The law stops with saying that he shall have brevet pay only when he commands according to his brevet rank. What constitutes a command according to brevet rank, the law does not decide. It leaves this matter, I apprehend, to be settled by those regulations which had been made, and on which an unlimited power of alteration is confided to the President. What regulations have been made by him-what was their purposewhether they reach this case-and in what predicament these regulations now stand-are all military, and not legal questions. If those to which I have adverted are still in force, and are all that are in force, then the only question is, whether General Macomb is in either of the situations. described by those regulations; and this is a question which belongs exclusively to your department.

I am aware that the sanction given by Congress to the army regulations compiled by General Scott, by the 14th section of the act of 2d of March, 1821, was withdrawn by the act of 7th of May, 1822; still, however, these regulations had received the separate sanction of the President, and, after the withdrawal of the legislative sanction, they were still continued in force, by the authority of the President, in all cases where they do not conflict with positive legislation. The sanction of the President alone is entirely sufficient, under the act of the 24th of April, 1816, to give them full effect as army regulations; and those which I have cited are by no means in conflict with positive legislation, since positive legis lation has stopped short with making a command according to brevet rank the criterion of brevet pay; leaving wholly open and undecided the question, what is a command according to brevet rank? The purpose of these regulations, then, is merely to supply what positive legislation had wholly omitted, and not to contradict it in any thing which it had enacted. Standing clear, then, of all legislation, the sanction given by the President to these regulations becomes absolute and unconditional.

the

Nor are the regulations of 1820, I presume, in conflict with that of the 8th of May, 1818, which I have cited; they are supplemental and additional; they leave the order of the 8th of May, 1818, to act upon line, and supply a provision for cases which appear not to have been contemplated by that order. This, however, is again a question much more proper for your department than mine; for I profess not to have that aquaintance with the whole range of your army regulations, nor that knowledge of the organized bodies on which they are intended to act, which is necessary to qualify me to compare them, and decide on their relative bearing and effect. This knowledge belongs peculiarly to the Department of War, and with it I presume not to meddle, so far as to hazard an official opinion on it.

I am very sensible that this opinion does not go the whole length of deciding the question which you have referred to me; and the reason is because the law, which is my science, does not go the whole length deciding it. I must be permitted, therefore, to stop where the law stops and leave to the Department of War that part of the subject which lies within its particular province.

To the SECRETARY OF WAR.

I have the honor, &c., &c.,

W. W.

OFFICE OF THE ATTORNEY GENERAL,
June 6, 1822.

SIR: In answer to the question submitted for my opinion yesterday, I have the honor to state, that in cases where advances have been made to a contractor, to he accounted for by him in the course of the fulfilment of his contract, such contractor is not, in my opinion, to be considered as in arrears, within the meaning of the 3d section of the act making further appropriations for the military service of the United States for the year 1822, so as to be required to refund and pay back into the Treasury advances received by him under the stipulations of his contract. Such a construction would force the Government on a violation of its own positive contracts-an act of such violent injustice and indecency as cannot be supposed to have been within the intention of Congress.

Nor can I suppose it to have been the intention to narrow the discre tion of the department in making contracts for the public good in future; nor is the just and sound exercise of such discretion to prohibit it from making advances as a part of such contracts, where the public good calls for such contracts: the words of the law are, that no money appropriated by the act shall be "advanced or paid to any person on any contract, or to any officer who is in arrears to the United States, until he shall have accounted for and paid into the Treasury all sums for which he may be liable;" manifestly, I think, intending to force from the debtor such sums as he may owe-such as he may have no authority to retain-such as he was bound, by antecedent obligations of law or equity, to have paid into the Treasury: none of which can be predicated of advances made to a contractor on the footing of a positive stipulation; and therefore this case is not, I think, within the law.

I have the honor, &c., &c.,

WM. WIRT

To the SECRETARY OF WAR.

[Office of the ATTORNEY GENERAL, [June 11, 1822.]

SIR: I have considered the question of the allowance of interest on he Georgia claims settled by the commissioners under the treaty with. e Creek nation of Indians of the 8th January, 1821; and am of the inion that interest ought not to be allowed, for the following reasons, hich, at present, I have merely time to suggest, without enlargement. I. By the treaty, the United States take the place of the Creek nation, 3 to those claims within the limit of $250,000. The character of the laims thus assumed by the United States could be learned only by the xisting treaties with the Indians, to some of which the State of Georgia as party; to others, the United States, representing in this particular le interests of the State of Georgia. In all these treaties, the only claim. serted by and for the State of Georgia, and admitted by the Creeks, consted in the return of the specific property, as far as it was in being and pable of being returned. There is no stipulation in either of these treaes for damages for the detention of the property; and this, being the aim assumed by the United States, ought to remain as it stood under I the treaties, without the addition of damages or interest in any form.

II. The claim ought to be liquidated against the United States exactly on the principle that it would be liquidated against the Indians; and it is believed that a claim of interest against a nation of Indians, under circumstances like these, would be unprecedented.

III. Interest is not a thing of course; it is no part of the debt, nor is it a necessary consequence of the debt. By many nations it is not allowed at all; and by those whose laws allow it among individuals, it is not allowed in every case, but only where the circumstances of the case call for its allowance, as a matter of equity in the particular case. These prin ciples are nowhere more clearly stated, nor more ably illustrated, than is Mr. Jefferson's letter to Mr. Hammond, (State Papers, vol. 1, p. 304.) Do the principles of equity call for the allowance of interest in this case? I apprehend not, for the following reasons:

1. Because I understand that the value of the property itself is assessed on an average nearly at double prices: e. g., eighty-eight negroes are val ued at $32,201, making an average of $365 80 each; four hundred and seventy-one horses are valued at $41,171, making an average of $87 41 and these horses on the frontiers of Georgia-at their value, too, thirty and forty years ago! Equity cannot require the addition of interest o allowances like these.

II. The claim itself is confined to property in being, and therefore c pable of being returned; but the existence of all the property claimed presumed by the commissioner, without proof in any instance except whe the claim itself is directly for property destroyed. Now, the presumptio that all the negroes, horses, and hogs, that were stolen by the Indians, that eloped into their borders and found a refuge there, twenty or thir years ago, are still in being, is the presumption almost of a miracle; a operates favorably enough, in all conscience, for the Georgia claiman without loading claims so extremely improbable with interest.

III. Interest in this case would be in the nature of damages for detention of the specific article; but, to take the value of the article at time of its first coming into the possession of the Indians, and to cal late interest on that value down to the present time, would be to add the extremely improbable presumption that the property is still in bei another still more improbable, to wit: that it has continued all along the same value; that is to say, that a negro or a horse, whose serv were worth to the owner six per cent. on the value thirty years ago worth the same per cent. on the same value at the present day-a sumption certainly not required by any considerations of equity; but, the contrary, repelled by every such consideration.

I am of the opinion, therefore, that equity, so far from requiring, for the addition of interest to the present appraisement.

IV. The claims of the citizens of Georgia against the Creek na were in the nature of unliquidated damages; and on unliquidated ages, as a general rule of law, interest is not allowed; and there ar circumstances of equity in this case, as we have seen, to take it o the operation of the general rule.

V. In the act of assumption, interest is expressly disallowed on claims when ascertained-a fortiori I should suppose before ascertainm Unliquidated damages, as I have said, do not carry interest; but, from time of their liquidation, interest is in some cases allowed. Open counts, as a general rule, do not carry interest while they remain o

but from the time of their settlement (that is, from the time of the ascertainment of the balance due) they are allowed to carry interest. But here is a treaty which stipulates that these unliquidated claims shall not carry interest from the time of their liquidation. At the very point of time at which the general principles of law would raise the operation of interest, this treaty forbids it; and the implication seems to me very powerful, that there could have been no intention that the claims, while unliquidated, should be carrying interest. It was needless to have stipulated that these claims, before their liquidation, should not carry interest; because the general rule of law produced this effect. It was only where the law would have permitted the interest to commence, that the prohibition by treaty became necessary; and at this point of time, precisely, the prohibition is directed.

VI. It will be observed that this whole article of the treaty studiously forbids the allowance of interest in every case in which there could be any thing like a legal color to claim it. Thus, in the previous part of the article, it is stipulated that there shall be fourteen annual payments, in fourteen successive years, of sums fixed and certain. Now the payments being of fixed and certain sums at fixed and certain periods, there would have been a strong legal color for the charge of interest; the treaty, therefore, studiously forbids it. Now, to suppose the treaty-makers thus studious to forbid the interest when the general rules of law might have allowed it, and yet to have intended the allowance of it when the general rules of law would have forbidden it, is to impute to them an intention equally irrational and improbable.

For these reasons, I am of the opinion that interest ought not to be allowed on the sums assessed in favor of the Georgia claimants.

I have the honor, &c., &c.,

To the PRESIDENT OF THE UNITED STATES.

WM. WIRT.

OFFICE OF THE ATTORNEY GENERAL,

July 6, 1822.

SIR: The three questions to which I understand you as calling my attention, in explanation of my opinion of the 6th ultimo, on the constraction of the 3d section of the act making further appropriations for he military service of the United States for the year 1822, are these:

1. Whether contractors, who have received advances on the express tipulations of their contracts, and who are in the regular course of rembursing those advances, by work done under their contracts, are within he operation of that section?

2. Whether contractors who have, on similar stipulations, received. dvances, and who, although still in the execution of their contracts, ave passed the time within which such advances were to have been imbursed, (the department having enlarged the time for such reimburselent,) and accepting the execution of it nunc pro tunc, are within the action?

3. Whether contractors who have not positively stipulated for any dvance, but to whom, nevertheless, advances have been made on the aith of their contracts, and who are in the course of reimbursing such.

advances by work done under their contracts, (the department consider ing such advances as made for the public good,) are within the section? All which questions I answer in the negative, for the reasons given in the opinion to which I have already referred.

I have the honor to remain, &c., &c.,

WM. WIRT.

To the SECRETARY OF WAR.

OFFICE OF THE ATTORNEY GENERAL,

July 20, 1822

SIR: I have reconsidered the opinion which I had the honor to expres to you on the 11th ultimo, touching the allowance of interest on the Georgia claims, under the treaty of 8th January, 1821, with the Cree Indians; and proceed to give you the result of this more deliberate ex amination.

The stipulation in the treaty, under which the question arises, is in the following words: "And as a further consideration for said cession, the United States do hereby agree to pay to the State of Georgia whateve balance may be found due by the Creek nation to the citizens of sai State, whenever the same shall be ascertained, in conformity with t reference made by the commissioners of Georgia, and the chiefs, hea men, and warriors of the Creek nation, to be paid in five annual inst ments, without interest; provided the same shall not exceed the sum two hundred and fifty thousand dollars."

By the agreement between the commissioners of the State of Georg and the Creeks, annexed to the treaty, these claims are referred to t decision of the President of the United States; and the commission appointed by the President has reported the amount of claims, exclusi of interest: the President having reserved for his own consideration question of interest. It is on this question that my opinion is required. I. The first consideration which strikes the mind on this subject that this is a question which arises between sovereign and independe States, in transactions between whom the allowance of interest (unk where it is expressly stipulated, or arises on contracts of loan) is, it believed, without example. It might, therefore, be safely assumed, the front of this examination, that interest not having been express stipulated in this case, and the case not being one of contract of the demand of interest is in conflict with the usage of nations, and ther fore ought not to be made.

II. 'There is another general consideration which belongs to the s ject, and which is this: The United States, in this case, have taken t place of the Indians; they have agreed to be responsible, as the India were responsible; and therefore the same principles and usages should applied to the liquidation of these claims, in relation to the United Stat as if they were still to be paid by the original debtors, the Indians; a it is believed that a claim of interest against a nation of Indians, or t payment of interest by them, would be without a precedent. In a tre with them, in such a case, nothing more, it is believed, could be expect to be gained, or has been asked, than the return of the property, or fair value at the time of the conversion of it to their use, without a addition whatever of interest or damages.