Amos T. Akerman to George F. Edmunds, 22 November 1870

November 22, 1870. Hon. Geo. F. Edmunds, Washington, D. C. Sir: I have received yours of this date, suggesting that the United States assume, in part at least, the burden of paying the counsel in the case of Miller, now standing for reargument before the Supreme Court.—Your clients were purchasers at the Marshal's sale. These difficulties occur to me in the case: There is no law, so far as I am advised, that makes the Government a warrantor of the title to property sold by its officers under judicial process. The general rule of purchases at such sales is caveat emptor. As a matter of fact, such purchases are usually made on speculation, at a lower price than the actual value of the property with an unquestioned title. The possibility that Congress may choose to relieve the purchaser, if the title fails, by refunding to him what he has paid into the Treasury, is too slight, and too remote to authorize this Department to act upon the assumption that a liability on the part of the Government to the purchaser now exists. Again: The law establishing the Department of Justice forbids the employment of special counsel by the Head of any Department except under a Commission from the Attorney General as assistant either to him or to a District Attorney—and the counsel so employed must take the official oath. This seems to make the counsel employed an officer of the United States, for the occasion. And if a member of Congress should be so employed, what effect would it have on his right to a seat in Congress, under Section 6 of Article I. of the Constitution? Again: Hitherto when special counsel have been employed by a Department, they have been paid out of some fund under the control of that Department, and appropriated to the subject-matter of the suit. No distinct appropriation for paying special counsel has been placed in the charge of this Department. The only fund out of which they could be paid is the Judiciary fund, which was appropriated in pursuance of estimates for the general Judicial expenses of the Government; and such payments as these were not contemplated in the estimates. Hence I am obliged to exercise the greatest circumspection in expenditure, in order to avoid exceeding the limits of the appropriation. I shall most respectfully consider any suggestions which you may make in avoidance of these difficulties. Very respectfully, Your obd't serv't, A. T. Akerman, Attorney General.