The loss of salary results from "absence." Absence, as already stated, is of two kinds: with leave-without leave. The purpose of absence with leave is to release the officer from official duty-release him for the time being from the control of the President. Absence is not determined by the place where the minister is, but by his release from duty and from Presidential control. A minister may continue at the place where he generally transacts his official duties, and yet, in the legal sense, "be absent from his post by leave." So there may be an absence ejusdem generis without leave; that is, a refusal to perform duty and neglect of the President's orders. If a minister should, without authority, depart from the place at which he is assigned to duty, for the purpose of giving attention to his private business, or in pursuit of pleasure, this would be evidence of absence without leave. But at the place of his duty he might wholly occupy his time for the same purposes, and totally disregard all orders of the President, and so be "absent from his post otherwise" than with leave.

The rule which interprets the word "otherwise" by reference to the words "absence * by leave," is one to be carefully observed. Absence "by leave" occurs where, by authority of the President, a diplomatic officer is excused from the performance of duty. Absence "otherwise" is undoubtedly to be understood by reference to "absence by leave;" and in one sense the absence otherwise is ejusdem generis. The character of the absence "otherwise" is determined by its purpose and disobedience of Presidential orders. (Williams vs. Golding, Law R., 1 C. P., 69; White vs. Ivey, 34 Ga., 185; State vs. McGarry, 21 Wis., St. Louis vs. Laughlin, 49

496; McIntyre vs. Ingraham, 35 Miss., 25; Mo., 559; State vs. Pemberton, 30 Mo., 376; Gould vs. Sub-District, 7 Minn., 203; Queen vs. Edmundson, 2 E. & E., 75.)

The maxim noscitur à sociis leads to the same result.

But it must not be understood that when the President orders an envoy to do nothing, or to go to a point distant from the seat of the Government to which he is accredited, because such non-action or removal of the post of duty will be useful to the public, the envoy is thus "off duty" or absent from his post. In such case he is on duty and at his post. He is on duty at the post where he is sent by authority.

Upon the principles thus stated, Mr. Seward was not "absent from his post" during any part of the time from June 7, 1878, to April 20, 1879. This is the period covered by his departure from China until he started from the United States to return. During this time he is entitled to full salary, and he does not, for any part of the time, need the aid of the provision for sixty days' absence; for throughout the entire period he was at his post.

3. Undoubtedly, one object of the order to return to the United States was to give an opportunity to testify and cross-examine witnesses in relation to the investigation of the office of consul-general formerly held by Mr. Seward. This object, possibly, had no purpose connected with his duty as envoy.

The Secretary of State, acting for the President, cannot lawfully give an envoy leave of absence, with a right to salary, for more than sixty days in one year, solely to attend to private interests, when these have no connection with his duty, and in no way affect him as envoy.

The right to fix the post of duty of an envoy is one to be exercised with a view to control the officer in his official acts, or in non-action with a view to official usefulness, or to ascertain his fitness for his position.

If the Secretary of State had distinctly declared that Mr. Seward was ordered to return to the United States solely to attend to his own private interests in the investigation of his acts as former consul-general, a different question would arise as to his right to salary as envoy. There is no authority to make such order.

But the accounting officers of the Government cannot, (1) on the evidence, find that Mr. Seward's absence was for this sole purpose; nor (2) is it within their province to make such inquiry.

When the President ordered him to Washington it must be presumed that the order was for a legitimate purpose. It is always presumed that the President, like any other oflicer, does his duty.

It was eminently proper that the President should ascertain if the envoy was a fit person to represent the Government. The latter's usefulness in China might be impaired by the pending charges, and his absence from China might be more useful to the Government than his presence there.

This was a case in which, in the interest of the public, the President might act on the maxim, absentia ejusqui reipublicæ causa abest, neque ei neque alii damnosa esse debet.

Mr. Seward was, therefore, during his said absence from China, lawfully assigned to a post of duty in the United States.

When the President orders an envoy to a post of duty, accounting officers will not inquire into the legality or purpose of the order, but will assume it to have been for an official purpose.

The President has authority "to issue orders in relation to the duties of all diplomatic officers."

It is a duty of such officer, when required, to give all information which may affect his fitness or efficiency for his position.

The President has no power to order an envoy for any but an official purpose. He may give permission to an envoy to leave his post for sixty days in the year with pay, or for a longer period without pay. But a permission or leave implies consent of both the President and the officer; an order is prescribed by a superior, and the inferior is bound to obey it.

To permit an accounting officer to inquire into the legality or purpose of such order, is to subject the President to the scrutiny of his departmental subordinates; which would be utterly inconsistent with his independence, and subversive of public interests.

The management of our foreign affairs, in peace and in war, may frequently require absolute secrecy-publicity may defeat the whole purpose of negotiation.

The authority of the President, when exercised, is conclusive on accounting officers; just as their authority, when exercised, is conclusive on him. The finality is reciprocal. When, as in the case of Mr. Seward, the law gives the President power to judge and act, no accounting officer can call in question the purpose or propriety of his orders, official in form. If on their face they appear to be for some unofficial purpose, the case would be different. (U. S. vs. Jones, 18 How., 96; Bender's case, 1 Lawrence, Compt. Dec., 344, and cases cited; Eveleth's case, ante, 20; Allen vs. Blunt, 3 Story, 742; P. and T. R. R. Co. vs. Stimpson, 14 Pet., 448.)

The authority of the President over an envoy is to be controlled by political considerations, with which neither courts nor other officers can interfere. (Safford's case, 1 Lawrence, Compt. Dec., 280; Georgia rs. Stanton, 6 Wall., 50; Grossmeyer vs. U. S., 4 N. & H., 1; The Protector, 12 Wall., 700; Van Antwerp es. Hulburd, 7 Bl. C. C., 426.)

Thus far this case has been considered wholly without reference to any inquiry before the committee in relation to the official conduct of Mr. Seward as envoy. (See House Rep. No. 143, 3d Sess. 45th Cong., p. 3.)

The action of the House of Representatives, and of the committee which made the investigation, is not material in this case.

Mr. Seward did not leave China by order of either.
The power of the

States, is very great.

House over private citizens, within the United (Draft case, 1 Lawrence, Compt. Dec., 15; Cong. Rec., vol. 3, pt. 1, 473, 512; Id., vol. 4, pt. 3, 2490. But see Kilbourn ts. Thompson, Sup. Ct. U. S., March, 1881.)

How far, if at all, the House, or the subpoena of a court, can control the movements of an envoy, it may not be material to consider. The

practice of courts in obtaining the attendance of representatives in Congress as witnesses is well understood. (Draft case, 1 Lawrence, Compt. Dec., 14; 1 Burr's Trial, 177; U. S. vs. Kendall, 5 Cranch, 199, 203.)

If, with the mere permission of the President, Mr. Seward had left China solely to appear as a witness before the committee; or, without such permission, in obedience to a request of the committee; or if, being in the United States by order of the President, he had remained after a revocation of such order, he would have been absent from his post, and so not entitled to salary. But he was not so absent.

The salary of Mr. Seward as envoy from June 7, 1878, to June 19, 1879, should be included in his favor in the balance to be certified in adjusting his accounts.

TREASURY DEPARTMENT,

First Comptroller's Office, February 28, 1881.

IN THE MATTER OF THE RIGHT OF THE SUCCESSFUL CONTESTANTS FOR SEATS IN THE HOUSE OF REPRESENTATIVES TO COMMUTATION FOR STATIONERY AND NEWSPAPERS FOR SESSIONS PRIOR TO THOSE IN WHICH THEY WERE SEATED.-COMMUTATION CASE.

1. A successful contestant for a seat in the House of Representatives, whose contest is only decided in the last session of a Congress, is entitled to the full commutation for newspapers and stationery for that session, but not for any previous session.

2. The contestee, who is a sitting member during a portion of such last session, is also entitled to stationery or commutation for the entire session.

3. The right to such stationery or commutation is one to be decided by the accounting officers of the Treasury Department.

During the Forty-sixth Congress there have been sundry cases of contested seats in the House of Representatives, some of them only recently decided during the present or third session.

The Hon. George M. Adams, clerk and disbursing officer of the contingent fund of the House of Representatives, has this day asked the decision of the First Comptroller on the question whether a recently successful contestant for a seat in the House is entitled to commutation for newspapers and stationery after the sitting member or contestee has received payment of commutation for each session of the present Congress; and if so, to how much, and whether for more than one session

OPINION BY WILLIAM LAWRENCE, First Comptroller:

The act of February 12, 1868, (15 Stats., 35; Rev. Stats., sec. 43,) provides

"That no representative shall receive any newspaper except the Congressional Globe, or stationery, or commutation therefor, exceeding one hundred and twenty-five dollars for any one session of Congress."

The words quoted were a proviso in the first section of the act. This proviso was repealed by the operation of sections 43 and 5596 of the Revised Statutes; but the allowances therein mentioned were subsequently authorized by the act of January 20, 1874. (18 Stats., 4.)

A contestant who is seated during this session cannot be allowed commutation for any previous session, because he has not been a member at that session. He is entitled to the commutation for this session because he is a member at this session. The contestee, who was also a member at this session, is entitled to the full commutation, because he was a member at this session. The law neither makes nor knows any fraction for commutation. When a sitting member loses his seat, the length of the session may not be known. The commutation is the same for a short as for a long session. Time is not an element in fixing the right to it.

It is well settled that a contestant who is seated becomes entitled to the full salary provided by law for the whole Congress, (Rev. Stats., 38;) but he does not become entitled to commutation for any session unless he be a sitting member at such session. The law gives a member newspapers and stationery mainly for use for public purposes, or a commutation in money which is supposed to be devoted to such purposes.

The reason on which the provision is founded applies only to one who is actually a member, not to one who is a claimant.

If the claim to a seat gave the right to commutation, then a defeated contestant would, quoad hoc, have the benefit of the seat as well as a successful contestant. A right to commutation has never been recognized in a defeated contestant.

The question of the right to commutation is one on which the accounting officers of the Treasury Department are required to pass. (Rev. Stats., 46, 191, 236, 248, 269.)

The certificate of the Speaker of the House as to salary and travelling expenses of members is "conclusive upon all

(Rev. Stats., 48.)

officers."

The contestants who have been seated during the present session will be entitled to full commutation for this session.