ATTACHMENT OF SEAMEN'S WAGES. The Executive should not consent to place the government of the United States, which is not liable, without its special consent, to be questioned in its own courts, to be made compulsorily accountable, as stakeholder or garnishee, to its debtors, their assignees, or creditorsat least without a judicial decision to that effect of the highest tribunal known to the laws. Payment of the mariners in Norfolk, by the purser of the United States ship Constitution, should be made, notwithstanding the attachment issued for their wages. OFFICE OF THE ATTORNEY GENERAL, SIR: In answer to the question submitted to him verbally by the Secretary of the Navy, as to the pay of the mariners attached in Norfolk in the hands of Purser Buchanan, of the United States ship Constitution, the Attorney General has the honor to advise that the purser be instructed to pay the wages, notwithstanding the attachment, and the district attorney to decline the jurisdiction of the court, on behalf of the executive department, in any form he may judge most advisable. For this purpose, he is respectfully referred to the case of Decatur vs. Paulding, 14 Pet., 497, for a precedent to guide him. (Opinion of Attorney General WirtPublished opinions, 458; McArthy vs. Gould, 1 Ball & Beaty, 389; Chealy vs. Brewer et al., 7 Mass. R., 259.) The Attorney General has the honor to state, that he has repeatedly of late been called to consider attempts made to compel the executive offi cers of the government to settle accounts between the government and its officers and employés under the control of and according to rules prescribed for the courts of justice in their ordinary jurisdiction, and not according to those principles which experience has shown to be indispensable to prompt and efficient service of the country, and which, having been adopted by the Executive with a view to that service, cannot be interfered with by another department, without throwing the whole administration of public affairs into hopeless confusion. The Executive should not consent to place the government of the United States, which is not liable, without its special consent, to be questioned in its own courts, to be made compulsorily accountable, as stakeholder or garnishee, to its debtors, their assignees, or creditors-at least without a judicial decision. to that effect of the highest tribunal known to the laws; none such, in the opinion of the Attorney General, has yet been pronounced. Considered this 29th of November, 1841. Hon. A. P. UPSHUR, Secretary of the Navy. H. S. LEGARE. THE NAVY PENSION FUND. The Secretary of the Navy has authority to transfer the bonds in which a part of the navy pension fund is invested. OFFICE OF THE ATTORNEY GENeral, December 2, 1841. SIR: In compliance with your request, I have devoted the first moment of leisure from paramount official duties to the consideration of the case of the transfer of the Cincinnati bonds to the navy pension fund, submitted to you by the Treasurer, Mr. Selden, in consequence of an application to that office by Mr. Elisha Riggs on the 1st of October last. The ground on which the power of a late Secretary of the Navy to order the assignment in question is denied by the city council, not having been stated in any of the papers communicated to me, I can only say that I have in vain endeavored to conjecture what it can be. As the case comes before me it is this: The debtor of a trust fund denies the right of the trustee to change or alien the property of the cestui que trust. Now, whether the Secretary of the Navy be considered, as in Decatur vs. Paulding the court did consider him, as invested qua talis with executive discretion in regard to this fund, (14 Pet., 515,) or whether we regard him as the mere trustee of a charity, to be held to all the usual responsibilities of such a trustee in a court of chancery, I confess I do not perceive how his debtor-at law, whatever account the trustee himself may have to render to others in another form, has any authority to object to his doings, or sit in judgment upon them. By the act of 1832, the Secretary of the Navy is invested with all the powers conferred by the acts of 1799 and 1800 upon the commissioners over this fund. He is a trustee, and so as to all the world; but the cestui que trust has the legal ownership, and his power to alien the property of a charity, on reasonable causes, is now unquestionable An absolute alienation, even of real estate, in England, by the trustees of a charity, is matter of common occurrence, and, if beneficial to the charity, entirely valid, even in a court of chancery, as between trustee and cestui que trust. On the whole, as at present advised, I see no ground to doubt that, in regard to third persons, the Secretary had a perfect right to order the transfer; and it is to be presumed, even in regard to the parties interested in the charity, that it was exercised with a sound discretion. I have the honor to be, sir, your obedient servant, Hon. A. P. UPSHUR, H. S. LEGARE. Secretary of the Navy. MISSOURI LAND CLAIMS. The confirmees under the treaty 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 provide for them, the whole subject remains in contract. Specific performance of a contract for the sale of lands is an artificial rule altogether unknown to the common law. The acts of 1824 and 1836, which confirm the French and Spanish grants, are not required to be carried into specific performance, if it cannot be done without unsettling titles in the country in question. Congress doubtless legislated with a view to heal evils, of which an indiscriminate performance of the grants in question has been so prolific. Congress reserved to itself, from the beginning, the power of executing the treaty in good faith, but with a sound discretion and due regard to the quiet of titles; and endeavored to reserve from sale and occupation all the lands subject to claim under foreign grants. The act of 1836 is a legislative confirmation of all voidable locations under any law of the United States, or sales by the United States of any description whatever. Prior confirmations, school sections, ordinary sales prior to the confirmatory act of July 4, 1836, and the New Madrid locations under the act of February 17, 1815, are valid as against the claim confirmed by the act of July 4, 1836. The individuals who appeared as claimants before the commissioners, and who have obtained their favorable decision, are the persons who are to be recognised at the General Land Office as the confirmees under the act of 1836. Claimants who have been interfered with by prior valid claims may locate the quantity taken from them by the interference in question on separate tracts, conforming to legal divisions and subdivisions of the same. The power is sufficiently implied to authorize the issuing of patents for the portion of the confirmed private claims not interfered with by prior valid claims. OFFICE OF THE ATTORNEY GENERAL, SIR: In compliance with the request which you did me the honor to make in your letter of 1st October last, I have availed myself of my earliest leisure to consider the matter of the Missouri land claims as stated in the letter of the Commissioner to you of the 21st September, and a sort of exhibit (marked A) that accompanied it. I will begin by observing that these papers are all that appear among those sent me in anything approaching the shape of a state of the case or cases on which my opinion is required. They amount to no more than the propounding, in the abstract, of certain general questions. The paper marked A, for instance, is in the words following: "As to private claims that have been duly filed, and which are entered in the first class of decisions of the late board of commissioners in Missouri under the acts of July 9, 1832, and March 2, 1833, for the final adjustment of private land claims in Missouri, and which claims are confirmed by the act of July 4, 1836, confirming claims to land in the State of Missouri, and for other purposes, the following questions are respectfully submitted for the Attorney General's opinion and the instructions of the Hon. the Secretary of the Treasury, for the guidance of the General Land Office in its definite action on the said claims. Are the following classes of claims, or either of them, valid or not as against the claims confirmed by the act of July 4, above mentioned, viz: "1. Prior confirmations. "2. School sections. "3. Ordinary sales prior to the said confirmatory act of July 4, 1836. "4. New Madrid locations under the act of February 17, 1815. (Land Laws, p. 667, c. 248.) "5. Is the individual who, according to the report, presented the claim before the board as the assignee or legal representative of the original grantee, to be recognised as the confirmee, or is the original grantee to be regarded as the confirmee? "6. Must the claimant, whose claim may be interfered with by prior valid claims, be confined, in making his location of the amount or quantity of such interference, to such legal subdivisions of the public lands as will, together, form one body or tract of land, or may he locate the quantity or amount of such interference on separate tracts, conforming to legal divisions and subdivisions, at one time, and within one and the same district, or can the claimant be allowed to take part of his new location in one district and part in another? "7. The remaining question: Is the power sufficiently implied to authorize the issuing of patents for the portion of the confirmed private claim not interfered with, or must further legislation be awaited on this point?" I do not dissemble the reluctance which I feel, as every practical law. yer must feel, to deal with abstract or speculative questions. I need not say that the courts will never consent to touch them. There is always more or less of uncertainty in answers which must be hypothetically. given; and it not unfrequently occurs that, after bestowing the most elaborate attention upon some one or more aspects of a case, the counsellor finds, to his mortification, that the true question at issue does not happen to have occurred to him among the many examined. What makes my task more difficult in the present instance is that, on the face of the papers sent me, it is apparent that there has been, for twenty years past, great conflict of opinion, and the most active discussion and litigation, on all the points involved. I perceive not only that Solicitors and Commissioners of the Land Office have written long opinions upon them, but that no less than three of my predecessors have been successively consulted. One of them regarded the difficulties as susceptible of no solution but by a special act of Congress. In the face of all this acknowledged doubt and perplexity, I am now called upon to review their judgments, and to pronounce one myself, which may, after all, only increase the litigious inatter in the premises, to be laid before some successor of my own. However, I will, to the best of my abilities, endeavor to meet and to solve the difficulties that embarrass the department. At least it is entitled to my opinion, and I am bound to give it as it is, right or wrong. To begin with a general view of the nature of the claims under the treaty with France, which is the origin of the whole discussion. In the first place it is to be remarked, that the confirmees under the treaty claim, not property strictly so called, or the dominium of the civil law, but the doing of what is necessary to complete title, and to convey property. The lands to which they lay claim, form still (where patents have not been granted) a part of the public domain of the United States; and, although the United States acknowledge themselves bound to provide for those claims, still the whole subject is in contract, and their rights are only jura ad rem under treaty with a foreign government. This distinction is nowise important with a view to the question whether those rights shall or shall not be held sacred; but it is very important, with a view to the question, how they are to be satisfied, how they are to be regarded by courts of justice, how they have been affected by federal legislation, how they stand when they come in conflict with the rights of others, who, with equal equity, happen to have the advantage of an equally vested legal estate. It is obviously very important to the great question that would arise between individuals, whether they may vindicate, in the language of the civilians-that is, insist on having the specific thing, as described in their grant--or shall be allowed only damages, amounting to full indemnity for the breach of the contract. By the law of nations, which binds sovereigns, it is extremely doubtful, according to the opinions of the first jurists of the times, whether there be any redress for any breach of contract but in damages. Accustomed as we are to the proceedings of our courts of chancery, which enforce, in cases of a peculiar character, and by the exercise of an extraordinary jurisdiction, specific performance of a contract for the sale of lands, we forget that this is an artificial rule, altogether unknown to the common law. At any rate, this is the view, in my opinion, which Congress took of its own responsibilities under the treaty of 1803. And the interpretation of treaties, as well as the manner of fulfilling them, being as against the government, (a matter properly of political cognizance,) this office and yours are bound by the will of Congress in the premises. This is familiar doctrine in courts of prize. It does not, in the least, signify to us whether or no, by the law of nations, Congress was bound to confirm specifically the grants it acknowledges to be binding on its conscience. The question for us is, what did Congress think of its own obligations in this particular; and how has it seen fit to perform them? Did it mean specific performance, or compensation and indemnity only? It was a question for their sovereign (for so in the case it was) determination; and their sic volo is conclusive for us. I think their conduct defensible and fair; but that has nothing to do with the subject, or my legal judgment upon it. Take the analogy of the Florida treaty, as to which I gave you an opinion some weeks ago. By one of its stipula tions, this government was bound to make compensation for injuries. admitted to have been done by its troops in 1812, and to submit the alleged injuries in every case to examination, according to the usual course of the judicial authorities. Yet Congress, when it came to legislate upon the subject, with a view to its ultimate responsibility in regard to it, orders the Secretary of the Treasury to pay not all the awards of the court in Florida, but only such as he should deem just. Clearly, you have no authority to go any further towards fulfilling the treaty than you are allowed under this strict precept, as I then had the honor to advise you. And so it is in my judgment with regard to the Spanish and French grants in question. It seems to me very clear that both the act of 1824 and that of 1836 mean that no confirmation made by virtue of them shall be carried into specific performance, if this cannot be done without unsettling titles in the country in question. Neither the two acts, nor all the parts of each, can be read together in any other way. The exception in the act of 1836, section 2, is of lands previously located under any law of the United States, or surveyed and sold by the United States. In the act of 1824, the words are still more comprehensive. They cover all locations made, (to which there exists not some incurable objection, distinct from those claims, of which bye-and-bye,) and all sales susceptible of confirmation by an act of Congress. To say that this exception does not protect those whose locations cover the lands sub, ject to the claims confirmed by those acts, because those lands had been reserved in the act of 1811, section 6, and were not subject to location or sale, is to make the exception a solecism in terms. It would be to except what was not excepted, which were absurd; and so the argument proves too much. If locations made under law mean lawful locations, and sales mean valid sales, there could be none such, according to this showing itself, on lands reserved by a permanent act (1811) from sale or location But the exception, in my opinion, is not nugatory. On the contrary, the facts disclosed on the face of these papers, and the fierce and strenuous litigation that has already sprung out of some of the claims, show that it was a wise and beneficent provision of the legislature. If ever a slight deviation from the rigor of abstract principle was justified (as the history of our law shows it has been so often defended) by the argument ab inconvenienti against shaking titles taken on mistakes of fact, or a mistaken view of the law, it was in this case. I have no doubt at all that Congress did legislate with a view to heal these evils, of which an indiscriminate specific performance of the grant in question would, as |