lands by designated agents of the Treasury Department, under the sub- treasury law, are chargeable to the appropria- tions for special agents to examine books, ac- counts, and money on hand in the several depositories under the law. Ibid. 5. The Secretary of the Interior is empow- ered by law to judge of the necessity of ex- penses of clerk-hire and other expenses in the ofSce of clerks of circuit and district courts where there is a surplus of fees above the stat- ute allowance for salary, and to regulate the same in advance, subject to such modifications of amount, either by enlargement or diminu- tion, and either periodical or occasional, as the satisfactory administration of justice in the several circuits or districts may require. Opin- ion of OH. 13, 1855, 7 Op. 543. 6. The question of the expediency of con- tinuing or dismissing an appeal in the Supreme Court, on a suit involving alleged trespass upon or title of the public lands, belongs to the competency of the Secretary of the In- terior, not of the Attorney-General. Opinion of Oct. 15, 1855, 7 Op. 550. SECRETARY OF THE NAVY. See also Executive Depaetments. 1. The Secretary of the Navy has the con- tingent fund of the Department entirely at his disposal, ^from which he may draw for the pur- pose of compensating any services rendered in any of the relations of his Department which are of a contingent character. Opinion of Sept. — , 1819, 1 Op. 302. 2. The Secretary of the Navy has authority to transfer the bonds in which a part of the navy pension fund is invested. Opinion of Dec. 2, 1841, 3 Op. 719. 3. The Secretary of the Navy has authority to arrange with Baring Brothers & Co., of Loudon, for the payment of the drafts of dis- bursing officers attached to foreign squadrons. Opinion of Dee. 6, 1849, 5 Op. 218. SECRETARY OF THE TREASURY. See also Treasury Department. 1. The Secretary of the Treasury has no power to correct au alleged error of a court of the United States and to refund a sum of money said to have been improperly paid in consequence of such alleged error. Opinion of Nov. 15, 1820, 1 Op. 405. 2. Nor can he increase an allowance made by the Secretary of the Navy to certain citi- zens under the act of April 26, 1822, chap. 36 SECKETARY OF THE TEEASUEY. 433 by adding interest thereto or otherwise. Opin- ion of April 7, 1823, 1 Op. 605. 3. It is not the duty of the Secretary of the Treasury to instruct district attorneys in the discharge of duties merely professional. Opin- ion of April 11, 1823, 1 Op. 608. 4. If the Secretary of the Treasury is capable of seeing what he does, so that one paper can- not be passed upon him for another, he may impress his name with a stamp or copper-plate instead of a pen, provided he keep the stamp or copper-plate in his own possession and ap- ply it himself, or cause it to be applied in his presence. Opinion of July 5, 1824, 1 Op. 670. 5. The Secretary cannot legally pay to the State of Illinois the 3 per cent, of the proceeds arising from the sales of public lands within the same, reserved under the acts of 18th April, 1818, chap. 67, and 12th December, 1820, chap. 2, unless the account required by the last-mentioned act indicated that the moneys heretofore paid have been applied to the en- couragement of learning within the State of Illinois. Opinion of Sept. 11, 1829, 2 Op. 269. 6. The exchange of those moneys by the State of Illinois for warrants upon the auditor of the State cannot be considered by the Sec- retary of the Treasury as an application of them within the meaning of the law. Ibid. 7. The act of 3d March, 1797, chap. 13, au- thorizing the Secretary of the Treasury to remit "fines, forfeitures, and penalties," does not confer the power to release a bond given to entitle the obligoj to drawback after the same has become an absolute debt to the United States. Opinion of Oct. 21, 1829, 2 Op. 278. 8. It is not the duty of the Treasury Depart- ment to investigate the facts and circumstances alleged to exist by a surety to a bond given to the United States, and by him paid, concerning a certain trust fund, in which he claims an in- terest, created by an assignment of the princi- pal debtor, and which he avers has been applied by the United States to the payment of other bonds of the same debtor. The question be- longs to the judiciary. Opinions of Aug. 19, 1831, and Dec. 2, 1831, 2 Op. 457, 473. 9. The Secretary of the Treasury may take security from State banks for the safety of the public deposits, in case they shall be made de- positaries of the public moneys and fiscal agents of the Government. Opinion of Sept. 21, 1833, 2 Op. 584. DIG 28 10. It is an incident to the general right of sovereignty for the Government to enter into contracts not prohibited by law and appro- priate to the just exercise of those powers. Ibid. 11. After a fine has been imposed by a col- lector of customs for a violation of the revenue laws, and collected and distributed, the Sec- retary of the Treasury is not authorized, under the acts of 3d March, 1797, chap. 13, and 14th July, 1832, chap. 233, or either of them, to remit it. Opinion of June 2, 1837, 3 Op. 237. 12. The Secretary of the Treasury has no legal authority to investigate the condition of the banks of Wisconsin Territory without their consent. Opinion of Jan. 9, 1839, 3 Op. 404. 13. Nor can he, under existing law, refund moneys deposited for duties with a collector, but which are ultimately found to exceed the amount of duties properly chargeable. Opin- ion of July 29, 1840, 3 Op. 583. 14. Nor can he refund duties erroneously paid under protest and which the collector has accounted for. Opinion of Jan. 22, 1841, 3 Op. 613. 15. The Secretary may examine into all the facts and circumstances which constitute the grounds upon which a judgment for losses has been rendered (relative to Florida claims), and determine, upon the whole case, whether the decision of the judge is just. Opinion of July 17, 1841, 3 Op. 635. 16. He may institute the survey of the light- house establishment under the appropriation "for expenses of examining annually the condition of the light-houses," in the act of May 18, 1842, chap. 29. Opinion of June 4, 1842, 4 Op. 50. 17. The Secretary of the Treasury may ap- point a person as clerk, to aid in the supervis- ion of the coast surveys, with salary of $400 per annum, who at the same time holds the oflSce of clerk in the Treasury Department, with a salary of §1,400 per annum; and the ac- counting officers should pay such salary. Opin- ion of June 7, 1851, 5 Op. 765. 18. The Secretary of the Treasury is author- ized, by act of September 28, 1850, chap. 79, to indemnify owners of goods for damages caused by improper seizures in the districts of Upper Calilbrnia and Oregon. Opinion of Jan. 23, 1852, 5 Op. 508. 19. The jurisdiction of the commissioner of 434 customs is not iinal and exclusive of the juris- diction and authority of the Secretary of the Treasury; nor does the duty to countersign warrants "which shall be warranted bylaw," authorize the subordinate officers of the Treas- ury to supervise or revise the decision of the Secretary. Opinion of Nov. 13, 1852, 5 Op. 630. 20. The law prescribes no form for the de- cisions of the Secretary of the Treasury, and they may be rendered in writing or orally. Opinion of Dec. 28, 1852, 5 Op. 664. 21. Where certain facts are presented, tend- ing to show that a decision was once given by a Secretary, the Attorney-General will not un- dertake to decide whether they are sufficient evidence of such a decision. Ibid. 22. It is not competent for the Secretary of the Treasury to review the decisions of a prede- cessor on claims or accounts, except where mis- takes have occurred in matters of fact, and where material new evidence has been discov- ered. Ibid. 23. In certain cases, under the passen- ger laws, forfeitures may be remitted by the Secretary of the Treasury. Opinion of March 24, 1854, 6 Op. 393. 24. In cases of mere forfeiture or other pen- alties accruing to the Treasury under the acts of Congress relative to the transportation of passengers, the Secretary of the Treasury may remit, as in similar cases arising under the revenue laws. Opinion of May 31, 1854, 6 Op. 488. 25. This does not exclude the general power of the President to pardon; and where, under the same passenger laws, personal punishment is inflicted, the case can be reached only through the pardoningpowerof the-President. Ibid. 26. In virtue of the acts of March 3, 1823, chap. 35, and June 26, 1834, chap, 87, which provide for the execution of the ninth article of the treaty of 1819 between the United States and Spain for the cession of Florida, which awards damages in certain cases to inhabitants of Florida, the Secretary of the Treasury has lawful authority to determine whether the awards of the judge of the district court of Florida are "just and equitable " or not, and to allow or disallow the same accordingly, at his discretion. Opinion of June 9, 1854, 6 Op. 533. 27. The decision of preceding Secretaries of the Treasury that interest is not allowable on such claims is to be considered as res adjudi- cata, and binding on the present Secretary. Ibid SECRETARY OF "WAR. See also Wae Depaetmbnt. 1. The Secretary of War is not required tO' perform duties in the field. He does not com- pose any part of the Army, and has no service to perform that may not be done at the seat of government. If he leaves the seat of govern- ment for the seat of war, by order of the Pres- ident, for military purposes, he may be paid the expenses of the tour, otherwise not. Opin- ion of Jan. 25, 1821, 1 Op. 457. 2. It is immaterial who proposed such serv- ice; if the President adopted the measure the Secretary should be paid the expenses. Opin- ion of Oct. 16, 1821, 1 Op. 493. 3. The Secretary of War, in the execution of iis public duties, cannot (in view of the pro- visions of the acts of March 3, 1839, chap. 82, and August 23, 1842, chap. 183) employ and compensate collectors, &c. , in the revenue serv- ice, for disbursing moneys appropriated for topographical purposes. Opinion of July 14,. 1845, 4 Op. 401. 4. Bu^ he is vested with a discretion which authorizes him to allow to the sub-agent for the Indians west of the Eocky Mountains, for such expenditures, not previously authorized, as he might have previously authorized as proper. Opinion of April 2, 1846, 4 Op. 477. 5. The Secretary of War is not under obli- gation by law to discharge minors from the Army on the application of alleged parents or guardians not domiciled in the United States. Opinion of July 19, 1854, 6 Op. 607. 6. The Secretary of War has no power ta employ and pay special counsel to represent a military officer against whom a writ of habeas corpus has been issued by a circuit court in the case of a prisoner held in custody by him. Opinion of Feb. 7, 1868, 12 Op. 368. SEIZURE. See also Customs Laws, X. 1. If the circumstances attending the seiz- ure of a vessel by the governor of Giladaloupe SET-UFP. 435 were such as to constitute a defense in a suit against him for such seizure brought in a State court, they must be pleaded in the action. If the seizure were an official act done by the defendant under color of the powers vested in him as governor they will be an answer, as the extent of the defendant's authority can be de- termined only by the constituted authorities of his own nation. Opinion of June 16, 1794, 1 Op. 45. 2. Although the officers and crew who seized the Carmelita for the violation of the slave laws are entitled to a moiety of the pro- ceeds of that vessel, it is doubtful whether it would be consistent with the respect due to the district court of Georgia, which has de- cided otherwise, to question its decision on the ex parte statement of an interested individual. Opinion of Dec. 16, 1819, 5 Op. 719. 3. The fifty-sixth section of the act of 2d March, 1799, chap. 22, does not authorize the collector of customs at Sag Harbor to take possession of and sell goods which were wrecked on Long Island. Opinion of Feb. 8, 1820, 5 Op. 721. 4. When the equipment of a vessel is adapted to the slave-trade, that fact, with other circumstances, may be probable cause for a seizure. Opinion of May 19, 1820, 5 Op. 724- 5. In November and December, 1860, a man- ufacturing firm of Fredericksburg, Va., con- signed to a mercantile house in Baltimore for sale a quantity of kerseys. In May, 1861, the Fredericksburg house directed the return of the goods by way of Point of Eocks and Alexan- dria. They were shipped in obedience to this order, and were seized m transitu on May 3, 1861 , by the Government authorities at Alexandria. On June 19 the Fredericksburg house, having been advised of the seizure, transferred by let- ter their right and claim to the goods to a Balti- more firm, at a fixed valuation, in payment of a pre-existing debt. These transactions were thus all prior to the act of July 13, 1861, chap. 3, prohibiting commercial intercourse with the insurgent territory and confiscating property proceeding to tfcat territory from the rest of the United States. The Baltimore firm claimed the goods: Held, that the claimants were en- titled to receive the property, and that it should be restored to them by the military authorities. Opinion of Nov. 6, 1861, 10 Op, 152. 6. Advice in regard to the proper disposition by the Treasury Department of the gold coin claimed by certain Richmond banks, on special deposit with the United States Treasurer. Opinion of Feb. 2, 1866, 11 Op. 419. 7. A lot of cotton was seized by a Treasury agent in the belief that it was the property of the rebel government. The proofs showed that it was private property ; that it was never captured by the military forces; that it was not abandoned or taken as captured or aban- doned property: Held, that the owner was en- titled to restoration of the cotton. Opinion of April 24, 1866, 11 Op. 478. 8. The bonds of the school fund of Louisiana should be restored to the State authorities. Opinion of June 16, 1866, 11 Op. 502. 9. The seizure of the cotton, claimed by Eosencrantz and Merchant, on May 13, 1865, under the order of General Canby, constituted a valid capture, upon which the Court of Claims can alone adjudicate, under the act of March 12, 1863, chap. 120, according to the principle of the case of the Savannah cotton. Opinion of June 16, 1866, 11 Op. 503. SET-OFF. 1. The accounting officers will not be jus- tified in admitting as an offset to an amount due from an individual, on a contract with the Navy Department, an amount found due to such individual by a jury in Kentucky. The finding of the jury is not per se such an estab- lishment of a claim against the United States as to justify accounting officers in. admitting it as a set-ofif. Opinion of Jan. — , 1823, 1 Op. 590. 2. To allow a set-oflf is, in effect, to make payment of the claim set up against a debt due the United States, and unless the accounting officers would be justified in paying it as a separate and independent claim, they cannot properly allow it as a set-off. Ibid. 3. Upon the facts submitted, the Govern- ment cannot legally retain out of the moneys directed by the act of May 24, 1824, chap. 144, to be paid to the assignees and representatives of J. H. Piatt the amount of the bill of J. H. 436 SET-OFP. Piatt & Co., which had been assigned to the Treasurer under protest. Opinion of Dec. 15, 1824, 1 Op. 700. 4. The law of set-off is limited to mutual debts between the same parties. If it be de- parted irom at the Treasury, there will be no other definite rules for the regulation of its practice. Ojnnion of Jan. 6, 1825, 1 Op. 700. 5. The accounting ofiucers cannot set off against A's trustees a debt owing by A to the, assignees of B, who was a debtor to the United States. Ibid. 6. Set-off differs from a lien, inasmuch as the former belongs exclusively to the remedy, and is merely a right to insist, if the party thinks proper to do so, when sued by his creditor, on a counter demand, which can only be enforced through the medium of judicial proceedings; whilst the latter is, in effect, a, substitute for a suit. Opinion ofSov. 28, 1834, 2 Op. 663. 7. The United States have the right to re- tain moneys awarded, under the French treaty of 1831, to a firm of which one member is in- debted to the Government upon a bond for duties on goods imported for the firm, and to apply the same upon the bond. Opinion of Nov. 16, 1836, 3 Op. 163. 8. Where a disbursing agent of the Govern- ment is in apparent default in respect to the moneys intrusted to him, and there be suffi- cient due him from the Government to make good the deficiency, it is proper thus to satisfy the claim for such dues. Opinion of April 9, 1844, 4 Op. 316. 9. If there be due him any sum over and above that which is necessary to make good such deficiency, it ought not to be retained, but should be paid to him, or, as in the case considered in the opinion, to his lawful as- signee. Ihid. 10. Where the same person is contractor for two articles under separate contracts, and ful- fills one and fails in the other, and presents his account to the Treasury for settlement, the ac- counting officer may set off, in the adjustment, such amount as may be due from him to the Government upon his claim against it. Opin- ion of May 17, 1845, 4 Op. 380. 11. This may be done in all cases where the relation of debtor and creditor arises in the set- tlement of the accounts of the same individual as the grounds of the credits and debits are not material. Ihid. 12. Where a contractor for supplies for the Navy, who was bound in separate contracts to furnish sugar and tea in stipulated quantities during a fiscal year, made default in respect to the sugar, but furnished the tea by causing it to be shipped to the naval storekeeper by a firm in New York, to whom the contractor indorsed over bills for the same made out in his name, payment of which has been refused on account of the contractor's defalcation on the contract for sugar: Held, that the sale of the tea was made by the firm to the contractor, and not to the Government, and that the amount due therelbr maybe withheld and set off as against the damages sustained by the Government on account of tae non-fulfillment of the other con- tract. Opinion of Feb. 15, 1847, 4 Op. 551. 13. The balance of 195,588.63, due the United States from the late territorial gov- ernment of Florida, ought not to be set off in the extinguishment of the appropriation of 575,000 made by Congress by the act of Feb- ruary 27, 1851, chap. 12, for reimbursing to the State of Florida moneys advanced for supplies and service of the local troops called into serv- ice during the year 1849. Opinion of Nov. 17, 1851, 5 Op. 455. 14. By compact between the United States and the State of Wisconsin, when the latter was admitted into the Union, it was agreed that the United States would pay to the State 5 per cent, of the net proceeds of the sale of public lands within the same, for the use of its schools, provided that certain liabilities of the Territory of Wisconsin on account of lands granted by the United States for canals therein shall be paid and discharged by the State. Held, that the United States cannot make a set-off of the 5 per cent, school fund to pay the canal debt, because the former Is a special trust fund; but that the United States may re- tain the money in trust itself until the State discbarges its obligation in the other respect to the United States. Opinion of Sept. 18, 1854, 6 Op. 732. 15. Against a claim allowed by Congress the Secretary of the Treasury cannot set off a debt alleged to be due by the claimant to the United States upon which no suit has 'ever been brought or judgment recovered, and the jus- tice of which is denied by the party. Opinion of July ^1, 1858, 9 Op. 198. 16. The United States, like other creditors, SHIPPING. 437 must establish their rights against a citizen by- due course of law and before the proper tribu- nals, there being no law which gives to the Secretary of the Treasury the power to adjudi- cate upon disputed claims of the Government against individuals. • Ibid. 17. It is especially necessary to observe this rule where the demand of the United States is based upon a transaction of remote date, where the parties and witnesses are dead, and the papers probably lost or destroyed. Ibid. 18. Though the head of a Department has no right to set off one independent claim against another; yet where debits and credits, claims and counter-claims arise between the Govern- ment and 11 contractor out of the same con- tract, he may ascertain both, and regard that party as debtor against whom the balance is found to be. Opinion of Nov. 14, 1859, 9 Op. 401. 19. The accounting olSflcers have no power to set off against an account upon a contract a claim in favor of the United States for un- liquidated damages for a tort of the party whose account is presented for adjustment. Opinion of July 2, 1868, 12 Op. 431. SHIPPING. See also Commbece and Navigation; Sea- men; Vessel. 1. The certificates of foreign ministers do not compose a part of the regular papers with which a ship is usually furnished for the pro- tection of herself and cargo. The regular papers are those alone which the constituted authorities of the courts are competent to give. Opinion of July 20, 1807, 1 Op. 162. 2. The second section of the act of 28th of February, 1803, chap. 9, does not require the papers of an American vessel in a foreign port to be delivered to the consul, except in cases where it is necessary to make an entry at the custom-house. Opinion of June 11, 1845, 4 Op. 390. 3. In order that the master of a ship, on her "arrival" in a foreign port, shall be com- pellable to deposit the ship's papers with the consul, the arrival must be such an one as in- volves entry and clearance. Opinion of Oct. 17, 1853, 6 Op. 163. 4. Masters of American vessels are subject to prosecution in the name of the consul for omission to deposit with him the papers ac- cording to law, but not to indictment. Opin- ion of Aug. 23, 1855, 7 Op. 395. 5. The commander of an American vessel is required to deliver his register and other ship's papers to the consul at a foreign port only in cases where he is compelled to malie an entry at the custom-house. Opinion of Nov. 10, 1858, 9 Op. 256. 6. Before the sale of a vessel to the Govern- ment is completed, all debts for repairs and materials on her account should be paid or secured. Opinion of July 6, 1859, 9 Op. 364. 7. "Where a steamer was chartered by the Government to be employed in the river La Plata, with stipulation that she should be de- livered in a tight, staunch, seaworthy condi- tion, well fitted with every appliance requisite for the business in which she had theretofore been engaged, it was held that the warranty was limited to the time of delivery, and had relation to the employment for which the ves- sel was chartered. Opinion of Feb. 18, 1860, 9 Op. 418. 8. The master of an American vessel sailing to or between ports in the British North Amer- ican provinces is required, on arriving at any such port, to deposit his ship's papers with the American consul. Opinion of Sept. 7, 1864, 11 Op. 73. 9. The act of August 5, 1861, chap. 49, does not change or affect the duties of masters of American vessels running regularly by weekly or monthly trips, or otherwise, to or between foreign ports, as imposed by the act of February 28, 1803, chap 9. Ibid. 10. If an American vessel is obliged by the law or usage prevailing at a foreign port to ef- fect an entry, and she does enter conformably to the local law or usage, her coming to such foreign port amounts to an " arrival " within the meaning of the second section of the act of February 28, 1803, independently of any ul- terior destination of the vessel, or the time she may remain, or intend to remain, at such port, or the particular business she may trans- act there. Ibid. 11. The fees receivable by a consul for re- ceiving and delivering a vessel's register and other papers under the act of February 28, 438 SHOKES AND BEDS OF NAVIGABLE "WATERS — SLAVES. 1803, are prescribed by regulation of the Presi- dent. Ibid. 12. The act of August 5, 1861, was merely intended to limit the amount of fees payable annually to American consuls by the masters of American vessels running by regular trips to or between foreign ports. IMd. 13. The provisions of the act of February 28, 1803, chap. 9, in reference to the deposit of ship's papers with American consuls, ap- ply to American steam ferry-boats running between Detroit, and Windsor, Canada West. Opinion of May 12, 1865, 11 Op. 237. 14. Citizens of the United States who re- signed commissions in the Navy of the United States and entered the rebel service did not lose their citizenship by becoming traitors, and, if otherwise qualified, are competent to be officers of vessels of the United States. Opin- ion of Aug. 12, 1865, 11 Op. 317. 15. The proviso of the act of June 28, 1864, chap. 170, was not intended to disqualify per- sons who are not citizens of the United States from becoming engineers or pilots on Ameri- can steam- vessels carrying passengers. Opin- ion of May 22, 1866, 11 Op. 488. 16. Upon the facts appearing in the case of the Spanish baric Maria and Julia, the master of that vessel has not a jjresent valid claim against the Government of the United States for the amount of the wages due him from the owners. Opinion of Sept. 19, 1866, 12 Op. 48. 17. A foreign-built vessel, wholly owned by citizens of the United States, and having no foreign registry, is entitled by virtue of her American ownership to carry the American flag and to the protection of the American Government. Opinion of June 19, 1880, 16 Op. 533. SHORES AND BEDS OF NAVIGA- BLE WATERS. See also Commerce and Navigation, IX; Lands under Navigable Waters ; KivEps and Harbors. The vacant shore-land between high and low water mark in California, as in each of the other new States, vests in the same on its ad- mission into the Union. Opinion of April 9, 1853, 8 Op. 422. SILVER COIN. 1. Under the third section of the joint reso- lution of July 22, 1876, the amount of ' ' frac- tional currency outstanding "is to be deter- mined not merely by the records of the Treas- ury Department, which show how much has been issued and redeemed, but also by ascer- taining how much has been lost or destroyed so that it can never be presented for redemp- tion. Opinion of June 14, 1877, 15 Op. 312. 2. When satisfied as to the amount lost or destroyed, the Secretary of the Treasury has authority to issue an equal amount of subsid- iary silver coin to replace it, subject to this restriction, viz, that the aggregate amount of subsidiary silver coin put in circulation, to- gether vrith the amount of fractional currency outstanding, is not at any time to exceed $50,000,000. Hid. 3. Section 3586 Rev. Stat, makes the sub- sidiary silver coins of the United States legal tender at their nominal value only where the amount of the debt, in payment of which they are offered, does not exceed |5. Opinion of Sept. 24, 1878, 16 Op. 139. 4. The provision applies alike to cases where- in the officers of the Government are receiving payment of its dues and to cases wherein they are disbursing the public funds in discharge of its obligations. Hid. SLAVES. See also Slave Teade. 1. Bringing slaves from Martinique, the property of residents there, may be piracy, or may prove, by the place of its commission, to be only an offense against the municipal laws. Opinion of Nov. 1, 1792, 1 Op. 29. 2 . The Government may instruct the district attorney for Georgia to prosecute the offenders criminaliter, as far as the law will permit, hav- ing in view the restitution of the negroes to their true owner; and that failing to procure such restitution, to issue civil process for the like purpose with the approbation of the owner or agent, he assuming the expense. Hid. 3. It is the duty of the President to cause to be delivered to the minister of Denmark a slave who, by concealment in an Ameridan vessel lying at St. Croix, had been brought to SLAVES. 439 the port of New York, and detained in prison until orders might be given concerning the further disposal of him. Opinion of Sept. 27, 1822, 1 Op. 567. 4. So long as Denmark tolerates slavery in her dominions, it is an invasion of her sov- ereignty to take away from St. Croix, by se- duction, invitation, connivance, ignorance, or mistake, slaves from the possession of Danish owners, and, if allowed and unredressed on our part, is a just cause of war; to bring them to the United States, and to refuse to return them to their owners on the call of their Government, would he such a violation of private property, and such a lawless infraction of the rights and sovereignty of Denmark, as to expose us to the just resentment of that nation, and the merited reproach of the civilized world. Ibid. 5. The President may issue an orderdirected to the marshal of the State of New York, re- quiring him to deliver the slave to the order of the minister of Denmark; or he may notify the governor of that State of the facts, and re- quest him to cause him to be delivered to the marshal for the purpose of delivering him over to the minister. Ibid. 6. The treaty with Great Britain of 1 815 con- tains no express stipulation on the subject of slaves employed as seamen on British mer- chantmen trading to the United States, and the first article cannot be construed to imply an obligation to protect the rights of foreign own- ers of slaves brought to our shores thus as sea- men. Opinion of Dec. 6, 1831, 2 Op. 475. 7. As it is a fixed principle of the law of England that a slave becomes free on touching the soil of Britain, the Government of the United States cannot be required, by the mu- tuality and liberty of commerce expressed in 'the treaty, nor by comity, to protect the rights ■of British slave-masters over their slaves when they are found in our country. Ibid. 8. If by the laws of any of the States a slave becomes free as soon as he is brought within their limits, and the slaves of British subjects are ibund there, and taken by the State authorities from their owners and de- clared to be free, the General Government is under no obligation to interfere in behalf of masters, nor have British masters any right to call on the United States to support their claim of property. Ibid. 9. Wherefore, the right of property of the master must depend on the laws of the State where the slaves may be found. Ihid. , 10. The President has no power to cause fugitive slaves, who have taken refuge among the Indians west of the Mississippi, to be ap- prehended and delivered by the United States officers and agents to the owners from whom such slaves shall have fled. Opinion of Aug. 30, 1838, 3 Op. 370. 11. The courts of the United States are open to the complaint of the owner of an abducted slave ; but the Executive authority cannot properly interfere to administer relief in such cases. Opinion of Nov. 2, 1843, 4 Op. 269. 12. Where an American vessel has brought off a slave from the Cape de Verde Islands, the Executive will not interfere further than to direct the district attorney to Inquire into the facts and Institute a prosecution if they war- rant it. Ibid. 13. Certain negroes who emigrated, in 1837 and 1838, with the Seminoles from Florida to the country assigned them west of the Missis- sippi, but who thereafter left the employment of the Seminoles and went to the military re- serve at Fort Gibson, where they were pro- tected by General Arbuckle, pursuant to a let- ter from General Jessup, dated 8th April, 1846, stating that they had been promised a quali- fied freedom by him, as commanding general of the army In Florida, should be restored to the condition in which they were with the Seminoles prior to the date of said letter, and the military authorities should be so in- structed. Opinion of June 28, 1848, 4 Op. 720. 14. The provisions of the bill, commonly- called the fugitive-slave bUl (the act of Sep- tember 18, 1850, chap. 60), are not in conflict with the provisions of the Constitution in re- lation to the writ of habeas corpus. Opinion of Sept. 18, 1850, 5 Op. 254. 15. The expressions used In the last clause of the sixth section of the bill, that the certifi- cate therein alluded to ' ' shall prevent all mo- lestation "of the persons to whom granted, "by any process issued," &o., probably mean only what the act of February 12,1793, chap. 7, meant by declaring a certificate under that act a sufficient warrant for the removal of a fugi- tive, and do not mean a suspension of the writ of habeas corpus. Ibid. 16. There is nothing in the bill inconsistent with the Constitution, nor which is not neces- 440 SLATE TEADB. sary to redeem the pledge -which the Constitu- tion contains, that fugitive slaves shall be de- livered up on the claim of their owners. Ibid. 17. A marshal of the United States, when called upoit to serve due process for the arrest of an alleged fugitive from service, has Jio ab- solute right to demand a bond of indemnity as the consideration of making service. Opin- ion of Dec. 16, 1853, 6 Op. 230. 18. Such bond may lawfully be given by the claimant; but if he refuses, and the mar- shal thereupon refuses to proceed, the latter will be responsible in damages or not accord- ing as the proofs may appear of the claimant's right of reclamation of service in the case. Jbid. 19. The constitutional right of a citizen of the United States to reclaim a fugitive from his lawful service extends not only to the States and to the organized Territories, but also to all the unorganized territorial posses- sions of the United States. Opinion of Feb. 18, 1854, 6 Op. 302. 20. If, in such territory, there be no com- missioner of the United States to act, the claimant may proceed by recaption without judicial process. Ibid. 21. Any such fugitive from service in the In- dian country is there unlawfully, and as an in- truder is subject to arrest by the Executive authority of the United States. Ibid. 22. Such fugitive cannot be protected from extradition by any Indian tribe or nation ; for the Indians are themselves the mere subjects of the United States, and have no power in conflict with the Constitution of the United States. Ibid. 23. By the local law of the organized politi- cal communities of the Cherokees, Choctaws, and Chickasaws there is ample provision for the delivery up of fugitives from service in any of the States. Ibid. 24. The question of the domicile, nationality, or competent forum of a slave, depends on that of his master. Opinion of Jime 13, 1855, 7 Op. 278. 25. Hence, if a crime be committed by a slave in the Indian country, and his master is a citizen of the United States, he must be tried by the district court. Ibid. 26. But if the slave of a Cherokee commit a crime against a Cherokee, and in the Cherokee Nation, he is triable by the Cherokees. Ibid. 27. The so-called "protective regulations" established by Maximilian, as Emperor of Mexico, for the government of workingmen brought into the country by immigrants, con- stitute a law for the enslavement of such work- ingmen. Opinion of Oct. 21, 1865, 11 Op. 373. 28. No award can be made under the second section of the act of July 28, 1866, chap. 296, to the persons enlisted as slaves. Opinion of Nov. 13, 1866, 12 Op. 95. SLAVE TRADE. See also Slaves. 1. Itis against public policy to dispense with- prosecution for violation of the law to prohibit the slave trade. Opinion of Sept. 8, 1819, 5- Op. 717. 2. By the act of March 22, 1794, chap. 11, "to prohibit the carrying on the slave trade from the United States to any foreign place or country," the collector of customs cannot re- quire a bond as a prerequisite to giving a clear- ance, except upon the oath or aflirmation of some citizen. Opinion of Oct. 8, 1819, 1 Op. 312. 3. The act of March 3, 1819, chap. 101, en- titled "An act in addition to the acts prohibit- ing the slave trade," does not authorize the President to appropriate any part of the sum therein specified to the purchase of land on the coast of Africa or elsewhere for the purpose of a settlement, nor to the transportation of free people of color to Africa, nor to the purchase of carpenter's tools, for the purpose of making a settlement in Africa, nor to the payment of the salary and expenses of transportingan agent from this country to Africa. Opinion of OH. 14, 1819, 1 Op. 315. 4. The President should not a.ssume the responsibility of exercising inferential duties under thataot. Opinion of Oct. 16, 1819, lOp. 317. 5. Although the officers and crew who seized the Carmelita for the violation of the slave laws are entitled to a moiety of the proceeds of that vessel, it is doubtful whether it would be consistent with the respect due -to the districtcourt of Georgia, which hasdeoided otherwise, to question its decision on the ex parte statement of an interested individual. Opinion of Dec. 16, 1819, 5 Op. 719. SLATE TRADE. 441 6. The act of March 3, 1819, chap. 101, ap- plies to all negroes previously brought into the United States contrary to the provisions of any of the acts of Congress on the subject and not disposed of by State laws. Opinion of Feb. 2, 1820, 1 Op. 334. 7. "When the equipment of a vesselis adapted to the slave trade, that fact, with other circum- stances, may be probable cause for a seizure. Opinion of May 19, 1820, 5 Op. 724. 8. By the act of March 2, 1807, chap. 22, the importation of slaves from Africa or elsewhere into the United States, or any place within their jurisdiction, is prohibited under severe penalties; and the importer and all persons claiming under him are therein declared to have no title to the negroes imported, nor to their services. Opinion of Jan. 20, 1821, 1 Op. 447. 9. By the same act it is left to the legisla- tures of the several States to regulate the man- ner in which negroes thus imported shall be disposed of. Ihid. 10. It is the duty of every good citizen, who may be apprised of a breach of this law, to take prompt and immediate steps for the seiz- ure of the negroes, and to inform the governor of the State that he may give directions for the disposal of them. Ibid. 11. The statute of Georgia, passed 19th De- cember, 1817 , making the regulations contem- plated by the laAv of Congress, is not unconsti- tutional. Ibid. 12. The Executive may apply to the support of Africans, seized in his efforts to prohibit the slave trade, such portion of the §100,000 ap- propriated for carrying the prohibitory laws into effect as may be necessary for that purpose. Opinion of Jan. 27, 1821, 5 Op. 728. 13. The bringing to the port of New York on board a schooner a passenger from Tobago, who had with him a free colored servant, hired to him by his mother, with his assent, and who came with him to live with and serve him in New York, is not a violation of the slave laws. Opinion of Aug. 22, 1821, 5 Op. 736. 14. The act of April 20, 1818, chap. 91, pro- hibiting the slave trade, does not prohibit the return of slaves who left the United States with their owners, and intending to return. Opin- ion of Nov. 5, 1821, 1 Op. 503. 15. Where a French vessel, with Africans on board, unlawfully taken from their native land, was captured by pirates and from them capt- ured by an American vessel and brought into port, and a demand for the Africans was made by the French minister with a view to their restoration: Seld, that the application was well founded and should be acceded to. Opinion of Jan. 22, 1822, 1 Op. 534. 16. A vessel under forfeiture for having vio- lated the laws prohibiting the slave-trade re- mains subject to the forfeiture in the hands of subsequent purchasers ; and the President will not interpose in any suit brought against the vessel on that account. Opinion of Aug. 20, 1823, 1 Op. 619. 17. The act of the United States schooner Grampus capturing and bringing in for adju- dication, under the act of 3d March, 1819, chap. 101, the Spanish vessel Phcenix, with Africans on board, was not a violation of the laws concerning the slave-trade. Opinion of Aug. 18, 1830, 2 Op. 365. 18. Whether the Africans can be delivered to a claimant whose title to them is deduced from a traffic which is equally forbidden by the laws of his own country and of ours, is a question which ought to be referred to the highest judicial tribunal. Ibid. 19. If the owner of slaves remove with them to another country, with the view to a perma- nent, settlement, and there remain several years, he cannot lawfully bring them into this country again. Opinion of Dec. 20, 1831, 2 Op. 479. 20 Where the American consul at Havana, to whom an American brig reported herself, suspected her papers to be fraudulent, and not such as to entitle her to the protection which belongs to vessels sailing under the American ilag, and ordered the commander of a ship of war, lying at that port, to seize and detain her until the Government could be advised of the facts and direct as to the course to be adopted; and a correspondence having ensued between said consul and the captain-general of Cuba, disposing of the question of the violation of the sovereignty of Spain, in making the seiz- ure in the port of Havana; and the question under the several navigation acts and the laws to prohibit the slave-trade being presented a-s to the legality of the seizure, and the course to be pursued under the circumstances: Held, that whenever there is just cause to believe that any merchant- vessel is engaged in an il- licit trade a public vessel has the right to de- 442 SLAVE TRADE. tain her until our Government can act upon the subject; and that question of the violation ■of the sovereignty of any foreign government in nowise affects the question in respect to the liability of the suspected vessel to seizure under such circumstances. Opinion of Jan. 12, 1839, 3 Op. 405. 21. Steamboats and other vessels passing from Pontohartrain, by Lake Borgne and Pas- . After return of execution on scire facias against the surety of an absconding criminal, charged with violation of acts of Congress, the only mode of relieving the surety is by exercise of the pardoning power of the President. Opinion of April 3, 1854, 6 Op. 408. 24. The sureties of a mail contractor are re- sponsible to the Government for the whole term of the contract, and as well after the death of their principal as before. Opinion of Aprils, 1854, G Op. 410. 25. The Preoident has no authority to re- lease the sureties on a bond given to the United States by a marshal for a faifhful discharge of the duties of his office. Opinion of March 12, 1855, 7 Op. 62. 26. The sureties of a public officer are not liable to the United States for moneys im- providently advanced to such party by the Government after he shall have ceased to hold office. Opinion of July 10, 1856, 8 Op. 7. 27. The sureties of the marshal of Utah need not be residents of the Territory. Opinion of June 9, 1860, 9 Op. 429. 28. The President has no duty to perform in respect to an application by the sureties in a bond given to the United States under the Guano Island act of August 18, 1856, chap. 164, to be released from their obligation in consequence of a breach of the bond by their principal. Opinion of March 23, 1864, 11 Op. 30. 29. The sureties on the bond of a navy agent are liable only for his acts during the contin- uance of his commission. Opinion of .July 11, 1865, 11 Op. 286. SURPLUS FUND. Sec also Appeopeiatioxs, III. 1. Under the acts of March 3, 1795, chap. 45, May 1, 1820, chap. 52, and August 31, 1852, chap. 108, in general, a balance of ap- propriation remaining unexpended at the ex- piration of two years is carried to the " sur- plus fund, ' ' and can be withdrawn therefrom only by new appropriation, e.xcept in the case of appropriations for objects to which a dura^ tion longer than two years is assigned by law; as to which, and especially expenditures in the m War and Navy Departments, the specific ap- propriations remain in charge of the latter, un- til, on report therefrom of the object being consummated, the money is credited to the ' ' surplus fund ' ' at the Treasury Department. Opinion of Oct. 9, 1854, 7 Op. 1. 2. In general, an appropriation or a balance thereof, made in any year for any continuous contract or other service of the Government, may be applied to the same service during the succeeding or any subsequent year, and does not lapse into the " surplus fund " until the particular object be consummated. Ibid. SUSPENSION. See Office, IX. SUTLER. See also Post Teadbe. Army sutlers are not subject to a license in the State of Calitbrnia on sales made by them 462 SWABIP LANDS — TELEGRAPH. to officers or soldiers of the Army, nor to tax on goods kept by them at a military post for that purpose; hut sutlers may be compelled to pay license if they enter into general trade ■within the State. Opinion of Oct. 27, 1855, 7 Op. 578. SWAMP LANDS. See Public Lands, XV, XVJI, XVIIL TAXES. See also DiEEOT TAX; State Taxes. 1. The words "within two years /rom the time of sale ' ' used in the second proviso of section 22 of the- act of July 22, 1813, chap. 16, giving the owners of lands, sold for direct taxes, the right to redeem them of the pur- chasers at the tax sales, exclude the day of sale from the computation. Opinion of May 13, 1820, 1 Op. 364. 2. A tax for grading streets, assessed on land in transitu from the State of New York, and from individuals therein, to the United States: Held, to have so much of possible right as to render it advisable for the United States not to contend. Opinion of Jan. 28, 1854, 6 Op. 265. 3. The persons in the employment of the United States, actually residing in the limits of the armory at Harper's Ferry, do not possess the civil and political rights, nor are they sub- ject to the tax and otherobligations of citizens of the State of Virginia. Opinion of June 24, 1854, 6 Op. 577. 4. A city has no power to tax United States property -within her limits. Opinion of March 16, 1859, 9 Op. 291. TELEGRAPH. 1. Consideration of the legal effect of certain provisions of a bill (the act of March 3, 1857, chap. 95) entitled "An act to expedite tele- graphic communication for the uses of the Gov- ernment. ' ' Opinion of March 3, 1857, 8 Op. 512. 2. The legislation of Congress on the sub- ject of interoceanic telegraph communication declares it to be a subject-matter of national concern and commercial intercourse. Opinion of Dec. 30, 1867, 12 Op. 337. 3. An oceanic-telegraph cable, which has its terminus upon the territory of the United States, comes within the regulating power of Congress. Ibid. 4. It is doubtful whether Congress has power over the subject-matter of intercourse by tel- egraph strictly within the limits of a State, or extending through two or more States, having its termini within the territory of the United States. Ihid. 5. It seems that Congress has not the power to regulate the charges upon a railroad; and for the same reason it cannot have that power over telegraphic communication within the limits of the United States. Ilnd. 6. As to foreign commerce a State has no regulating power, as it is altogether and ex- clusively a matter of Federal legislation, and the telegraph, when used as a vehicle of inter- course with foreign nations, has been claimed by Congress to be within the power to regu- late commerce. Ibid. 7. Congress may prescribe the rules upon which oceanic telegraphs, connecting the Uni- ted States with foreign countries, shall be op- erated, and fix for them a tariff of charges. Ibid. 8. The act of March 29, 1867, chap. 15, con- ferring certain rights and privileges upon the American Atlantic Cable Telegraph Company, does not preclude Congress from at any time conferring similar rights and privileges upon any other company. Opinion of J"«/)/ 22,1872, 14 Op. 63. 9. The establishment of telegraphiclines con- necting the United States with other countries properly falls under the regulative power of Congress; but that body has as yet made no general regulations on the subject. Ibid. 10. The act of July 24, 1866, chap. 230, was intended to apply to interior lines of tel- egraph — that is to say, those established be- tween points within the United States — and not to exterior oceanic lines designed for com- munication with foreign lands. Ibid. 11. Section 2 of the act of July 24, 1866, chap. 230, requires all telegraph companies which have accepted the rights and privileges conferred by that act, together with the re- strictions and obligations thereby imposed, to give priority to messages from officers and TELEGRAPH. 463 agents of the United States to the several de- partments, and to transmit them at the rates fixed by the Postmaster-General, -whether the messages are received from such officers and agents directly, or through other connecting telegraph lines. Opinion of Oct. 2, 1872, 14 Op. 123. 12. The papers submitted disclosing the fact that the line of telegraph operated by the Western Union Telegraph Company along the route of the Union Pacific Eailroad and of the Central Pacific Eailroad, from Omaha to San Francisco, is a different line from that origi- nally built and equipped between the same termini by the Union Pacific Railroad Com- pany and the Central Pacific Eailroad Com- pany, under the act of July 1, 1862, chap. 120: He W, that the line operated by the West- ern Union Telegraph Company is not subject to the prpvisions of that act and of its supple- ments, requiring one-half the compensation for services rendered the Government over the telegraph lines established therevinder to be applied to the payment of the bonds issued by the United States in aid of the construction thereof, and that no portion of the compensa- tion allowable for the transmission of Govern- ment dispatches over the said line can be re- tained for payment of the bonds mentioned. Opinion of Jan. 16, 1873, 14 Op. 173. 13. Respecting the telegraph line operated by the Western Union Telegraph Company along the route of the Kansas Pacific Eailroad, the Attorney-General declines to express an opinion without more specific information. lUd. 14. Telegraph messages between district at- torneys and marshals, on oflSoial business, are entitled to be transmitted over telegraphic lines operating under the provisions of the act of July 24, 1866, chap. 230, at the rates fixed by the Postmaster-General pursuant to the second section of that act. Opinion of July 10, 1873, 14 Op. 278. 15. The word "between," as used in that section, is to be taken distributively, as ap- plying to official communications between one department of the Government and another, between a department and its ofiicers and agents or the officers and agents of another de- partment, between officers and agents of the same department, and, finally, between officers and agents of one department and those of- another. Ihid. 16. The only limitation applicable is, that the telegraphing must be in cases where the rates are payable out of public moneys, or are to be accounted for to the Government by the officer making the expenditure. lUd. 17. Statutory provisions relating to the es- tablishment of the telegraph line along the route of the Kansas Pacific Railroad and the payment of compensation for the transmission of dispatches over the same, reviewed. OpjV ion of Oct. 13, 1873, 14 Op. 314. 18. One-half of the compensation charge- able for sending such dispatches over that line should be retained and applied to the payment of the bonds issued by the United States in aid of said railroad, notwithstanding that at the time the dispatches were sent the line was actually managed and operated, not by the Kansas Pacific Eailroad Company, but by the Western Union Telegraph Company, and the service was rendered directly to the Govern- ment by this company. Ihid. 19. A company chartered by the State of Oregon, subsequently to the act of July 24, 1866, chap. 230, constructed a telegraph line over public domain of the United States, with- in that State, but never filed a " written ac- ceptance," as required by that act, and declines to comply with the provisions of that act as to rates for Government telegrams: Advised, that the company, in respect of the erection of its telegraph on the public lands, is a trespasser, and that the United States (without special legislation) are entitled to all ordinary remedies for trespass given at law, as well as to all ex- traordinary remedies given in equity. Opinion of March 29, 1876, 15 Op. 554. 20. In transmitting Government dispatches from Leavenworth, Kansas, to points in Colo- rado, the Western Union Telegraph Company has not the option to send them either by way of Denver (over the telegraph line constructed along the Kansas Pacific Eailroad) or by way of Pueblo (over the telegraph line constructed along the Atchison, Topeka and Santa Fc Eail- road). Opinion of July 28, 1876, 15 Op. 579. 21. The option of selecting the route is with the Government; and where no option is ex- pressed thereby, th^ompany is bound to send the dispatch over the cheaper route. Hid. 464 TEEKITORIES. 22. The acceptance by the said company of the rates established by the Postmaster-Gen- eral under the act of July 24, 1866, chap. 230, was not a waiver of the right of the company to change its local tariff rates over the telegraph line constructed along the Kansas Pacific Rail- road between Lawrence and Denver. Ihid. TERRITORIES. 1. The appointing power in the Northwest- ern Territory is expressly given to the gov- ernor in cases in which it is not otherwise di- rected ; and positive provisions are not abridged by implication. Opinion of Feb. 2, 1802, 1 Op. 103. 2. It has been the practice of the President to appoint three judges provided for in the or- dinance, having common law jurisdiction, from an implied power; yet, as the implication does not extend beyond the three, the governor is justified in his appointment of all other judges and officers. Ibid. 3. The officers of the Territory of Michigan are clothed with the same powers as those of the Territory of Indiana. The term ' ' officers ' ' includes the governor, judges, and secretary. Opinion of Manli 18, 1806, 5 Op. 696. 4. Brigadier-generals of militia of a Terri tory may be appointed by the President. Opinion of April 12, 1810, 1 Op. 165. 5. The salaries of the governor and j udges of Arkansas Territory, appoiated under the act of March 2, 1819, chap. 49, can only commence ftom the 4th of July, 1819, although their commissions bear date prior thereto, as the Territory was not constituted till then. Opin- ion of Sept. 28, 1819, 1 Op. 310. 6. The act of 3d March, 1823, chap. 36, was a permanent and general amendment of the pre-existing judiciary system of the Territory of Michigan, affecting not only the judges then in office, but all who should thereafter come into office in that Territory. Opinion of Stpt. 21, 1824, 1 Op. 696. 7. The powers of all the departments of the regularly organized Territorial governments are derived Jrom the acts of Congress making rules for such governments, and can be exer- cised only in the manner afld within the limits prescribed by their provisions; wherefore. Ter- ritorial legislatures cannot, without permis- sion from Congress, pass laws authorizing the formation of constitutions and State govern- ments. Opinion of Sept. 21, 1835, 2 Op. 727. 8. And all measures commenced and prose- cuted with a design to subvert the Territorial government, and to establish and put in force in its place a new government without the con- sent. of Congress, will be unlawful. Ibid. 9. But the people of any Territory inay peaceably meet in primary assemblies, or in conventions chosen by such assemblies, for the purpose of petitioning Congress to abrogate the Territorial government, and to admit^ them into the Union as an independent State; and if they accompany their petition with a consti- tution framed and agreed on by their primary assemblies, or by a convention of delegates chosen by such assemblies, there is no objec- tion to their power to do so, nor to any meas- ures which may be taken to collect the sense of the people in respect to it; provided such measures shall be prosecuted in a peaceable manner, in subordination to the existing gov- ernment, and in subserviency to the power of Congress to adopt, reject, or disregard them, at their pleasure. Ibid. 10. Territorial judges, not being constitu- tional but legislative officers only, and not civil officers within the meaning of the Constitu- tion, are not subject to impeachment and trial before the Senate of the United States. Opin- ion of Feb. 1, 1839, 3 Op. 409. 11. By the act of the 14th of August, 1848, chap., 177, establishing a Territorial govern- ment in Oregon, the legislative power and au- thority were vested in a legislative assembly, consisting of a council and house of represent- atives; and the concurrence in, and approval of, the acts of that body by the governor was not made necessary. Opinion of April 23, 1851, 5 Op. 359. 12. That act conferred authority upon the legislative assembly to locate the seat of gov- ernment for the Territory. Ibid. 13. By the act of the 11th of June, 1850, chap. 19, making appropriations for public buildings in that Territory, the governor was invested with a concurrent and equal authority with the legislative assembly in the applica- tion of the money. Ibid. 14. Any law enacted by the legislative as- sembly of Oregon, which embraces more than one subject, is in violation of the act estab- TERRITOEIES. 465 lishing that Territory, and is null and void. Ibid. 15. The Territorial legislature of Oregon passed a law in February, 1851, removing the seat of government from Oregon City to Salem. This, by the organic act, they had povper to do. But the law was deemed invalid for another reason, namely, because of multiplicity of con- . tents: Held, that the remedy is with Congress. Opinion of March-22, 1852, 5 Op. 525. 16. The act of the legislature of the Terri- tory of New Mexico, appointing semi-annual terms of the district courts, is valid; it being ■clearly consistent with that provision of the organic act (sections 10 and 16 of the act of Sept. 9, 185b, chap. 49) authorizing courts to be held at such ' ' time and place ' ' as may be prescribed. Opinion of April 12, 1852, 5 Op. 528. 17. Territorial judges, absentfrom the Terri- tory for a period of three months, can obtain their salaries onl/on certificate of the Presi- dent that the absence was for good cause, such being the provision of the act of June 15, 1852, chap. 49. Opinion of June 18, 1853, 6 Op. 57. 18. A Territorial court can not appoint an attorney for the Territory, but may designate a person to perform in court any duty of such attorney in hisabsence, which person will have a, right to compensation from the United States. Opinion of Aug. 13, 1853, 6 Op. 80. 19. The governor of the Territory of Utah has power to reprieve, but not to pardon, per- sons indicted and convicted of crime against the United States. Opinion of April 14, 1854, 6 Op. 430. 20. The salaries of all judges of courts of the United States are due from the date of ap- pointment, but the party does not become en- titled to draw pay until he has entered on the duties of his office, or at least taken his official oath ; for, until then, though under commis- sion, he is not actually in office; and in some cases, as that of the Territorial judges of Ore- gon, Washington, Kansas, and Nebraska, sal- ary, though due from date of appointment, can not be drawn until the judge enters on duty in the Territory. Opinion of June 30, 1855, 7 Op. 304. 21. The United States cannot take private land for the construction of a road in one of the Territories, without some legal form of expropriation either by act of Congress or of DIG 30 the Territory. Opinion of July 7, 1855, 7 Op. 320. 22. The United States never held any mu- nicipal sovereignty, jurisdiction, or right of soil in the territory of which any of the new States are formed, except for temporary pur- poses, namely, to execute the trusts created by deeds of cession of Tirginia, Massachusetts, Georgia, and other States in the original com- mon territory of the Union, or by the treaties with France, Spain, and the Mexican Eepub- lic, in the territory embracing Louisiana, Flor- ida, New Mexico, and California. Opinion of Oct. 24, 1855, 7 Op. 571. 23. The provisions of the ordinance for the organization of the Northwest Territory were extinguished by the Constitution, or, if any of them retain continuing validity, it is only so far as they may have authority derived from some other source — either the compact of cession, or acts of Congress underthe Constitution. Ibid. 24. This doctrine has been applied in lead- ing cases to questions touching the property in public lands, the relation of master and slave, religion, and navigable waters, and the eminent domain, and may be taken as the established legal truth. Ibid. 25. In obedience to the same principle, and proceeding in the same line of adjudication, it must have been held, if the question had come up forjudicial determination, that the provision of the act of March 6, 1820, chap. 22, which undertakes to determine in advance a perpetual rule of municipal law for all that portion of the province of Louisiana which lies north of the parallel of thirty-six degrees and thirty min- utes north latitude, was null and void ab in- cepto, because incompatible with the organic fact of equality of internal right in all respects between the old and the new States. Ibid. 26. The same doctrine controls the question of the relative rights of the United States and of any one of the new States, in regard to lands occupied by the United States for public pur- poses in such State. Ibid. 27. Tbejudges, district attorneys, and mar- shals of the Territories are not required by law to have their residences at any particular places in their respective Territories. Opinion of May 2, 1857, 9 Op. 23. 28. Under the act of May 30, 1854, chap. 59, organizing the Territorial government of Kansas, the governor had three clear days to 466 TEEEITORIES. consider a bill passed by the Territorial legis- lature; and if be failed to return it, such bill did not become a law unless the assembly was in session three days after the day on which the bill was passed. Opinion of March 10, 1858, 9 Op. 132. 29. After the passage of the act of March 3, 1855, chap. 167, appropriating $25,000 for pub- lic buildings in the Territory of Kansas, and the act of the Territorial legislature passed in pursuance thereof fixing the permanent seat of government at Lecompton, the Territorial leg- islature had no right to remove the seat of gov- ernment from that town. Opinion of Nov. 20, 1858, 9 Op. 271. 30. Under the act of May 30, 1854, chap. 59, organizing the Territories of Nebraska and Kansas, two-thirds of a quorum of the Terri- torial legislature constitute the majority nec- essary to pass ii. bill which the governor has vetoed. Opinion of Jan. 31, 1860, 9 Op. 410. 31. The legislature of Colorado Territory, under the organic ad (the act of February 28, 1861, chop. 59), had authority to increase the number of the members of the House of Eep- resentatives, and the thirteen persons elected in December, 1861, under the Territorial law, are as lawfully members of the house of rep- resentatives of the Territory as £hose elected under the organic act in August of the same year. Opinion of Juhj 9, 1862, 10 Op. 312. 32. Under the organic act of the Territory of Utah (act of September 9, 1850, chap. 51) the Territorial legislature has power to prescribe the mode of electing or appointing judges of probate in that Territory. Opinion of Aug. 16, 1870, 13 Op. 311. 33. By force of the provisions of the act of March 3, 1869, chap. 121, prescribing the terms of members of Territorial legislatures, and reg- ulating the sessions of such legislatures, the election of members of the legislature of Da- kota Territory, held in October, 1870, was in- valid. Opinion of Nov. 17, 1870, 13 Op. 343. 34. The legislature of that Territory, chosen in October, 1809, is the lawful legislature for the space of two years from the commencement of its term. Ibid. 35. The .special session of the legislature of Dakota, called by the acting governor of the Territory to meet April 18, 1871 — a regular session having m'et in the latter part of the year 1870 — lield to be unauthorized by law; the act of March 3, 1869, chap. 121, providing that the sessions shall be biennial, and contain- ing no exception for the case of a special ses- sion. Opinion of April 15, 1871, 13 Op. 408. 36. Where two bodies claimed to be the house of representatives of the Territory of New Mexico, and the secretary of the Territory de- sired instructions as to which of these bodies he should pay: Advised that, in view of the imperfect statementof facts famished, nothing be done which might be regarded as a recog- nition of the legality of either of the bodies referred to, and that the secretary be informed that no instructions such as he desires can be given without more complete information. Opinion of Jan. 31, 1872, 14 Op. 4. 37. As a rule, the governor of a Territory can remove only such otficers as have been duly appointed by him to hold at pleasure. Opinion of July 24, 1874, 14 Op. 422. 38. He has no power to remove officers ap- pointed during pleasure by others than him- self, or officers whose tenure is for a stated term or for good behavior, unless so author- ized by the organic law or (in some cases) by the Territorial law. Ibid. 39. Accordingly, where certain officers cre- ated by 1 Territorial statute were appointed by the governor, vrith the consent of the council of the Territory, for the term of two years: Held, that, in the absence of a power of removal expressly conferred by law upon the governor, those officers are not removable by him. Ibid. 40. Under an act of the legislature of Mon- tana Territory of February 11, 1874, providing for the submission to the qualified voters there of the question as to a change of the Territo- rial seat of government from Virginia City to Helena, an election was held on the 3d of August following, the returns of which, ac- cording to the official canvass of the votes (which was required to be made by the secre- tary and marshal of the Territory, in the pres- ence of the governor), showed a majority against the change. Application- having sub- sequently been made for a recanvass of the votes : Ucld, that, whether the secretary and marshal together might or might not, under the particular circumstan'ce of the case, recan- vass the votes (on which no opinion_ is ex- pressed), a recan\ass made by one of those officers alone, as was proposed, would not TEXAS BONDS — TITLE. 467 satisfy the requirements of the act mentioned ; yet, held further, that the legal questions in- volved — either as regards the discharge of the duties of the canvassing officers, the validity of the canvass of the votes as made and certi- fied by them, or the final ascertainment of the fact whether a majority of the votes cast was in favor of or against the removal of the cap- ital — are of purely local concern, in which the General Government is not interested, and over which its Departments have no jurisdic- tion or control. Opinion of Oct. 8, 1874, 14 Op. 462. 41. Such questions may, by appropriate pro- ceedings, be brought before the courts of the Territory, to which their determination right- fully belongs. lUd. 42. Corporations formed under a general law of the Territory of Montana, dated December 13, 1867, for the purpose of constructing and maintaining bridges, roads, or ferries, come within the scope of the provision in the first section of the act of March 2, 1867, chap. 150, authorizing the Territorial legislatures, by general incorporation acts, to permit persons to associate themselves together as bodies cor- porate ibr " industrial pursuits." Opinion of Aug. 2, 1878, 16 Op. 114. 43. In granting to such corporations the priv- ilege of locating their bridges, roads, &c., upon the public lands of the United States, the Ter- ritory must be deemed to have acted within the limits of the authority thus given by Con- gress. IHd. 44. Where the bridges, roads, &c. , so located are used by the Government for the passage of troops, animals, and supplies, the owners thereof are entitled to a reasonable compensa- tion for such use. The compensation is not necessarily to be the tolls fixed by the owners or the local authorities. Ihid. 45. The legislature of Wyoming Territory has no power to direct that persons convicted of violations of the laws thereof shall be im- prisoned at any place outside of the bounda- ries of that Territory. Opinion, of May 13, 1880, 16 Op. 678. TEXAS BONDS. On the act of September 9, 1850, chap. 49, which directed the delivery by the United States of $10,000,000 in stock to the State of Texas, provided that no more than five mill- ions of said stock be issued until certain cred- itors of the State should have filed in the Treas- ury releases of all claims against the United States: Held, that the Secretary of the Treas- ury cannot make delivery of the reserved five millions by apportionment, but must with- hold all payments until evidence be presented to him of the complete discharge of the United States in the premises. Opinion of Sept. 26, 1853, 6 Op; 130. TEXAS COLONIZATION GRANTS. Consideration of the constitutional force and effect of certain constitutional and legislative acts of the State of Texas, in relation to col- onization land grants made by the Republic of Texas. Opinion of Oct. 1, 18.55, 8 Op. 522. TIME. 1. It is the universal rule in the computa- tion of time for legal purposes not to notice fractions of a day. Opinion of March 10, 1858, 9 Op. 132. 2. When the law allows a thing to be dyne within a certain number of days, the modern rule in England is to exclude the first day from the calculation. Ihid. 3. The American courts have in innumerable cases applied the general principle that where time is to be computed from an act done the day on which the act is done shall be excluded, unless it is apparent that a different computa- tion was intended. Ihid. 4. Though divisions of a day may be al- lowed sometimes to make priorities or give other advantages in private transactions, they are always excluded in public proceedings. Ibid. TITLE. 1. A right by mere possession to vacant lands can never exist against the Government. Opinion of March 26, 1802, 1 Op. 108. 2. The Attorney-General, in certifying the title of land purchased by the Government, must look at the question as one of pure law. 4G8 TONNAGE — TRANSPORTATION. and cannot relax the rules of law on account either of the desirableness of the object or the smal Iness of the value of the land. Opinion of April 27, 1854, 6 Op. 432. 3. The banks and shores of navigable waters, whether sea, lake, or river, in any of the States, belong either to the State or to indi- viduals, as the case may be, and not to the United States. Opinion of July 3, 1855, 7 Op. 314. _ 4. When by act of Congress a pier or break- water is constructed for the improvement of a harbor, no right to the land on which it is con- structed accrues to the United States by that fact alone, and without purchase and cession from the States. IMd. 5. If, in consequence of any such construc- tion, land is made by accretion, such accre- tion belongs to the owner of the land to which it attaches, and not to the United States. IMd. 6. Suggestions as to the validity of the title of the United States to the Indian reservation of the Tejon in California. Opinion of July 3, 1856, 7 Op. 744. 7. Exposition of the duty of the Attorney- General in examining and certifying the title to lands purchased by the UnitedStates. Opin- ion of Feb. 24, 1857, 8 Op. 405. TONNAGE. See Commerce and Navigation, III; Cus- toms Laws, XIII. TRADE-MARK. 5. State legislation on the subject of trade- marks noticed. Opinion of Sept. 13, 1865, 11 Op. 352. 2. The provisions of the act of July 8, 1870, chap. 230 (embodied in section 4937 Rev. Stat.), in regard to trade-marks, having been declared unconstitutional by the United States Supreme Court, it is no longer the duty of the ofl&cer charged therewith to execute them. Ac- cordingly, it is recommended that the practice of registering trade-marks at the Patent Office (which was allowed to be done by parties de- siring it since the ruling of the Supreme Court above referred to) be discontinued. Opinion of Bee. 10, 1880, 16 Op. 586. TRANSPORTATION. See also Conteact; Postal Seevice. 1. In March, 1877, the Northern Pacific Railroad Company entered into u contract with the Quartermaster's Department to trans- port army supplies, at a stated rate per hun- dred pounds, between certain points in the State of Minnesota, in performing which the company was obliged to transport the stores part of the way over a land-grant railroad. In the contract was a stipulation that no deduc- tion should be made from the rate stated "on account of land grants." Held, that the con- tract is within the act of March 3, 1875, chap. 133, and that the accounting officers of the Treasury have no authority to audit and settle a claim for transportation thereunder, but such claim is required to be settled by suit in the Court of Claims. Opinion of June 28, 1878, 16 Op. 607. 2. The prohibition in the act of 1875 is not limited to payments to the company owning the land-grant road over which the transporta- tion was performed. It extends to payments made to any railroad company for transporta- tion over any land-grant road of the sort speci- fied, whether its own or another's. Ibid. 3. The act of 1875 does not take away the authority of the accounting officers of the Treasury to audit and settle accounts for trans- portation arising under bona fide contracts made with common carriers other than rail- road companies, in cases where such trans- portation has been partly performed overland- grant roads. Ibid. 4. The Union Pacific Railroad Company can- not require that flour, in order to be trans- ported over its road for the United States, shall be packed in barrels, and refuse to transport it if packed in sacks. Opinion of Dee. 3, 1880, 16 Op. 581. 5. Whether the Kansas Pacific Railway Com- pany can decline to transport over its road, ibr the United States, flour in sacks at ordi- nary freight rates, or require the same to be transported at the owner's risk when the Gov- ernment pays only the lowest rate therefor, considered. Ibid. TBATELING ALLOWANCES. 469 TRAVELING ALLQ-WANCES. See also Mileage. ]. Case of allowance to a commissioner, for runningthe houndary line between tlie United States and the Mexican Eepnblic, of expenses of his return to the place of his domicil at the time of appointment. Opinion of Fib 9, 18156, 7 Op. 627. 9. Where a naval officer traveled under or- ders from New York to San Francisco via the Isthmus of Panama in the years 1859 and 1860 (before the opening of the overland route): Held, that, under the second section of the act of March 3, 1835, chap. 27, he was entitled to an allowance of 10 cents per mile for traveling expenses. Opinion of May 3, 1872, 14 Op. 590. 3. By section 7 of the act of March 2, 1867, chap. 170, provision is made for additional traveling allowances in favor of "such Cali- fornia and Nevada volunteers as were dis- charged in New Mexico, Arizona, or Utah, and at points distant from the place or places of enlistment" ; and all who fall within that de- scription are authorized to be paid,nnder the regulations of the Secretary of War, according to the distance traveled by each in returning from the place of discharge to the place of en- listment. Opinion of May 8, 1872, 14 Op. 40 4. The^ro«)iso in the appropriation act of June 16, 1874, chap, 285, declaring "that only act- ual traveling expenses shall be allowed to any person holding employment or appointment under the United States," applies to United States marshals, and, therefore, supersedes the provision in the fee-bill (Rev. Stat., sec. 829) allowing mileage to those officers. Opinion of Aug. 29, 1874, 14 Op. 681. 5. The provision in the act of June 16, 1874, chap. 285, as to the allowance of "actual trav- eling expenses, ' ' supersedes the provision in the fee-bill (Eev. Stat., seC. 829) allowing mileage to marshals on account of each necessary guard employed in transporting prisoners, &c., the same as on any other account whatever. Opin- ion of Sept. 30, 1874, 14 Op. 684. 6. In the case of a guard so employed, his compensation, actually and necessarily paid, constitutes, as well as his traveling expenses, a part of the actual traveling expenses of the marshal, within the meaning of the law. Ibid. 7. Under section 24, act of July 15, 1870, chap. 294, Army oflficeTS traveling abrondupon public business (their transportation not being furnished by the Quartermaster's Department, or on a conveyance belonging to or chartered by the United States) were entitled to mileage at the rate of 10 cents per mile for sea travel as well as for land travel. Opinion of July 6, 1875, 15 Op. 496. 8. The rule which forbids mileage for sea travel to naval officers under the second section of the act of March 3, 1835, chap. 27, does not apply to or govern questions of mileage to Army officers under the act of 1870. Ibid. 9. Special agents employed by the Postmas- ter-General under section 4017, Eev. Stat. , are entitled to an allowance for traveling and inci- dental expenses, within the limit there pre- scribed, only while they are actually employed in the service. Opinion of MarcJi 10, 187G, 15 Op. 75. 10. The provision in section 4017 Eev. Stat. , for traveling and incidental expenses of special agents of the Post-Office Department, while it limits the allowance to each agent " to a sum not exceeding $5 a day," does not entitle the agent to have that amount allowed him where he has agreed with the Department to take a less sum per day for such expenses. Opinion of March 20, 1876, 15 Op. 82. 11. Under the act of February 22, 1875, chap. 95, only one charge for mileage is allowable for the service of several writs in hand at the same time, requiring the marshal to travel to the same place or in the same direction. {Contra, see opinion of Oct. 10, 1878, 16 Op. 165.) Opin- ion of3fay 29, 187(>, 15 Op. 108. 19. Under the act of June 30, 1876, chap. 1.39 mileage is allowable to officers of the Navy only when traveling on public business within the United States. For travel without the United States their actual expenses alone can be allowed: Held, accordingly, that where a naval officer was ordered home from Hong- Kong, and furnished with a through ticket (such ticket being assumed to have covered his actual expenses) he is not entitled to the difference between the cost of that ticket and the mileage established by that act. Opinion of .Tunc 13, 1877, 15 Op. 309. 13. The members of the Mississippi Eiver Commission (created by the act of June 28, 1879, chap. 43) who are appointed from the. Engineer Corps of the Army are entitled to mileage, at the rate of 8 cents per mile, for all 470 TREASURY — TEBATrES, I. travel required of them by that commission pertinent to the objects for which it was con- stituted. Travel so required is travel under orders, within the meaning of section 2 of the act of July 24, 1876, chap. 226. Opinion of Aug. 25, 1880, 16 Op. 559. 14. Such mileage should be paid out of the appropriation made in said act of June 28,1879, for ' ' necessary expenses. ' ' Ibid. TREASURY. The Treasury of the United States has no locality, and credits upon it are not bona nota- bilia confined to the District of Columbia. Opinion of July 17, 1854, 6 Op. 557. TREASURY DEPARTMENT. See also Executivb Departments; Sbcee- TAEY OF THE TEEASUEY. 1. By the Treasury regulations, transfer of public stocks held by foreign decedents may be made on satisfactory proof that the party claiming the right in such stocks is entitled as devisee, distributee, or otherwise according to law. Opinion of May 31, 1855, 7 Op. 240. 2. The doctrine of the right of neutrals to purchase the ships of belligerents, (see opinion of Aug. 7, 1854, 6 Op. 638) reaffirmed. The Secretary of the Treasury may regulate in such case the authentication of the bill of sale, which is the highest evidence of the change of property. Opinion of Oct. 8, 1855, 7 Op. 538. TREASURY NOTES. 1. Under the act, of March 3, 1843, chap. 81, authorizing the reissue of Treasury notes, and for other purposes, whenever outstanding Treasury notes, issued in pursuance of the act of August 31, 1842, chap. 289, oranyprevious act of Congress, shall be redeemed before July 1, 1844, other notes maybe issued in the place of those redeemed; but the notes outstanding of an earlier issue than 1840 are governed by the law then in force, except so far as the act of 1843 authorizes their reissue if redeemed. Opinion of April 3, 1843, 4 Op. 172. 2. Where a Treasury note was stolen after its maturity from its lawful holder, and was subsequently purchased by a party foravalua^ ble consideration in the usual course of busi- ness and without notice of the felony, it was Jield that the purchaser was entitled to pay- ment of the note. Opinion of Feb. 13, 1860, 9 Op. 413. TREATIES. See also Claims, III, IV; Exteadition. I. Qenerally. II. With Indian Tribes. III. With Foreign Nations. I. Generally. 1. A treaty, constitutionally concluded and ratified, abrogates whatever law of any one of the States inay be inconsistent therewith. Opinion of Feb. 16, 1854, 6 Op. 291. 2. Semble that a treaty, assuming it to be made conformably to the Constitution in sub- stance and form, has the effect, under the gen- eral doctrine that ' ' leges posteriores priores con- trarias abrogant, ' ' of repealing all pre-existing Federal law in conflict with it, whether unwrit- ten, as law of nations or admiralty, or written, as legislative statutes. Ibid. 3. At any rate, if the effect of a treaty on existing statutes admit of doubt, Congress never has failed to pass the acts requisite to give effect to any treaty not containing pro- visions incompatible vpith the Constitution. Ibid. 4. Such provisions of the proposed conven- tion between the United States and Great Britain, on the subject of copyright, as are in- consistent with existing provisions of acts of Congress, either abrogate the latter, or, if not, on the ratification of the convention they will probably be repealed by Congress. Ibid. 5. Not to observe a treaty is to violate a de- liberate and express engagement. To violate such engagements of a treaty with any foreign power affords, of course, good cause of war. When Congress takes upon itself to disregard the provisions of any foreign treaty it, of course, infringes the same, in the exercise of sovereign right, and, voluntarily accepts the casus belli, TREATIES, II. 471 as when, in 1798 (see act of July 7. 1798, chap. 67), it annulled the treaties between the United States and France. Opinion of Aug. 12, 1854, 6 Op. 658. 6. There is distinction, undoubtedly, be- tween a treaty with a foreign power and atreaty with Indians who are subjects of the United States. Examples may be cited of acts of Con- gress which operate so as to modify or amend treaties with Indians. As their sovereign and their guardian we have occasionally assumed to do this, acting in their interest and our own, and not, in such cases, violating engagements with them, but seeking to give a more benefi- cial effect to such engagements. For though they be weak and we strong, they subjects and we masters, yet they are not the less en- titled to the exercise towards them of the most scrupulous good faith on the part of the United States. Ibid. 7. Under the Constitution, treaties as well as statutes are the law of the land ; both the one and the other, when not inconsistent with the Constitution, standing upon the same level and being of equal force and validity; and, as in the case of all laws ertianatingfrom an equal authority, the earlier in date yields to the later. Opinion of Dec. 15, 1870, 13 Op. 354. II. "With Indian Tribes. 8. The twelfth section of the act of May 19, 1796, chap. 30, prohibited every person, moJ em- . ployed under the authority of the United States, from negotiating, directly or indirectly, a, treaty with any Indian tribe, &c. : Held that the expression ' ' under the authority of the United States ' ' meant the constitutional au- thority of the United States, which it was con- sidered could not be bestowed on any person but by the President, with the advice of the Senate. Opinion of May 26, 1796, 1 Op. 65. 9. The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands as defined and bounded in the treaty of Canandaigua, until they have voluntarily re- linquished it. Opinion of April 26, 1821, 1 Op. 465. 10. So long as they remain in possession of tihe lands defined in the treaty, neither the Oovernment of the United States nor individ- uals can laAvfully enter upon them but by <:onsent freely rendered on a full understand- ing of the case. Ibid. 11. By the first treaty between the United States and the Cherokee Indians (concluded at Hopewell, November 28, 1785), thelandsthey occupied were allotted to them for hunting- grounds, without conferring any permanent interest in the soil ; and the fee remained in the State within whose jurisdictional limits the land was. Opinion of March 10, 1830, 2 Op. 322. 12. All the rights which the United States acquired under the treaties of 1817 and 1S28 with the Cherokees inured to the benefit of the State of Georgia; for the United States were bound by the articles of cession between the United States and Georgia, of April, 1802, to extinguish the Indian title for ' ' the use of Georgia. ' ' Ibid. 13. The fourteenth article of the treaty of 1830 with the Choctaws provides for those who desire to remain and become citizens of the United States, and their title is made to depend upon a residence of five yeare on the land with the intention of becoming citizens. Opin- ion of Sept. 9, 1831, 2 Op. 462. 14. The nineteenth article of said treaty pro- vides absolutely for those who may not desire to remain and become citizens of the United States. Ibid. 15. The President has the power to approve the sale of any of the reserves under the sup- plementary articles to the Choctaw treaty ot 1830, although the same is derived only by con- struing both instruments together as forming but one treaty. Opinion of Nov. 1, 1831, 2 Op. 465. 16. Technical rules of construction ought never to be applied to such treaties, but they should he construed liberally, according to their spirit,, and so as to give the Indians all the advantages and facilities in their removal which appear to have been contemplated. Ibid. 17. The sale may be approved either before or after the survey, at the discretion of the President, who also has power to accept a re- linquishment of title from any chief and to pay 50 cents per acre. Ibid. 18. As the treaty of 1826 with the Miamies contained an agreement on the part of the United States to grant to certain persons each a quarter section of land outof the territory ceded by it, to be located by the President, no other parcels, than those defined can be substituted 472 TREATIES, II. for them; for the President must execute the treaty according to its stipulations. Opinion of May 13, 1833, 2 Op. 563. 19. The laud which was ceded to the United States by the Creelc Indians by the treaty of March 24, 1832, wherein certain rights of selec- tion were reserved to ninety of the principal chiefs and to heads of families, but being un- surveyed no selections have yet been made therein, cannot be entered upon by white set- tlers; and those who have entered and taken possession, under pretense of permission from the Indians, are intruders on land of the United States. Opinionof Aug. 22, 1833, 2 Op. 575. 20. The three Pottowatomie treaties of 1832 may be considered as forming one transaction, and, except where special provision is other- wise made, the lands agreed by any one of them to be granted by the United States to in- dividuals may be located within the limits of the cession made by any one of the three, pro- vided the party entitled to the grant assents ' thereto, and the President so directs. Opinion, of Jan. 26, 1836, 3 Op. 33. 21. A widow keeping house, and having children or other perspns with her, is the head of a family within the meaning of the fifth article of the treaty with the Chickasaws of 24th of May, 1834. If her children, or other persons residing with her, however, are pro- vided for in the sixth or eighth articles, they cannot be included in the family enumeration. Opinion of Feb. 5, 1836, 3 Op. 34, 22. Widows keeping house without children or other persons residing with them are, if they own slaves, entitled to the section or half section given by the fifth article, according to the number of their slaves. Ibid. 23. As many surviving Indian wives as were heads of families at the making of the Chick- asaw treaty of 1834 (though wives of the same Indian) are entitled to the reservations made in the fifth article thereof. Opinion of Feb. 27, 1836, 3 Op, 41. 24. The reservees named in the supplement to the Choctaw treaty of September 27, 1830, may, with the approbation of the President, sell and convey their reserves. Opinion of March 18, 1836, 3 Op. 48. 25. The reservations under the Choctaw treaty of 1830 may be located on the sections granted in the act of March 2, 1819, chap. 47, to Alabama, for the use of schools, notwithstanding said act, for the reason that the United States could only grant subject to the Indian right of occupancy. The contingency was provided for in the authority given for the granting of equivalent contiguous lands where section 16 was disposed of There was no such proviso, however, in the offer of lands to Mississippi. Opinion of March 31, 1836, 3 Op. 56. 26. Under the second clause of the supple- mentary articles of September 23, 1830, to the treaty of Dancing Eabbit Creek, Allen Yates and wife are each entitled to two sections of land. Opinion of May 3, 1836, 3 Op. 106. 27. In the event of the death of reservees under the Choctaw treaty of 1830 before the expiration of five years' residence upon the land, required as a condition precedent to a grant and fee-simple, the interest is not de- feated, but goes to those persons who, by the State laws, succeed to the inheritable interest of individual Indians. Opinion of May 3, 1836, 3 Op. 107. 28. Where the grant of a reservation is the essence of the treaty provision (as in the Choc- taw treaty of 1830) the direction as to the man- ner in which the same shall be located ought not to be so construed as to defeat the grant. Opinion of 3Iay 9, 1836, 3 Op. 113. 29. Locations of sections, or parts of sections, should be made by taking whole, half, or quarter sections, as the case may be, without breaking up the legal divisions or disturbing sectional lines. In the case of Wall, under the supplementary articles of September 23, 1830, to the treaty of Dancing Eabbit Creek; Held, therefore, that the reservee is entitled to the half section on which his improvement is located, and the whole of that chosen tor the balance. Opinion of May 10, 1836, 3 Op. 114, 30. In case an investment of funds arising from the sale of land, as provided in the elev- enth article of the Chickasaw treaty of 1834, cannot be made in stocks having twenty years to run, it will be proper to invest such funds in stocks redeemable at a later day. Opinion of Jan. 30, 1837, 3 Op, 170, 31. Indian reservees under a\reaty have a right paramount and superior to any grant of sections to States. Until their title shall be fully extinguished the grants of Congress can- not operate. Opinion of April 15, 1837, 3 Op. 205. The stipulation contained in the treatv TKEATIES, IT. 473 of March, 1836, witli the Ottawa and Chippewa Indians, ibr the right of hunting on the land ceded, and the other usual privileges of occu- pancy, until the land should be required for settlement, reserved ilsuse for all the purposes of Indian occupancy as the same then existed. Opinion of April 20, 1837, 3 Op. 206. 33. A general approval indorsed on an In- dian's petition for authority to alienate his re- serve under the treaty with the Ottawas, &c., of tile 29th August, 1821, is a valid consent; such. having in 1822 been the mode adopted by the President for the exercise of his supervis- ion. Opinion of April 22, 1837, 3 Op. 209. 34. The reservees under the Creek treaty of 1814, and the act of March 3, 1817, chap. 88, have not power to lease their lands; the rent- ing for a term of years and removal from the State may be regarded as an abandonment of their reservations. Opinion of May 23, 1837, 3 Op. 230. 35. On their abandonment the title becomes immediately vested in the United States, by operation of law, and is to be then treated as if then for the first time acquired by the treaty. lUd. 36. The moneys received from the sale of reservations located for Creek orphans, under the treaty with the Creeks of March 24, 1832, were properly brought into the Treasury, and may be drawn put for investment or payment whenever the President shall direct. Opinion of June "i, 1837, 3 Op. 238. 37. The first and second classes of Indian reservees provided for in the thirteenth article of the treaty of December, 1835, with the Cherokees, are entitled to compensation in money, in lieu of their interests, notwithstand- ing the supplementary articles concluded after the refusal of the President to allow pre- emptions. Opinion of Dec. 6, 1837, 3 Op. 297. 38. In respect to the third class there is yet doubt; yetthe Attorney-General, onthewhole, concludes that the reservees of that class are also entitled, individually, to compensation in money. Ibid. 39. The compensation to the flrstandsecond classes must be paid from the $600,000 set apart in the supplementary articles. IMd. 40. The persons entitled to pecuniary com- pensation for reservations under the thirteenth article of the treaty of December, 1835, with the Cherokees, are not entitled under the ninth article for improvements on the same reserva^, tious. The balance of the fund of §600,000, after defraying from it the expenses of removal, which is the first charge upon it, was that designated by the treaty for the satisfaction of the various claims provided for therein; if suficient, to be ratably distributed and the balance to be charged to the general fund of $5,000,000. There is no occasion for dividing the $600,000, asthe several agreements concern- ing compensation and spoliations are to be con- sidered as one treaty. Opinion of Feb. 3, 1838, 3 Op. 304. 41. Under the treaties of 1817 and 1819 with the Cherokees the reseri'ees therein could not properly locate their lands outside the limits of the cessions respectively ; but as some of the reservations of 1817 were located within the lands ceded in 1819, and were included in the unceded lands under the latter treaty, these cases are to stand on the same grounds as other reservations under the treaty of 1817, and equally entitled, under the treaty of 1835-'6, to compensation with those who located within the cession of 1817. Opinion of May 14, 1838, 3 Op. 327. 42. But no provision has been mad e for those whose reservations under treaties of 1817 and 1819 were located within the cessions of 1835-'6 ; and as such reservations are not , within the thirteenth article of the treaty of 1835-'6, they were unauthcrized, and are nofi to be paid for as improved lands; but the holders are only entitled to pay for their im- provements. Ibid. 43. Reservations claimed under the treaties of 1817 and 1819 not being ceded by the first article of the treaty of lir35-'6, are not within the words nor intention of the ninth article of the latter; hence the reservees who maybe entitled to compensation under the thirteenth article of the last-mentioned treaty cannot claim pay under the ninth article thereof for improvements on the same reservations. Ibid. 44. But those who were to receive grants for their reservations are entitled to pay for the soil and their improvements thereon. Ibid. 45. The children of the reservees, under the eighth article of the treaty of 1817, were en- titled to reservations in fee simple. Ibid. 46. The residence of heads of Choctaw fam- ilias who in due time signified to the agent their intention to remaui and become citizens 474 of the United States, or a valid excuse for non- residence, entitles them to grants pursuant to the treaty; and such grants when made are paramount to pre-emption and all other claims. Opinion of Aug. 17, 1838, 3 Op. 365. 47. The War Department, however, should ■endeavor to avoid interference with the rights of settlers whenever it can be done consist- ently with the provisions of the treaty. Ibid. 48. Thtf removal of the Creek reservees from their reserved lands, without the intention of returning and occupying them as their place of residence, is an abandonment, which gives the right of possession and occupancy to the United States, and the right of the United States, under such circumstances, accrues and becomes complete immediately upon such abandonment. Opinion of Nov. 19, 1838, 3 Op. 389. 49. The only requisites to a title to reserva- tions under the treaty of Dancing Eabbit Creek of September 27, 1830, indicated in the treaty, are, that the persons applying be Choc- taws, and heads of families, and shall signify their intention of becoming citizens of the States within six months from the ratification of the said treaty. Opinion of Jan. 30, 1839, 3 Op. 408. 50. The Wyandotte nation of Indians have the authority to treat with the United States respecting the reservation of twelve miles square, at and about Upper Sandusky, in the State of Ohio, as the supplement to the treaty of 1817 reinvested them with their title in trust. Opinion of April 20, 1839, 3 Op. 458. 51. The treaty of 1837 with the Winneba- goes provided that certain payments, therein stipulated to be made, should be made by the President of the United States, and with which the judiciary cannot rightfully interfere; and the agents appointed by the President may proceed to make the payments, in disregard of any writs of injunction which the judiciary may allow. Opinion of Sept. 7, 1839, 3 Op. 471. 52. The judiciary cannot arrest the execu- tion of a treaty by stopping the money de- signed to be paid under it in the hands of the agents of the Executive. Ihid. 53. The approval by the President of the location of certain lots by reservees, under the "Winnebago treaty of August 1, 1829, vests a title in the reservees that is superior to that of certain Polish exiles who located April 18, 1836, under act of June 30, 1834, chap. 247. Opinion of Aug. 1, 1840, 3 Op. 584. 54. Under the Cherokee treaty of New Echota of 1835, for the adjustment of all the claims provided for therein, the President has power to appoint new commissioners. Opinion of July 20, 1842, 4 Op. 73. 55. The expense of such commission can- not be defrayed out of the Cherokee fund, but must be from appropriations to be made by Congress. IMd. 56. The jurisdiction and authority of the present commissioners, under the treaty with the Cherokees of 1835, is limited to cases under the treaty which were not disposed of by the former board. Opinion of May 19, 1843, 4 Op. 175. 57. The allegation that the former board re- jected the claim through mistake in nowise aflfects the question of jurisdiction. If there were a mistake, and a wrong done in conse- quence of it, the claimant can obtain redress only by an appeal to Congress. IMd. 58. The same Indian cannot be allowed a claim under both the fourteenth and the nine- teenth articles of the Choctaw treaty of Sep- tember 27, 1830, called the treaty of Dancing Eabbit Creek. (Compare opinion of Sept. 9, 1831, 2 Op. 462.) Opinion of Nov. 18, 1845, 4 Op. 452. 59. A claimant under the fourteenth article of that treaty, who complied with its requisi- tions, and who was expelled from his land by the force or was induced to leave it by the fraud of the Government or its agents, by vir- tue of a sale of his land made by the Govern- ment, has not forfeited his rights under the treaty and the act of August 23, 1842, chap. 187. Ihid. 60. The certificate of the Indian agent in reference to the facts upon which the Choctaw claims are based is not conclusive testimony for any purpose beyond the act of Congress. lUd. 61. The Attorney-General intended, in his opinion of November 18, 1845 (4 Op. 452), to advise that a claim, under the fourteenth arti- cle of the Choctaw treaty of 1830, and the act of August 23, 1842, chap. 187, might be per- fected even though the Indian had temporarily lost the possession by the tortious acts of un- authorized individuals, he having in all other TREATIES, ir. 475 respects complied with the requisitions of the law. Opinion of July 23, 1846, 4 Op. 513. 62. The claims of Cherolf ees for the value of alleged pre-emption rights, asserted under the treaty of 1835-6 with that nation, are inad- missihle under the convention as the same was ratified. Opinion of May 8, 1847, 4 Op. 561. 63. Eeservees, under the treaty of 1835-6 with the Cherokees, who disposed of their lands, are "not entitled to compensation for im- provements thereon, as they passed with the soil. Opinion of May 18, 1847, 4 Op. 580. 64. A Choctaw head of a family entitled, under the fourteenth article of the treaty of Dancing Rahbit Creek (September 27, 1830), to a reservation of land, who gave the notice, made the claim, and continued the residence therein required, is entitled to a patent, although the agent, whose register a former Executive de- clared to be the evidence in such cases, failed to make the necessary entry, inasmuch as a subsequent agent did make entry of the facts and location and certified them to the General Land Ofiice. Opinion of Sept. 17, 1850, 5 Op. 252. 65. The treaty under which the right has accrued is silent concerning any such register as that required to be kept by the agent. Ibid. 66. By the third section of the act of 27th February, 1851, chap. 14, it was provided that all Indian treaties thereafter negotiated should be negotiated only by such ofScers and agents of the Indian department as the President should designate for that purpose. That act applies as well to treaties negotiated, but not concluded at the date of its passage, as to those not then authorized. It peremptorily required all Indian treaties thereafter to be made to be negotiated by the agents and officers designated by the law. Opinion of March 18, 1851, 5 Op. 305. 67. Hence the commissioners to negotiate treaties with the Mississippi and St. Peter Sioux and half-breeds for the extinguishment of their title to lands in Minnesota, appointed on the 1st of February, 1851, were superseded by the said law. Ibid. 68. The third section of the act went into effect immediately upon its passage. Ibid. 69. Acts of Congress directing the payment of annuity money to individuals of Miami In- dians residing in the State of Indiana, are not in contravention of treaty stipulations between the United States and the Miami Indians. Opinion of May 4, 1854, 6 Op. 440. 70. Indian treaties are only required to be printed for promulgation in one newspaper, and that in the State or Territory to which the subj ect-matter of the treaty belongs. Opinion of July 25, 1854, 6 Op. 627. 71. By the treaties of 1854 between the United States and the Delaware, loway, and "Wea Indians in the Territory of Kansas, the latter ceded certain lands to the United States on condition that a part of the same should be held in trust by the United States to be sold at public auction for the benefit of such In- dians. Afterwards, by the act of July 22, 1854, chap. 103, all the lands in the Territory to which the Indian title had been extinguished, were made subject to the laws of pre-emption: Held, that the statutory provision referred to does not include the lands thus reserved by the treaties for public sale for the benefit of the Indians. Opinion of Aug. 12, 1854, 6 Op. 658. 72. A professed award for the value of an improvement under the provisions of the Cher- okee treaty of 1835, which was made by the commissioners in blank as to the sum, can not be paid as an award in virtue of the act of July 31, 1854, chap. 167, making appropria- tions for the execution of that treaty. Opinion of Feb. 26, 1855, 7 Op. 54. 73. The Choctaws and Chickasaws, who, in 1837, formed a political union by an agree- ment between the two nations, submitted to and ratified by the Senate of the United States, can not dissolve that union except in like manner by convention approved by the Senate and the President of the United States. Opinion of May 16, 1855, 7 Op. 142. 74. In the treaty with the Delawares of May 6, 1854, a provision was inserted that there shall be confirmed by patent to the Christian Indians, subject to such restrictions as Con- gress may provide, a quantity of land equal to four sections, upon certain conditions, which were complied with. No restrictions were im- posed by Congress, and the Christian Indians, desiring to sell the land, made application for a patent: Held, (1) that a patent for the four sections of land mentioned in the first article of the treaty with the Delawares should be is- sued to the Christian Indians in the common form ; (2) such patent will enable the patentees 476 TKBATIES, II. to hold the land, not by the original title of the Delawares, but as absolute owners in fee under the United States; (3) the rights which patentees would otherwise have to alienate their lands may be restricted by act of Congress after the patent shall issue as well as before; (4) no such resfeiotion can he rightfully made if it would have the effect of invalidating the title of a honafide purchaser by a legal conveyance from the patentee; (5) the title of the Christian Indians will not be vested in the individuals comprising the tribe called by that name, as tenants in common, but in the tribe itself or nation ; (6) no private person can procure a con- veyance from the tribe, or even negotiate with it for that purpose, without making himself an offender against the act of Congress of June 30, 1834; (7) the tribe may part with its lands by a treaty or convention pursuant to the Consti- tution and the law. Opinion of May 14, 1857, 9 Op. 25. 75. Construction of the article of the treaty of January 13, 1865, with the Wyandotte In- dians relative to the sale of lands allotted to the incompetent members of the tribe. Opin- ion of April 17, 1865, 11 Op. 197. 76. "Where, under the treaty of May 10, 1854, between the Shawnee tribe of Indians and the United States, the Missionary Society of the Methodist Episcopal Church designated a person to whom the grant of land made in that treaty to the society should be confirmed, and such person applied $10,000 to the educa- tion of the Shawnees: Held, that the person so designated was entitled to a patent, although the society may have had an equity in the land prior to the treaty of 1854. Opinion of May 12, 1865, 11 Op. 145. 77. The United States can rightfully make no treaty which would deprive the person mentioned of his right to the laud. IMd. 78. Where an Indian treaty provided for a sale of lands by the Secretary of the Interior to the highest bidder for cash, and also pro- vided that he might sell the whole of the lands not'occupied by actual settlers in a body to any responsible party for cash for a sum named per acre: Held, that the Secretary had no power to sell otherwise than for cash in hand. Opinion of Oct. 4, 1866, 12 Op. 57. 79. The provision for a responsible party is not inconsistent with the provision for a sale for cash. Ibid. 80. The contract made by the Secretary of the Interior for the sale of the Cherokee neu- tral lands to the American Emigrant Company not being in conformity with the power of sale vested in him by the treaty with the Cherokee Nation, ratified on the 31st of July, 1866, the Department is advised to notify the company that it declines to carry the same into execu- tion. IMd. 81. The board of trustees of the Ottawa University, of which J. S. Emery was elected a member in January, 1869, and subsequently chosen president, was legally constituted under the provisions of the treaty with the Ottawa tribe of Indians of June 94, 1862. Opinion nf Nov. 10, 1870, 13 Op. 336. 82. The words, " the said Ottawa Indians, " used in the sixth article of that treaty, mean certain individual Indians therein named, and not the whole tribe in its tribal capacity. IMd. 83. The fourth article of the treaty of 1859 with the Kansas Indians, which provides for a sale of the lands therein mentioned in par- cels not exceeding one hundred and sixty acres each to the highest bidder for cash, evidently means that each parcel must be sold to the person making the highest bid for that par- ticular parcel. Opinion of Sept. 18,1871,13 Op. 532. 84. A bid made upon condition that the whole of the lands shall be awarded to the bidder, there being higher bids from other parties for part of the lands, cannot properly be accepted with such condition; as, under the circumstances, this would be, in effect, a sale of the land in the aggregate and not in parcels, and would defeat the plain purpose of the treaty. Ibid. 85. The effect of the stipulation contained in the second article of the treaty with the Cheyenne and Arapahoe Indian tribes of Oc- tober 28, 1867, is to render it unlauful for any persons to enter or reside upon the reservation established by that treaty except those who are authorized so to do by the treaty, and except certain officers, agents, and employes of the Government. Opinion of Sept. 1, 1874, 14 Op. 452. 86. Stipulations in Indian treaties existing prior to June 20, 1874, for thepayment of an- nuities, &c. , are contracts within the meaning of the second, proviso of the fifth section of the TREATIES, III. 477 act of June 20, 1874, cLap. 328, and their ful- fillment is not to be prevented by any opera- tion given to that section. Opinion of July 5, 1877, 15 Op. 63-J. 87. Article 2 of the treaty with the Creek Indians of March 24, 1832 — in providing that twenty sections of the lauds therein referred to should be selected under the direction of the President for the orphan children of the Creeks, and divided and retained or sold for their benefit, as the President might direct — intended to make provision for those who were then orphan children of the Creeks, not those who might afterwards become such. Opinion of June 6, 1878, 16 Op. 31. 88. The taking of $176,755.97 by the Indian Bureau from the accrued interest arising from investments of the proceeds of the sale of those lands, known as the Creek orphan fund, and the expending of the same by the bureau for the benefit of the loyal refugees of the Creek tribe duriiig the years 1863 to 1865, was a di- version of the fund not authorized by the said treaty of 1832 nor by subsequent legislation. Ibid. 89. The assent of the Creek tribes in the eleventh article of the treaty of June 14, 1866, to the diversion of the annuities which had been made from the funds of the tribe, cannot be interpreted as an assent to the diversion of the Creek orphan fund; nor has this diversion been ratified by the Creeks by any subsequent treaty. Ibid. 90. The Department of the Interior has no authority to remedy the diversion of the Creek orphan fund by restoring the moneys. Relief can only be obtained through Congressional action. Ibid. 91. In the absence of an act of Congress au- thorizing it, the President has no authority to appoint a new board of commissioners (under the seventeenth articleofthetreaty of 1835-'36, with the Cherokee Indians) to hear and de- cide all matters between the United States and the Easterji Band of Cherokee Indians, and also all differences between them and the Cherokee Nation. Opinion of Dec. 3, 1878, 16 Op. 225. 92. The question considered in opinion of December 3, 1878 (16 Op. 225), relative to the authority of the President to appoint a new board of commissioners under the seven- teenth article of the treaty of 1835-'36 with the Cherokee Indians, re-examined, and the same conclusion reached as is indicated in that opinion. This conclusion is here based solely on the ground that by the act of June 27, 1846, chap. 34, which revived the commission and prohibited its continuance beyond one year, the intent is manifest that it should not again be revived or renewed, and that the power of Congress to put an end to the operation of said treaty provision cannot be questioned. Opinion of April 7, 1879, 16 Op. 300. 93. In executing certain treaties with the Cherokee Nation providing for the removal of intruders, the Government is not bound to re- gard simply the Cherokee law and its 'con- struction by the counsel of the nation, but the department required to remove alleged intruders must determine Jbr itself, under the general law of the land, the existence and ex- tent of the exigency upon which such require- ment is based. Opinion of Dec. 12, 1879, 16 Op. 404. 94. Under article 16 oi' the Cherokee treaty of 1866 the lands west of the ninety-sixth de- gree of longitude, to which it refers, are re- se;-ved to the United States, upon the condi- tions there named, for the settlement thereon of tribes of friendly Indians. The possession of and jurisdiction over these lands until thus disposed of, which are retaiued by the Chero- kee Nation under the same article, give to that nation no right to settle its citizens upon the lands so long as the right reserved by the United States to settle friendly Indians thereon subsists. Hence authority to settle there, de- rived from the Cherokee Nation, is not sufli- cient: ffdd, accordingly, where certain per- sons claiming to belong to the Cherokee Nation attempted to settle upon the lands mentioned, that their removal therefrom by the military authorities was justifiable. Opinion of Feb. 25, 1880, 16 Op. 470. III. With Foreign Nations. 95. The term "prosecutions," employed in the sixth article of the treaty of 1783 w'ith Great Britain, imports a suit against another in a criminal cause; such prosecutions being conducted in the name of the public, and un- der the control of the Government. Opinion of Aug. 5, 1794, 1 Op. 50. 96. Commissioners to carry into execution a 478 TREATIES, III. treaty must all agree in their decisions, sub- scribe their names, and attach thfir seals thereto. Opinion of July 23, 1796, 1 Op. 66. 97. Public officers should furnish authenti- cated copies of documents in their custody to be used as evidence before commissioners un- der the sixth article of the treaty of 1794 with Great Britain. Opinion of Jan. 3, 1798, 1 Op. 82. 98. An award by commissioners, under the seventh article of the treaty of 1794 with Great Britain, to several persons collectively is con- clusive upon the matter, so far that the right to transfer is vested in all persons in favor of whom it is made, and if those concerned have neglected to have invested in it the amount of their respective interests, or if they disagree as to their several proportions, the embarrass- ments are attributable to themselves. The Government cannot undertake todecide among them. Opinion of Dec. 24, 1805, 1 Op. 153. 99. Under the treaty of 1794 with Great Britain, merchandise carried from any place in British Am erica by the subj ects of Great Britain into the northern districts of the United States is subject to the same duties which would be payable by our citizens on the same goods im- ported from the same place in American ships into the Atlantic ports of the United States. Opinion of March 22, 1806, 1 Op. 155. 100. The provision in the treaty relating to duties on goods, &c. , does not extend to ton- nage duties or light-money. Ibid. 101. The Department of State was made the depository, by stipulation, of the records and papers referred to in the eleventh article of the treaty of 1819 with Spain, and they must not be delivered up to claimants; and any law of Congress that shall authorize or require their delivery will be a violation of that treaty. Opinion of May 18, 1832, 2 Op. 515. 102. The schooner Amistad, a Spanish vessel, having cleared from one Spanish port bound to another, vrith regular papers, and a cargo of merchandise and slaves; and whilst at sea be- ing subjected to the control of the negroes on hoa^d, by their rising upon the whites and kill- ing the captain, his servant, and two of his seamen, and assuming command with a view to carry the vessel to the coast of Africa; but failing in that object, through the contrivance of two white Spaniards, who run her near to the United States, when she was taken by a vessel of the United States and sent into New London for examination and such proceedings as the law of nations warranted and required; and being demanded, vrith the negroes, by the Spanish minister, under the ninth article of the treaty of 27th October, 1795, between Spain and the United States: Held, that the case is within said ninth article of the treaty, and that the vessel and cargo be restored to the owners, as far as practicable, entire. Opinion of Nov. — , 1839, 3 Op. 484. 103. The act of August 11, 1848, chap. 150, to carry into effect certain provisions in the treaties between the United States and China, and the Ottoman Porte, giving certain j udicial powers to ministers and consuls of the United States in those countries, not having designated any particular place for the confinement of prisoners arrested for crime, the same is left for regulation under the fifth section, or, in the absence of any such regulation, to Khe discre- tion of the acting functionary. Opinion of Jan. 17, 1849, 5 Op. 67. 104. The expenses of arrest and support in prison in such cases must be paid from the fund created by the execution of the act. Hid. 105. As the provisions of the act extend to Turkey only in respect to crimes, such crimes are left to support their own expenses. Ibid. 106. The provisions of the eighteenth section do not apply to Turkey. Ibid. 107. Whether the act embraces Egypt and the Barbary States, which are under the do- minionofthe Ottoman Porte, is a political ques- tion, which cannot be solved without the aid of the Department of State. Ibid. 108. Report to the President as to the inves- tigation and prosecution of fraudulent claims preferred by and paid to Gardiner, under th& treaty of 1848 with Mexico, called the treaty of Guadalupe Hidalgo. Opinion of April 15, 1853, 8 Op. 427. 109. There is nothing in the convention be- tween the United States and Great Britain of April 19, 1850, which forbids either of the con- tracting parties to intervene, if either of them see fit, by alliances, influence, or even arms, in the affairs of Central America. Opinion of May 28, 1853, 8 Op. 436. 110. The statute provision for the surrender of deserting seamen applies only to the seamen TREATIES, III. 479 of governments with which a treaty exists to Uiat effect. Opinion of Oct. 14, 1853, 6 Op. 148. 111. There is no express provision to that effect in existing treaties between the United States and Denmark. Hid. 112. Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the "favored- nation" clause in treaties. Hid. 113. Under the treaty between the United States and Great Britain of June 5, 1854, the President cannot issue his proclamation giving effect to the treaty as to Canada alone in an- ticipation of the action of New Brunswick, Nova Scotia, and Prince Edward's Island; nor until he shall have received evidence, not only of the action of those provinces but also of the imperial Parliament. » Opinion of Oct. 3, 1854, 6 Op. 748. 114. By the treaty of 1842 between the United States and Great Britain (article 10) the expense attending the proceedings in ex- tradition is to be borne by the Government making the reclamation. Opinion of Aug. 23, 1855, 7 Op. 396. 115. But where, in consequence of conflict between the judicial authorities of the United States and those of a State, the latter aiming to prevent the extradition, the United States intervenes to maintain its own dignity in the .premises, the special expenses of such inter- vention should be defrayed by the United States. Ibid. 116. By the terms of the treaty of 1853 with Mexico, called the Mesilla treaty, 17,000,000 were to be paid to the Mexican Republic on the exchange of ratifications, and three mill- ions were to become due when the new bound- ary line should be surveyed, marked, and es- tablished. Opinion of Oct. 29, 1855, 7 Op. 582. 117. Tbe "establishment" of the line con- sists of the ofiScial agreement of two commis- sioners, appointed, one by each Government, to survey, mark, and establish the line; and that agreement, when duly made, is conclus- ive against both Governments. JMd. 118. According to the public law of the monarchies of Europe, the authority of minis- ters, and perhaps of international commission- ers, expires on the death, deposition, or abdi- cation of the prince; but not so as between the American republics, in which the executive power is^permanent and continuous, without regard to the governing person, and there is no interruption of the authority or renewal of the credentials of their public ministers oh a change of President for whatever cause, pro- vided such President continues to represent and exercise the appointing power of the Gov- ernment. Ibid. 119. The United States observe, as their rule of public law, the recognition of governments de facto, and also of governing persons de facto, without scrutiny of the question of legitimacy of origin or accession. Ibid. 120. Hence, in this case, the Mexican com- missioner, Mr. Salazar, being duly appointed by President Santa Anna, continued to be competent to act after the sequent accession of President Carrera, and his of&cial agreement signed then, if otherwise regular and complete, definitively establishes the line as respects the Mexican Eepublic. Ibid. 121. To establish the line, it is not requisite- that the maps contemplated by the treaty shall first have been made; that is not the estab- lishment of the line, but only the record or history of its survey. Ibid. 122. The judicial authority of the United States commissioner to China is restricted to the five ports mentioned in the treaty with that nation, namely: Kwang-Chow, Amoy, Fu- chow, Ning-Po, and Shanghai. Opinion of March 16, 1859, 9 Op. 294. 123. Under the treaty of 1851 with Peru, the United States are not bound to pay a cocsul of the Peruvian Government the value of property belonging to a deceased Peruvian, on whose estate the consul was entitled to administer, which may have been unjustly detained and administered by a local public administrator. Opinion of Aug. 2, 1859, 9 Op. 383. 124. An award under the convention of 1863 with Peru, "payable in current money of the United States," may legally be paid either in Treasury notes or in specie. Opinion of July 12, 1864, 11 Op. 52. 125. The thirty-fifth article of the treaty of June 12, 1848, between the United States and New Granada, binds this Government abso- lutely to guaranty the perfect neutrality of the Isthmus of Panama, on the demand of the proper party; and this obligation must be per- formed by any and all means which may be 480 TREATIES, III. found lawful and expedient. Opinion of Aug. 18, 1864, 11 Op. 67. 126. The thirty-fifth article of the treaty be- tween the United States and New Granadadoes not oblige this Government to protect the Isth- mus of Panama from invasion by a body of in- surgents from the United States of Colombia. Opinion of Nov. 7, 1865, 11 Op. 391. 127. The convention of February 10, 1864, with the United States of Colombia confers on the commission thereby created jurisdiction to determine, and it should determine, whether any and what claims had been presented to, but not decided by, the commission under the treaty with New Granada of Sept. 10, 1857. Opinion'of Nov. 18, 1865, 11 Op. 402. 128. The provisions of the treaty of May 1, 1828, between' the United States and Prussia, for the arrest and imprisonment of deserters from public ships and merchant vessels of the respective countries, applies to public vessels sailing, under the flag of the North German Union and deserters from such vessels. Opin- ion of Aug. 19, 1868, 12 Op. 463. 129. The annual installmentsof interest due to the United States under the convention with Spain of February 17, 1834, may, by virtue of the legal- tender act of February 25, 1862, chap. 33, be paid in Treasury notes, if the Spanish Government chooses to offer them in payment, there being no express provision in the con- vention that the money shall be paid in coin. Opinion of June 10, 1869, 13 Op. 85. 130. A citizen of the North German con- federation, who becomes a naturalized citizen of the United States, must have an uninter- rupted residence of five years in the United States before he is entitled to the immunities guaranteed by the treaty with that confedera- tion of February 22, 1868. The recital con- tained in the record of the naturalization pro- ceedings, that he had resided continuously in this country for more than five years, is not conclusive as to the fact so recited. Opinion of Jan. 21, 1871, 13 Op. 376. 131. The passenger tax of $2 per head levied in the year 1849 and subsequent years by the State of Panama, a province of the Republic of New Granada, under authority from that re- public, upon the captains of all vessels embark- ing or disembarking passengers in that Stat.e, was in substance and effect, so far as itafiected citizens of the United States passing across the Isthmus of Panama, a violation of the thirty- fifth article of the treaty between the United States and New Granada of December 12, 1846, which provided that the right of way or transit across the said isthmus "should be open and free to the Government and citizens of the United States, ' ' &c. Opinion of Dec. 28, 1871, 13.0p. 547. 132. By the first article of the convention of September 20, 1870, between the United States andtheAustro-Hnngarian monarchy, the right of an American citizen to change his national- ity and become a citizen of Austria is recog- nized; but he must have had a residence of five years in that country, besides being natural- ized there, before the United States, are bound to consider him as such. Opinion of Dec. 21, 1872, 14 Op. 154. 133. So much of article 30 of the treaty be- tween the United Aates and Great Britain, of the 8th of May, 1871, called the Treaty of Washington, as relates to the transportation of merchandise in British vessels, without pay- ment of duty, from one port or place within the territory of the United States to another port or place within the same territory, ex.-im- ined and construed. Opinion of Oct. 13, 1873, 14 Op. 310. 134. Under the provisions of that article a British vessel may,, during a single voyage, ship merchandise at two or more ports of the United States in succession on the river Saint Lawrence, the Great Lakes, and the rivers con- necting the same — the merchandise being des- tined for other ports of the United States, and to be carried part of the way through Canada by land, in bond — and after thus completing her cargo sail to the port or place in Canada where the land-carriage is to begin. Ibid. 135. Such vessel may also, after taking a cargo of merchandise abroad at a Canadian port, to which the same had been transported from a port of the United States part of the way overland in bond and part of the way by water in the manner above indicated, saU thence to two or more ports of the United States on the above-mentioned waters, in suc- cession, during a single voyage, and deliver ati each port whatever part of the cargo is con- signed thereto. Ibid. 136. By virtue of the second article of the treaty with Sweden of April 3, 1783, and the eighth and seventeenth articles of the treaty TREATIES, III. 481 -with Sweden and Norway of July 24, 1827, the provisions of article 4 of the treaty with Bel- gium of July 17, 1858, exemptins; steam- ves- sels of the United States and of Beljiium, en- gaged in regular navigation between their respective countries, from the payment of duties of tonnage, anchorage, buoys, and light- houses, became immediately applicable, mutatis mutandis, to steam-navigation between the United States and Sweden and Norway. Opin- ion of Oct. 24, 1874, 14 Op. 468. 137. Hence, since the 17th of July, 1858, the steamers of the Norse American line (being Swedish and Norwegian vessels), plying regu- larly between Norway and the United States, lave no