cipal regulations in the Cherokee nation; and the construction which those. treaties are to bear in relation to the periods of 1785 and 1791, is the construction which they are to bear now. For the stipulations of treaties, so long as they remain unaltered, cannot fluctuate with the changing condition of the parties. They cannot mean one thing in one year, and another thing in another year. A change in the condition of the parties may be a very good reason for changing the stipulations themselves; but not for varying the construction of stipulations of a fixed character. The inquiry, then, is, what is the proper construction of these stipulations in reference to the condition of the Cherokees at the time they were entered into? because the construction which was the proper one then, is the proper one still.

Now the stipulation of the treaty of 1785 is, that "the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." The right thus conferred on the United States is sole and exclusive; consequently, neither the Cherokees nor any other nation had the right thereafter to touch the subject which was thus solely and exclusively given to the United States. What was the right thus solely and exclusively given to the United States? The right of regulating the trade with the Indians. What does this mean? The right of regulating the conduct of the citizens of the United States in carrying on this trade? This cannot be the meaning, because this right the United States had before, and it required no treaty to give it to them. The treaty meant to give a right which did not exist before; and this could be only the right to prescribe the whole system of regulations, on both sides, under which the trade should be carried on. The Supreme Court of the United States has lately decided that a power to regulate commerce between the several States is an exclusive power, because commerce is a unit; and the power to regulate it is, from the force of the word "regulate" acting on such a subject, from the nature of the case, and the necessity of the thing, an exclusive power; and that such being the compact between the States, as expressed in the constitution of the United States, no State has a right, by any regulation of its own, to impede, clog, or in any manner to encumber, the action of any regulation ordained by Congress. Now, the constitution of the United States is no more a compact between the States than the treaties which we are considering are compacts between the Cherokee nation and the United States; the commerce between the States is no more a unit than the trade with the Indians is a unit. And with regard to the exclusiveness of the power to regulate it, the case which we are considering is far stronger; because, in the former case, that exclusive. ness was matter of inference from the nature of the subject, and the force of the word "regulate;" whereas, here, the sole and exclusive power to regulate the trade is given to the United States in express terms.

With regard to the surprise which seems to be expressed at a construction which should impute to the Cherokees the intention of giving up the whole subject to the United States, and relinquishing this national right of making municipal regulations of their own in relation to this trade, it proceeds from a forgetfulness of the political condition of the Cherokees at the period of these treaties. What can more strongly mark this condition than the stipulation in the same sentence, by which the Cherokees give to the United States the sole and exclusive right of "managing all their

affairs in such manner as they think proper?" All whose affairs? Surely not those of the United States, for this they had before: it would have been preposterous in the treaty to affect to give a right which already existed in full force; it can mean only the sole and exclusive right of managing all the affairs of the Cherokees in such manner as the United States shall think proper. And after this, I should think that all surprise might cease at their having given to Congress the sole and exclusive right of regulating the trade with the Indians under the construction which I have given to it.

If there could be any doubt whether the treaty of 1785 intended to give to Congress the power of making regulations which should go beyond the control of our own citizens and bind the Indians, it would seem to be removed by the sixth article of the treaty of 1791, by which "it is agreed on the part of the Cherokees that the United States shall have the sole and exclusive right of regulating their trade." Whose trade? Not the trade of the United States certainly; for it would be absurd to suppose that the Cherokees should give to the United States the sole and exclusive right of regulating the trade of the United States. It can mean only the trade of the Cherokees. So that by this article the Cherokees place the regulation of their own trade solely and exclusively in the hands of Congress-a stipulation not at all surprising, considering the geographical position, as well as the political state and condition of the Indians when these treaties were made.

In the exercise of this power, Congress has, from time to time, gone on to regulate this trade by legislative enactments. From the year 1786 down to the present time, there have been continually subsisting regulations, under which citizens of the United States shall be licensed to trade with the Indians. The purport of the license is, that the party who bears it shall have liberty to trade with the Indians under the restrictions imposed by the laws of the United States. This is a regulation of trade strictly within the terms of the treaty, and it proceeds from the body to which the treaty concedes the sole and exclusive right to regulate this trade. The question is, whether a right on the part of the Cherokee nation to tax the traders thus licensed on the part of the United States be compatible with that sole and exclusive right to regulate the trade from which the authority of the license proceeds? The imposition of the tax on the traders is the imposition of a new condition, on which alone the Cherokees say that this trade shall be carried on. It is a new regulation of the trade instituted by them, while the sole and exclusive power to regulate it is acknowledged by the treaties to be in the Congress of the United States. Is this sole and exclusive power in Congress consistent with the existence of a like power in a separate and independent sovereign, directed by a different judgment and a different will? I apprehend not. Again: if the Cherokee nation have the right to tax at all, the quantum of the tax rests in their own discretion. If they have a right to impose a tax of $50, they have the same right to impose a tax of $500, $5,000, or $50,000: If they may tax for revenue, they may tax for exclusion. If they have a right to superadd, at pleasure, a new burden on a regulation of trade ordained by Congress, they may impose such a burden as to defeat the regulation altogether. In the case of McCullogh against the State of Maryland, the Supreme Court of the United States decided, that although the State of Maryland was a sovereign and independent State, and conse

quently possessed the general power of taxation, yet they had no right to tax an institution which the constitution had given Congress the power to create; because a power to tax was a power to destroy, and was utterly inconsistent with the paramount power of Congress to create. The question which we are considering appears to me to turn on the same principle. The treaties having given to Congress the right to create these regulations of trade, a power to destroy them is a wholly incompatible power; and a power to tax, as the Supreme Court has said, is, virtually, a power to destroy.

One of the documents which you have handed to me takes the ground that the Cherokee nation may prohibit this trade altogether; and, as a consequence, that they may prescribe the terms and conditions on which they will tolerate it. A sovereign nation, unfettered by treaties, certainly has the right to do both these things. But under the treaties which subsist between the Cherokee nation and the United States, I cannot assent either to the premises or conclusion.

Under these treaties, I do not think that the Cherokee nation has the right to prohibit altogether a trade which Congress has declared to be open.

A sole and exclusive power to regulate trade between two States seems to me necessarily to involve, among other things, the right of saying. when the trade shall be suspended, and when it shall be resumed. The embargo was a prohibition of trade; yet it was held to be a commercial regulation, and the power to institute it could be defended on no other ground. If, in the judgment of Congress, circumstances should arise which should make it advisable to discontinue the trade with the Cherokee nation, and to discontinue the trade on the part of the Cherokee nation, either with the United States or with any other foreign nation, the sole and exclusive power which that nation has given to Congress to regulate their trade would authorize and justify the measure. In my opinion, the treaties place the whole subject exclusively in the hands of Congress; and consequently, under the treaties, Congress alone has the right to say when this trade shall be open, and when it shall be shut; and this power. having been expressly declared by treaty to be sole and exclusive in Congress, I think that the Cherokess have debarred themselves from all interference with it.

With regard to the right of Congress to keep the trade open, the treaty of 1785 appears to me to recognise it by a distinct article-I mean the tenth. The ninth article having given to Congress the general power which has been stated, the tenth provides that, "until the pleasure of Congress be known respecting the ninth article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees, to trade with them; and they shall be protected in their persons and property, and kindly treated." This tenth article, then, only anticipates what it admits that Congress may thereafter do by virtue of the ninth article-that is, authorize the citizens of the United States to go and trade with the Cherokee nation. The existence of such a power as this on the part of Congress, seems to me utterly inconsistent with a power on the part of the Cherokee nation to say that, although our citizens may go, they shall not trade.

The treaty of 1798 also throws light upon this question. By the second article of that treaty, which has been quoted, "the treaties sub

sisting between the present contracting parties are acknowledged to be of full and operative force, together with the constru tion and usage under their respective articles, and so to CONTINUE." What were, in 1798, the construction and usage under the articles which have been quoted? So far as I am informed, that construction and usage were-that persons licensed under the authority of the United States might go and trade with the nation, not only free from any let or molestation on the part of the Cherokees, but free from any tax, imposition, or burden whatsoever, on the part of that nation; and the stipulation here is, that this construc. tion and usage shall so continue. But the tax in question is a departure from that usage; it is an innovation against which this article expressly stipulates.

But if it were conceded that the Cherokee nation might prohibit this trade altogether, it would not follow that they might, under these treaties, tolerate it under such regulations as they might institute; for, whether the power of entire prohibition has been given to Congress or not, the sole and exclusive power of regulation has been given to them; and, so long as these treaties remain in force, it seems manifest to me that the Indians have no power to interfere with these regulations, either by addition or subtraction: and what is a tax upon persons authorized by Congress to trade without it, but a new and distinct regulation superinduced upon the regulations provided by Congress? So that the principle affirmed by this tax is, not that the trade shall stop, but that it shall continue; and that it shall continue subject to such regulations as the Cherokees may make, although by their treaties they declare that the sole and exclusive power of making such regulations shall be in Congress; or, in other words, that Congress alone shall regulate this trade, but that the Indians shall regulate it also: which appears to me to be a political solecism.

Upon the whole, I am of the opinion that the Indians have no right to impose this tax on traders licensed under the authority of the United States.

Whether the United States, in enforcing their rights under these treaties, may not and will not have respect to the altered condition of the Cherokees, to the stage of civilization to which they have been now carried by the measures adopted by the United States to produce this very effect; whether Congress will not adapt their future regulations to this altered condition, so as to enable that nation to raise a revenue for the support of their government, by an equal tax upon our traders as well as their own, are political considerations which, although it may not be improper for me to hint at them for your consideration, are foreign to the question of strict law, on which my opinion has been requested.

I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT.

To the SECRETARY OF WAR.

BREVETS UNDER THE ACT OF JULY 6, 1812.

The provisions of the act of July 6, 1812, authorizing the President to confer brevet rank on such officers of the army as shall have served ten years in any one grade, apply to brevet officers generally, and such as have been brevetted for gallant services.

The service actually rendered for ten years in any one grade being the ground of promotion, any officer performing it for that term, whether he holds the grade by commission or by brevet, is entitled to promotion.

SIR: A want of familiarity with the minutia of the organization and usages of the army renders me very diffident of any opinion which I may express on the language of an act of Congress touching military matters. To a soldier, or the head of the War Department, conversant with all these minutia, and with what may, without impropriety, be called the common law of the army, an act of Congress may present a very differ. ent meaning from that which it would present to the mere lawyer. Since you have requested my opinion, however, on the construction of the 4th section of the act of the 6th July, 1812, "making further provision for the army of the United States," &c., I am bound to give it; and I do it with the less reluctance, because your own knowledge and experience, and the counsel of military gentlemen which you have it in your power to command, will enable you readily to correct any error into which I may fall.

The specific question which you present for my opinion is, "Whether so much of this section as authorizes the President to confer brevet rank on such officers of the army as shall have served ten years in any one grade, applies to brevet officers generally, or more particularly to the officers of the topographical engineers of the general staff, and such as have been brevetted under this act for gallant services?" The words of the section are: "That the President is hereby authorized to confer brevet rank on such officers of the army as shall distinguish themselves by gallant actions or meritorious conduct, or who shall have served ten years in any one grade." The act makes no distinction of corps. It operates on all the officers of the army; and the title, as well as the provisions of the act, shows that it was passed in relation to the whole army. If the matter were what lawyers call res integra, I should say that the intention was, in every branch of the section, to enable the President to anticipate a vacancy in the line, by conferring brevet rank on a commissioned officer; that here his authority under the act stopped; and that he could not coufer a second brevet on the same officer, so long as he stood upon the same commission in the line on which the first brevet had been conferred. But I understand that the practice, sanctioned by Congress, has been to confer brevet upon brevet for gallant actions; and while there is nothing in the language of the law which forbids this construction, there are obvious motives of sound policy to indulge it.

The question, then, having been practically settled, that, under this law, brevet rank may be conferred on brevet rank, let us see how this principle will operate on the last branch of this section, which is, "that the President may confer brevet rank on such officers of the army as shall have served ten years in any one grade." In this branch of the law, the service actually rendered for ten years in any one grade, is the ground of the promotion; and, in my opinion, every officer who has performed the appropriate duties of any one grade for ten years, whether he holds that grade by commission or by brevet, is entitled to promotion. If, for example, an officer who holds the commission of captain in the line,