and a final adjournment on December 2, when the second session commenced. It was decided that an appointment during the adjournment, from July 20 to November 21, was made during a recess of the Senate and was legal. The public circumstances producing this state of affairs were unusual and involved results which should not be viewed as precedents. The decision of the Court of Claims, while squarely passing upon the point, has in view the officer's right to receive pay rather than the power of the President, the function of the Senate, or the nature of the adjournment; and the court appears to have some residuum of doubt, for it expressly holds that it is immaterial whether the claimant was legally in office or not, and rests its conclusion on the fact that he was in actual service under color of office and was recognized and treated as an officer by the Executive. I can not regard this case as binding authority against the clear implications to the contrary drawn from the uniform practice of the Executive and the various opinions of my predecessors. If a temporary appointment could in this case be legally made during the current adjournment as a recess appointment, I see no reason why such an appointment should not be made during any adjournment, as from Thursday or Friday until the following Monday.

It may be that Congress might "temporarily adjourn" for several months as well as several days, and thus seriously curtail the President's power of making recess appointments. But this argument from inconvenience, like the argument against a power because of its possible abuse, can not be admitted to obscure the true principles and distinctions ruling the point.

Furthermore, the Constitution (Art. I, sec. 2) requires Congress to assemble at least once every year. This assembling or sitting is also called in the same article a session, wherein it provides that neither House during the session shall adjourn for more than three days without the consent of the other House. This contemplates the continuance of the session notwithstanding the adjournment.

There have always been two sittings, sessions or assemblings of each Congress. The first session of the Fifty-seventh Congress began the first Monday of December, 1901. Its sec

ond session will begin the first Monday of December, 1902. The interval between these two sessions is the recess. If an adjournment during a session is a recess within the meaning of the clause of the Constitution in question, then the commission of an appointee of the President would extend in this case to the end of the Fifty-seventh Congress, as the Constitution provides that it shall extend to the end of the next session, not the session within which the recess occurs. The only theory to defeat such a conclusion would be that the reassembling of the Senate after each adjournment constitutes a new session, a position wholly untenable in view of the constitutional provision as to adjournments during the session.

The conclusion is irresistible to me that the President is not authorized to appoint an appraiser at the port of New York during the current adjournment of the Senate, which will have the effect of an appointment made in the recess occurring between two sessions of the Senate; and I have the honor so to advise you.

Very respectfully,

The PRESIDENT.

P. C. KNOX.

EXTRADITION-DUTY OF DEPARTMENT OF STATE.

Acosta, having been returned from Mexico to the State of Florida under extradition proceedings, to be punished for a crime committed within that State, was convicted and sentenced to imprisonment. Upon his release he was arrested for another crime without having an opportunity of returning to Mexico. Demand having been made upon the State Department by the Mexican Government for his release, and it not appearing that the prisoner has made an attempt to invoke his right to return to Mexico, Held: That any action by the Department of State at this time to secure his release would be premature. The primary resort of the defendant is to the courts. He may either apply to the Federal courts for a writ of habeas corpus, or interpose the alleged irregularity of his arrest as a matter of defense on the trial of his case in the State court.

The question whether, in case any rights the prisoner may possess are denied in the State courts, the Federal Government is powerless or free from obligation to interfere in that which may then be a matter of international obligation, is not decided.

Opinion of March 27, 1901 (ante, p. 432), reaffirmed.

DEPARTMENT OF JUSTICE,

December 24, 1901.

SIR: I have the honor to acknowledge the receipt of your letter of the 11th ultimo, in which you request my opinion as to whether your Department should comply with a certain request made by the Mexican Government in the matter of a criminal prosecution which is pending in the State courts of Florida against Henry E. Acosta. You further ask in the event of an affirmative reply that I express my views as to the manner in which your Department shall proceed to make such compliance.

It appears that one Henry E. Acosta was, upon the requisition of this Government, surrendered by the Mexican Government in 1897, in pursuance of the treaty of December 11, 1861, which was then in force between the two countries, on a charge that the said Acosta had committed the crime of forgery in Hillsboro County, Fla. Acosta was tried for this offense, was convicted, and sentenced to five years' imprisonment. On October 20, 1901, his term of imprisonment expired, and he was released; but it appears that he was on the same day rearrested, and is now being detained for prosecution on another charge of forgery, alleged to have been committed, previous to his extradition, in Pasco County, Fla. While you do not affirmatively state it, yet the fact that he was rearrested on the day of his release would seem to justify the assumption that no reasonable opportunity was given to him to return to the country whence he was extradited.

Your letter, however, fails to state whether the said Acosta has made any attempt to invoke his right to return to Mexico, either under the provisions of any treaty with Mexico, or under the general principles of international law. I shall therefore assume for the purposes of this opinion that Acosta has taken no steps, either in the courts of Florida or in the Federal courts, to obtain his release. Under these circumstances it would seem to me that the matter is within the ruling of this Department in the case of Edward Underwood, which was made the subject of an opinion to your Department on March 27, 1901. In that case Underwood had been extradited from Canada in 1896

on a charge of murder, and upon his trial was acquitted. He was immediately rearrested on two charges of robbery committed prior to his extradition, and was found guilty by the criminal district court of Harris County, Tex., and sentenced to a term of sixteen years' imprisonment. His Majesty's Government insisted that, without respect to any failure on the part of Underwood to claim his liberty on the ground that he was being tried for an offense which was not the subject of the extradition proceedings, this Government, as a matter of international obligation, should take steps to enforce such return.

In disposing of this contention this Department decided, under the authority of the United States v. Rauscher (119 U. S., 407), that the matter had not become "one of international obligation," and denied that His Majesty's Government had any just claim for the release of the prisoner in the absence of any action which the prisoner might take on his own behalf. This Department, therefore, advised you that "there were no steps proper to be taken by the Executive in order to fulfill in the case of Underwood the obligations of the treaty in question, except through judicial proceedings," which were suggested.

Without restating the reasons upon which these conclusions were based, it is enough for me to suggest that if they were applicable to a case where the defendant had been duly convicted for a crime which was not the subject of the extradition proceeding, they are a fortiori applicable to a case where there has as yet been no denial by the court having jurisdiction, of the prisoner's claim to a release. In the Underwood case, the court which tried him had finally passed upon the guilt of the defendant, had sentenced him, and the sentence had been duly affirmed by an appellate tribunal. It did not appear, however, that at any time during the trial immunity from arrest or trial was claimed by Underwood. Whatever doubt may have existed in that case as to whether or not the defendant, having had his day in court, could further claim his liberty on the ground that he had not been tried for an offense for which he was extradited, it is clear that in the present case Acosta can either apply to the Federal courts for a writ of habeas corpus, or

interpose the alleged irregularity of his arrest as a matter of defense on the trial of his case in the State court, as was done in the case of United States v. Rauscher, above cited. I am, therefore, of opinion that any action by the Executive Department of the Government would be premature in the absence of any attempt by Acosta to obtain due redress in the courts.

I do not mean to intimate that his only resort is to the courts, or that if they deny him any rights which he may possess, the Federal Government is powerless or free from obligation to interfere in that which may then be a matter of international obligation. Upon that point I express no opinion. My present opinion is only intended to intimate that his primary resort is to the courts, and that the executive department of the Federal Government is under no obligation to take steps to protect Acosta in his legal rights until he has himself asserted them in the judicial department of the Government.

I would further disclaim any opinion at this time that Acosta is entitled to his release on the grounds indicated. The matter is, in a certain sense, sub judice. A criminal prosecution is pending in which Acosta may interpose this, with other defenses, and his right to have a release on the grounds indicated may, therefore, be passed upon by the criminal courts of Florida. In such case this Department is always indisposed to express any opinion.

Very respectfully,

The SECRETARY OF STATE.

P. C. KNOX.

FOREIGN REPRESENTATIVES-HUNTERS' LICENSE-EXEMP

TION.

There being no Federal statute requiring the payment of a license tax for the privilege of hunting or shooting upon territory subject to the jurisdiction of the United States, it follows that no exception from its payment has been made in favor of the diplomatic or consular representatives of foreign Governments residing within the United States.