NEW COMMISSIONERS UNDER THE CHEROKEE TREATY.

The President has power to appoint new commissioners under the Cherokee treaty of New Echota, for the adjustment of all the claims provided for therein-there being no limitation to this authority, except the fulfilment of its purpose.

The expenses of such commission cannot be defrayed out of the Cherokee fund, however, but must be from appropriations to be made by Congress.

Office of the Attorney General,

July 20, 1842.

SIR: I have the honor to acknowledge the receipt of your letter of the 18th instant, requesting my opinion on two points connected with the execution of the Cherokee treaty of New Echota: 1st. Whether the President has, under the circumstances mentioned in your letter, authority to appoint new commissioners under the 17th article of the treaty; and 2d. Whether the compensation and expenses of this new board can be defrayed out of the fund provided by the treaty for the payment of claims. The treaty ratified by the Senate invested the President with authority, and imposed upon him the obligation, to appoint commissioners for the adjustment of the claims provided for by the treaty. There is no limitation to this authority, except the fulfilment of its purpose. The treaty is to be executed, for it is the law of the land. The President is expressly empowered to employ the means pointed out in the stipulations of the negotiators. The only question, it seems to me, is, Has the end been completely attained? You say it has not been. Good faith requires that it should be. No express law presents any obstacle. I confess I know of none of any kind. Powers for public purposes are always interpreted liberally. Thus a mere naked authority given by a private individual to two or more does not survive. It does where it is confided to public commissioners or officers; and so of other things. Suppose the first commissioners had all died, or been prevented by any other overruling necessity: who would have doubted the President's authority under the treaty to fill up the vacancy? Nothing is said in the treaty of the power being exhausted by a single act, however ineffectual. You do not mention what prevented the first commissioners doing the whole business. If there was laches or unfaithfulness of any kind, it was maladministration for which they were responsible to the government, or the government responsible to the country. But surely the Indian and other claimants are not to be affected by the malversation. The declaratory resolution of the Senate is, on principle, entitled to the highest consideration, as they, by their constitutional power, as advisers of the President, have a share in the treaty making power.

As to the fund I am quite clear. The consideration paid the Cherokees for their lands, &c., (if this is the fund you mean,) covers nothing but what is expressed or necessarily implied in the treaty. The expenses of the commissioners are in neither of these categories: any other construction seems to me inconsistent alike with the dignity and the equity of this government. I am, therefore, not surprised to find that Congress has uniformly made appropriations to that end. I have no doubt they will cheerfully make additional ones, if they are necessary to do justice and fulfil public engagements.

I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

H. S. LEGARE.

Secretary of War.

SALES OF CREEK RESERVATIONS BY ADMINISTRATORS.

The President should confirm those sales of Creek reservations only where the law of the State of Alabama has been complied with: such having been the practice.

Attorneys General Butler and Gilpin having so advised, and the department having so con formed its practice, it may be considered res judicata.

It is inexpediet, always, to disturb the setled practice of the executive departments, and espe cially so in respect to questions about which there is any doubt.

SIR: In your letter of the 20th instant, on the subject of the sale of Creek reservations in Alabama by the administrators of Creek Indians who have died, you propound to me, after some other remarks, the following question: "In cases now pending before this department, the question arises whether the act of 1837 authorizes the President to confirm sales in those cases only where all the requirements of the law of Alabama have been fulfilled, or whether it vests in him a sound discretion to confirm those also made at the instance of administrators lawfully appointed, but which were irregular or informal in consequence of some of the proceedings required by the Alabama law having been omitted, though, notwithstanding such irregularity or informality, the provisions of the treaty of 1832, by which the lands were secured to the Indians, were substantially complied with by the sale being a fair one, and its securing an adequate price for the land?"

This question, you proceed to remark, is "somewhat embarrassed by opinions given by two of your predecessors-Messrs. Butler and Gilpin. The first, in an opinion of the 9th of April, 1838, appears to have considered that a full compliance with all the requisites of the law of Alabama was necessary. The second, in an opinion of the 3d of December, 1840, that to justify the confirmation of the sales, it was necessary that they had been regularly made by order of the orphans' court of Alabama, and there is no question of the jurisdiction of the court, &c.; the words regularly made' being construed to mean that the sales had, in all respects, been in conformity with the law of Alabama. The question now raised, however, was not the one submitted to Mr. Gilpin, nor was it fully and broadly submitted to Mr. Butler, with all the facts. He viewed the law of 1837, as it stood, without reference to the circumstances which led to it, or to the peculiar character of the cases to which it referred, of which he was not advised. He appears to have regarded the cases in the light of ordinary administration cases, and therefore considered that they should be acted upon with strict reference to the provisions of the law of Alabama. The question is therefore now submitted to you.'

Whatever might be my opinion upon this subject, were it res integra, I have, after much reflection, been brought to the conclusion that it is too late to disturb the law laid down for the executive department by Mr. Butler, and implicitly confirmed by Mr. Gilpin. The questions that would be opened by taking up the matter de novo are many and perplexing. There is nothing in the whole compass of our laws so anomalousso hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand towards this government, and those of the States.

It is clear, from Mr. Gilpin's passing dictum, that the practice of the department has been conformed to Mr. Butler's view of the law. It is at all times, but especially in a matter so obscure and so uncertain, inexpedient to sacrifice settled practice to mere theoretical accuracy of doctrine, even where that is attainable, which is doubtful here. Mr. Butler's opinion has this further recommendation-that, by subjecting sales to the supervision of the courts, and requiring them to be conducted with the formality of legal proceedings, it puts some restraint on fraud, and I fear too many cannot be imposed in transactions of this nature.

I have the honor to be, sir, your obedient servant,

Hon. JOHN C. SPENCER,

Secretary of War.

H. S. LEGARE.

SALES OF CREEK RESERVATIONS BY ADMINISTRATORS.

The former opinion, on new fac's stated, and assurances that the practice has not conformed to the opinions of Attorneys General Butler and Gilpin, reconsidered, and h ld that in all cases where the provisions of the treaty have been fulfilled, the sales shown to have been fair, and the consideration adequate, the sales may be confirmed, even though, under the law of Alabama, they may have been informal and irregular. Congress was competent to pass, and did pass, an act conferring original authority upon administrators to make sales, without reference to the law of Alabama.

OFFICE OF THE ATTORNEY GENERAL,

I

July 28, 1842. SIR: Your second letter upon the subject of sales of Creek reservations by administrators, under the act of 1837, treats as a mistake my inference, from the facts formerly brought to my view, that the opinion of Mr. Butler had settled the practice of the department. You assure me that, "so far as this department has acted, the practice has not, as you suppose, conformed to the opinion of Mr. Butler. I find that in all cases in which the provisions of the treaty were fulfilled, by the sales being fair, and the consideration adequate, the department has exercised the power of confirming them, though, under the law of Alabama, informal and irregu lar. Of this fact I was not aware when I presented the question. understand from the Commissioner of Indian Affairs, who was one of the commissioners to investigate frauds in the sale of Creek reservations, by whom the subject was first presented to the department, that the object of seeking the legislation which resulted in the act of 3d March, 1837, was to acquire this power, as it made no difference to the Indians how the lands were sold, provided they received their full value, it being the duty of the department to see the end obtained for which the formalities in the law of Alabama were principally intended, viz: that the proceeds went to the right heirs, and in proper proportions. Hence the special and unqualified phraseology of the act, sales made by lawful administrators.' ." This being the case, the question as to the validity of such conveyances is not prejudiced by the opinions of my predecessors; and it is my own that the construction which you say has been adopted by the department is the right one. Suppose Congress to have been competentand I think it was-to pass such an act; it gave an original authority to the administrator to make sale without reference to the law or procedure

of Alabama. If it had been a special statute of the State of Alabama, vesting the same power in the administrator, all that could have been required would have been conformity between the conveyance and the statutory power. (See 16 Pet., 61-62, Watkins vs. Holman.) A fortiori is this so, when the legislative body conferring the power is wholly unconnected with the act whose procedure is supposed to have been referred to in the act.

But supposing the general law of Alabama with regard to sales made by administrators, &c., to have been, by implication, referred to; then I hold that sales sanctioned by the court of probates must be presumed regular and valid, and cannot be treated in any collateral proceedings as a mere nullity. If they are to be set aside, it must be by regular judicial proceedings, omnia rite acte presumuntur, where the court clearly had jurisdiction. I do not think the cases of a special authority vested for a given purpose in certain extraordinary bodies apply to a court of probates having additional statutory jurisdiction in relation to intestate estates, even did those cases require that the absolute regularity of every step in the proceedings should appear of record.

I have the honor to be, sir, your obedient servant,

Hon. JOHN C SPENCER,

H. S. LEGARE.

Secretary of War,

ACCOUNTS AND ACCOUNTING OFFICERS-INTEREST, &c

In the case presented by the executor of William Otis, some time collector of Barnstable, under an act of Congress directing the accounting officers of the treasury to settle with said Otis, and satisfy such amount of principal and interest as might be found due to him, the allowance of interest is proper.

If the account have once been adjusted by the Comptroller without allowing interest, under the erroneous idea that interest was not allowable, the settlement may be opened and the account be correctly stated and settled. I his case is distinguishable from ordinary accounts.

SIR: The statement of facts which I called for in the case of William Otis, some time collector of customs at Barnstable, Massachusetts, having been furnished me by the First Comptroller, I have now the honor to give you my opinion upon it. The act of 2d March, 1829, for the relief of William Otis, directs the accounting officers of the treasury to settle his accounts upon principles of justice and equity, and to satisfy such amount of principal and interest as might be found due to him, with a proviso that no money should be paid to him under the decision of the accounting officers before that decision should have received the approval of the President of the United States.

Otis, as it appears, received several payments under this law-the last of which, during the administration of Mr. Van Buren, was accompanied, as should seem by the President's express direction, with a release from the executor of Otis, of all further demands.

It is now alleged by the representative of Otis, and expressly admitted by the present Comptroller of the Treasury, that there was error in this settlement, no allowance whatever having been made for interest, under

the impression that interest ought not to be allowed, without express di rections in an act of Congress, and that the act of 2d March, 1829, did not authorize the payment of interest. Both the present Comptroller and his predecessor, who made the settlement, now admit that, by that act, interest ought to have been allowed, and that is the first question that arises in the case. I am also clearly of that opinion. If ever a case justified a deviation from the usual course of the executive departments in regard to such an allowance, it was certainly this. The claimant had incurred heavy losses, merely with a view to the public good, and would not have been indemnified for his sacrifices by repayment of the principal. Fortunately, however, for his representative, he was not left to stand upon the equity, great and manifest as it was, of the case. The statute expressly provided for the allowance of interest; and if it was not taken into consideration in the adjustment finally made, the statute law has not been executed according to its true meaning and intent.

Can

But this leads to the second and difficult question in the case. the settlement made by your predecessor's authority be opened? Clearlynot, unless on discovery of new evidence or of manifest error in the account. If the former Comptroller is perfectly sure, or if the evidence is quite satisfactory to the present Comptroller to show that the settlement was made under the erroneous idea that no interest ought to be allowed, and that no allowance in the name or by the way of compensation for interest was in fact made, then there is no doubt, in my opinion, but that the settlement may be opened and the account stated on these principles, notwithstanding the release. The release would not be binding in equity, as made in ignorance or error, especially having been made by an executor; but Congress directs the accounts to be settled on principles of equity. It is probable all parties acted under error. That is to be presumed, if the evidence is (as I am bound to suppose it) as strong as the Comptroller represents it to be. It is not to be supposed that the President for the time being meant to extort a release of what was really due the claimant; though, even if he had such a purpose, the release could hardly stand in equity. It is more agreeable to reason and propriety, as well as to the rules of evidence, to presume that the President intended to do no more than the statute directed; i. c., to order payment of a debt and to demand a receipt showing that it was payment in full, as it was. meant to be; for the President had clearly no, authority to pay less, or to require that a part should be taken for the whole. But this same presumption constitutes the great difficulty of the case. You are bound, in the absence of proof, and satisfactory proof, to the contrary, to presume that the case, thus solemnly disposed of, was justly decided, and that interest was allowed, as it ought to have been.

The burden of proof is on the claimant. He must repel, and fully repel, this presumption, by evidence that shall satisfy the accounting officers of the error he alleges. If he can produce such evidence, he is entitled, in my opinion, to be paid his interest up to the time his case was decided by Mr. Van Buren. I do not think, for the reasons I have stated on other occasions, that he ought to be allowed it after. When it shall begin to run is a question not asked me, and which I therefore do not answer. I have the honor to be, sir, your obedient servant,

To the PRESIDENT.

H. S. LEGARE.