Custom House at Ogdensburg. may properly be applied to the then current fiscal year, and consequently that the appropriation may be lawfully used to purchase land and put up a custom-house. Your second question is whether the terms and conditions of the letter of the department to Mr. Judson require you to accept his lot. The letter discloses the intention of the department to accept and pay for his lot as soon as any legal objection supposed to exist should be removed or obviated. The obstacle then suggested and referred to, did not, in fact, exist, and there is actually nothing to prevent the department from buying the lot. The letter requested Mr. Judson to prepare his titles and submit them to the United States District Attorney for examination; and the records of this office show that the validity of the title was duly certified on the 27th day of February last, and that consequently he has performed, on his part, the conditions imposed by the department. The other condition of the contract was in substance that it should be executed if the power to do so should be conferred on the department, and this the Secretary supposed could only be done by further legislation. But the power had in truth been conferred already, and no legislation was needed. When you interpret the letter of acceptance, according to its spirit and intention, it is a simple agreement to take the lot and pay for it. To say that Congress, which had given the authority before, must go through the form of giving it again, would be to take ground scarcely creditable to the Government, which always acts up to the broadest rules of honor. A vain thing is never required by law, justice, or common sense. I have no knowledge of any case in which a court has permitted a private party to avail himself of such a defence against a contract like this. If I would promise to pay money on condition that another person would pay it to me, I could not get clear of my obligation by proving that I had received it before. In conclusion, I have to say that I think the provision in Contracts on the Washington Aqueduct. the act of 1856 does not forbid the purchase of a lot for, and the erection of, a custom-house at Ogdensburg; and that the Secretary's letter to Mr. Judson does bind you to take and pay for his property. I am, most respectfully, yours, &c., Hon. HOWELL COBB, Secretary of the Treasury. J. S. BLACK. CROWELL'S CASE. A naval court-martial may lawfully sentence a seaman to the penitentiary in the District of Columbia, to be confined at hard labor for three years, to be deprived of his pay, and to be marked with the letter D on his right hip. ATTORNEY GENERAL'S OFFICE, September 5, 1857. SIR: In my opinion there is nothing illegal in the sentence of the naval court-martial, convened at New York, in the case of Charles Crowell, an ordinary seaman, who was found guilty of striking, disobeying, and treating with contempt his superior officer, and who was sentenced to three years' confinement, at hard labor, in the penitentiary here, to be deprived of his pay, and to be marked with the letter D on his right hip. I am, with great respect, yours, &c., Hon. ISAAC TOUCEY, Secretary of the Navy. J. S. BLACK. CONTRACTS ON THE WASHINGTON AQUEDUCT. 1. The Secretary of the Treasury has no legal authority to relieve a contractor on the Washington aqueduct from a bad bargain, either by rescinding the contract or by paying him a higher price for his labor than what he agreed to take. 2. The power vested in the head of an executive department to make contracts for work or materials does not imply the power to rescind or alter such contracts when made. Contracts on the Washington Aqueduct. ATTORNEY GENERAL'S OFFICE, September 5, 1857. SIR: H. L. Gallaher had a contract with the United States for doing certain work on the Washington aqueduct. He was to be paid by the cubic yard, and the Government reserved the right of suspending the work under the contract at any time. The engineer in charge gave him notice to suspend in July, 1856, the appropriation being exhausted; and the contractor was paid for what had been done up to that time. In March, 1857, he was notified to resume his work, and did so. He now says he is doing the work at a loss, and asks you, in a memorial, either to give him a larger compensation than he bargained for, or else to release him from the contract. You have no authority to do either of these things. You cannot absolve him from his obligation to do the work; and, if he does it, you cannot authorize him to be paid for it at a higher price than the contract stipulates for. This is true, whether he was bound in law to resume after the suspension or not. If he was so bound, it is your duty not to release him; and, if he is already released by the suspension, he does not need your interference. Quacumque via data, the result is the same. He is asking for that which cannot be given. In short, you have no power to relieve him from the hardship he complains of, either by giving him damages, by releasing him from his present contract, or by making a new one. This is a practical answer to the whole case. What the effect of the suspension may be upon the rights of the contractor and his sureties is not a question for you, and consequently not for me, to decide at present. The courts will settle it in due time, if it becomes necessary to raise it. In the meanwhile, if the contractor quits the work, or otherwise violates the covenants he has made with the Government, he must do so at his own peril and that of his sureties. I am, with great respect, yours, &c., Hon. JOHN B. FLOYD, J. S. BLACK 6 Secretary of War. Duty of the Attorney General. DUTY OF THE ATTORNEY GENERAL. 1. It is the rule of the Attorney General's office to give advice to an executive department only in actual cases, where the special facts are set forth by the department. 2. The Attorney General is not required to write abstract essays on any subject. ATTORNEY GENERAL'S OFFICE, September 5, 1857. SIR: A letter from the Hon. Mr. Porter, of Missouri, recalls my attention to a matter which I thought had been disposed of some time ago. On the 2d of June you addressed me, enclosing two letters from Mr. Porter and one from Mr. McMullen, of Virginia, relative to claims under the act of March 3, 1849, to provide for the payment of horses and other property lost or destroyed in the military service of the United States, and you request my opinion on the three questions submitted by Mr. Porter; but you do not state that these questions have arisen in your department, nor am I informed of the facts of any particular case pending there under the law referred to. It has always been the rule of this office to give advice only in actual cases, where the special facts are set forth by the department. It is impossible to reply to mere speculative points or supposed cases. The Attorney General is not required to write abstract essays on any subject. If there be a claim pending before you on which you desire to have my advice, and you will be pleased to say how it arises, what are the facts, and wherein the law seems doubtful, I shall with great pleasure give you my opinion. My belief that you had withdrawn these papers is the reason why your communication was not replied to sooner. I am, most respectfully, yours, &c., Hon. JOHN B. FLOYD, J. S. BLACK Secretary of War. Revolutionary Pensions of Children and Grand-Children. REVOLUTIONARY PENSIONS OF CHILDREN AND GRANDCHILDREN. 1. Where a revolutionary soldier, who has performed services which would have entitled him to a pension, has died without being placed on the pension list, neither his children nor grandchildren are entitled, after his death, to make the application, and get the pension which he might have got by taking the proper steps in his lifetime. 2. The same rule is applicable to the case of a revolutionary soldier's widow who has died without being on the pension list, and whose children or grandchildren make the application in her right. ATTORNEY GENERAL'S OFFICE, SIR: I have received your letter on the application made by the grandchildren of Deborah Grant for the pension to which they allege she was entitled, and have examined the papers by which it was accompanied. Mrs. Grant first began to receive a pension in 1839; it was increased in 1841; and in 1853 she applied for a still further increase, alleging that the services performed by her husband entitled her to a larger pension than either of the previous decisions of the office had given her. Pending this last appropriation she died, leaving grandchildren, but no children, living. The grandchildren now renew the application. As to the increase applied for in 1853, but never allowed, that must be regarded as an unestablished claim to a pension. The mere application, made in her lifetime, does not make the right of her children any better than it would have been if she had never applied at all. I take it for granted that her grandchildren have proofs sufficient to show that she, in her lifetime, was entitled to receive what they now claim as her representatives. Nor will I stop to discuss the question whether the grandchildren of a pensioner have or have not the same rights that children have. It is settled by the Supreme Court (19 How., 355) that they stand on equal ground. What has been decided by that tribunal is not, and ought not to be, open to further dispute. |