Thompson's Case. The clause which it is said Congress intended to insert, but did not, into the bill authorizing the payment to Mr. Thompson, is as follows: "Provided that the same be paid with the consent of the Menomonees." If this had actually been part of the law, it would have made his right to the money conditional. He would, in that case, have been obliged to get from the Indians a new assent in addition to that which they had previously given in their memorial and agreement. But this proviso being omitted, his right to the money was absolute. I need not say that such an omission cannot be supplied by construction. Nor do I see how the omitted proviso can, upon any ground whatever, be treated as part of the law. On account of the supposed accident or design by which the proviso was omitted, the late Secretary of the Treasury, acting under the advice of the Attorney General, refused to pay Mr. Thompson the money which, by the terms of the act, he was entitled to, and the execution of the law, as it stood, was suspended by the President until Congress could be consulted on it. I do not presume to discuss the propriety of this measure. That it was well meant I am sure. But, at all events, it is past and done. If it was right, the country has the benefit of a good example; if it was wrong, it cannot now be recalled. But the object and purpose for which the Attorney General advised the suspension of the law has been fully carried out. Congress was consulted, and the facts communicated in a message of the President. There have been three sessions since that time, and the law stands yet unchanged in every letter. The lower house seems to have taken no notice of the subject. But the Senate, on the 8th of August, 1856, passed a resolution solemnly expressing its opinion that Richard W. Thompson was entitled to be paid the sum appropriated by the 27th section of the civil and diplomatic appropriation bill of March 3, 1855. After such a response from the Senate, and the silent acquiescence of the House for three whole sessions, any further postponement can hardly be thought necessary for the purpose of Thompson's Case. consulting Congress. The question must now be between obedience and disobedience to the admitted will of the National Legislature. After payment to Mr. Thompson had been refused at the treasury, an agent was appointed to take the sense of the Menomonees, and ascertain whether they would assent or not to the payment of his claim under the law. The agent reported their refusal to assent, and Mr. Thompson complained that they were prevented from giving their assent by the improper interference of the agent himself. Should these facts have any influence on the decision now to be made? Congress declared that Mr. Thompson should be paid a certain sum out of funds in their own treasury, which they had a right to appropriate to that object. From this determination of Congress no appeal lay to the Menomonee Indians. The payment of the money was not made dependent on any future expression of their will. Their refusal to sanction the law could not repeal it, or in anywise diminish the obligation of the Executive to carry it out. When Congress commands a thing to be done, and the Menomonee Indians forbid it to be done, it is not very difficult to decide where obedience is due by an officer of the United States Government. To follow the act of Congress, and not the decision of the Indians, would be a tolerably plain duty in any case; but here it is rendered plainer still by the consideration that it is a disputed and doubtful question of fact whether the unbiased opinion of the Indians is opposed to the law or not. But Mr. Thompson agreed to take the sense of the Indians, and to that end he assented that an agent should be appointed. Did this bind him to stand or fall by the agent's report? If he had an absolute right under the law to be paid, I cannot say that I think he forfeited that right by an abortive attempt to comply with a condition which the law did not impose on him. He made a voluntary effort to strengthen himself with the Treasury Department by doing what he could not legally have been required to do. This does not prevent him from falling back on the naked law, Thompson's Case. and standing there in defence of the rights which it gives him. These, I presume, are all the facts and circumstances to which you refer as having transpired since the passage of the act. There is but one point more to be noticed. That is raised by your inquiry, "whether the provision authorizing the payment to Mr. Thompson is rendered nugatory by the subsequent provision requiring that amount to be deducted from future payments to the Menomonee Indians?" Congress has no authority to abrogate a treaty made by the Executive, any more than the Executive has to abrogate a law passed by Congress. But it is not to be presumed that such was the intent of the act under consideration. Congress took the responsibility of paying a debt due from the Indians to Mr. Thompson, out of the United States treasury. Their power to do this cannot be denied; and Mr. Thompson has no interest in any other part of the law. The other provision for deducting the amount from the future annuities to become due under the treaty was inserted, no doubt, upon satisfactory evidence that the Indians were agreed to it. We cannot act now upon the assumption that they will resist the deduction when the proper time comes for making it. But if we knew that such would certainly be the fact, Mr. Thompson's rights could not be affected by it. Congress has chosen to say that he shall be paid at all events, and has taken upon the Government all the risk (if there be any) of getting a deduction from the Indians. The United States have bound themselves by treaty with the Menomonees to pay them certain sums of money. At the stipulated time we must meet this responsibility, either by payment of the money to the Indians, or else by proof that it is already paid, with their consent, to an individual who was their just creditor. The act of Congress ordering the deduction from the Indians will not conclude them on the question of fact, whether they did assent or not. But that is no reason why Mr. Thompson, who has the act of Congress in his favor, should not receive what it gives him. Not seeing any reason for resisting the will of Congress, Diplomatic Privileges. as expressed in this law, I can only conclude by advising your literal obedience to its provisions. That course is always the safest. I am, most respectfully, yours, &c., Hon. HOWELL COBB, Secretary of the Treasury. J. S. BLACK. DIPLOMATIC PRIVILEGES. 1. If a slave, employed by the representative of a foreign government without the owner's authority, be reclaimed by the owner with or without legal process, the reclamation is not a breach of diplomatic privilege. 2. For injuries done by private persons to the representatives of foreign governments, the Government of the United States affords redress through its judicial tribunals. 3. The Executive Department has no power to redress such injuries. ATTORNEY GENERAL'S OFFICE, March 30, 1857. SIR: I have had the honor to receive your letter enclos ing two notes from the Austrian Minister, in which he complains that his rights have been invaded by the arrest of his servant on the 4th instant. I have read those notes, together with the communications of the District Attorney to your department, and without delay I give you, as you request, my opinion on the legal questions involved. The case, simply and plainly stated, is this: The Chevalier Hülseman took into his house, and kept in his service for some months, a negro woman who was the slave of a gentleman residing at Port Tobacco, in Maryland. On the 4th of this month she was seen on the street, arrested, and restored to her master, by two of his friends. Was this such a breach of the Minister's privileges that the President is authorized to interfere for his redress? If yes, what specific redress ought to be afforded? The minister of a foreign government residing here has no power or authority, by the law of nations, to make con Diplomatic Privileges. tracts of any kind with persons who are under a legal disability to perform them. He has no privilege which enables him to retain in his employment the wife, child, apprentice, or slave of a citizen without his consent. If he does so, the injured husband, parent, or master is not disarmed of the right of recaption by the mere fact that the wrong-doer is the representative of a foreign prince. This rule is very clearly defined and fully established by writers of unquestioned authority. That it is just, necessary, and consistent with reason, is shown by a bare suggestion of the difficulties to which any other would lead. If a minister may take whom he pleases into his service, and keep them, without regard to the rights which others have acquired to their custody, then he may make his house the place of refuge for any discontented wife, rebellious child, or fugitive slave, in the country to which he is accredited. By parity of reasoning he could hire the soldiers of a garrison, or take the sailors from a ship into his service, and shelter them under his privileges from the pursuit of their officers. Nor is it easy to see why, on the same principle, he may not protect a felon from the punishment due to his crimes. If this were the law of nations, there is no government in the world that would not be compelled, in self-defence, to refuse all other governments permission to be represented by ministers residing within its territory. The woman whose arrest the Austrian Minister complains of was a slave. His note does not deny this, and the report of the District Attorney proves it. Any contract, therefore, which the Chevalier Hülseman may have made with her was absolutely null and void; nor could he, by any conceivable means whatever, gain a legal right to her services, unless by the consent of her master; and it is not alleged that he had such consent. In fact and in truth she was not his servant, but the servant of another person. The restoration of the woman to her owner was not, therefore, an aggression upon the right of the Austrian Minister, since he had no right, title, or claim to her; but |