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limitations not found in the act of 1823, their existence excludes the idea of any other, and therefore the decision of the judge is liable to be restrained by no other qualification. Expressio unius est exclusio alterius. The answer to this suggestion is to be found in the nature of the subjects to which the provisoes apply. They have relation not only to the authority of the judge under the second section, but of the Secretary of the Treasury under the first. They relate to the subjects over which their jurisdiction is to extend, designating those who were to be the beneficiaries under the law, and confirming to them its advantages, and limiting the period within which the claims should have arisen. But they do not seem to nie to touch the authority of the Secretary, conferred by the act of 1823, to judge of the justice and equity of the claims reported to him. To enable claimants to recover under this law, it is necessary that,“ at the time of suffering the loss,” they should have been Spanish subjects; that those losses should have been incurred after the entrance into the province of East Florida of the agent or troops of the United States. However equitable or just may be their claims, in the view of the Secretary of the Treasury, under other circumstances, he “shall have no authority tr pay them, nor shall the judge have authority to hear, examine, or adjudge them.” Other claims, such as do not fall within those inter- . dictory provisoes, the judge may entertain, and the Secretary pay; but these shall be within the jurisdiction of neither. But do these provisoes direct how claims within the jurisdiction of the functionaries designated by the law shall be grauified? Is not the mode to be pursued left un. affected by the provisoes? Must not the decision of the judge be still reported to the Secretary of the Treasury? And if he is to act upon them at all, must it not be in pursuance of the provisions of the act of 1823? And if his power to pay is invoked, must it not be exerted as authorized by the law which confers it? And if the only authority the Secretary has to pay is given by the act of 1823, can it be exercised except subject to the condition by which the power is qualified—that he is satisfied that the claims reported to him are just and equitable ?
Nor can 1 yield my assent to the suggestion urged by Mr. Tallmadge that the difference between the language used in the act of 1834 and the act of 1823 renders necessary the application of a different rule of interpretation to the provisions of the two acts. The word “adjudge,” used in the act of 1834, was designed, I think, to confer no new power, and to convey no meaning different from that indicated by the language used in the act of 1823. The judge, under the act of 1823, was authorized to receive and adjust all claims; and such adjustment is declared to be the decision of the judge, which, with the evidence upon which it is founded, is required to be reported to the Secretary of the Treasury. Now, the judgment of the Florida tribunal, provided for by the act of 1834, cannot be anything other than the decision of the tribunal founded upon the evidence mentioned in the act of 1823. Substantially the language is the same, importing the same result, to be reached by the same means. On the whole, therefore, I am of opinion, in reply to your first question, that the awards made by the judge, under the provisions of the act of the 26th of June, 1834, are not final and conclusive, but are subject to be reviewed, in pursuance of the authority conferred by the act of 1923, and to be paid or not, as you may deem them just and equitable or otherwise. In confirmation of my views upon this subject, I pray leave to refer you to the opinion of Mr. Legaré of the 25th October, 1841.
My answer to your second question will be found in what has been said in reply to the first. I do not think the act of 1834 justly susceptible of such an interpretation as can present the inquiry proposed. If it were, and its provisions could be dissociated from those of the act of 1823, I should not hesitate to say that you were without power to pay the award.
The third question proposed by you has relation to the subject of interest. I do not regard it as open. The very question was referred, by one of your predecessors, (Mr. Ewing,) to the then Attorney General, Mr. Criitenden, who, on the 17th day of June, 1841, communicated his opin ion to the Treasury Department. That opinion sustained what I understand to have been the uniform practice of the department in regard to claims under these laws. Under these circumstances, were my own opinions opposed to the construction upon which the department has acted, I should not venture to recommend a change in its practice. But it is due to candor to say, that I perceive po grounds upon which to question the soundness of Mr. Crittenden's opinion. Independently of the reasoning enforced by it, it is fortified by the concurring and uniformly maintained decisions in analogous cases of all the officers of the execu. tive branch of the government. As illustrative of the principles upon which that practice rests, I beg leave to reser you to an instructive opinion of Mr. Legaré, in the case of Pearson Cogswell, marshal of New Hampshire, of the 20th of November, 1842.
In connexion with this subject, I take leave to suggest a siugle consideration growing out of the particular provisions of the acts of Congress of 1823 and 1834, calenlated, I think, to give sanction to the application of the general principle already indicated to the particular case under examination. Under the act of 1823, the judges of the superior courts estab. lished at St. Augustine and Pensacola were authorized and directed to receive and adjust all claims of the inhabitants of Florida arising under the 9th article of the treaty of 1819, which provided that satisfaction should be made for the injuries suffered by such inhabitants from the operations of the American army. The Secretary of the Treasury, to whom the ultimale judgment of the equity and justice of such claims was referred by the act of 1823, refused, in carrying out its provisions, to allow interest upon the claims adjusted. The action upon this subject, as I understand, was uniform. In 1834 Congress was called on to correct an error in the interpretation of the act of 1823, committed, as it was alleged, to the prejudice of the claimants, whose rights were designed to be guarantied by the 9th article of the treaty of 1819. Thus called on, and doubtless aware of the usage of the department to disallow interest upon the claims conceded to be provided for by the law, the legislative department of the government, by ihe 2d section of the said law, authorize the superior court of St. Augustine to receive, examine, and adjudge all cases of claims for losses occasioned by the troops of the United States in 1812 and 1813, which are to be paid by virtue of the authority conferred by the second section of the act of 1823, making no provision for the payment of interest that had accrued or might thereafter accrue upon such claims. Now, it strikes me as clear that the omission in the act of 1834 to direct the payment of interest should, under the circumstances, be regarded as a recognition of the settled practice of the department to disallow it; and that, therefore, the executive authority cannot be properly exerted in subversion of its own uniform rule of action, and this signifi
cant sanction of it by Congress. I do not mean to say that upon the principles of a broad and liberal equity, the present claimant may not be entitled to interest upon his demand. That is a question upon which I express no opinion. All that I intend to urge is, that under the estab. lished usage of the Treasury Department, over and over again sanctioned by the opinions of the law, officers of the goverument, the Secretary has no anthority to allow it. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. John C. SPENCER,
Secretary of the Treasury.
COMPENSATION OF DISTRICT ATTORNEYS.
The district attorney for the southern district of New York may be allowed his fees and costs
for defending the collector at the port of New York in cases in the State courts for repay. ment of duties, in addition to the maximum allowance mention d in the act of Congress of 1842, as the judicial department has thus decided in two several cases, in which the Uni. ted States have acquiesced.
ATTORNEY GENERAL'S Office,
December 15, 1843. Sır: Your inquiry touching the claim of Ogden Hoffınan, esq., for services rendered in the cases specified in his account, would have been sooner answered, but that I was desirous of first ascertaining the nature and extent of the decision made by the circuit court of the United States for the southern district of New York, in the case of the United States vs. Hoyt, referred to by the Solicitor of the Treasury in his opinion. The validity of claims of a like character with that of Mr. Hoffman has been twice affirmed by that court, as I am informed, by the concurring opinions of Mr. Justice Thompson and Judge Betts: first in the case of the United States vs. W. M. Price; and secondly, in the case of the United States vs. Hoyt. In the decisions thus pronounced the United States have acquiesced; and although, in the absence of these adjudications, I should have been clear in the opinion that the claim now preferred should be disallowed, I do not think the executive department of the government can properly disregard the judicial exposition of the statutes, upon the interpretation of which the legality of this demand must depend.
I am, therefore, of opinion that the payment of Mr. Hoff'man's account by the collector of New York should be directed. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. John C. SPENCER,
Secretary of the Treasury.
MINISTERS CHARGEABLE WITH PREMIUMS ON ÈXCHANGE.
Where the chargé d'affaires to New Grenada was authorized to draw upon the Barings for
his salary, and such drafts brought a premium-DECIDED, that he was chargeable with such premium, and must be considered to hold it in trust for the government. The government was bound to pay the minister a stipulated salary of four thousand five hun
dred dollars per annum ; and bei thus liable, it was bound to make that amount available to him at his foreign residence ; yet, if, in the fiscal arrangements to make such salary available, he receive more than is his due, he is bound to acount for it. The government is liable for the costs made in a suit upon a draft drawn upon a banker abroad
by the direction of the government, by a chargé d'affaires for his salary, and which was protested for non-payment. The government having devised that method of making salaries available to ministers and agents abroad, and having instructed them to draw upon a given banking house, is bound to make reparation for any damages sustained in the way of costs occasioned by the non-acceptance or non-payment of the drafts.
ATTORNEY GENERAL'S OFFICE,
December 26, 1843. Sir: The case of the Hon. James Semple, late chargé d'affaires to New Grenada, submitted to my consideration by your communication of the 23d instant, presents two questions—the first involving the legality of the charge made against Mr. Semple in the settlement of his accounts for the premiums realized upon his bills on Baring & Brothers, drawn for the payment of his salary in pursuance of authority given him by the Department of State; and the second, the liability of the government for the costs and damages resulting from the protest of the draft for $500 referred to in the papers and correspondence. Upon the first question, I am of opinion that the charge against Mr. Semple was properly made by the accounting offi. cers. As charge d'affaires to New Grenada, he was entitled to receive a salary at the rate of four thousand five hundred dollars per annum. This sum the government was bound to pay him, and to make available to him at his residence abroad, but he was not entitled to a larger sum; and if, by any means or from any source, he actually received more than the law al. lowed him, the surplus was the money of the government in his hands, for which he was bound to account. The funds in the hands of Baring & Brothers belonged to the government of the United States, and the authority to draw on them was but an authority to draw for four thousand five hundred dollars in such form as to realize that amount in the capital of New Grenada, where the salary of the chargé was payable. There was no obligation on the part of the government to place funds in London to meet Mr. Semple's claims. Its extent was limited to the duty of providing for their discharge in the capital of his foreign residence, where his services were required. It is quite obvious that a different rule of settiement from that applied in this case, might operate to render the amount payable to our functionaries abroad dependent upon the locality in which they might be employed; giving to some an excess above the allowance made by law, and denying to others the full compensation appropriated for their services. The usage of the Department of State upon this subject has been uniform, as I understand, and is, as I think, in strict conformity with the law.
Upon the second question, I am of opinion that the government is chargeable with the costs and damages resulting from the protest of Mr. Semple's draft. The draft was drawn in pursuance of authority given by the government. To the bona fide holder the government was un. questionably responsible. The authority to draw was equivalent to an acceptance, and the state of the account between the government and its agent, the draft being within the scope of the agency, could in nowise affect the payee of the bill. If, therefore, this question was one between the party holding the bill at the time of presentation and the government, I should not doubt as to the obligation of the government to pay it, or as to its liability for all proper costs and damages resulting from its default. Is the case at all varied, that the costs and damages are now claimed by Mr. Semple? This must depend upon the inquiry, by whose fault was it that the costs and charges were incurred ? In my judgment it is clear that the loches was on the part of the accounting officers of the government. Upon Mr. Semple’s return from his service abroad, he rendered his accounts. In these accounts he charged himself with the draft of five hundred dollars, which he had been expressly authorized to draw. Why the Auditor did not charge him with this sum in the settlement made is not to my mind, satisfactorily explained. He ought so to have been charged, and all that was necessary to justify his being debited with that sum was, that the Auditor should have been apprized, no matter how, that the government credit to that extent had been used by bin. A fortiori, would that officer have been justified in this case, in which the agent charged himself? The Auditor ought not to have disregarded the fact that the liability of the government upon this bill was outstanding, and it was his duty, for the government's indemnity, to have reserved in the treasury the funds necessary to meet it. The application of a different rule in cases of this description, it is scarcely necessary to remark, might expose the treasury to most serious losses.
That Mr. Semple received this sum can make no difference, since it is conceded that in receiving the balance ascertained at the treasury he was not aware that it included the amount of the draft, which he most reasonably supposed had been debited against bim in the settlement of his ac. counts. Under this impression Mr. Semple continued until the month of August, 1842, the draft having been presented and dishonored, and the costs and damages consequently incurred on the 27th of the previous month-incurred, as it is clear to my mind, because of the laches of the Auditor, and not by reason of any fault of Mr. Semple. Under such circumstances I ara of opinion that the equity as well as the law of the case is against the government, and that it is liable for the cost and damages on the protest of the draft. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. A. P. UPSHUR,
Secretary of State.
EFFECT OF ERRONEOUS PAYMENT OF A TREASURY WARRANT.
A requisition and warrant issued in favor of Jeremiah Smith, jr., are not discharged by pay.
ment wrongfully made to another person. A treasury warrant regularly issued is legally available to the true owner at all times, and he
may at all times claim the benefit of it, and the sum really due to the real claimant may be paid without the issue of any new requisition.
ATTORNEY GENERAL'S OFFICE,
December 29, 1843. Sir: I have the honor to state, in reply to your communication of the 23d instant, that I do not think that the requisition and warrant issued in