in the performance of the duty assigned to him; not to perform it in ex clusion of that officer. It declares that the enumeration shall be made by actual inquiry by such marshals or assistants; thus clearly showing that the marshal has power himself to make it. But, in providing the compensation for these services, that for the actual enumeration is expressly con fined to the assistants; and a compensation, in gross, is allowed to the marshals. They are, moreover, in certain cases, with the approbation of the judges of their districts or territories, authorized to increase the allow ance of the assistants for the enumeration, which would seem to exclude them from participating in the pro rata compensation for that species of service. Still, I think it may be doubted whether such was the intention of Congress; but the terms in which the act is expressed seem to me to leave no discretion in your department. To the SECRETARY OF STATE. JN. MACPHERSON BERRIEN. SIR: I have received your communication asking my opinion on cer tain questions therein stated, with a view to the instruction to be given to the marshal of the district of Mississippi, in taking the census. In reply to the first inquiry, I have to state, that, as the acts to which it refers are not before me, and cannot be obtained here, it seems to me to be premature to express any opinion concerning their operation and effect, on a mere general representation of their provisions. This conclusion is adopted with the less reluctance, because the opinion which I have formed in relation to the second will, at least for the purposes of your inquiry, render a decision on the first unnecessary. The act to provide for taking the census requires the marshals "t cause the number of the inhabitants within their respective districts and territories (omitting, in such enumeration, Indians not taxed) to be taken. The persons referred to in your inquiry are "inhabitants" of the district of Mississippi, because that district is co-extensive with the State; and, unless they are "Indians not taxed," must be enumerated. The act of Mississippi, to extend the laws of the State over the persons and property of the Indians resident within its limits, would induce the belief that these persous, in common with the other citizens of that State, were the objects of taxation. But it is not sufficient that their liability to taxation should have been declared by the Legislature. To bring them within the words of the act, it must, I apprehend, appear that they are actually taxed. Now in looking into such of the acts of Mississippi as are within my reach, it is found that the only persons specified as taxable are free white persons, free colored persons, and slaves. Whether, in the practical application of the tax laws of that State, Indians are included under these terms of description, or whether there is any modification of these laws to embrace them with more certainty, I am not informed. In the absence of this information, and considering the importance of the question involved, if the tax laws of Mississippi are actually extended to the Indians within their limits, it would seem to be advisable to direct the marshal of that district to cause these persons to be enumerated distinctly; and to exhibit separate results of the population of that State-the one including, and the other excluding them. This will put Congress in possession of the facts, and appropriately submit to their decision the question arising under the constitutional provision for the appointment of representatives. JN. MACPHERSON BERRIEN. To the SECRETARY OF STATE. OFFICE OF THE ATTORNEY GENERAL, May 26, 1830. SIR: In answer to the inquiry contained in your note of the 21st instant, I have to state, that the goods seized in the possession of Joseph Campau, by the collector of Detroit, are, in my opinion, protected from liability to the payment of duties by the 105th section of the duty act of 1799. They were, according to the statement of the collector, introduced into the United States under the protection of that act, the provisions of which are conformable to the 3d article of the treaty with Great Britain of the 10th November, 1794; and to the first explanatory article of the treaty of the 19th November, 1794, with the same power. If they were "the proper goods and effects of Indians" when introduced into the United States, they cannot, I appreend, become liable to duty by a subsequent change of proprietary interest. Duties accrued on importation. When protected during this process, they cannot, according to the terms of that section, become subsequently liable. If the importation has been collusive, the claim of property on the part of he Indian importer having been used as a cover, then of course they would e liable to seizure; but, unless the collector can adduce proof to establish uch fraudulent importation, I would recommend a release of the goods, nd a dismissal of the prosecution, on a waiver of all claim to damage n the part of Mr. Campau. Should the claimant refuse this, the prosution may be persevered in, for the purpose of obtaining a certificate probable cause, if the evidence which the collector can adduce of colsion between the claimant and the Indian importer, though insufficient authorize a condemnation, should nevertheless be sufficient to show a asonable cause of seizure. I should not think it advisable to bring the se to the Supreme Court. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY. OFFICE OF THE ATTORNEY GENERAL, May 27, 1830. SIR: I have examined the papers which accompanied your communican of the 21st instant, and, although the charter-party is somewhat inforally drawn, I cannot doubt the right of the United States to recover from e owners the damages incurred by the non-fulfilment of their contract. the case stated, the Government has been subjected to embarrassment, d compelled to incur an expense beyond the terms of the contract, by the gligence and unskilfulness of the agents of the contractors, and will, on oof of this, be entitled to reimbursement. It does not occur to me that the allowance of the claims of Mr. Meckin the agent of the Government, for the disbursements which he was com pelled to make in consequence of the abandonment of the contract by the owners of the Washington Barge, can in any degree impair the right of the United States to recover against them. To the SECRETARY OF THE NAVY. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, June 2, 1830. SIR: I have considered the question arising on the papers referred from your department, and I am of opinion that the case stated is not within the provisions of the act of the 3d March, 1819, or of that of the 24th May, 1828, extending the former act to cases where patents have issued or shall issue; or of the act of 18th May, 1824, authorizing the correction of errors in the entry of lands. The provisions of these acts do not seem to me to be applicable to the case of Mr. Hendricks. If the objection to the exercise of this power were derived merely from the use of the term "purchasers" in the several acts, it might be said, and perhaps with truth, that, in a large sense of that term, but one which is recognised by law-writers, the Canadian volunteer or his assignee is a purchaser. The difficulty is more pervading. The provisions of these laws seem to contemplate, exclusively, entries made by purchasers, (using that term in its limited sense) by directing the application of the money paid on the entry. Thus the act of 1819 declares "that the purchaser shall be at liberty to withdraw the entry so erroneously made; and that the moneys which had been paid shall be applied in the purchase of other lands," & So the act of 1824 relates to the cases of purchasers at private sale; to those where payments have been made; where such payments have not been for feited; where the purchasers have not taken the benefit of the act of 1821. for the relief of purchasers-which was confined to money purchasers. I had supposed, for a moment, that the provisions in the act of 1824 which authorizes the correction of the error, "in all cases of an entry hereafter made of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered," &c., might have been extended to the case under consideration; but, on examining the patent, it appears to be dated in 1822. And, pursuing this provision to its close, it is found that it also looks to the correction of the error by a "transfer of the payment from the tract erroneously entered to that intended to be," &c. Thus showing that, in this provision, as well as those which precede it, Congress had in view the correction of errors in entries made on purchases of which money was the consideration. It is very probable that, if such a case as that we are considering had been in the view of Congress, the provisions of these acts might have been extended to them; but, under the existing laws, I do not think you are allthorized to make the correction. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY. ATTORNEY GENERAL'S OFFICE, June 2, 1830. SIR: I have, in conformity to the instructions of the President, examined the case of Joseph Shaw, and find that he was placed on the revolutionary pension list on the 11th day of October, 1827; and that, by an act approved on the 28th May, 1830, you are directed to cause him to be paid at the rate of eight dollars per month, from the 10th April, 1818, to the day of the date on which his pension was allowed to commence, under the regulations of the Department of War; but that this act contains no special appropriation of money to meet its requisitions. The question which this state of facts presents is, whether this amount arrearages is payable out of the general appropriation for revolutionary pensions for the current year? and I am of opinion that it is so payable. The sum appropriated is generally for "revolutionary pensioners," of which class Joseph Shaw is one. No transfer of appropriation is therefore required. It is true that this appropriation, having been made on an estimate in which the arrearages of Joseph Shaw were not included, may be inadequate to meet all the claims for which it was intended to provide; but, if this should happen, it will result from the omission of Congress to provide specially for the additional charge which they have thus imposed on this particular fund, and the deficiency must be supplied hereafter. In the mean time, it is scarcely probable that such deficiency will occur before Congress will have time to provide for it. To the SECRETARY OF WAR. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, June 4, 1830. SIR: In answer to your inquiry, whether it would be competent for an officer of the navy under arrest, and the department, to dispense with the attendance of witnesses, and, by common consent, to take depositions to be used on the trial, when objected to by the officer preferring the charges:" I have to state that, in my opinion, such depositions would not be competent evidence. The 37th article of the rules and articles for the better government of the navy, and the 74th article of the rules and articles for the government of the army, seem to contemplate exclusively the examination of witnesses before the court. The 74th article of the latter code, by providing, under certain restrictions, and in cases not capital, that depositions may be taken, negatives their allowance in other cases; and the existence of the provision sufficiently proves that, without it, such testimony would not be competent, even in those minor cases. English writers on this subject insist upon the propriety, in trials before naval and military courts martial, of adhering to the rules of evidence established in the common law courts of criminal jurisdiction; and these would not authorize the course proposed in the case under consideration. To the SECRETARY OF THE NAVY. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, June 4, 1830. SIR: The act for the relief of the widows and orphans of the officers, seamen, and marines of the sloop-of-war Hornet, fixes the 10th day of Sep tember last as the day up to which their arrears of pay should be calculated. Any moneys, therefore, which were advanced for pay, supposed to have accrued after that period, have been paid by mistake, and may be recovered back. The same act gives to the widows, children, parents, or brother and sisters, (as the case may be,) of those officers, &c., a sum equal to six months' pay of their respective deceased relatives. In cases, therefore, where moneys have been advanced in the manner above stated to the same persons who are entitled to this bounty, such persons are both debtors and creditors to the United States: debtors for the money paid them by mistake and creditors for the amount of the bounty given by the act. In such cases the right of retainer, by deducting the amount advanced, would seem to be allowable. But where the money advanced by the order of the officer, sea man, or marine, was advanced to a person other than the one entitled under the provisions of the act to the bounty which it allows, such deduction can not, I apprehend, be permitted. It is only tolerated in the first case, on the ground that the person claiming the bounty is liable to the United States by force of his own receipt of money, which, as has subsequently appeared. he was not entitled to receive, and for which, therefore, he is liable to ac count. Even against the right of retainer, in the first case, it may, I am aware, be urged that Congress has provided expressly for the exercise of this right in certain cases, not including that under consideration; but it seems to me that these provisions may be considered as directory, and for the enforcement of a principle of the law of retainer which exists indepen dently of them. To the SECRETARY OF THE NAVY. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, SIR: I have received the papers which the Second Auditor of the Treas ury has, in conformity to your direction, transmitted to me; and have considered the question proposed, viz: "Whether Generals Coffee and Hinds, late commissioners to hold treaties with the Chickasaw and Choctaw Indians, are bound, under the circumstances of the case, to account to the Government for the depreciation e the money deposited by them in bank to the credit of the Treasurer of the United States." The circumstances of the case, as detailed in the report of Mr. Stew. art, of the Second Auditor's office, are as follows: "Upon the adjustment of the accounts of Generals Thomas Hinds and John Coffee, commissioners to treat with the Choctaw and Chickasaw na tions, on the 30th July, 1827, a balance of $3,646 03 was reported due from them to the United States. Subsequent thereto, $1,269 29 have been passed to their credit; leaving a balance to their debit at this time of $2,376 74. Against which they claim an offset of $2,375, deposited by them to the credit of the Treasurer of the United States in the Bank of the |