Who considered Representatives in respect to Virginia Claims. members of such household, even though there may be two or more wives among them, as part of the husband's family. But in all cases where an Indian woman, though married, has usually, as a housekeeper, lived separately from her hus band, and was so living with a separate household under her care at the ratification of the treaty, I am of opinion that she should be regarded as the "head of a family" under the treaty, and, consequently, that she is entitled to the sections reserved in it, according to the number of her children and other persons residing with her. This construction, whilst it will accomplish the great object of the provision, by securing reservations for every actual family, will only bestow them in those cases which we may fairly suppose were within the understanding of the commissioner on the part of the United States. If he spoke in reference to the language and usages of the Indians, he must, no doubt, have intended to include them; if, on the other hand, he spoke in reference to the language and usages of his own country, the result would be the same. According to them, the husband having a family is the head of that family; but, as polyg amy is unlawful, he is the head of only one wife and one family. If he is guilty of concubinage or bigamy, and has illegitimate children, living with their mother, separate from his lawful wife, and forming a family by themselves, he is not regarded by us in law, nor in common parlance, as the head of such family. The woman, according to both, is its head. I am, &c., To the SECRETARY OF WAR. B. F. BUTLER. WHO CONSIDERED REPRESENTATIVES IN RESPECT TO THE VIRGINIA CLAIMS. Executors and administrators are the "legal representatives," in contemplation of the act to provide for liquidating and paying certain claims of the State of Virginia. ATTORNEY GENERAL'S OFFICE, SIR: In your communication of the 18th ultimo, after referring to the various provisions of the act of Congress of the Who considered Representatives in respect to Virginia Claims. 5th of July, 1832, entitled "An act to provide for liquidating and paying certain claims of the State of Virginia," you propose for my opinion the two following questions, arising out of those provisions, viz: 1. Is an executor or administrator the legal representative in the contemplation of this act? 2. If he is, can the Executive, by regulation, require the assent of the heirs to the payment to him of the amount ascertained to be due? In answer to the first of these questions, I have the honor to state, that, in my opinion, the executors or administrators, (as the case my be,) duly constituted, are the legal representatives contemplated by the act of Congress, of all deceased officers included in the act. This construction is not only called for by the words used in the act of Congress, but is agreeable to the act of assembly of Virginia, referred to therein, under which the judgments assumed by the United States were obtained; the suits in which those judgments were recovered having been prosecuted, in the case of deceased officers, as I learn from the Virginia reports and other authentic sources of information, in the names of their executors or administrators. The second question must, in my opinion, be answered in the negative. The act of Congress has not made the assent of the heirs, or next of kin, a condition precedent. In the exercise of a sound discretion, the Executive may, by regulation, prescribe such forms, and create such guards, as are necessary to determine the authenticity of the claims presented under the law, and to prevent frauds on the treasury; but when the "legal representatives" are once satisfactorily ascertained, they are entitled, under the positive provisions of the law, to the moneys directed to be paid to them. I am, sir, &c., &c., To the SECRETARY OF WAR. B. F. BUTLER. Compensation and Extra Allowances to District Attorneys. COMPENSATION AND EXTRA ALLOWANCES TO DISTRICT AT TORNEYS. District attorneys are entitled only to the salary allowed by the act of 1799 and by subsequent laws, and the per diem, mileage, and taxable fees for prosecuting before the federal courts in their respective districts delinquents for crimes and civil actions in which the United States are concerned, or have an interest, cognizable therein, unless some further special provision shall have been made by Congress for individual officers. Not being required by the laws defining their general duties to attend State courts, nor upon judges out of court, if their services are called for therein, or on other special occasions, and the fees taxed them in such State courts cannot be recovered, or are inadequate, they should be paid a fair compensation out of any moneys appropriated to the special objects in reference to which the services were rendered, or, in some cases, out of the judiciary fund usually provided in the general appropriation bill. Messrs. Baker and Devereux must, like other officers, find their compensation in the annual stipend and other perquisites annexed to their office. ATTORNEY GENERAL'S OFFICE, March 7, 1836. SIR: In your letter of the 26th of November last, you transmitted to me certain papers connected with claims presented by D. J. Baker, esq., district attorney of Illinois, and by T. P. Devereux, esq., district attorney of North Carolina, for extra compensation for services rendered by them in cases, in their respective States, to which the United States were parties, or in which they were interested; and you requested my opinion on the question whether, under the circumstances stated by those gentlemen, it would be legal and proper to pay their demands. At the time when these papers were referred to me, I was much occupied with official duties of a more pressing nature; and, before I found leisure to investigate them, I received a communication from the Solicitor of the Treasury, submitting several questions in regard to the compensation of district attorneys and other counsel employed by the United States; and as this reference increased the necessity for a minute examination of the whole subject, I concluded to defer it until the adjournment of the Supreme Court should give me sufficient leisure for that purpose. Such an examination I have now given to it; and, without Compensation and Extra Allowances to District Attorneys. stating in detail the provisions of the various acts of Congress which have a bearing on the subject, I shall content myself with giving the conclusions to which I have been led. 1. District attorneys of the United States in the States and Territories are bound, by the general duties of their office, to prosecute in the proper manner, and before the regularly-constituted courts of the United States, all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States are concerned. (Judiciary act of 1789, sec. 35, 2 Bioren and Duane, p. 71.) The word "concerned," used in the act of 1789, was, no doubt, selected for the purpose of embracing cases in which the United States have an interest, although the action be not brought in their name as parties on the record. It is, therefore, the duty of the district attorneys to attend to the prosecution of all such actions. For their services in all cases which thus come within the range of their general official duties, they are to be paid by taxed fees, allowed by various acts of Congress, and by the mileage, the per diem compensation, and the $200 salary, allowed by the act of 1799 and by subsequent laws; which salary is expressly given "as a full compensation for all extra services." (3 Bioren and Duane, p. 134, sec. 4.) This is the general rule; but exceptions have been made by special legislative provisions-some giving to certain district attorneys additional compensation, and others taking away, in respect to other of their officers, a part of the perquisites above enumerated. But I do not find any such special provision in reference to the district attorneys in Illinois or North Carolina; and, consequently, Messrs. Baker and Devereux, for all the services coming within the scope of their official duties as above defined, are necessarily limited to the perquisites and salary above mentioned. 2. District attorneys are not bound, as a part of their general official duties, to attend to the management of suits in the State courts, although the United States may be interested in such suits; nor are they bound to attend to special proceedings out of court, in which the United States are interested. It, however, frequently happens that their services are called for in the State courts, and on other special occasions. For such Compensation and Extra Allowances to District Attorneys. services fees may be taxed to them in the State courts, which may be an adequate compensation; and in all such cases they can claim nothing more. But where such fees may not be recovered, or are inadequate, I think the officer is entitled to receive a fair compensation, to be paid out of any moneys ap. propriated to the special objects in reference to which his services were rendered; and in some cases, perhaps, out of the judiciary fund, usually provided in the general appropriation bill. It is true that the annual sum of $200 is expressly given by the act of 1799, as already observed, in full compensation for all extra services. But these words must be understood as having regard to the subject-matter-that is to say, the judicial courts of the United States; and they, therefore, mean extra services in the courts of the United States, for which no special compensation is allowed. The above principles, when applied to the cases of Messrs. Baker and Devereux, as disclosed by the papers referred to me, necessarily lead to the disallowance of their respective claims. Mr. Baker's claim is for services rendered by him in commencing, preparing for trial, and trying in the district court of the United States for the district of Illinois, a suit instituted under the direction of General Gratiot, chief engineer, &c., in favor of the United States, against Mr. Stewart and others, contractors on the Cumberland road in Illinois, to recover damages for an alleged fraud and failure in the performance of their contract to do certain work on said road. The only circumstance which appears to be relied on to distinguish this suit from the ordinary business of the district attorney, is the fact, that the direction to institute it emanated not from the office of the Solicitor of the Treasury, but from that of the Chief Engineer. This, however, can make no difference. The action was brought for the benefit of the United States and in their name; its prosecution was, therefore, a part of the official duty of the district attorney. Mr. Devereux's claim is for services in the prosecution of one Patton for forgery, including attendance upon the examination of the prisoner before the district judge. This case was, doubtless, one of great labor and responsibility; but, as all the proceedings against Patton were within the sphere of the official |