analogy of a ship-of-war, like that of a foreign sovereign travelling in the dominions of a friendly power, and of ambassadors of all classes, shows the principle of immunity, by reason of a quasi or fictitious extra territoriality, to be familiar to the law. But put it on the ground of comity, it is plainly juris gentium. To show how sacred the duties of humanity have been considered in England, even as between enemies, Sir William Scott rejected with indignation a claim of capture by persons going on board in distress, allowing freight expenses and demurrage to the ship. (1 Rob., 243-the Yonge Jacobi vs. Bannerman.) Further, the distinction is plain between calling on the foreigner for help, though even that is not often refused in case of distress, and demanding of him only a temporary asylum. In the former case we ask him to aid in executing our municipal law in his territory; in the latter, we only ask to be exempted from his municipal law in our territory. Beyond all question, a ship on the high seas, beyond a marine league from shore, is part of the territory of the nation to which she belongs. Why should her being blown, &c., within a marine league, by tempests, &c., make a difference? We affirm that to shut up her ports absolutely to vessels in distress, would be less hostile than to admit them on such conditions. Hospitio prohibemur arenæ in either case, and the relation is one of covert hostility. Suppose the case of a British transport or cartel filled with impressed seamen driven into our ports, or a convict ship into those of France. I have the honor, &c., LORD ASHBURTON. H. S. LEGARE. ACCOUNTS AND ACCOUNTING OFFICERS. By the 25th section of the act of Congress passed 26th August, 1842, no allowance can be made for any commission or inquiry, except military or naval, until special appropriations are made by Congress for the purpose. OFFICE OF THE ATTORNEY GENERAL, October 25, 1842. SIR: Your letter of yesterday, which I have had the honor to receive, presents the following case: "The 25th section of the act of Congress passed 26th August, 1842, provides that no accounting or disbursing officer of the government shall allow or pay any account or charge whatever growing out of or any way connected with any commission or inquiry, except courts martial or courts of inquiry in the military or naval service of the United States, until special appropriations shall have been made by law, to pay such amount and charge. An act of Congress for the relief of David M. Hughes, Charles Shipman, and John Henderson, was passed on the 9th August, 1842, directing the Secretary of the Treasury to make an inquiry into, and cause an estimate to be made of, certain damages incurred by them from a party of emigrating Creek Indians. It is believed by the department that some capable person should be selected, with instructions to proceed to the place where the trespass is alleged to have been committed, for the purpose of making a full and satisfactory investigation of the matter, with a view to a final decision upon it by the proper auhority. Your opinion is therefore respectfully requested, whether this case can be considered as embraced in the provision of the 25th section of the act of Congress first above mentioned; or whether, in the event of an agent being employed, the expenses incurred can be properly allowed by the accounting officers of the government." I think it impossible to put any construction upon the act of 26th August last, which shall authorize the executive departments to pay for any inquiry whatever, without a previous appropriation for that purpose by the legislature. The words of the law are too comprehensive to admit of any exception, and too express to warrant any relaxation. The special act, read with the general statute, requires of the department that it should institute the inquiry ordered by it, under the pledge contained in the other, that Congress will make a fair compensation to the agents whom it may be necessary to employ. This may produce some inconvenience in practice, but I see no remedy for it under the law as it stands. I have the honor to be, sir, your obedient servant, Hon. WALTER FORWARD, Secretary of the Treasury. H. S. LEGARE. PATEN IS FOR RESERVATIONS TO CHOCTAW CHILDREN. The patents heretofore issued to the parents of Choctaw children, for such children, must stand for what they shall be found by the judiciary to be worth; but patents for reservations to Indian children, under the 14th article, hereafter to be issued, should be made to the children, and not to their parents; care being taken that they show, on their face, that they are issued to the children independently of their father, in fulfilment of the 14th article of the treaty of Dancing Rabbit creek. OFFICE OF THE ATTORNEY GENERAL, November 2, 1842. SIR: During your absence I received, from the Office of Indian Affairs, a letter requesting my official opinion upon the following statement: "By the 14th article of the treaty of Dancing Rabbit creek, with the Choctaws, made in September, 1830, each Choctaw head of a family being desirous to remain and become a citizen of the United States shall be permitted to do so by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of survey; in like manner, shall be entitled to one half that quantity for each unmarried child, which is living with him, over ten years of age; and a quarter section to such child as may be under the age of ten years, to adjoin the location of the parent. These words were construed by Mr. Secretary Cass to give to the parent the title to the halves and quarters of a section stipulated for in right of the children. This construction has been the uniform one of the department in executing the treaty, and patents have issued accordingly; of the correctness of which, no doubt has been entertained heretofore. The register of those that applied to the agent, under this article, contained the names of the heads of families only, which would seem to show that the children were not entitled, in the opinion of the Indians themselves, who fur. nished the materials for the register. That report set forth A B, (the head of the family,) three children over ten years of age, two under ten years, &c." The Commissioner then proceeds to call my attention to the 3d section of the act of 23d August, 1842, which contains a provision inconsistent with the interpretation hitherto adopted, and acted on by that department. The legislature has, under our government, no constitutional power to settle the rights arising under treaties, except in cases purely political. But in every question which involves a controversy about meum and tuum, the treaty (unless merely executory, and calling for future legislation) is itself the supreme law, and must be construed by the judicial department when a case shall arise between individuals. Therefore the act of 1842, if it be inconsistent, and so far as it may be inconsistent with the 14th article of the treaty of 1830, will, whenever a case shall be made for the courts, be declared by them to be null and void. If the right construction of that article be that the children are to take only by inheritance, and not by purchase-that is, as privies of their parents, and not in their own right-the patent ordered by that act to be issued to the children will be decreed by courts of equity to be held in trust for the right heirs or representatives of the father, and to be assigned accordingly. This, however, the legislature has a right to do. It can prescribe to the Executive how a mere administrative act shall be perforined. It may, in its discretion, ordain that a patent conveying land to A, B, and C, or to A and his children, shall be made out in the name of A alone. What right, as between individuals, shall vest under such a conveyance, it has, as I have said, no power to determine in a case where mere private rights have been the subject of treaty. But remedy, mode, and formula, especially in a matter of administration, are, I conceive, within its province, and its will in these respects is binding on the Executive, from and after the declaration of it. Accordingly, had the act of 1842 been nearly contemporaneous with the treaty, I should have had no difficulty in advising the strictest compliance on the part of the Executive with its precepts. The patents must, in that case, have been made out to the children originally. And in all cases hereafter to be disposed of, I am still of opinion that they must issue in this form, the rights of the parties under them being left for the courts to decide on. The difficulty is, how to reconcile this plain legislative construction with that hitherto (as I am assured by the head of the Indian department) adopted by the Execu tive. And it is impossible to reconcile them. With my views of this subject, it is not necessary that I should say which is, in my judgment, the better construction that of the Executive, or that of the legislative department. I would barely observe that the words are so extremely doubtful as to be susceptible of either. Had the act of 23d August last, therefore, never been passed, and you had propounded the same question to me, I should certainly have advised you to adhere to Mr. Secretary Cass's interpretation. Besides the consideration due to his peculiar experience in Indian affairs, it would have been enough for me that he had established a rule in a doubtful matter, and that many titles had been conveyed on the strength of it. It is in such cases, especially, that the maxim of the law applies: minimi mutanda sunt quæ certam interpreta. tionem semel habuere. If the question now is, Shall all that has been done on the strength of that construction be undone, in conformity with the legislative rule of the 23d August last?-I answer, that it cannot be undone by the executive department. That department is functus officio in the premises. The patents it has hitherto issued must stand. They will pass for what they are worth, and the judicial tribunals only are competent to say what that is. To give to a legislative act a retrospective operation would be to violate the constitution. But for the future, I am of opinion that the patents ought to issue conformably to the act of 23d August; care being taken, however, to show on the face of them that they are issued to the children independent of their father, in conformity with the act, and to fulfil the 14th article of the treaty. This ought to be done, to the end that no future assignee may be able to protect himself against a judicial construction, confirmatory of that of Mr. Secretary Cass, (should such a one be made,) by the plea of bona fide purchase for valuable consideration. Such a deed would be a fulfilment of the will of the legislature in the mere formal conveyance of the title of the government in the lands in question, without prejudicing the rights of individuals under it, which the legislature has no constitutional authority, and therefore, it must be presumed, no intention to do. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, Secretary of War. H. S. LEGARE. TRANSFERS OF APPROPRIATIONS. The President has power, under the act of 2d July, 1836, to direct appropriations for one fortification to be transferred to another; the provision therefor being construed to be perpetual. OFFICE OF THE ATTORNEY GENERAL, November 3, 1842. SIR: I have the honor to acknowledge the receipt of your favor of the 2d instant, requesting my opinion whether $4,000, part of an appropriation for Fort Moultrie, may be transferred to Fort Johnson. I am of opinion, on the whole, and with some hesitation, that the President has the power to make the transfer in question. The act of 3d March, 1809, is a general enabling statute. The President and Secretary might make transfers of portions of appropriations subject to one restriction only-that they must have been made within a particular department of the service; e. g., war or navy. The act of 3d March, 1817, restricted this discretion even within the War Department, so far that money appropriated to fortifications, &c., could not be transferred to any other object of expenditure within that department-that is, as I construe it, to objects of any other class. Then came the act of 1820, which, though affirmative, ends with a repealing clause, and alters very materially the previous state of the law on this subject. This act enumerates all the branches of expenditure in the War and Navy departments, from which transfers might be made to other branches. This provision carries still further the policy of the act of 1817 in regard to fortifications, &c. It protects all other branches of expenditure (except those enumerated) from the discretionary power vested in the President by the act of 1809; and no transfers could, from that time, be made from .. any of those branches to any others not enumerated. It did not, of course, restrain the President's discretion within the same branch of expenditure. But this supposes the appropriation to be made in general terms for particular branches, without designating any particular objects within those branches. Should Congress, however, appropriate money to a particular fortification expressly, my opinion is, that it was under the act of 1817 a distinct object of appropriation, and that the President could not under the law, as it stood before the act of 1836, exercise the discretion allowed by the act of 1809. : But by the 2d section of the act of 2d July, 1836, the President is again authorized to make transfers from one head of appropriations for fortifications to another for a like object, under the restrictions (in all other respects) of the act of 1820. This contemplates the case of specific appropriations for particular fortifications, and obviates the difficulty just stated. Clearly this gives the authority needed in the present case. But the act of 1836 is an appropriation act, and the natural and usual construction is, that its provisions are only for the year. This, however, is only a prima facie inference; it may be repelled, and is constantly repelled, by expressions implying in general a permanent enactment. I think, upon the whole, the provision was in this case intended to be perpetual: 1st. From the word "whenever," which is too large for a single year. 2d. Because there is a reference in it to a general law, that of 1820, with which it must therefore be read. 3d. Because the act of 1842 expressly withholds this discretion from the President, so far as the navy is concerned; and it is a very strong negative pregnant, and an exception quæ probat regulam. In matters of so much nicety, statutes in pari materiâ must be used to explain each other, and the lawgiver be made his own interpreter. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, Secretary of War. H. S. LEGARE. DUTY OF THIRD AUDITOR RESPECTING THE CLAIM OF C. F. SIBBALD. The Third Auditor is to ascertain the actual damages sustained by the claimant, but nothing like exemplary or vindictive retribution is admissible. The damages must be such as the claimant would be entitled to recover upon the principles of law as applicable to other cases. By those principles no damages can be allowed but such as directly flow, in the na'ural and ordinary course of things, from the trespass or omission; distant and accidental conse quences, however they may aggravate the claimant's loss, are to be laid out of the question. Neither can vague surmises and calculations of the fruits of projected enterprises be taken into the account; the damages must have been directly caused, not merely occasioned, by the interference of the agent of the United States. Whatever agents may have done beyond their instructions, they did in their own wrong, and the government is not responsible. OFFICE OF THE ATTORNEY GENERAL, SIR: The Third Auditor is charged with an examination into the facts which constitute the grounds of Mr. Sibbald's claim, under the direction of the Attorney General, in regard to their legal consequences. The general rules that are to govern him are to be found in the act itself, in |