ATTORNEY GENERAL (Continued.)
4. It is not the duty of the Attorney General to give an opinion on a
question touching the private business of individuals, and with which
the Government has no present concern, 355.
5. The Attorney General will not give an opinion on an important legal
question, when it is not practically presented by an existing case be-
fore a department, 421.
1. A land warrant issued after the death of a claimant, who left a widow
and children, enures to the widow's benefit alone, 243.
2. Where the deceased claimant was a widow, with two sets of children,
the warrant enures to the benefit of her heirs or legatees. Ibid.
3. Heirs are those who are so declared by the law of the claimant's domi-
cil. Ibid.
4. Under the act of September 28, 1850, 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, 427.
5. 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
6. Minor children born after the date of the act are included within its
provisions. Ibid.
1. A claimant of land in California, under a Mexican title, is entitled, under
the 13th section of the act of March 3, 1851, to a patent, upon show-
ing that his claim has been finally confirmed, and the survey of it
approved by the surveyor general, 108.
2. Neither the decree of the court, nor the survey, nor the patent, is con-
clusive upon anybody but the Government and the patentee. Ibid.
3. Third parties have their remedy by injunction in the Federal courts, and
by action in the State courts. Ibid.
4. The Attorney General has no right to interfere, except in the judicial
investigation between the claimants and the Government. Ibid.
5. Where two grants of land in California lay afoul of one another, the
claimant who has the prior grant, and obtained the first judicial con-
firmation, has a title better in law and equity than the other, 397.
6. In such a case, the surveyor general of California should locate the
whole of the senior grant as it would have been located if no opposing
claim to the land existed. Ibid.
7. 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.
8. The act of March 3, 1851, section 13, authorizes the surveyor general to
determine, in case of conflicting claims to the same land, which of the
two claimants has a better right, according to the principles of justice.
Ibid.
9. The Secretary of the Interior has no power to review the survey of a
private land claim in California, upon the application of individuals
interested in the land, after the survey has been approved by decree
of the district court, 420.
10. The Jimeno grant, being the elder in point of time, is entitled to a
preference in location, 527.
11. A patent should be issued on the Jimeno survey, although the interfer-
ing Colus survey may have been returned into the district court of
the United States for the northern district of California. Ibid.
12. A patent may be issued to the Jimeno claimants, saving the rights of
the Colus claimants, if they are willing to accept it. lbid.
1. In the case of a private land claim in California, based on an alleged
grant from Mexico, 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, 320.
2. If there are original documents in the archives of the Mexican govern-
ment which tend to support the case of the claimant, the President
should not solicit that government to furnish them, but the Govern-
ment of the United States should wait until that of Mexico shall make
a voluntary tender of the documents, and then examine into their
character with great care, holding Mexico responsible for any aid she
may wilfully give in support of a false claim against the United States.
Ibid.
3. 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 elim-
inated 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 Mexican govern-
ment that no grant whatever of lands in the territory of California
had been made after the 13th of May, 1846; and the United States
cannot, with propriety, ask the Republic of Mexico to assert the valid-
ity of a grant alleged to have been made subsequently to that date.
Ibid.
4. The Mexican claimant was bound by the affirmation made by his gov-
ernment, and should look to it, and not to the United States, for
redress for the injury, if any, which was inflicted. Ibid.
5. The affirmation thus made by the Mexican 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.
6. Although the existence of papers in certain offices of the Mexican gov-
ernment, supporting such an alleged grant, may have been established
by the certificate of American officials, and their genuine character
proved by the oaths of Mexican witnesses, the experience of the Gov-
ernment in similar cases shows that the claim may be wholly false.
Ibid.
7. The United States should not permit the confirmation of a spurious
claim to a mine in California, 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 the claimants. The cause should be determined by the rules of law,
and not by the principles of political economy. Ibid.
1. The general act of the Florida Legislature, passed June 6, 1855, is a
sufficient cession of jurisdiction over land purchased in that State by
the Federal Government for public works, 94.
2. The opinion of Mr. Attorney General Cushing on the same point re-
affirmed. Ibid.
3. The act of the Legislature of Georgia, giving consent to the purchase of
Blythe Island, in that State, for naval purposes, is sufficient to au-
thorize the expenditure of money in its purchase, 129.
4. An act of the legislature of a State which gives a complete and une-
quivocal consent to the purchase of land therein by the United States
for the erection of needful public buildings is such a cession of juris-
diction as is contemplated by the joint resolution of September 11,
1841, 263.
1. A free white person born in this country, of foreign parents, is a citi-
zen of the United States, 373.
1. The conquest of a country, or portion of a country, by a public enemy,
entitles such enemy to the sovereignty, and gives him civil dominion,
as long as he retains his military possession. Inhabitants and stran-
gers who go there during the occupation of the enemy must take the
faw from him as the ruler de facto, and not from the government de
jure, which has been expelled, 140.
2. Civil war is where the people of a country are divided into hostile
parties, who take up arms and oppose one another by military force.
Ibid.
3. A revolutionary party, like a foreign belligerent power, is supreme
over the country it conquers, as far and as long as its arms can carry
4. 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 foreign 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.
5. When during the existence of 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 authority 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 after-
wards. Ibid.
1. 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, 32.
2. But a deduction from the pay of a contractor, made by the Auditor and
Comptroller of the Treasury, merely upon the ex parte recommenda-
tion of the Postmaster General, is not a judgment against the contractor.
Ibid.
3. As to the meaning of the words "actual service" in certain acts of
Congress, 186.
4. A warrant of attorney to draw money from the treasury upon a claim
not transferred or assigned, is within the 1st section of the act of Feb-
ruary 26, 1853, and must be executed subsequent to the date of the
warrant for the payment of the claim, 188.
5. Warrants of attorney executed before the date of that act are exempt
from its provisions. Ibid.
6. A. B. died, leaving an executor. On his death, letters of administration on
the estate of A. B. were taken out in the District of Columbia by C. D.
a creditor, and afterwards letters were granted to E. F., in Kentucky,
the place of decedent's domicil. Congress 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, 393.
7. The holder of an unendorsed pay certificate issued to a soldier is not en-
titled to payment of the amount, 453.
1. A collector of customs may become an informer and receive a portion of
the penalties under section 2d of the act of July 7, 1838, in relation
to steamboats, and under the acts prohibiting the slave trade, 400.
COMMISSIONERS.
1. The district court of the United States for the western district of Vir-
ginia had power, under the act of February 4, 1819, to appoint com-
missioners, 268.
1. The diplomatic and consular act of 1855 simply regulated the compen-
sation of ministers and consuls, and did not require that they should
be re-appointed, 89.
2, Under that act consuls were entitled to a salary during the time they
remained at their posts of duty. Ibid.
3. Under the act of 1856, a consul was to receive a salary not only for the
time spent at the place of his official duty, but, in addition to that, for
the time occupied in awaiting his instructions, in traveling to his post
of duty, and in returning home at the close of his service. Ibid.
4. Under these laws each consul is entitled to be paid for his services
according to the law which was in force when those services were ren-
dered, without reference to the date of his commission. Ibid.
5. The provision in the eighth section of the act of 1856, forbidding the
allowance of compensation for the time occupied in coming home by a
consul who shall have resigned or been recalled for any malfeasance
in office, does not apply to the case of a consul who has resigned or
been recalled without being guilty of any misconduct. The penalty
of having to come home at his own expense is only to be inflicted upon
the consul whose misbehavior has obliged the Government to recall
him, or who resigns simply to escape a recall which he is conscious of
deserving. Ibid.
6. Under the act of April 16, 1818, 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 corresponding command, 114.
7. Although Congress, by the act of March 3, 1839, declared that the act
of April 16, 1818, should thereafter "be so construed as to include the
case of the Adjutant General of the United States," it was held that
an officer who, after the passage of the act of 1839, was adjutant gen-
eral of the United States, with the rank of brigadier general by brevet,
and afterwards a major general by brevet, and who had no command
according to such ranks, was not entitled to receive the pay and emol-
uments of his respective brevet ranks. Ibid.
8. The act of Congress, passed 4th August, 1854, and the act of 18th August,
1856, in respect to the annual salaries of laborers, relate only to persons
regularly employed for manual labor in the Executive Departments,
117.
9. The clerk of the Circuit Court of the District 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, 136.
10. An officer of the army or navy who is dismissed, and afterwards res-
tored to the same rank which he would have held if not dismissed,
cannot be paid for the intermediate time, unless by act of Congress,
11. The Sergeant-at-Arms of the House of Representatives is entitled to
compensation for trouble and expense in summoning witnesses before
committees of the House, 167.
12. A person who holds both of the offices of clerk of a district court and
clerk of a circuit court is entitled to the maximum allowance for each
of them, 250.
13. Under the act of June 22, 1854, the postmaster at New Orleans has a
right to demand an allowance out of the postages of his office sufficient
to make up his compensation and expenses, but his special allowance
cannot otherwise be increased or diminished, 258.
14. The Florida mounted volunteers, called into the service under a requi-
sition of the President, of May 28, 1857, are entitled to an allowance
of forty cents per day for the use and risk of their horses, 309.
15. Section three of the act of March 3, 1859, does not require the deduc-
tion from any officer's sea-pay of money earned by his labor in other
vocations, 337.
16. A secretary of legation is lawfully authorized to act as chargé d'affaires
COMPENSATION (Continued.)
ad interim whenever he assumes the duties of that office in a manner
warranted by public law, diplomatic usage, and the general instruc-
tions of the Department of State, 425.
17. When legally authorized to act in that capacity, he is entitled, under
the act of August 18, 1856, to receive the pay of a chargé d'affaires.
Ibid.
1. It is the universal rule, in the computation of time for legal purposes,
not to notice fractions of a day, 131.
2. When the law allows a thing to be done within a certain number of
days, the modern rule in England is to exclude the first day from the
calculation. Ibid.
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 computation was intended. Ibid.
4. Though divisions of a day may be allowed sometimes, to make priori-
ties or give other advantages in private tranactions, they are always
excluded in public proceedings. Ibid.
1. An American consul, under the act of February 28, 1803, has no author-
ity, by withholding a ship's papers, to compel payment of demands for
which suit has been brought by a creditor, after her release on bond
by the court, 384.
2. Such consuls, under the 28th section of the act of August 18, 1856, 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 general
power of deciding upon all manner of disputed claims against Ameri-
can vessels. Ibid.
3. Such consul may recover the penalties incurred by the master of a ves-
sel for neglecting to deposit his papers in a court of competent juris-
diction, but he has no right to enforce otherwise the payment of the
penalties. Ibid.
4. 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, 426.
5. 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 accompanied by an attestation of the official character of a
magistrate, and of the value of the goods, 441.
6. Consuls, as well as consular officers and agents, are subject to this res-
triction. Ibid.
7. It applies to all the British North American Provinces included within
the reciprocity treaty. Ibid.
8. A United States consul, whose salary exceeds $2,500, is entitled to be
paid his fees as commissioner for taking depositions in an admiralty
proceeding in a United States district court, 496.
9. The penal provisions of the seventeenth section of the diplomatic and
consular act of August 18, 1856, 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, 500.
1. By the act of May 1, 1820, 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 made large enough to fulfil it, 18.
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