do great and unnecessary injustice. I repeat, therefore, that the interest as well as principal of the claim, in my opinion, should be allowed. I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON.

Hon. THOMAS EWING,

Secretary of the Interior.

OUTFIT OF PUBLIC MINISTERS.

A minister to a foreign government is entitled to an outfit, not exceeding one year's salary, though he were not in the United States at the time of his appointment.

The appropriation act of 1849 takes from the President any discretion as to the amount, and requires a full outfit to be paid to Mr. Donaldson, the claimant in this case.

ATTORNEY GENERAL'S OFFICE,

July 20, 1849.

SIR: The claim made by Mr. Donaldson, the minister of the United States to the Germanic Confederation, to be allowed a full outfit, which you have submitted to this office for my opinion, I have considered. The question it involves depends, first, upon the construction of the proviso to the first section of the act of 1st May, 1810, (2 Statutes at Large, 608;) and, secondly, upon the appropriation for an outfit for the mission made by the civil and diplomatic appropriation act of 3d March, 1849.

First By the act of 1810, the salaries of our foreign ministers were fixed by law. They were not to exceed, for a full minister the rate of nine thousand dollars a year for all personal services and expenses, and four thousand five hundred dollars for chargés d'affaires, &c. But the act contained this proviso: "It may be lawful for the President of the United States to allow to a minister plenipotentiary or chargé d'affaires, in going from the United States to any foreign country, an outfit which shall in no case exceed one year's full salary of such minister or chargé d'affaires." Under this authority, it is clear that the President may, in cases embraced by it, allow, within the prescribed limits, an outfit, in addition to salary But the doubt suggested in the present instance is, whether it does embrace such a case as that of Mr. Donaldson; and this rests upou the meaning of the terms in the proviso, "going from the United States to any foreign country. It is said that these words are to be literally construed; and that, as Mr. Donaldson, when appointed to his present mission, was not in the United States, but in a foreign country, and has gone or is going to the government to which he is accredited, not from the United States, but from some other foreign country to the foreign government to which he is accredited, he cannot be allowed an outfit under the authority of this proviso. I am of a different opinion. Such a restricted construction of the proviso is, in my judgment, altogether too narrow, and is neither demanded by the terms used nor by the object designed by Congress. The words are capable of this meaning: that a minister, &c., of the United States at a foreign government is to be considered as a minister coming from the United States to such gov. ernment, wholly irrespective of the particular place at which he was when appointed, and from which he may, when appointed, actually proceed to

such government. He is, therefore, as much to be considered as going from the United States to his destination as if he had actually so gone direct.

I find, too, that this construction has been practically and uniformly given to the act.

Mr. Gallatin was, in 1815, allowed a full outfit of $9,000 as minister to Great Britain. About the same year, then being abroad, he was paid a half outfit for negotiating a treaty of commerce; and in 1816, being still abroad, a full outfit of $9,000 as minister to France.

Mr. Christopher Hughes was allowed a full outfit, as chargé d'affaires to Sweden, of $4,500, in 1816. In 1818, the theu minister to the same court, Mr. Russel, having returned, and Hughes being left as chargé d'affaires, he was allowed a like full outfit; in 1825, a half outfit on a special mission to Denmark; the same year a full outfit on a mission to the Netherlands; in 1830, a like outfit on being transferred to Sweden; and again, in 1842, a like outfit on his transfer to the Hague.

At all these several missions, except the first, Mr. Hughes was in Europe when the appointments were conferred, and proceeded direct to his respective destinations. I cannot learn that the propriety of these allowances was at any time questioned, and yet they were all illegal if the objection in the case before me is well founded. The President, when they were made, had no power to make them, except under the proviso to the act of 1810. His antecedent authority over the subject of outfits, whatever it may have been, was clearly qualified by that proviso. If, therefore, actually going from the United States, upon the mission, was necessary to the allowance of an outfit, it was illegally granted in each of

the instances referred to.

Not only were these outfits never called into doubt, but in a similar instance not referred to-that of Mr. J. Q. Adams, who, on being transferred from one mission in Europe to another, and allowed a full outfit, had his right to it questioned, not upon that, but upon an entirely different ground, perfectly consistent with his title to it in other respects. The question of his right was referred to this office, and an opinion given upon it by one of my predecessors, Mr. Wirt, on the 5th June, 1822. (Vide Opinions of the Attorneys General.) Upon referring to that opinion, it will be seen that the present objection was not even alluded to, and yet, if sound, it was conclusive; for, when appointed and allowed outfit, Mr. Adams was in Europe, and departed directly for his destination. He, of course, did not actually go "from the United States to any foreign country." Mr. Wirt, and the then Executive, evidently gave no such literal interpretation to the proviso. It is obvious, too, I think, that the practical construction of the power is in accordance with its manifest object. As Mr. Wirt correctly says in the opinion cited, such an allowance is made "on the express ground of its being necessary to the additional expenses which he must encounter in his new mission."

Such expense may be more or less, according to circumstances. But that it will, to some extent, occur, is inevitable. To enable the minister to meet it, is the purpose of allowing the outfit, and whether he goes from home or abroad; and as the expense of the mission, whether an original or a new mission, is necessary, it is proper that the outfit be granted.

Second. What is the effect upon the question of the appropriation in the act of 1849?

Being of opinion that there is nothing in the act of 1810 against its being allowed, it is unnecessary to inquire whether the fact of the appropriation would of itself, if the act of 1810 did not authorize an allowance of outfit, give title to it. The only effect of that appropriation, in my opinion, is, that it takes from the President the discretion as to the amount of outfit he may allow under the act of 1810. It shows, I think, that Congress have themselves fixed a full outfit as the proper one; and that, I think, is conclusive upon the Executive.

Upon the whole, then, I am clearly of the opinion that the claim made by Mr. Donelson is valid, and should be allowed.

I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON.

Hon. JOHN M. CLAYTON,

Secretary of State.

LIABILITY OF PRIZE AGENTS.

The act abolishing the office of prize agent, and requiring all incumbents thereof to deposite all moneys in their hands in the treasury of the United States, divested prize courts of all power to distribute prize moneys, and relieved the agents of all responsibility to comply with their orders directing distribution made subsequent to the passage of the law. The order of the district court for the eastern district of Louisiana is not obligatory upon Robert S. Rogers, as prize agent. It is a nullity, and he will incur no responsibility under it to captors by paying money in his hands into the treasury.

ATTORNEY GENERAL'S OFFice,
July 24, 1849.

SIR: The question you have submitted to me in the case of Robert S. Rogers, in whose hands are certain prize funds, I have considered. They were received by him as prize agent, and were held by him in that capacity at the time of the passage of the naval appropriation act of March 3, 1849, and are still so held.

By the eighth section of that act (Session acts, p. 79) it is provided that all money now in the hands of prize agents shall also be deposited in the treasury to be distributed as now provided by law. Such part thereof as may belong to the officers and crews of the vessels of the navy shall be paid to them under the direction of the Secretary of the Navy, and the law authorizing the appointment of prize agents is hereby repealed." The antecedent part of the section directs that the net proceeds of all prize money arising from captures by the navy, and received by the marshal who shall sell the captured property, shall be deposited by him in the treasury within sixty days from the date of the sale.

By these two provisions, Congress intended to have paid into the treas ury the proceeds of all prizes; and, as far as related to the shares belong. ing to the officers and men, (the captors,) that the same should be distributed under the direction of the Secretary of the Navy. The object clearly was, the more effectual protection of the interests of the govern ment and of the captors, both more or less liable to suffer under the prior mode of disposing of prize funds, and especially the captors. As to the distribution of the funds belonging to the latter, the design was to

vest exclusive jurisdiction in the Secretary, and to do so at once from the date of the law. Prize agents, therefore, then having such funds in possession, were to deposite them in the treasury; and, in future cases, the funds were to go there direct from the marshal, without finding their way into the hands of such agents at all. To accomplish this object the more effectually, the office of prize agent was abolished by the express repeal of the law authorizing it. Notwithstanding this change, however, the jurisdiction over prize causes was not taken from the prize courts. This remained. Whether prize or not, and the mode and manner of disposing of the property as prize, are still all matters for the court's decision. Under their decree the marshal sells; but, that being done, the act of 1849 then applies and arrests the further action of the court. He then instantly comes under the terms of the section referred to, and is bound to pay the net proceeds of sale into the treasury, and not into the registry of the court. This operated in that particular as a repeal of the act of April 16, 1816, (1 Statutes at Large, 287;) and, for a like reason, the direction in the act of 149, that the then agents should also pay into the treasury the funds in their hands, operated a repeal of another part of the act of 1816, which gave the distribution of the fund to the courts.

The amount in the hands of Rogers, it is supposed, he is under no obligation to pay, under the act of 1849, into the treasury; and, indeed, that he cannot do so without personal responsibility, because the prize court, under whose decree the fund was made, by its order in the same case of March 24, 1849, adjudged him, as prize agent, to pay it to Charles T. Steuart as special attorney of the parties entitled to it. This order it is objected is binding on Rogers, and will continue so, until annulled by the court passing it, or reversed on appeal. I am of a different opinion. The act of 1849, in my judgment, entirely divested the prize court of all power to distribute the fund. In that regard, its jurisdiction then totally failed; and its order, in its assumed exercise, was as absolutely null as if jurisdiction on the subject had never existed. The order of the court presents, therefore, not the case of an erroneous judgment, (good as long as it stands,) but of one void for want of power over the subject. Upon every principle such a judgment is a nullity, no matter how it may present itself-whether on an appeal, or collaterally.

I answer your inquiry, therefore, by saying that the order or decree of the district court of the United States for the eastern district of Louisiana, against Rogers, of the 24th of March last, is not obligatory upon him, but a nullity; and that he can incur no responsibility under it to the officers and men represented by Steuart, by his paying under an order of the department, passed in pursuance of the act of March 3, 1849, the amount in his hands into the treasury.

Nor do I doubt that the court would rescind the order of the 24th of March, passed certainly without notice of the act of 1849, if the fact were brought before it.

I have the honor to be, respectfully, sir, your obedient servant, REVERDY JOHNSON.

Hon. WILLIAM BALLARD PRESTON,

Secretary of the Navy.

RIGHT OF THE "NATIONAL ERA" TO CERTAIN PUBLIC PRINTING.

The act of 3d March, 1845, concerning the advertising which the heads of departments and bureaus are required to do, does not entitle the National Era, a weekly newspaper, to any part of the printing.

The clause permitting a third paper to be selected, requires that the publications therein shall be made equal to the others as to frequency.

The three daily papers published in Washington having been selected for the purpose, the law has been fully complied with, and the claim of the proprietor of the National Era cannot be sustained.

ATTORNEY GENERAL'S OFFICE,

July 25, 1849.

SIR: By the 12th section of the naval appropriation act of the 3d of March, 1845, (5 Statutes at Large, 795,) it is enacted, "that all the advertising which the heads of departments or bureaus are directed by law to make, shall be made by publication in the two newspapers in the city of Washington having the largest permanent subscription, and, at the discretion of the Executive, in any third paper that may be published in the said city," with this proviso: "That the same publications shall be made in each of said papers equally as to frequency.'

The proprietor of the National Era, a weekly paper of the city, and having, as is alleged, "the largest permanent subscription" of any other paper of the city, claims to be entitled under this law to the advertising referred to; and upon the validity of the claim you have desired the opin ion of this office. There are three daily papers here now in possession of the printing-two of them by the orders of the departments or heads of bureaus, and the other by the direction of the Executive. This has been done under what has been thought to be the true construction of the section in question. Is that construction the right one? I think it is. It was the purpose of the law that the advertising-the whole of it— should be limited to three papers. The reason is an obvious one: It served to direct contractors to a certain source of information for all the proposals the government might from time to time make. They were not to search the columns of all the papers that might be published in the city. There being certain ones selected, that fact was to notify them that in their columns alone was the knowledge they needed or required. To effect this object, it is obvious, in my judgment, that all the advertising must be given to the same papers. Whether by law, or, in the exercise of official discretion, the notices are to appear some daily, some semi-weekly, some tri-weekly, some weekly, and some not as often, is immaterial. The same three papers selected under the law are to publish the whole, and for the reason I have stated. This act does not in any way change the character and frequency of the advertising to which it relates. That is left where it was before. It only prescribes the rule by which the publishing papers are to be selected. Now, by law, some advertisements are directed to be published oftener than once a weekothers not as often; and others, in that respect, are subject to the discretion of the departments or bureaus. This being the case, can a weekly paper of the city be given the printing? If it can, it is obvious that the proviso to the section cannot be complied with. It is perfectly immaterial what particular reason may have induced Congress to adopt the proviso. It might have been, and probably was, to secure this patronage equally to the two then leading political papers of the city, by putting