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necessarily implies that actual service shall be, in all cases, a condition precedent and indispensable.
I should have been unwilling to put so rigid, and, I think, strained a construction on the words of the statute, were it now to be construed for the first time. But if, as I understand, contemporaneous interpretation and settled practice have been in favor of the allowance, the rule, in my opinion, ought on every account to be adhered to. This, however, is a fact, as to which the Auditor of the Post Office has better means of informing himself than I have.
I would only add, that the act of 8th May, 1792, which authorizes payment out of the treasury of all fees to the marshal, &c., is an analogy worthy of your consideration. I have the honor to be, sir, your obedient servant,
H. S, LEGARE. Hon. C. A. WICKLIFFE,
COURTS-MARTIAL-TRIAL OF COMMODORE BARRON.
Commodore Barron was tried by a competent court, whose sentence was approved by the
President. After the lapse of thirty-five years the Executive will not look into the pare ticulars of the trial on an allegation that it was irregular. If there were irregularities in the trial, they should have been alleged before the sentence was confirmed.
OFFICE OF THE ATTORNEY GENERAL,
April 3, 1843. SIR: I have received the letter or memorial of Commander Pender grast upon the subject of Commodore Barron's trial, with your endorsement referring it to me, with a request that I would give my opinion on the two following points:
1st. Does the fact that the witnesses were sworn by the judge advo. cate, and not by the President, there being no objection at the time, vitiate the proceedings?
2d. If yes, what relief can now be given ?
I hold it to be quite unnecessary to consider the first point, because my opinion is very decided on the second, that it is impossible for the execu. tive department to interfere in the matter. Cominodore Barron was tried by a competent court. Its sentence was (or must now be presumed to have been) approved by the President at the time. Had the irregularities of the trial been brought to the view of the Executive, they would have been fully considered; and if the proper department had entertained any doubts, ihe Attorney General for the time being would have been consulted upon the subject. All this might and ought to have been done efore the sentence was confirmed.
It is too much to ask, after the whole generation who were concerned in these proceedings have passed away, that a solemn judicial sentence thus pronounced, thus ratified, thus acquiesced in, should be set aside as a mere nullity, because irregularities, (admitting them to be such,) of which the accused might have availed himself in arrest of judgment, were suffered by him to pass without objection; or because, objection being made, it was overruled by the competent authorities.
If this precedent were set, the Navy Department and this office would be turned into a permanent court of errors to try over all the cases disposed of since the foundation of the government; for if thirty-five years be no bar, what is? And if you can set aside a judgment of your predecessors, why shall not any of your successors for fifty years to come set aside yours?
It is a vain conceit, that because the proceedings are irregular, and fatally irregular, (if the exception be taken in proper time, therefore the judgment once suffered to be entered up is void. Thus there are many things in the summoning and constituting of juries, and in the conduct of a trial, that make the verdict void; yet, if advantage be not taken of them by motion in arrest of judgment, no writ of error lies, even where there is a competent court of errors, (Rob. Abr., 783; 4 Cro. Eliz., 616;) and it is very proper it should be so-vigilantibus et non dormientibus subveniunt leges; and the repose of society, and the putting an end to controversy and litigation, are more desirable than mere accuracy of procedure, or even the justice of a particular case-not to mention that acquiescence implies consent, and consent cures error.
In short, I see no remedy which the executive department can afford in the premises, and it is therefore unnecessary to look further into the merits of the case. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. A. P. UPSHUR,
Secretary of the Navy.
CONCERNING THE RE-ISSUE OF TREASURY NOTES.
Under the act of Congress of March 3, 1843, authorizing the re-issue of treasury notes and
for other purposes, whenever outstanding treasury notes issued in pursuance of the act of 1842, or any previous act of Congress, shall be redeemed before July 1, 1844, other notes may be issued in the place of those redeemed; but the notes outstanding of an earlier issue than 1810 are governed by the law then of force, except so far as the aci of 1843 authorizes their re-issue it redeemed. OFFICE OF THE ATTORNEY GENERAL,
April 3, 1843. Sir: In compliance with your request, I have looked into the acts reg. ulating the issue of treasury notes, and have now the honor to state my conclusions.
Your letter of the 3d instant is as follows:
" It becomes important, in order to determine on the proper measures to be adopted under the act of Congress approved March 3, 1843, entitled "An act authorizing the re-issue of treasury notes and for other purposes,' to be advised of the true construction of the first section of that act in re. spect to the issue of treasury notes, in place of such as may be redeemed; whether, if the notes so issued should be purchased by the Secretary of the Treasury under the authority given by the 8th section of the act approved October 12, 1837, other notes to the same amount may be issued in the place of those thus purchased from time to time; and upon those thus issued being purchased, whether others may be substituted.
“The general expression at the close of the first section of the act of 3d March, 1813, under the limitations and other provisions of the respective acts by which said notes were originally authorized and issued, would seem to adopt all the provisions of the several acts under which treasury notes now outstanding were originally issued; and among them the 2d section of the act approved 31st March, 1840, and the proviso to the 2d section of the act approved 31st August, 1812, relating to the re issue of notes. But I desire the benefit of your opinion on the point, as soon as your convenience will permit.”
By the act of 1841, as well as by that of 1842, authorizing an issue of treasury notes, the act of 12th October, 1837, as modified by the act of 31st March, 1840, except as to times of issue, is revived. Those acts, therefore, of 1837 and 1840, constitute the fundamental law of treasury notes, except where subsequent enactments have derogated from their principles and provisions either expressly or by fair implication. Then comes the question, is it meant that all the notes which, in your discretion, may be re-issued under the act of 3d March, 1843, should fall equally within the policy of this fundamental law?
An I should a priori have answered this question in the affirmative; but in statute law, general reasonings, however strong and persuasive, must yield to positive language; and where the written text is plain and express, no interpretation is either needed or allowed. This is the case with the general expression in the act of 3d March, 1813, to which you call my attention. The words are, that when outstanding treasury notes, issued in pursuance of the act of 1842, or any previous act of Congress, shall be redeemed before the 1st of July, 1844, the Secretary may cause other notes to be issued in the place of those redeemed; and this is the condition on which this new issue is authorized—that the notes so issued, to replace others issued under various acts, shall be subject to the limit. ations and other provisions of the respective acts by which such notes were originally authorized and issued.
Now, as your inquiry is directed to no particular issue, my answer must embrace all; and therefore I am of opinion that a note still outstanding of an earlier issue than 1840 is governed by the law then of force, except so far as this act of 1843 authorizes its being re issued if redeemed. I say the law then of force—the particular act under which it was authorized, not modified by the act of 1840. This is the inevitable effect of the word “respective in the text cited.
But suppose a note originally issued under the acts before 1840 has been re-issued, or replaced by another issued since; my opinion in that case is, that it is governed by the act of 1837, as modified by the act of 1840. This, first, because the re issuing was to all legal purposes an issue de novo: second, because the act of 1837, so modified, is a funda. mental law, applicable whenever the words are not too express to admit of its being so applied. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. Hon. JOHN C. SPENCER,
Secretary of the Treasury.
PC WER OF PRESIDENT TO APPOINT JUSTICES FOR THE DISTRICT OF CO
The President is authorized to make an original appointment of a justice of the peace, during
the recess of the Senate, for the District of Columbia.
He derives the power from the act of 27th February, 1801, authorizing him to appoint, from
April 13, 1843. Sir: Your endorsement upon the papers recommending Mr. Benjamin P. Smith to be appointed a justice of the peace for this District, propounds the question whether the President can make an original appointment of such a justice during the recess of the Senate.
The case does not involve the vexed question, whether, under the constitution, merely an appointment to a newly.created office can be made by the Executive without the advice of the Senate. The President is expressly authorized by law to appoint for each of the counties of the District of Columbia such a number of discreet persons to be justices of the peace, as the President of the United States shall, from time to time, (that is, any time, think expedient, to continue in office for five years. Act 27th February, 1801, sec. 11. Congress has power to vest the appointment to inferior offices in the President, under such regulations as it may deem expedient. It has been usual, whenever new offices have been created to be filled during the recess, to authorize the President, by the statute creating them, so to appoint to them. This is clearly constitutional legislation, and it obviates the objection made in ordinary cases to appointments by the Executive to new offices without the advice of the Senate.
I am of opinion, after some hesitation, that the act of 27th February, 1801, gives the President such an authority with regard to justices of the peace in this District. I have the honor to be, sir, your obedient servant,
H. S. LEGARE. To the PRESIDENT,
POWERS OF PRESENT COMMISSIONERS UNDER THE CHEROKEE TREATY.
The jurisdiction and authority of the present commissioners, under the treaty with the Chero
kees, is limited to cases under the treaty which were not disposed of by the former board. The claim of Rogers having been considered, disposed of, and reported upon by the former
board, was not a proper subject for the adjudication of the present commissioners; where
fore, any decision made thereon by the latier was and is nugatory and void. Awards by the present commissioners upon claims not referred to them, nor comprised within the limits of their authority, furnish no warrant to the officers of the treasury for paying
them. The allegation, that the former board rejected the claim through mistake, in nowise affects the
question of jurisdiction. If there were a mistake, and a wrong done in consequence of it, the Claimant can obtain redress only by an appeal to Congress. The head of a Cherokee family is entitled to receive the amount awarded to his claim to a reservation. He is quoad hoc the guardian of his children. OFFICE OF THE ATTORNEY GENERAL,
May 19, 1843. Sir: The two points propounded for my consideration in your letter of the 17th ultimo having been, at my request, further elucidated by a com. munication made me on the 12th instant, I now proceed to give the opinion which, on very full consideration, I have formed in regard to them. They are as follows:
Ist. The first is that of Johnson K. Rogers; and the question is whether the proceedings that were had before the former board amount to a rejec. tion of the claim?
2d. The second relates to the right of a head of a family to receive the amount awarded to his claim to a reservation: whether he is entitled to receive the whole of the principal sum-which has been the construction heretofore put upon the various treaty provisions, and large sums paid under it-or whether he shall receive the interest thereot only during his lifetime, the principal after his death (saving the interest of the widow) going to his children. The last question embraces many cases; and is, for that reason, as well as because of the construction heretofore adopted, very important:
1st. To understand the first point, it is necessary to have recourse to the state of the case presented in the report of the Commissioner of Indian Affairs: “ The letter addressed by the Commissioner, in 1839, to the Indian office, is recited, requesting a return of the papers, which they say, at the request of Mr. Rogers, he was allowed to withdraw, in order to obtain the opinion of your (my) predecessor. Under date of 11th February, 1839, they were informed, in repły: “As you have been instructed to terminate your labors and transmit your records, it is deemed unnecessary to return you the papers in the case of Mr. Rogers. Your letter, before me, will be filed with them, and will be sufficient evidence of your rejection of the claim.'
The claimant did not acquiesce in this judgment of the commissioners. He has more than once appealed to the Department of War for redress, but your two immediate predecessors both rejected his application, treating the matter as res judicata, and considering themselves as bound by the judgment of the only competent tribunal, the commissioners duly appointed under the 13th article of the treaty.
The question presented for my consideration is, was it competent for the present commissioners to take up this claim as res integra? I am, after much reflection upon the subject, of opinion that it was not. Nobody will pretend, I suppose, that the present commissioners have any authority to entertain an application in the nature of an appeal from the decision of their predecessors. Their jurisdiction is confined to cases, 1st, provided for by the treaty; and, 2d, not disposed of by the former board. They have none whatever beyond these limits, and any act of theirs not within them is a mere nullity.
Then the next question is, was this claim provided for by the treaty?
The state of the case does not enable me to answer this. But, from the reasoning of the late Secretary of War, I feel justified in referring you to an opinion of mine given on the 26th of September, 1841, and in add. ing a few words in reference to the powers of commissioners under treaties between the United States and other nations. Some confusion of ideas eems to prevail on this very important subject, and perhaps you will not regard this attempt to clear it up as either foreign from the matter now before us, or unprofitable to the department. It is not unusual to hear the judgment of commissioners in such cases spoken of as concluding all parties whatever. This is true as between the nations parties to the treaty. The question whether such a particular claim of a citizen of oue country against the government of another is or is not valid as against that government, is undoubtedly submitted to the special jurisdiction created by the treaty.