been made without being confirmed. On the contrary, I am very clear the President has no right to make or leave a vacancy, during the sitting of the Senate, without nominating a successor to it, and then to fill it up after the adjournment of the session. Whether, in case there be no deputy, the authorities and duties of a collector shall devolve, on his removal, upon the naval officer, is a question to which all the previous reasonings are not applicable; but since it is only in defect of a deputy that the naval officer is to act, the fair construction would seem to be that it was only in cases in which a deputy might have acted that the naval officer is authorized. He is a substitute for the deputy. This, I am informed from the Treasury Department, has hitherto been the construction of that department, and I think it ought not to be disturbed. The result is, that the case of removal is, in my opinion, casus omissus in the statute; or rather, that the lawgiver expected the vacancy created by removal to be immediately filled up by an appoint ment. I have the honor to be, sir, your obedient servant, To the PRESIDENT. H. S. LEGARE. POWER OF THE POSTMASTER GENERAL TO ESTABLISH POST OFFICES. The Postmaster General has power to establish a post office in the Cherokee country, provided it be upon a road constructed under the act of 1825, to establish a line of posts within it. SIR: I received, on Saturday, your letter in answer to mine requesting you to state the particular case on which the question you had propounded to me on the 12th instant arose. That question was as follows: "Has the Postmaster General, under existing laws, the power to establish a post office within the Indian territory beyond the territorial limits of a State or Territory?" Your explanatory letter was as follows: "I did not name the tribe of Indians, because I assumed that the same laws would be applicable to the various tribes situate beyond the territorial limits of the States and Territories of the United States. The question presented itself to my mind upon an application to establish a post office within the Cherokee country west of Arkansas. It seems this power has been exercised by my predecessors; which fact created the doubt in my mind. Can the Post Office laws be made to extend, in their civil operation, by the act of the Postmaster General, into a country where Congress has not extended them, is a question which, if of the first impression, I should have assumed the responsibility myself to decide; but as a different opinion seemed to be entertained by a former head of this department, (at least he practised upon such an opinion,) I deemed it my duty to trouble you with giving an official opinion. By the 3d article of the treaty with the Cherokees, (of New Echota, December 29, 1835,) it is expressly provided that the United States shall always have the right to make and establish such post and military roads in any part of the Cherokee country as they may deem proper for the interest of the same; and, therefore, the right of the Cherokees in the soil presents no impediment to the measure in question. Congress has the power, under the treaty, to establish a post road within their country. The next question is, Has it done so? If it has, it is only by implication. It has authorized the Postmaster General to extend a line of posts by contracts for a term not exceeding four years, (act of 1825, sec. 4;) and the roads designated in such contracts shall, during the continuance thereof, be deemed and considered as post roads within the provisions of the act. If the road in question falls within the category-that is, if it be only extending a line of posts-I think the Postmaster General has power to establish it in the Cherokee country. I do not go into the question how far that country is to be considered as still subject to the sovereignty and jurisdiction of the United States. I rest my opinion on the treaty and the act of 1825. I have the honor to be, sir, your obedient servant, Hon. C. A. WICKLIFFE, Postmaster General. TENURE OF APPOINTMENTS MADE DURING A RECESS OF THE SENATE. The commission of an officer appointed during a recess, who is afterwards nominated and rejected, is not thereby determined, nor his sureties released from liability, on account of any subsequent breach of his official bond. OFFICE OF THE ATTORNEY GENERAL, May 20, 1842. SIR: I had the honor to receive your letter of the 16th instant, to the following effect: "In the month of October last, and during the recess of the Senate, J. Washington Tyson was appointed by the President Commissary of Purchases. About the beginning of the present month, the Senate resolved that they did not advise and consent to the appointment of Mr. Tyson to the above named office, to which he had been nominated by the President. Mr. Tyson now forwards to me an estimate of the money required for his department during the month of May, amounting to $50,000. As some doubts have been expressed whether the bail given by Mr. Tyson will be responsible, under the circumstances, for any money delivered to him subsequent to his rejection by the Senate, I respectfully ask your opinion on the point as soon as your convenience will permit, as no requisition will be issued in favor of Mr. Tyson until your answer is received. In answer to an inquiry which I addressed to you, whether the doubts thus mentioned as having been expressed grew out of any established practice of the departments, I have had the honor to receive your note of the 18th, assuring me that you know of no es tablished practice on the subject, and can learn none from the inquiries made.' You also state that the doubts mentioned in your former letter were understood to be founded upon a vague and general idea that the rejection by the Senate of the nomination of a person in office appointed during the recess necessarily terminated the office." I of course confine myself to a strictly legal opinion upon the subject submitted to me. It appears to me that the rejection by the Senate can have no such effect as you state to have been ascribed to it. The officer in question, appointed by the President during the recess of the Senate, was, I presume, commissioned to hold his office until the end of the next session. The constitution recognises the validity of such a tenure; and, by the second section of article 1, it is only at the end of the next session that the commission thus granted is to expire, unless by death, resignation, or removal from office. This last may be effected either expressly or by implication. The only one of these contingencies applicable here is a removal by implication. What has been done to raise such an implication? Mr. Tyson had been nominated and rejected by the Senate. Had he been renominated, and by and with the advice and consent of the Senate appointed by the President, and accepted the new commission, undoubtedly the second commission would have superseded his first, and of course new bonds and sureties been rendered necessary. (The United States vs. Kirkpatrick, 9 Wheaton, 720.) So, if the President had appointed, by the consent of the Senate, another to Mr. Tyson's office, it seems the better opinion that the commission of the latter would have been, ipso facto, revoked. I say appointed. To nominate is not to appoint; it is an essentially inchoate, incomplete act; it is to be followed by two other and most important acts. 1. It must be sanctioned by the Senate. 2. After that sanction is received, it must be carried out by the President into an actual appointment. When this appointment is completed, so that the officer is in, and there may be said to be a plenarty independently of the will of the Executive, is a nice, perhaps a still unsettled question. At least Marbury vs. Madison, I Cranch, 137, gives us only inference and argument in regard to it. But this is settled by that case: that the last act of the President is something done subsequent to the confirmation; and Mr. Jefferson pushed the matter still further in favor of a locus penitentiæ in the Executive. It is clear, therefore, that if Mr. Tyson's commission was valid until the end of the session, unless he or another had been appointed, it is valid still, for no appointment has been made. So a will, to operate an implied revocation of a previous one, must be a complete and perfect instrument. That the mere nomination to the Senate is not such à declaration of the President's will, as to revoke the first commission, is settled by established practice. For it was never pretended that, before the Senate had acted on such a nomination, the officer appointed during a vacancy was not still the lawful incumbent, and that whether the second nomination were of himself or of another. Therefore, a mere nomination is no determination of the President's will; but, if this is so, the rejection of the Senate, instead of giving it any additional effect, ought rather to neutralize and nullify whatever operation it would otherwise have had. I conclude, therefore, that, in strict law, the sureties of Mr. Tyson are still bound under his first ap pointment. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, Secretary of War. H. S. LEGARE.. ACCOUNTS OF DEFAULTERS AND ACCOUNTING OFFICERS. The officers of the treasury are authorized to withhold the pay of officers of the government who are ascertained to be in default to the government, where the time for accounting has actually passed, but not otherwise. SIR: I have the honor to state, in compliance with your request endorsed upon the papers in the matter of Lieutenant Lee's accounts, the conclusion to which, after much reflection, I have come. The act of March 3, 1828, must be taken not as an isolated statute, but as making part of a system of laws in pari materiâ. It must be read, for instance, with the act of March 3, 1797, chapter 74 By the last mentioned act, when any dis bursing officer shall neglect or refuse to pay, &c., the sum or balance reported to be due to the United States upon the adjustment of his account, it shall be the duty of the Comptroller to institute suit for the recovery of the same, adding to the sum stated to be due in such account the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained, &c. The second sec. tion of the same act provides, that in every case of delinquency, where suit shall be instituted, a transcript from the books and proceedings of the treasury, certified by the Register, and authenticated under the seal of the department, shall be admitted as evidence; and the court trying the cause shall be, thereupon, authorized to grant judgment, and award execution accordingly. By the 3d section the court is ordered to give judgment at the return term, upon motion, unless the defendant shall make oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the department and rejected; and that no claim for a credit shall be admitted upon the trial but such as shall appear to have been presented to the accounting officers of the treasury for their examination and by them disallowed. The act of 3d March, 1828, goes a step further; it orders that no money hereafter appropriated shall be paid to any person for his compensation who is in arrears to the United States, until such persons shall have accounted for and paid into the treasury all sums for which he may be diable; but that in all cases where the pay or salary of any person is withheld under the act, it shall be the duty of the accounting officers, if demanded by the party, &c., to report forthwith to the agent of the Treasury Department the balance due; and it shall be the duty of the said agent, within sixty days thereafter, to order suit to be commenced against such delinquent and his sureties. Such is the law. The case, as stated by the Auditor, is, that Lieutenant Lee is, according to the course of the Auditor's office, a defaulter to a small amount; that his pay has been consequently stopped to that amount; that he insists on a report being forthwith made to the Solicitor of the Treasury, and suit being brought within the term designated in the act of 1828. The Auditor, on being called on by the Comptroller to report, answers that it is impossible to do so ac cording to the established course of his department, because the accounts of the officer in question cannot be finally adjusted in his books, there being no appropriation to meet a requisition in favor of the officer under the head of subsistence, and the requisition having been accordingly withheld by the War Department. The Auditor's letter is as follows: "I have the honor to state, in addition to my letter of the 10th instant to the President, in relation to the accounts of Lieutenant Lee, which has been this morning referred to me by you, and is here with returned, that the refraining to enter upon the books of this office the balance due to Lieutenant Lee on his account for subsistence to his credit in the accounts in the quartermaster's department, in diminution of the balance due from him in the latter accounts, is in conformity with its invariable usage in cases where officers are debtors under certain heads of appropriation; and creditors under other heads of appropriation, to the credit of which there are no funds; and sundry accounts are now remaining in the office, on which action has had to be suspended for this cause. To carry to the credit of an officer in his account on the books of this office, under a head of appropriation in which he is a debtor, a balance due to him under a different head of appropriation, the uniform practice is, to issue a requisition for the payment to him of that balance out of the ap. propriation from which it is due, and then a counter requisition upon him in favor of the Treasurer for a like sum, to be carried to his credit in his accounts wherein he is a debtor. In the present instance there are no funds to the credit of the account under the head of appropriation from which the balance is due, wherewith to pay it. Hence the requisition and counter requisition, which will form the foundation of the entries on the books, cannot be issued; and hence the impracticability of reporting an account for suit against Lieutenant Lee for the difference between the balance due from him on one account, and to him on another, as the account for suit will necessarily have to be based on the entries in the books." The rationale of this course of the accounting officer seems to be this: Until an acknowledgment of a debt by Congress, by provision made to pay it, the Executive has no right to treat it as a debt at all; or, which is the same thing, to give a credit for it, as an actual demand against the treasury. There is, therefore, an insuperable legal impediment in the way of a compliance with Lieutenant Lee's claim to have his account stated. Does the act of 1828 require suit to be brought, whether the account be stated or not? I think not. It is evident to me that both the act of 1797 and that of 1828, where they speak of bringing suit, mean the bringing an action on an account stated for a balance found to be due. The legislature has no intention, as I conceive, to innovate upon the practice of the executive department, bottomed, as it is, on the true theory of its relations to the legislative. But, then, it is argued that if the account be sufficiently made up for the purpose of stopping an officer's pay, it is sufficiently made up for the purpose of bringing suit upon it. This is plausible, but I incline to think. not more. I conceive that the officers of the treasury are authorized by the act to protect the government as soon as it is evident to them that, according to the course of the executive department in regard to accounts, an officer is a defaulter, by withholding his compensation to that amount, although his accounts be not fully and finally adjusted. This is matter of high executive discretion; and it is only in a clear case that an officer is to be treated as a defaulter. But in such a case I see nothing in the acts, read together and reasonably construed, to make it incumbent on |