State of Mississippi, on the 4th of December, 1826, which has been suspended in consequence of the Treasurer declining to recognise this deposite; and the following statement of facts is given in reference thereto :

"On the 24th May, 1826, the commissioners were advised, as per letter of instructions herewith, (A,) from the Secretary of War, that $20,000 were subject to their order for the purposes contemplated by their trust. They drew but $15,000; for which they received, in negotiating their drafts, the paper deposited by them in bank, at the time as available for all their purposes as specie. After having executed their trust, they transmitted to this office a statement of their disbursements; upon the adjustment of which, the aforesaid balance of $3,646 03 was found against them. On the 4th of January, 1828, the certificate of deposite herewith, (B,) for $3,628 79, was handed over to this office from the Department of War, to be passed to the credit of the commissioners, by order of the Secretary of War, as per paper herewith, (C;) but, upon communicating to the Treasurer this deposite to his credit, only $1,253 79 would be admitted by him, as per paper herewith, (D,) declining to allow that part of the deposite termed special deposite, of $2,375.

"The certificate of deposite was returned to General Hinds on the 7th January, 1828, advising him of this determination of the Treasurer, as per letter from the Office of Indian Affairs, Department of War, herewith, (E,) directing him to convert the 'special deposite' into funds that would meet the views of the Treasurer, and to forward a proper voucher for any expense attending the negotiation.

"General Hinds, upon receipt of this certificate, withdrew the 'special deposite' of $2,375, leaving the deposite of $1,253 79 to the credit of the Treasurer of the United States, for which a credit has been allowed the commissioners. They now hold the $2,375, as per letter herewith, (F,) subject to the order of the Government; not being able to convert it into available funds, upon the plea that it is the same paper as received by them for their drafts, and that they are not bound for any deterioration in value; it being, at the time it was received, as available for all the purposes of their trust as specie, and that they have received no benefit from the transaction.' "An appeal has been made to the Treasurer, as per his letter herewith, (G) referring it to the Secretary of the Treasury, (who, it is understood, has been consulted, but declines interfering;) all of which is now respectfully submitted for your decision, with the remark, that the commissioners were appointed by the President of the United States, to be regulated in the discharge of their trust by instructions from the Secretary of War; that they were empowered to draw for $20,000, and drew but $15,000; that, immediately after the termination of their labors, they made out a statement of their disbursements, and deposited in bank the same funds they had received, to an amount sufficient, by their statement, to cover the balance against them; that the deposite, thus made, was approved, as per letter of 20 January, 1828, herewith, (H,) by the Secretary of War, to whom alone they were accountable; and that if, instead of a loss resulting from their negotiations, a premium had accrued upon their drafts, they could not. have benefited thereby, as it would have been placed to their debit, in conformity with the established and uniform practice of the department." On this state of facts I am of opinion, that Generals Coffee and Hinds are not bound to account to the Government for the depreciation of the money deposited by them in bank to the credit of the Treasurer of the United States

These gentlemen were officers of the United States, who received in compensation for their services a per diem, which was fixed, and an allowance for travelling expenses. They had no interest whatever in the exchange or disbursement of the money. Both these acts were performed in the discharg of their official duties as the agents of the Government, on its account and for its benefit. The money was to be expended under the direction of the President, given through the Secretary of War. That direction was given. The commissioners entered upon the discharge of their duties, drew for $15,000 of the sum appropriated, and realized the proceeds of their bill in the only practicable mode at the time and place where the transactions occurred. The money so raised was applied to the purposes for which it was intended; and the balance remaining after these purposes had been fulfilled, was deposited to the credit of the United States: since which, it has depreciated. I confess myself unable to discover any ground on which the commissioners can be made responsible for this depreciation. The moner in their hands was still the money of the United States, and not theirs If it had been received at a discount, and had appreciated while in their hands, the benefit would have accrued to the Government. A very obv ous principle of justice exempts them from responsibility for loss, when no possible change of circumstances could have inured to their benefit.

I have considered whether there was any negligence in this transaction. or want of proper skill, on the part of the commissioners, which could subject them to responsibility; but I can find none.

They were advised of their appointment in May, 1826, and authorized to draw for the amount of the appropriation. They limited their drafts to $15,000, and negotiated them for such funds as were available at the scene of their official duties. When these were accomplished, they deposited the balance in their hands to the credit of the Treasurer of the United States, and transmitted the certificate to the Secretary of War; who, replying through the superintendent of the Office of Indian Affairs, informed them that the certificate would be allowed and their accounts settled. Here, would seem, the transaction was closed. The Secretary (under the direc tion of the President, it is to be presumed) had approved their conduct and ratified the deposite. They were accountable to him only, and they had accounted to his satisfaction. He had adopted their acts, which were there after to be considered as the acts of the department-or rather of the Presi dent, acting through the department. If, in his management of the appro priation, a portion of it had been converted (as it appears to have bee anavoidable) into funds which were not receivable at the Treasury of the United States, it would seem to me unquestionable that the duty of reexchanging it for available funds would devolve upon him; and that and loss which might attend the transaction must be borne by the Government to whom, in its various mutations, this money had constantly belonged. JN. MACPHERSON BERRIEN.

To the PRESIDENT OF THE UNITED STATES.

ATTORNEY GENERAL'S OFFICE,

June 10, 1830.

SIR: I have received your communication of yesterday's date, in which you inform me that, under the act entitled "An act for the relief of certa

surviving officers and soldiers of the army of the Revolution," it has been the practice of your department to deduct the amount of any and every pension that an officer had received since the 3d March, 1826, from the pay that he was otherwise entitled to receive under the 1st section of the act; and this act having been amended by an act for that purpose approved on the 31st May last, you ask my opinion whether the last-mentioned act will authorize the repayment of the invalid pension which may have been so deducted under the act first referred to.

You desire me, moreover, to state whether, in my opinion, the act of the 31st May, 1830, extends the benefits of the act of the 15th May, 1828, to soldiers who, being on the invalid-pension list, were excluded by the third section of that act.

In answer to your first inquiry, I have to state that the provisions of the act of the 31st May, 1830, are altogether prospective. It declares that the act of the 15th May, 1828, "shall not be construed to embrace invalid pensioners;" that "the pension of invalid soldiers shall not be deducted from the amount receivable by them under the said act." These enactments operate in futuro. They prescribe a rule which is to be applied to cases which may occur after their date; but do not relate to the past, or give any authority to re open accounts which may have been theretofore settled. They require the department to abstain from making such deductions hereafter, but do not authorize the payment of such as have been made heretofore.

In reply to your second inquiry, I have to remark, that the force of the ct of the 31st May, 1830, seems to be directed against the 2d section of e act of the 15th May, 1828; which is confined to the "surviving officers f the army of the Revolution, in the continental line, entitled to halfay," &c., and does not extend to the non-commissioned officers, musicians, I privates of that army. The first-mentioned act (that of the 31st May, S30) does, indeed, contain a provision, in relation to the pension of "invad soldiers," but when the nature of that provision is considered, it will seen to relate only to the persons provided for in the 2d section of the t of the 15th May, 1828-that is, officers of the army of the Revolution titled to half-pay-for none others had pensions which were liable to be ducted from the amount receivable under that act.

If it had been intended to extend the benefit of the act of the 15th May, 28, to soldiers, who, being on the invalid-pension list, were therefore exided by the 3d section of that act, it would have been enacted that the oviso of that section shall not be construed to extend to invalid soldiers, hether non-commissioned officers, musicians, or privates, who may be on e pension list; but such invalid soldiers shall, notwithstanding, be entitled the benefits of said act.

JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE TREASURY.

ATTORNEY GENERAL'S OFFICE,
June 19, 1830.

SIR: In answer to the inquiry contained in your note of yesterday, I ve to state that "the sanction of the late Secretary of the Navy, as exited in his letter of the 20th May, 1830, and the letter of the late Fourth

Auditor, dated 16th February, 1829," do not, in my opinion, "make it the duty" of the Second Comptroller "to pass the amount of the claim to the credit of Purser Clarke."

It was the duty of the late Fourth Auditor to receive and audit the ac count of Purser Clarke. Having done this, the law required him to certify the balance to the Second Comptroller for his decision, and to transmit the accounts with the vouchers and certificate. It then became the duty of the last mentioned officer to examine this account, and to certify the balance to the Secretary of the Navy. Until this is done, the proceedings are in fierinothing is concluded; and even then, it is open to the controlling power of the Secretary, as the head of the department.

Purser Clarke's account appears not to have been settled at all by the late Fourth Auditor. He had never certified the balance to the late Second Comptroller for his decision, nor had that officer acted upon it. In the course of correspondence with Purser Clarke, the late Fourth Auditor had indeed informed him that the particular claim which is the subject of the present inquiry would be allowed; but he had not, in point of fact, al lowed it, by passing it to his credit, and certifying the account thus stated to the Second Comptroller for his decision. A letter from the late Secretary of the Navy, under date of the 20th May, 1830, is exhibited; which goes into a detail of circumstances calculated to show that the claim under con sideration was allowed by him while in office. I do not object to the form in which this is presented. The Auditor may receive and consider it, or, if he thinks it necessary, may have it verified. But it seems to me, in general, an unsafe rule to recognise any other evidence of official acts except the records of the department. If the sanction of the late Secretary was, in fact, given to this claim; to make it effectual, it was necessary that the Fourth Auditor should have stated the account accordingly, and have cer tified it to the Second Comptroller, from whom it should have passed to the Secretary, and, when finally adjusted, to the Fourth Auditor for safekeep ing. Until this was done, there was a locus pœnitentiæ. The written of verbal direction of the Secretary might have been recalled, if, on farther reflection, he had considered it erroneous. This discretion, the right to ex ercise which he retained as long as the account remained unsettled, ceased only (as that was never done) with the termination of his official functions, and passed consequently to his successor.

I have abstained from saying any thing concerning the merits of the claim, not considering the question of its validity as involved in your inquiry. The papers are returned.

To the SECRETARY OF THE NAVY.

JN. MACPHERSON BERRIEN.

ATTORNEY GENERAL'S OFFICE,
June 29, 1830.

SIR: The 11th article of the rules and articles for the government of the army of the United States declares that no discharge shall be given to a non commissioned officer or soldier, before his term of service has expired but by order of the President, the Secretary of War, the commanding office: of a department, or the sentence of a general court-martial.

The act of the 15th May, 1820, provides that seamen, ordinary seamet.

and boys, may be enlisted for a period not exceeding three years. The act of the 31st January, 1809, which authorized an additional naval force, required that the seamen, &c., should be engaged to serve for a period not exceeding two years, with power to the President to discharge them sooner, if, in his judgment, their service might be dispensed with.

The act of the 3d March, 1809, directs enlistments in the marine corps to be for five years, unless sooner discharged; but does not provide by whom such discharge shall be granted.

It is with these very imperfect lights, and in the absence of all informa tion as to the usage in this regard, except what I may derive from the letter of Colonel Henderson, that I am now to form and express an opinion on the points which you have presented to me.

By the provisions of the act for the establishment and organization of the marine corps, it is subjected to the rules and articles of war prescribed for the military establishment of the United States, or to the rules for the regulation of the navy, according to the nature of the service in which it may be employed. I have heretofore expressed an opinion that this corps was more assimilated to the army proper, than to the naval branch of our military establishment; and in relation to the present inquiry, it seems to me it must be so considered. I find, too, that the commandant, Lieutenant Colonel Henderson, rests the authority which he claims, of granting discharges, under peculiar circumstances, to marines whose term of service has not expired, on the 11th article of the rules and articles of war.

I will repeat the provisions of that article: it provides that "no disharge shall be given to a non-commissioned officer or soldier, before his erm of service has expired, but by order of the President, the Secretary of Var, the commanding officer of a department, or the sentence of a general ourt-martial." Now, the lieutenant colonel commandant of the marine orps cannot be brought within this description of persons authorized to rant discharges. He is not the commanding officer "of a department;" or that is a technical expression, interpreted, in the army regulations, to esignate the geographical limits which separate the grand divisions of the rmy of the United States. Nor can he acquire the right to grant such ischarges by virtue of his office as commandant of the corps; for the uthority to rescind a contract between the United States and the indiidual, which is the effect of the discharge, is a power which can exist nly by virtue of an express grant: it is not dependent on rank, but simply n the provisions of the law. Under the article which we are now considring, the major general commanding the army of the United States cannot rant a discharge, which may be granted by his inferior officer, who chances > be in command of a department.

I am, then, of opinion, that it is not competent to the lieutenant colonel ommanding the marine corps to grant discharges to marines before the xpiration of their term of enlistment; and that, until Congress shall otherise provide, such discharges can only be granted by the President of the nited States, or in conformity to such regulations as he may think proper O prescribe.

JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE NAVY.