tion of any free person of African descent" who might desire to remove from any such State. a. Congress has made provision by general statutes for reimbursing loyal citizens, and has supplemented all these statutes by many private relief acts. It is to be presumed that Congress has thus made all the provision deemed necessary, or that future provision will be made to perfect the same general policy. b. The colonization of" free person [s] of African descent" contemplated the continued existence of slavery; but this policy was changed by the Proclamation of Emancipation of September 22, 1862 (12 Stat., 1267), and January 1, 1863 (12 Stat., 1268), and by the XIII Article of Amendment to the Constitution, which took effect December 18, 1865. These were followed by the XIV and XV Articles of Amendment to the Constitution, and by laws to enforce and secure equal civil and political rights. (Rev. Stat., 1977-2038.) In view of all this, it cannot be supposed that Congress intended that the provisions of section 12 of the act of June 7, 1862, now under consideration, should be regarded as in force. It is well settled, that, when Congress by a statute recognizes the existence of a power, although it has not been in terms previously conferred, this is generally equivalent to a grant of such power (Otto's Case, ante, 296; State v. Miller, 23 Wis., 634; 15 Op. Att.-Gen.," 322; Const. U. S., Art. I, sec. 9; Story, Const., § 1331; Holden v. Joy, 17 Wall., 234.) A legislative declaration of an exception from a power generally proves its existence. (Gibbons v. Ogden, 9 Wheat., 216.) Upon the same principle, the adoption of constitutional amendments, and the enactment of statutes which make plenary provision for "reimbursing • loyal citizens," and which totally change the policy of aiding "the colonization or emigration * of any free person of African descent," must be regarded as superseding, and so repealing, all former provisions on the subject. 2. No State performed the conditions, which would have conferred a right to either of the payments proposed by section 12 of the act of June 7, 1862, nor secured the proclamation required by said section. This is only material as affecting the question of good faith involved, in a refusal by Congress to make appropriations under the act of June 7, 1862. The effect of a refusal is the same whether justifiable or not. But if justifiable, this will tend to strengthen the construction, which has been given, of all the legislation to which reference has been made. It has been shown that on principle, the States were bound to accept the provisions of the act of June 7, 1862, within a reasonable time, or See "The Law of Claims against Governments," &c., by William Lawrence [Congress], House Rep., No. 134, 2d session, 43d Congress; act of March 3, 1871, 16 Stat., 524, providing for the "Commissioners of Claims"; act May 11, 1872, 17 Stat., 97; act March 3, 1873, 17 Stat., 577. failing in this, Congress might in good faith supersede them. War was then flagrant, and Congress could not afford to make a pledge which for any considerable period would prevent a change of policy. Such change might be required by that highest law, Salus populi suprema est lex. The proclamation of emancipation may furnish some evidence on the question of time. Its period prescribed for a change of policy was from September 22, 1862, to January 1, 1863-one hundred days. This was sanctioned by constitutional amendments and acts of Congress. The act of June 7, 1862, required that the "insurrection shall be put down, and the people shall elect a legislature and State officers, who shall take an oath to support the Constitution of the United States, and such fact shall be proclaimed by the President." This is to be read in the light of history. Efforts had been made in some States by “the people," of their own voluntary action, to set up or organize loyal State governments, but these were ineffectual. And no efforts for this purpose were made under the act of June 7, 1862, nor within any reasonable time thereafter. Attempts were made, after flagrant war ceased, to continue in operation the State governments existing during the war, but these were set aside by military authority.* The close of flagrant war, in 1865, found the State of Tennessee with a quasi voluntary loyal State government organized by the aid of national military authority. The act of June 7, 1862, required, as a condition precedent to the right of any State to payment under it, that the President should issue a proclamation of the existence of the facts therein required. The President's Proclamation as to Tennessee of June 13, 1865 (13 Stat., 763), was the first on the subject, and others followed at a later date. But * May 3, 1865, Governor Joseph E. Brown issued a proclamation calling a meeting of the legislature May 22. This was annulled by military order of Major-General Gilmore, and by ordering a convention. May 8, 1865, Governor McGrath, of South Carolina, summoned the State officers to Columbia to resume their duties, but this was annulled May 14, by military order of Major-General Gilmore. Provisional governors were appointed in these and other States by the President. May 9, 1865, the President, by proclamation, recognized the State government of which Pierpont was Governor, which may have, in some sense, represented a government organized by the people. But all these governments, except that of Tennessee, were superseded by the reconstruction acts. See McPherson's History of Reconstruction, passim; Lawrence's Speech as to Virginia in House Reps., January 13, 1870, 2d Sess. 41st Cong., vol. 88, Globe, Part 1, p. 431. + See schedule of these in Lawrence's Law of Claims against Governments, 208. The history of the reconstruction of the States declared in insurrection may be found in Mc. Pherson's History of Reconstruction; in the History of the Reconstruction Measures of the Thirty-ninth and Fortieth Congresses, 1865-268, by Henry Wilson, Hartford, 1868;” in the debates and legislation of Congress, and in other current history. See speech in House Reps. as to Georgia, December 22, 1869, 2d Sess., 41st Cong., Globe, vol. 94, Part 7, App., p. 34, and as to Mississippi, March 31, 1869, 1st Sess. 41st Cong., Globe, vol. 87, App., 5. none of these pretended to assert a compliance by any State with the twelfth section of the act of June 7, 1862. The proclamation as to Tennessee expressly reserved the right to exercise "military law in cases where it shall be necessary for the general public safety." The act of June 7, 1862, refers to a time" when such insurrection shall be put down." It required a loyal State government in operation. This contemplated an end to the war, not merely an end to "flagrant war,” but also an end to that "state of war," which the Tennessee proclamation recognized, and which was affirmed, in effect, to exist in this and other States, during the period of military reconstruction attempted by President Johnson (proclamation of July 13, 1865, 13 Stat., 771), and, after this, during the "reconstruction acts." This "state of war" has been described as 66 non flagrante bello, sed nondum cessante bello." (Lawrence's Law of Claims, 209; Mrs. Alexander's Cotton, 2 Wall., 419.) The act of June 7, 1862, evidently contemplated the election of a "legislature and State officers" in each of the States therein referred to, either under the laws of the respective States, or by their voluntary action. But voluntary reorganization, except to a certain extent in Tennessee, was not effected. President Johnson attempted a reconstruction as his "policy," (proclamation May 29, 1865, 13 Stat., 760), without the authority of any statute, but this did not look to voluntary State action. It contemplated executive military control by the President. The proclamation of April 2, 1866 (14 Stat., 811), did not declare the facts required by the act of June 7, 1862. But if it had done so, this and the prior proclamation of May 29, 1865, were disapproved by Congress (act July 19, 1867, 15 Stat., 14), and provision was made by that body for the reorganization of State governments in all the insurrectionary States, except Tennessee. See the "reconstruction acts" of March 2, 1867 (14 Stat., 428), March 23, 1867 (15 Stat., 2), and July 19, 1867 (15 Stat., 14); joint resolutions of July 20, 1868 (15 Stat., 257), and February 18, 1869 (15 Stat., 344); act of April 10, 1869 (16 Stat., 41); proclamations of May 14, 1869 (16 Stat., 1125), July 13, 1869 (16 Stat., 1127), and July 15, 1869 (16 Stat., 1129), and act of December 22, 1869 (16 Stat., 59.) In Tennessee a State government was organized under the direction of a military governor, a civil governor was elected March 4, 1865, and the State was restored to its relations to the Union, prior to the "reconstruction acts," by the joint resolution of Congress of July 24, 1866 (14 Stat., 364). The reconstruction thus ef fected, as to the States mentioned, evidently did not secure the "elec tion of a legislature and State officers," as contemplated by the act of June 7, 1862. This act looked to no such agencies as those employed by the "reconstruction acts," nor to the delay which intervened be fore they were adopted. This reconstruction, thus finally effected and accepted by Congress, was that required by the "reconstruction acts," executed and made effectual by military authority. No proclamation was issued by the President under, or looking to, the twelfth section of the act of June 7, 1862.* 3. Finally, the twelfth section of the act of June 7, 1862, was, in its nature and object, and from the necessities of the war, designed to be temporary, and, not having been accepted by the States within the reasonable time evidently required, expired by its own limitation, before the war closed. This sufficiently appears from the considerations already presented. It follows, that no State has any right to payment under the twelfth section of the direct-tax act of June 7, 1862. The Secretary of the Treasury will be advised accordingly. First Comptroller's Office, December 24, 1882. IN THE MATTER OF THE APPOINTMENT OF A SUBSTITUTE TO PERFORM SALARY.-SUBSTITUTE 1. There is no authority of law, by which a substitute can be appointed to perform the duties, and, by reason thereof, receive any part of the salary, of a clerk in the Treasury Department. 2. Such substitution is unauthorized, is against public policy, and is prohibited by statute. 3. The principles stated apply also, as to substitutes for messengers, assistant messengers, copyists, watchmen, laborers, and other employés in the Department. 4. The head of a Department may, at his pleasure, accept the resignation of, or remove, a clerk, and restore him to office, and, in the mean time, appoint another person to the vacant place, with a right to the whole salary prescribed by law. 5. He may do the same with unofficial employés. 6. A statute may authorize contracts for services, and give authority for the employment and payment of persons in such mode as it may prescribe. September 10, 1882, a clerk in the Treasury Department addressed a letter to the Secretary, requesting "an extension of leave of absence of fifteen days ⚫ * from September 17th, with permission to employ a substitute for that time; the person employed and the rate of compensation to be named by the Secretary." In other words, the application is, that the clerk be permitted to retain her office, remain absent "States were admitted to representation under the reconstruction acts as follows: 1. Arkansas, act June 22, 1868, 15 Stat., 72; 2. North Carolina, act June 25, 1868, 15 Stat., 73; 3. South Carolina, act June 25, 1868, 15 Stat., 73; 4. Louisiana, act June 25, 1868, 15 Stat., 73; 5. Georgia, act June 25, 1868, 15 Stat., 73; 6. Alabama, act June 25, 1868, 15 Stat., 73; 7. Florida, act June 25, 1868, 15 Stat., 73; 8. Virginia, act January 26, 1870, 16 Stat., 63; 9. Mississippi, act February 23, 1870, 16 Stat., 67; 10. Texas, act March 30, 1870, 16 Stat., 80; act May 4, 1870, 16 Stat., 96. As to the time when the rebellion was suppressed, see United States v. Anderson, 9 Wall., 56; Erwin v. United States, 97 U. S., 393; Lawrence's Law of Claims against Governments, House Rep., No. 134, 2d sess., 43d Congress, 209. for a time, receive the full salary, and pay a portion of it to a substi tute selected to perform the duties of the clerk during such absence. In this way the voucher for payment would be signed by the clerk, and this only would be presented to the accounting officers for settlement. September 15, 1882, this letter was referred by the Assistant Secretary of the Treasury to the First Comptroller "for his opinion as to whether the Department can authorize the request." OPINION BY WILLIAM LAWRENCE, First Comptroller. Services are rendered in the Treasury Department either by officers, "messengers, assistant messengers, copyists, watchmen, laborers, and other employés" (Rev. Stat., 169), or, in some cases, by contractors. The officers are "appointed by the President, by and with the advice and consent of the Senate" (Rev. Stat., 234, 268, 276), or by the Secretary of the Treasury, and the messengers and other employés by the latter authority. (Rev. Stat., 169.) It is very clear that a substitute cannot be lawfully appointed, or authorized, to perform the duties of an officer. 1. It is a sufficient objection to such appointment, or service, that there is no statute, or rule of common law, which authorizes either. 2. The Constitution of the United States requires that "all executive and judicial Officers shall be bound by Oath or Affirmation, (Art. VI, 3.) to support this Constitution." The statute has added to the claring, that "every person requirement of the Constitution, by de* appointed to any office shall, before entering upon the duties of such office, and before being entitled to any part of the salary or other emoluments thereof, take and subscribe" an oath or affirmation in these words: "I, A B, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." (Rev. Stat., 1756, 1757, 1758.) There is no authority for a substitute to take this oath. It can only be taken by the "person elected or appointed to any office.”, (Rev. Stat., 1756.) A substitute cannot be appointed, as such, to an office held by another person, because there is no vacancy. The number of clerks is limited by law. A failure to perform the duties of an office, at least for a limited period, does not per se vacate the office. An office is only vacated by death, resignation, removal, the acceptance of an incompatible office, judicial ouster, and, perhaps, by long abandonment. 3. The Constitution and the statute, by requiring an oath of office to precede the performance of any official duty, necessarily exclude the |