ACCOUNTS AND ACCOUNTING OFFICERS. The accounting officers of the treasury have no authority to adjust the claims of contractors with the government for damages, without the special authority of Congress. ATTORNEY GENERAL'S OFFICE, May 29, 1844. SIR: Upon the statement of facts contained in the letter of the Second Comptroller, accompanying your memorandum of the 28th instant, thereon endorsed; and assuming that the papers transmitted with your communication furnish no evidence of the delivery by Bent, St. Vrain, & Co., to the United States, of the articles they were directed to supply at Fort William under their contract, (a question of fact upon which I express no opinion,)-I am quite clear that the accounting officers of the treasury have no authority to adjust the claims of said contractors for damages, without the special authority of an act of Congress. This question was substantially decided by Mr. Taney, a former Attorney General, in the case of John S. Stiles, as will be seen by reference to his opinion of the 2d of July, 1832. If I am right in this opinion, that the accounting officers have no authority to adjust the contractors' claim for damages, it becomes unnecessary to inquire what would be the proper rule for their estimation. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. WILLIAM WILKINS, Secretary of War. COSTS OF SUITS AGAINST POSTMASTERS-HOW PAYABLE. The costs of suits instituted against postmasters, 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 prosecutions. The Attorney General refers to his opinion delivered on the 22d day of January last upon the same subject. ATTORNEY GENERAL'S OFFICE, June 6, 1844. SIR: In reply to the question propounded in your communication of the 4th instant, I have the honor to state that, in my opinion, formed after a careful reconsideration of the whole subject, the costs incurred in the cases referred to by Mr. Hale are payable out of the funds of the Post Of fice Department, and not out of the judiciary fund. Upon recurring to my opinion communicated to you on the 22d of January last, you will find that it covers, in terms, the particular case now under consideration; and whilst I am very clear, in regard to costs incurred in criminal prosecutions, that the rule would be different, I think those that are incidental to suits for penalties instituted under the direction of the Postmaster General stand upon the same footing, are governed by the same rules, and should be adjusted in the same manner, as like claims arising out of suits brought to recover debts due to the Post Office Department. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. C. A. WICKLIFFE, Postmaster General. ALTERATIONS OF PATENTS FOR LANDS. 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. Whether patents irregularly issued shall have effect from their date or time of delivery, may be determined by parol testimony. ATTORNEY GENERAL'S OFFICE, June 18, 1844. SIR: I have considered the question touching the application of Charles Bracken, esq., for the alteration of the dates of certain patents heretofore issued to himself and others, submitted to me by your note of the 14th instant, and am of opinion that it is not competent or proper for the Commissioner of the General Land Office to make the alterations indicated. If the irregularity in the issue of the patents referred to was calculated to affect injuriously the rights of the grantees, they might have refused to receive them, and then the patents would have been subject to correction. But having been received by those to whom they were issued, their delivery as deeds became complete, and they were thenceforth beyond the control of the General Land Office. Whether, under the circumstances, these patents operated from their dates or the time of their delivery, (of which parol testimony may be offered,) is a question for the decision of the courts, and upon which, as the interests of third persons are involved, it is not proper to express an opinion. But the very fact that such interests may be implicated furnishes a conclusive reason why the Commissioner of the General Land Office should not interfere in the manner desired. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. To the PRESident. EXTRADITION UNDER TREATY WITH FRANCE. 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. The surrender will be made only when the fact of the commission of the crime shall be 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 committed. The rule of evidence is prescribed in the treaty. ATTORNEY GENERAL'S OFFICE, SIR: The treaty with France providing for the surrender of persons accused of the crimes therein enumerated, and fleeing within the jurisdiction of the United States and France respectively, prescribes as well the mode and manner as the evidence upon which such surrender shall be made. The mode and manner prescribed is: "Requisitions made in the name of the respective parties through the medium of their respective diplomatic agents. The evidence upon which it is to be done is only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive, or the person so accused, shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed." With reference to the mode and manner to be pursued, as preliminary to the surrender, there can be no difficulty. The treaty is explicit on the subject; and the suggestion contained in Mr. Pageot's note is accurately conformed to it. In regard to the degree of evidence which may be re quired to establish the fact of the commission of the crime of which the person demanded may be accused, there is much difficulty. No rule more explicit or certain than that contained in the treaty itself can, indeed, be prescribed. Cases as they occur necessarily depend upon the laws of the several States in which the fugitive may be arrested or found. That which may be sufficient to justify the apprehension and commitment in one State may not be regarded as sufficient in another. All that can be stipulated for, therefore, is, that in every case that may be presented to this government all proper and lawful means will be used to bring about the surrender demanded. In practice there will be found no difficulty, whilst an attempt to particularize might exclude the very means of redress most effectual to accomplish the object in the view of the contracting parties. Upon principle, I do not think that a mere warrant for the arrest of an accused party, without the evidence upon which it was granted, would be sufficient to justify the imprisonment of a citizen. A verdict would. So also an indictment and true bill ought, I should think, to be regarded as prima facie evidence of guilt. But, as I remarked before, this will depend on the law of the jurisdiction in which the accused party may be found, and must be referred to the judgment of the United States officer whose aid may be invoked in execution of the treaty. The provisions of the treaty with England on this subject are more full, though substantially the same with those in the treaty with the King of the French. To show the liberal principles upon which that treaty has been carried into execution, I beg leave to refer to my opinion in the case of Christiana Cochrane, a printed copy of which is enclosed. In view of the whole subject, I am of opinion that whilst the mode of making the demand may be stipulated, and that suggested by Mr. Pageot seems unexceptionable, it is impracticable to prescribe any rule of evi dence more definite than that contained in the treaty itself. Its provisions can be effectuated only by a bona fide effort in every case to arrest and surrender the guilty accused. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON, Hon. JOHN C. CALHOUN, Secretary of State. CLAIM OF TEXAS FOR INDEMNITY FOR A TRESPASS. An invasion of the custom-house in Texas by citizens of Arkansas, and the violent abstraction therefrom of property, under a claim of title, however much to be disapproved and condemned, constitute no ground of claim against the United Sta es, This government can in nowise be held responsible for the acts of private trespassers; they must be punished in the tribunals established by law, or be prosecuted for the recovery of or value of the goods either in the State or federal courts. SIR: The laws of the United States do not provide for the case upon which you have asked my opinion, The only acts of Congress which relate at all to the subject of maintaining peace on our frontiers are those of the 20th of April, 1818, and of the 10th of March, 1838, which are designed to guard against hostile invasions of the territories of powers with whom the United States are in amity. The invasion of the customhouse in Texas by citizens of Arkansas, and the violent abstraction therefrom of property, under a claim of title, however much to be disapproved and condemned, constitute, under the laws of the United States, no ground of claim against this government. The case may be regarded in two points of view: first, as governed and to be dealt with under our own laws; and, secondly, as controlled by the laws of the republic of Texas. Under neither do I think this government can rightfully interpose. First, under our own laws: The violence complained of was perpetrated by citizens of the State of Arkansas, acting under no public authority, and clothed with no public trust. They were mere private trespassers, for whose lawless acts this government cannot be held responsible. As such trespassers, they may be obnoxious to a double prosecution-the one civil and the other criminal. But both must be instituted in the tribunals established by the law: the first by action for the recovery of the goods abstracted, or for their value, which may be brought by the Texan collector in either the State or federal courts, in which he would be entitled to recover damages commensurate to the injury sustained; the crim. inal prosecution, if sustainable, must be prosecuted in the local courts of Arkansas. I have said if sustainable; because I am not sufficiently familiar with the criminal code of that State to enable me to express a positive opinion on the subject. At the common law it is quite clear that an agreement between two or more, entered into within the jurisdiction of the State, to commit an unlawful act, would be indictable as a conspiracy, and, assuming that law to obtain in Arkansas, the prosecution against the perpetrators of the wrong complained of may be supported in her courts. These are remedies, however, as you will perceive, that this government has no power to advance; they must be left to the pursuit of the parties injured. What may be the grade of the offence alleged to have been committed, under the laws of the republic of Texas, I have no means of ascertaining. If the injury, under her system, would be a mere trespass, it can be prosecuted for only when an opportunity may be avail. able within her own territory, unless the parties choose to have recourse to the tribunals in Arkansas for redress. If, on the other hand, the offence be criminal, under her system, the parties implicated may be pun ished wherever found within the jurisdiction of her laws. If demanded as fugitives, this government has no authority to deliver them up for trial, in the absence of treaty stipulations to that effect. As to pecuniary indemnity, if proper to be made at all, it can be provided for only by treaty stipulation. But I confess I do not perceive any principle upon which such indemnity can be demanded or accorded. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN C. CALHOUN, Secretary of State. CONTRACTS OF MINORS WITH THE GOVERNMENT. Contrac's entered into by infants with the officers of the government are valid and obligatory, notwithstanding such infancy, unless the infants themselves should take measures to avoid them. The sureties to a contract made by an infant are clearly bound for his faithful performance of the contract; for, though the infant may excuse himself on the ground of his non-age, the privilege is personal to himself, and cannot be made available as a defence by them. ATTORNEY GENERAL'S OFFICE, SIR: I have considered the questions suggested in your communication of the 30th of August, and am of opinion, first, that the contract entered into by the navy agent with F. Burch is valid and obligatory, notwithstanding the infancy of Mr. Burch, it being voidable only at the instance of the infant himself, and not absolutely void; secondly, that his securities are clearly bound for the faithful performance of the contract on his part; for, however the infant may himself excuse its non-performance on the ground of non age, the privilege is personal to himself, and cannot be made available as a defence by his sureties. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN Y. MASON,. Secretary of the Navy. CONTRACTS WITH NAVY DEPARTMENT. The Navy Department has not the right, under the act of the 3d of March, 1843, in awarding the contract to the lowest bidder, to modify its terms in regard to the time of delivery, or any other of its material elements. ATTORNEY GENERAL'S OFFICE, SIR: I have carefully considered the question submitted by your communication of the 16th instant, and do not think that the Navy Department has the right, under the act of the 3d of March, 1843, in awarding the contract to the lowest bidder, to modify its terms, as proposed for, in regard to the time of delivery, or any other of its material elements. The obvious purpose of the act in question was to invite competition in the proposals; and it therefore requires that the advertisement emanating from the department shall particularize every thing that may essentially affect the contract. That the time of delivery may be, in a contract of this description, a material element, the circumstances connected with this case clearly evince. Non constat, if the time had been extended, as now proposed, on the face of the advertisement, that other and lower offers than were received might not have been made. It may well be that a manufacturer may not be in a condition to deliver at one time, and yet be fully capable of doing so at another; and that, whilst he would be restrained by this inability from competing for a contract within the time limited by the proposals, he might have successfully done so had the extended time been advertised. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN Y. MASON, Secretary of the Navy. |