of the act of 1793, would, of course, render such vessel, with her lading, liable to forfeiture.

Upon the third question I think that there can be no legal distinction drawn between the towing of vessels carrying merchandise and the carrying the same, or trading, within the meaning of the 6th section of the enrolling and licensing act of the 18th February, 1793. That which cannot be done directly, the law will not permit to be accomplished indirectly.

The papers accompanying your communication are herewith returned. I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

ADDITIONAL COMPENSATION TO REPRESENTATIVES OF FRANCIS S. KEY.

The representatives of the late district attorney for the District of Columbia are not entitled to extra compensation for services rendered the United States by him in a proceeding by mandamus against the Postmaster General for refusing to allow credits settled and adjusted by the Solicitor of the Treasury, under the act of Congress of 2d July, 1836; it being his duty to attend to the proceeding in behalf of the United States.

Nor are they entitled, as a matter of right, to any compensation not stipulated to be paid him for assisting the Attorney General in arguing the cause before the Supreme Court of the United States.

Having in his lifetime been paid the amount offered by the government for his services, and the administration under which the service was rendered having given place to another, it is not deemed discreet for the Executive to allow further compensation to the representatives of the deceased. Even if it were allowed, it could not be paid out of the moneys in the treasury appropriated to other purposes.

ATTORNEY GENERAL'S OFFICE,

July 24, 1843.

SIR: The claim of the representatives of the late Francis 8. Key, to which your communication of the 15th instant and the accompanying papers refer, and upon which the President desires my opinion, has been deliberately considered. They ask compensation for professional services rendered in the case of the United States, on the relation of W. B. Stokes and others against Amos Kendall, Postmaster General of the United States, originally entertained in the circuit court of the United States in the District of Columbia for the county of Washington, and finally disposed of upon a writ of error in the Supreme Court.-(See 12 Peters, 524.)

The material facts upon which this claim is to be tested are undisputed, and are satisfactorily recited in the report from the Solicitor of the Treasury. They are here briefly recapitulated for the more clear apprehension of the opinion herewith submitted.

Mr. Key, at the date of the transactions out of which the claim arises, was the district attorney of the United States for the District of Columbia. He had been the counsel of Stockton & Stokes before the then Solicitor of the Treasury, by whom, under the authority of an act of Congress, the claim of those gentlemen against the Post Office Department were audited and adjusted. The award of that officer entitled the claimants to large sums of money in the form of credits and payments, which the Postmaster General refused in part to make or allow, upon the ground that the

Solicitor had exceeded the authority with which the law had invested him. This refusal was followed by an application by Stockton & Stokes to Congress for redress; failing to obtain which, they invoked the aid of the circuit court for the county of Washington, which awarded a peremp tory mandamus, requiring Mr. Kendall to execute the judgment of the Solicitor. From this order a writ of error was prosecuted to the Supreme Court, by which, at January term, 1838, it was affirmed.

When the proceeding was about to be instituted in the circuit court, Mr. Key was applied to by the relators and desired to act as their counsel, which he tnost properly declined; and afterwards, in all the stages of the cause whilst pending there, represented the Postmaster General, prepared his answer, and most elaborately sustained his views.

After the removal of the record into the Supreme Court, Mr. Butler, theu Attorney General of the United States, feeling the weight of the questions involved in the controversy, and desirous of availing the gov ernment of the services of Mr. Key, (always valuable, and more especially so in a case to which in its earlier stages he had devoted much of his time and labor,) suggested to the President the expediency of his being employed to aid in the argument above.

The correspondence consequent upon this suggestion is stated in the report of the Solicitor, to which I beg leave to refer. Mr. Key performed the service, and on the 27th day of July, 1840, presented an account therefor to the proper department of the government, which was duly paid. Under these circumstances, the representatives of Mr. Key have applied to the Secretary of the Treasury for additional remuneration: First, for services rendered by him in the circuit court; and, secondly, for those rendered in the Supreme Court. The application upon the first ground is put upon the principle of the right of Mr. Key to be adequately remunerated for his exertions, as well as upon that of "extra compensation," which is supposed to be a matter within the discretion of the Executive. The second is rested upon a quantum meruit for the service performed, and which, it is alleged, has not been properly requited. I propose to examine the questions involved in these propositions in their order; and, 1st. The question of right. There is no evidence to show that Mr. Key was at any time specially employed by the government to attend to or argue the cause in the circuit court, nor has there been found in any of the departments the vestige of a demand in any form preferred by him for the services rendered before that tribunal. They were performed without stipulation on the one hand, or claim for compensation on the other. When applied to by Stockton & Stokes to act as their counsel, influenced by that delicate sense of honor by which, in all his conduct, private and public, he was controlled, he declined to receive a retainer, which, as district attorney, he was not in my view at liberty to accept.

The nature of his official station, as well as of the matters involved in the controversy, imposed the service upon him as an obligation, which he discharged with equal alacrity, zeal, and ability. The act of 1789 made it his duty to attend to all civil actions in which the United States were concerned in the district for which he held his appointment. The proceeding in question was a civil action, and one in which I think the United States were "concerned." Mr. Kendall, it is true, was nominally the person proceeded against, but it was in his capacity as a public officer. It was as Postmaster General that he was called into court to answer. Had

he at any moment in the progress of the cause, for any reason, been divested of his political character, the power of the court to entertain the proceeding against him would instantly have ceased. As Postmaster General he but represented the United States, whose officer he was. The form of the procedure was wholly immaterial; substantially and in fact the United States were the respondents, against whom the redress asked for was sought.

Nor can I understand how with any propriety it can be affirmed that the United States were not, in a pecuniary sense," concerned," so as to render it imperative as a matter of duty on the district attorney, by his exertions, to guard and protect their interests.

The object of the procedure was to enforce the execution of the award which had been rendered under the act of Congress of the 2d of July, 1836. The purpose of that act was to settle certain claims preferred by Stockton & Stokes against the Post Office Department. Those claims had been adjusted by the Solicitor, and the Postmaster General was required to credit and pay to the parties large sums of money. A portion of the amount awarded, Mr. Kendall refused to credit or pay, insisting that it was not due, notwithstanding the decision of the Solicitor. To enforce this credit and payment, an appeal was made to the court, not to settle controverted questions of constitutional law, however they may have been involved, but to secure to the claimants from the United States the fruits of the award in their favor, which, whether gratified in the form of a credit or an actual cash payment, was equally a transfer of value from the one party to the other.

The true amount of the debt was the real object of controversy. Stockton & Stokes claimed to be creditors of the United States to the whole extent of the sum awarded. The Postmaster General denied that they were creditors to that extent, and the power of the judicial department was invoked by the complainants to coerce from him the payment, or that which was equivalent to the payment of their demand. I think, therefore, without pursuing the reasoning further, that the representatives of Mr. Key cannot claim, as of right, any remuneration for the services rendered by him in the case referred to in the circuit court of the United States. He seems never to have asserted such a claim himself; and Philip Barton Key, esq., in his communication to me of the 19th instant, herewith transmitted, acquiescing in your decision on this point, has very properly waived it. It may be added, that the language of the law prescribing the duty of the Attorney General of the United States is almost identical with that used in relation to the district attorneys, it being "that he shall prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned."

If, therefore, Mr. Key, for the services rendered in the circuit court, might properly have demanded compensation, Mr. Butler was equally entitled to be remunerated for his services in the Supreme Court. The obligation was no more imperative on the one than the other.

2d. For the services rendered in the Supreme Court I am quite clear that the representatives of Mr. Key can claim nothing. The question does not arise upon a case of quantum meruit, or to which the principles affecting claims of that description can be properly applied. It is a case of special contract, in which the executive department of the government agreed to engage Mr. Key upon terms plainly proposed to him; and

although he at the time declined acceptance of those terms, yet he proceeded to render the services without any new stipulation. Nay, more; the contract was not only special, but has been mutually executed. The services having been performed, a claim was made for the stipulated compensation, which has been paid and receipted for. Is it possible, under these circumstances, to maintain this claim upon any ground of right?

The letter of Mr. Butler, supposed to have been overlooked upon the former examination of this case, does not seem to me at all to fortify this demand. It only shows that Mr. Key was employed, and at the Attor ney General's instance. He does not profess to know anything of the terms upon which his employment was authorized. That letter, too, bears date on the 22d day of May, 1840, and the account paid at the treasury was presented by Mr. Key on the 27th day of July, 1840, more than two months after he had possession of it. This, it is clear, therefore, was a case of contract mutually executed and closed during Mr. Van Buren's administration, for services then rendered, and which this administration has no power to open and remodel.

The remaining ground of claim-that of extra compensation-and which is addressed to the discretion of the Executive, presents considerations of a different character. That the services rendered by Mr. Key in the circuit court, although in the line of his official duty, were most meritorious, no one who knew and appreciated him as highly as I did can doubt. That they were rendered at the cost of much of his time and labor, is equally certain. The compensation received by him, too, I have no difficulty in saying, was grossly inadequate. He should have been more liberally compensated, and he might at the time well have challenged the generous exercise of the powers of the government. But the question submitted to me is, whether the executive department of the government can now gratify this claim, and I am constrained to say that I do not think it can. The services in question were rendered in 1838, more than five years ago, under a previous administration, two years before Mr. Key himself presented an account in this very case, which was paid, and five years before his death. During the whole of the time which intervened from the date of the decision of the case, up to the period when the hand of death snatched him from his country's service, no application for remuneration was made by him. On the contrary, his account, embracing a claim for service in the same cause before a different tribunal rendered in 1840, in which he omits all reference to the particular service which forms the basis of the present demand, conclusively shows that he did not regard himself as entitled to remuneration for his services in the circuit court. If the claim ever had a just existence it was then, whilst the matter might have been regarded as open. It is now closed, and, as I think, beyond the proper control of the present Executive.

I am aware that it has been the sanctioned practice of the executive department of the government to allow extra compensation for the discharge of even official duties involving peculiar responsibility and extraor dinary labor. I do not wish to be understood as expressing any opinion of the propriety of this practice when it prevailed; but, by the act of 1839, ch. 1212, sec. 3, it is expressly provided that no officer in any branch of the public service, or any other person whose salary or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra

allowance or compensation, in any form whatever, for the disbursement of public money or the performance of any other service, unless the said extra allowance or compensation be authorized by law.

It is quite clear that, by this declaration of the legislative will, the discretion of the executive department of the government in cases like that under consideration is now tied up; and that, if the service for which compensation is asked had been rendered subsequent to the date of this enactment, it could not for a moment have been sustained. Does it vary the principle applicable to this case that the services were rendered before the passage of the act? I think, bound as the executive department of the government is to respect the expression of the legislative will, and to carry out the policy indicated by it, that it does not. The law acts not upon matters of right, of contract, of stipulation: if it did, it would be violative. of all principle to give it a construction that would render it retroactive; but it is designed to limit the exercise of executive discretion, which is appealed to now, and, if exerted, is to be exerted now. This, I think, cannot be done consistently with the spirit or intention of the law.

These views render it unnecessary that I should give any opinion upon the question of authority to pay out of the appropriations for the present year liabilities heretofore incurred, without decidedly committing myself upon it. I will say that I have great doubt whether such authority exists. I am quite clear that, even supposing it to reside in the executive department, this case does not present a suitable occasion for its exercise. I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

JNO. NELSON.

Secretary of the Treasury.

PRE-EMPTIONS.

The residence required by act of 1st June, 1840 is limited to date of that act, and need not have continued for four months next preceding it, as required by the act of 1838.

SIR: I have considered the question propounded by your communication of the 27th instant, and carefully collated the several provisions of the acts of 1838 and 1840 granting pre-emption rights to settlers on the public lands; and am of opinion that the residence required of the settler by the 5th section of the act of June 1, 1840, is limited to the date of that act, and that it need not have continued for four months next preceding, as required by the original act of 22d June, 1838. The language of the law seems to me to be unambiguous; and I do not think that a different interpretation can be given to it, without doing violence to its letter as well as its spirit.

The papers accompanying your communication are herewith returned. I have the honor to be, very respectfully, your obedient servant,

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

JNO. NELSON.