demand which might be made on it on account of claims which had been brought before the commissioners and decided upon by them. But whatever may have been the object of the contracting parties, the stipulation is positive that these records and papers are to be deposited in the State Department; and the whole context of the article in question shows that they were intended permanently to remain there. In my opinion, therefore, the Secretary of State cannot deliver them to the claimants, and a law of Congress authorizing the delivery would be a violation of the treaty. R. B. TANEY.

To the SECRETARY OF STATE.

ACCOUNTS AND ACCOUNTING OFFICERS.

Where items of account have been once presented to the accounting officers and rejected, and afterwards to Congress, and by that body rejected in part, and the rejected items again presented to the accounting officers on new proof-HELD, that they cannot reopen the account nor take any new testimony in respect to them.

Where Congress directs an account to be opened for a specific purpose, that purpose only can be subserved by so doing.

SIR: I have examined the papers relating to the claim now made by Colonel Tharp, upon which, at the request of the Comptroller, in his communication of April 25, 1832, you have called for my opinion.

The four items particularly mentioned in the report of the Comptroller were claimed as credits, and disallowed by the accounting officers, with some others which it is not now necessary to notice. Colonel Tharp petitioned Congress for relief; and several laws have been passed in relation to the claims of Colonel Tharp, as appears by the Comptroller's statement; to which he has not referred me, as he does not suppose them to be ma terial. But he has furnished me with the report of the committee made on the petition which Colonel Tharp presented to Congress in 1830, for the allowance of these particular credits in his account, together with some other claims. This committee reported against these four items, and in favor of certain other specified credits, which had been rejected by the accounting officers. There does not appear to have been any legisla tion upon the subjects mentioned in that report until the present session of Congress; during which a law has been passed requiring the accounting officers to open and adjust the account of Colonel Tharp, and to al low the same items recommended for payment in the above-mentioned report of the committee. But no authority is given to open the account for any other purpose, or in relation to any other claim. These four items, which had been disallowed by the accounting officers, and which were brought before Congress and there disallowed, are now again brought before the Comptroller. As to three of them, the evidence offered is the same with that produced before the committee. But new evidence is produced in relation to the remaining item; that is, the claim for interest, damages, costs, &c., upon the draft drawn by Lieutenant Reed, and endorsed by Colonel Tharp; and as this new evidence satisfies

the Comptroller that this draft was paid by Colonel Tharp, and the ground taken by the committee for its rejection was the insufficiency of the proof on this point, the Comptroller seems to suppose that this claim is placed before him on a different footing from the other three, and that it has better pretensions to be again reheard by him and allowed.

I take a different view of the subject from the Comptroller.

The law which directs the account to be opened, and certain claims allowed, gives no power to the accounting officers to open the account for any other purpose. Nor does it authorize them to re examine any of the rejected items, or take any new testimony in relation to them. The law manifestly regards the accounts as closed upon the claims then before Congress, and directs it to be opened for a specified purpose only.

Can the Comptroller allow an item of claim which has been finally disallowed at the treasury, and afterwards rejected by the legislature? Could he, for example, in the present state of the case, take further testimony in order to ascertain whether the second item mentioned in the report was a public or a private transaction? And if this additional testimony satisfied him that it was a public one, could he reverse the decision made in Congress? I think not. The claim has been heard before the legislature, and rejected; and it is immaterial on what ground it was rejected. We cannot know that the evidence which satisfied the Comptroller would have satisfied the legislature. And when a claim has been there considered and disallowed, after being rejected at the treasury-and especially when the language of the law so recently passed for the relief of Colonel Tharp implies, in the plainest terms, that his account is to be regarded as closed, and directs it to be "opened" for certain specific claims only-I cannot think that any one of the rejected items is any longer a fit subject to be reheard and reconsidered, upon new testimony or otherwise, by the accounting officers. No injustice is done by this rule, because Congress may review and reverse its own decisions whenever the purposes of justice require it.

The facts stated by the Comptroller in his letter of May 21, in relation to the evidence on which his former report was founded, are matters for his consideration, and not mine; and it is unnecessary, therefore, for me to say anything on that point.

To the SECRETARY OF WAR.

R. B. TANEY.

ACCOUNTS AND ACCOUNTING OFFICERS.

Contracts for bricks and masonry at Fort Monroe ought to have been deposited with the Comptroller, and accounts arising therefrom ought to be adjusted at the Treasury Department; until that shall be done, the Secretary of War cannot be called on to order payment.

ATTORNEY GENERAL'S OFFICE,
May 31, 1832.

SIR: I have examined the statement of General Gratiot and the papers which accompany it, relating to the contracts made with Bolitha Laws, for the delivery of bricks and for masonry at Fort Monroe.

By the act of July 16, 1798, all contracts of this description ought to be deposited with the Comptroller; and the contracts in question were, I

presume, deposited as the law requires. The act of March 3, 1817, directs that all accounts whatever, in which the United States are concerned, shall be settled and adjusted at the Treasury Department, and the of ficers by whom the different accounts are to be settled are pointed out in the law. I am not aware of any act of Congress which excepts contracts of the description of those before me from the provision in the 4th section of the act of 1817, which makes it the duty of the Third Auditor to receive "generally all accounts of the War Department, other than those provided for." If there is any act of Congress which makes special provision for the settlement of claims like those now preferred, and thereby exempts them from the operation of the law above mentioned, I would be glad to be referred to it. But, in the absence of any such act of Congress, I do not perceive how the case can regularly be brought before you in its present condition. It appears that no settlement of the account, on either contract, has been made at the treasury by the proper officer; and, until that is done, and a sum found and reported to be due to him, you cannot be called on to order a payment of the claim, or any part of it. R. B. TANEY.

To the SECRETARY OF WAR.

PENSIONS TO INVALIDS.

It rests with the President to prescribe the regulations under which a person shall be admitted as a pensioner, and the rate of pay which he shall receive, as well under the act of 1812 as that of 1802.

He may apply it to civil officers receiving a certain amount of income from their offices, whilst he exempts others from its operation.

Hence the applicant has no absolute legal right to be placed on the pension list. If the regulations of the President applicable to those who hold civil offices exclude him, he cannot be placed there.

ATTORNEY GENERAL'S OFFICE,
May 31, 1832.

SIR: General McNeil's application for a pension is made under the act of July 11, 1812.

This law directs that if any officer, non commissioned officer, &c., shall be disabled while in the line of his duty," he shall be placed on the list of invalids of the United States, at such rate of pension and under such regulations as are or may be directed by law;" and then proceeds to limit the pension which may be allowed to the party. It does not fix the amount to which he shall be entitled, but declares that it shall not exceed certain amounts mentioned in the law.

As this act of Congress gives the party a right to a pension "at such rate and under such regulations as are or may be directed by law," and does not prescribe the manner in which the rate is to be fixed, nor the particular regulation under which he shall be entitled to be placed on the roll of pensions, we must look for some other act of Congress to guide us in this respect. And the only act of Congress then in force, to which this law can be supposed to refer, is the act of March 16, 1802. It is very clear that the act of 1812 cannot be construed to refer to the law of April 25, 1808, which placed invalids who had then been disabled, and who had received their wounds after the revolutionary war, on the same

footing with the revolutionary pensioners. And I understand the uniform construction given to the act of 1812 has been, that it referred to the provisions of the act of 1802, to ascertain the rate of pension, and the regulations by which the party was to become entitled to it. I think this construction is the true one; and as no subsequent law has provided different regulations, or a different mode of fixing the amount of the pension, the provisions of the act of 1802 must, in these particulars, govern in all cases which arise under the act of 1812.

The act of 1802 directs that the party shall be placed on the list of invalids "at such rate of pay and under such regulations as may be directed by the President of the United States for the time being." This law vests in the President the power to prescribe the "regulations" upon which a party may be placed on the pension lists, as well as the rate of pay to be allowed him, provided the amount does not exceed the rates limited by the act of Congress. It is to the regulations and rate of pay thus to be prescribed by the President, that the act of 1812 refers as being then directed by law; and, consequently, it rests with the President to prescribe the regulations under which a person is to be admitted as a pensioner, and also the rate of pay in all cases which arise under the act of 1812, as well as in those under the act of 1802.

As the President may prescribe the "regulations" under which a party shall be placed on the pension-list, no one is legally entitled to be placed there in opposition to any regulation which he may think proper to make on the subject. The order of April 18, 1829, was an exercise of the power thus vested in the President; and since that regulation was made, and while it remains in force, no one who is in the receipt of pay or emolument as an officer of the army can be placed on the pension-list.

The case of General McNeil, however, is not embraced in this order. But it does not follow that he has an absolute right to be placed on the pension-roll; for it still remains with the President to decide whether he will apply the same regulation to all civil officers, or to any of them, or to what description. He may apply it, if he thinks proper, to civil officers receiving a certain amount of income from their offices, and exempt from its operation those whose allowances are less. And where his regulations do not exclude the party from the roll, he may fix the rate of pay as low as he thinks proper, taking care not to exceed the limits fixed by the act of Congress.

The result of the principles above stated, when applied to the case of General McNeil, is this: He has no absolute legal right to be placed on the pension list. It rests with the President to prescribe the regulations on this subject, which shall be applied to persons holding civil offices. If these regulations shall exclude General McNeil, he cannot be placed on the pension list. If they do not exclude him, or if the President should see fit to make any regulations in relation to persons holding civil offices of profit, then General McNeil will be entitled to be placed on the pension roll. But, in that event, it will still be for the President to determine upon the rate of pay to be allowed to him as pensioner.

To the SECRETARY OF WAR.

R. B. TANEY.'

PROVISION FOR WIDOWS OF CONSULS WHO DIE IN OFFICE.

The Executive will pay to the widow of a consul, having a salary, who has died in office abroad, upon her return, the amount which it has been customary to pay to consuls themselves upon their recall, viz: his salary for three months.

The funeral expenses of the deceased consul, and the incidental and contingent expenses of the consulate after his death, are a fair item of charge on the fund for the contingent expenses of foreign intercourse.

And where the son of the deceased consul remains at the port and discharges duties of consul which are recognised by the government, he may receive the compensation fixed by law for such services.

Such was the practice of the government in the cases of Messrs. Folsom, Heap, Simpson, and Hodgson.

ATTORNEY GENERAL'S OFFICE,

May 31, 1832. SIR: The claim of Mrs. Coxe and her son, upon which you have called for my opinion, presents, in one respect, a new case. Mr. Coxe, it appears, is the first of our consuls to the Barbary States who has died while in office, and his widow and family have been obliged to return home at their own expense; and Mrs. Coxe presents a claim against the government for these expenses.

Under the act of May 1, 1810, there can be no outfit allowed to a consul, nor is there any authority given to pay his expenses home; but, by the practice of the government, it has been usual to consider him in office, and therefore entitled to his salary, after leaving his station, for a time sufficient to enable him to return home. And as it was desirable that some certain period of time should be fixed on, in order to avoid the necessity of a particular examination in every case, three months ap pear to have been adopted as a reasonable time in such cases, and accounts have, I understand, been settled accordingly.

If, therefore, Mr. Coxe had lived to return with his family, he would have been entitled to three months' pay after leaving his station. This interpretation of the law of May 1, 1810, appears to me to be a reasonable and just one. His salary goes on while the consul is performing his outward voyage, and there seems to be no ground for denying it to him on his return. He is, however, during that period of time, rendering no service; and the allowance of the salary for three months after leaving his station is evidently made to enable him to return to his own country; and, as his term of office is construed to endure for that purpose, although he is not discharging any of its functions, it would seem that the same principle may with equal propriety be applied to the case of his widow; and three months' salary, from the time of his death, may be paid to her, in order to enable her to return with her family. This, I think, is not only an equitable construction of the law, but one which, from the nature of the public service in which a diplomatic agent is engaged, is called for by the principles of justice; and it would be a severe and harsh construction of it to deny, after his death, to his widow and family, those means of coming again to their home which would have been offered to them by the public if he had lived. But I do not think more can be allowed for their expenses than the usual salary for three months.

The funeral expenses appear to me to be a fair item of charge on the fund for the contingent expenses of foreign intercourse. The act of May 1, 1810, gives the consul at Tripoli two thousand dollars per annum, as a compensation "for his personal expenses and services," but does not