Surrender of the Rebel Army of Northern Virginia. matter of course, that residents of the territory in rebellion cannot be regarded as having homes in the loyal States. A man's home and his residence cannot be distinct the one from the other. The rebels were dealt with by General Grant as belligerents. As belligerents, their homes were, of necessity, in the territory belligerent to the Government. of the United States. The officers and soldiers of General Lee's army, then, who had homes prior to the rebellion in the northern States, took up their residences within the rebel States and abandoned their homes in the loyal States, and when General Grant gave permision to them, by the stipulation, to return to their homes, it cannot be understood as a permission to return to any part of the loyal States. That was a stipulation of surrender, and not a truce. Vattel lays it down (p. 411) that "during the truce, especially if made for a long period, it is naturally allowable for enemies to pass and repass to and from each other's country, in the same manner as it is allowed in time of peace, since all hostilities are now suspended; but each of the sovereigns is at liberty, as he would be in time of peace, to adopt every precaution which may be necessary to prevent this intercourse from becoming prejudicial to him. He has just grounds of suspicion against people with whom he is soon to recommence hostilities. He may even declare, at the time of making the truce, that he will admit none of the enemy into any place under his jurisdiction. "Those who, having entered the enemy's territories during the truce, are detained there by sickness, or any other unsurmountable obstacle, and thus happen to remain in the country after the expiration of the armistice, may, in strict justice, be kept prisoners; it is an accident which. they might have foreseen, and to which they have, of their own accord, exposed themselves; but humanity and generosity commonly require that they should be allowed a sufficient term for their departure. "If the articles of truce contain any conditions either more extensive or more narrowly restrictive than what we Surrender of the Rebel Army of Northern Virginia. have here laid down, the transaction becomes a particular convention. It is obligatory on the contracting parties, who are bound to observe what they have promised in due form; and the obligations thence resulting constitute a conventional right.' Now, if the rights of enemies, during a long truce and suspension of hostilities, are thus restricted, it would seem evident that their rights under a stipulation of surrender, without any suspension of hostilities, could not, without express words in the stipulation to that effect, be anything like as large as under a truce and suspension of hostilities. Regarding General Grant, then, as speaking simply as a soldier, and with the powers of a soldier; regarding this war as a territorial war, and all persons within that territory as residents thereof, and, as such, enemies of the Government; and looking to the language of the stipula tion, I am of opinion that the rebel officers who surrendered to General Grant have no homes within the loyal States, and have no right to come to places which were their homes prior to their going into the rebellion. II. As to your second question: The stipulation of surrender made betwixt Generals Grant and Lee does not embrace any persons other than the officers and soldiers of General Lee's army. Persons in the civil service of the rebellion, or who had otherwise given it support, comfort, and aid, and were residents of the rebel territory, certainly have no right to return to Washington under that stipulation. III. As to the third question: My answer to the first is a complete answer to this. right to wear their It seems to me that coming into the loyal Rebel officers certainly have no uniforms in any of the loyal States. such officers, having done wrong in States, are but adding insult to injury in wearing their uniforms. They have as much right to bear the traitor's flag through the streets of a loyal city as to wear a traitor's garb. The stipulation of surrender permits no such Appointment of Assistant Assessors of Internal Revenue. thing, and the wearing of such uniform is an act of hostility against the Government. 1. The 1st section of the act of March 3, 1865, providing for the appointment of assistant assessors of internal revenue by the assessors, is unconstitutional. 2 The 16th section of that act, repealing all provisions of any former act inconsistent therewith, repealed so much of the act of June 30, 1864, as conferred on the Secretary of the Treasury the power of appointing, with the approval of the Commissioner of Internal Revenue, the assistant assessors. 3. Under these circumstances, the President, since the passage of the act of March 3, 1865, is authorized to commission the assistant assessors. 4. It is the duty of the President, before any judicial determination has been had of the constitutionality of the provision of the act of March 3, 1865, before mentioned, to exercise his constitutional power of appointment in the case of assistant assessors ATTORNEY GENERAL'S OFFICE, SIR: I have duly considered the important and interesting questions suggested by the Commissioner of Internal Revenue, touching the recent legislation of Congress with reference to the office of assistant assessor of internal revenue, which you have submitted to me for my opinion. The questions may be thus stated: I. Whether the provision of the act of March 3, 1865, vesting the appointment of assistant assessors in the assessors of the respective assessment districts, is constitutional? vol. xi.-14 Appointment of Assistant Assessors of Internal Revenue. II. If it be unconstitutional, in whom is the power of appointing assistant assessors by law vested? III. If the President is by law vested with that power, should he exercise it, against the express provision of the act of Congress, before any judicial determination has been had of the two preceding questions? 1. The 1st section of the act of March 3, 1935, provides, that within each assessment district the " assessor, whenever there shall be a vacancy, shall appoint, with the approval of said Commissioner, one or more assistant assessors, who shall be a resident of such assessment district." The question suggested by this enactment is, whether it was constitutionally competent for Congress to confer on the assessors the power of appointing their assistants? The Constitution provides (sec. 11, art. 11) that the President "shall nominate, and, by and with the advice and consent. of the Senate, shall appoint, ambassadors, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments." This is the constitutional provision which the act of 1865 may be supposed to infringe. Manifestly, the statute is in violation of the constitutional provision, if the assistant assessors are, within the meaning of the Constitution, "officers" of the United States. Congress is not competent to confer the power of appointing officers of the United States on any public authority, save the President, the courts, or the heads of departments. The legal character of the place or position of assistant assessor is, therefore, the first point for determination. I will not venture to frame a general definition of the meaning of the words "officer" and "office," as they are used in the Constitution. Blackstone has attempted to give such a definition of the legal meaning of the second of these terms, (2 Com. 36.) But he has done nothing more than substitute one abstract term for another. He defines an Appointment of Assistant Assessors of Internal Revenue. But Chief Justice "office" to be an "employment." Marshall has well said, "although an office is an employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an action or perform a service, without becoming an officer." (United States vs. Maurice, 2 Brock., 103.) With his usual power of legal discrimination, the great Chief Justice has, in the same case, distinguished those employments that may properly be termed "offices" from that other class to which he refers. "If a duty," he says, "be a continuing one, which is defined by rules prescribed by the Government and not by contract, which an individual is appointed by Government to perform, who enters on the duties appertaining to his station without any contract defining them, if those duties continue, although the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer." I think that the act of Congress establishing the place of assistant assessor, and prescribing its powers, functions, and duties, constitutes it, in the strictest legal sense, an "office." The internal revenue code of June 30, 1864, (13 Stats., 224,) specifically so terms it, in prescribing the oath which every assistant assessor is required to take before entering upon his duties. And what is the nature of those duties? One point of inquiry would be, whether they are the duties of another, which he performs in right of, and by deputation from that other? They are not of that character. The statute carefully prescribes the sphere of his authority, but within that sphere he performs the duties and exercises the powers devolving upon him in subordination and under responsibility only to the law, whose agent, in truth, he is. The assessor may re-examine and rectify his assessments, but only as a court of error may revise and correct the decisions of inferior tribunals on appeal. I have no difficulty, then, in determining that an assistant assessor is an "officer," |