POWER OF PRESIDENT TO APPOINT NEW CHEROKEE COMMISSIONERS.

The act of June 17, 1844, restrained the further exercise of Executive authority to appoint commissioners to examine claims under the treaty of New Echota, and he cannot now constitute a new board without plainly disregarding the will of Congress in the premises. If there remain any claims yet unadjudicated, the Executive is advised to apply to Congress for an appropriation to enable him to carry the treaty into effect.

ATTORNEY GENERAL'S OFFICE,
August 1, 1845.

SIR: By your direction I have examined the memorial of certain claimants under the Cherokee treaty concluded at New Echota on the 29th of December, 1835, and have considered the questions on which you ask my opinion in writing. They are

"1. Does the President possess the power to institute a new board of commissioners under the seventeenth article?"

"2. If he possesses the power, can he, or ought he to do so, without a previous appropriation by Congress to defray the expense of such board?""

I have the honor to communicate a copy of an opinion given by M.. Legaré on the powers and duties of the President under the seventeenth article. The treaty has undoubtedly the effect of law; but there must be a period beyond which the President cannot continue to exercise the power of appointment of commissioners; and, without examining into the extent of the power of the House of Representatives, when an appropriation of money is necessary to carry into effect a treaty stipulation, it appears to me that the Congress of the United States, by the act approved June 17, 1844, has, by law, restrained the further exercise of mere executive authority. That act appropriates

"For compensation to two commissioners to examine claims under the treaty with the Cherokees of one thousand eight hundred and thirty five, and pay of secretary, including provision for Indians during the session of the board, and for contingent expenses, eleven thousand five hundred dollars."

"For defraying the contingent expenses of commissioners to adjust claims to Choctaw reservations under the treaty of one thousand eight hundred and thirty with the Choctaws, six thousand one hundred dollars: Provided, That the duration of either of the said commissions shall not extend beyond one year after the passage of this act."

This proviso applies to both commissions. The appropriation made cannot be expended for the purposes indicated beyond the period of one year from the date of the act, and is a legal restriction upon the Execu tive which I would not advise should be disregarded. The power of the law-making authority to limit the execution of a treaty, and to restrain the Executive in the exercise of the powers conferred by the treaty, cannot be questioned. It has been done in regard to the appointment of commissioners under the Cherokee treaty, by such plain implication, that I do not consider that the President can create a new board without a disregard of the legislative will declared in the act of June 17, 1844. If there be any claims still unadjudicated which I have not the means of affirming and do not intend to question, I would advise that an application be made to Congress for a further appropriation to enable the Executive to have the treaty carried into full effect. Without such an appropriation

previously had, my opinion is that the President ought not to constitute a new board.

I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON.

To the PRESIDENT.

VALUE OF STOCKS TRANSFERRED FROM THE CHICKASAW TO THE CHOCTAW FUND.

The 5 per cent. Alabama stocks transferred from the Chickasaw to the Choctaw fund, in compliance with the treaty of March 24, 1837, between those nations, did not fully come up to what the Choctaws might have reasonably required.

But as the consent of the Senate was and is requisite to any transfer or investment for them, it will be requisite to the making up of the deficiency.

ATTORNEY GENERAL'S OFFICE, August 1, 1845. SIR: I have been compelled to delay furnishing you my opinion on the questions presented in your letter of the 20th March last, by engagements of a more pressing urgency.

By the 3d article of the treaty between the Choctaws and Chickasaws, ratified March 24, 1837, the Chickasaws agreed to pay to the Choctaws, as a consideration for the rights and privileges granted in the two preceding articles, $530,000. $30,000 of this money was to be paid at the time and in the manner that the Choctaw annuities of 1837 were to be paid, and the remaining $500,000 to be invested in some "safe and secure stocks, under the direction of the government of the United States, who were to cause the interest annually arising to be paid to the Choctaws. At the date of the ratification of this convention, the United States held, by virtue of treaty stipulations with the Chickasaws, certificates of stocks in which their money had been invested. On the 12th of November, 1840, Mr. Gilpin gave his opinion advising that a transfer of the Chickasaw stocks, in satisfaction of the claim of the Choctaws, for the sum of $500,000, could only be made by the President, with the consent of the Senate. I respectfully refer you to that opinion for a detailed statement of facts, which I do not deem it important to repeat here. By a resolution of the Senate of the 21st December, 1840, the consent was given for a transfer of $500,000 of Alabama 5 per cent. stocks from the Chickasaw to the Choctaw fund at par. In making the investment for the Chickasaws, these stocks had cost $495,000. The Choctaws, in their general council, October 7, 1844, addressed to Captain William Armstrong, Indian agent, a communication asserting their expectation that this investment should have been so made as to yield them 6 per cent., or $30,000 per annum, instead of $25,000, the yearly proceeds of the 5 per cent. stock; and setting up a claim to $5,000, the difference between the original cost to the Chickasaws and the par value of the stocks, for which the Choctaws were debited. This communication, with the agent's letter, accompanied your communication to me; and the question presented for my opinion is, whether the claim is well founded. The treaty of 1837 would have authorized a payment in money by the Chickasaws, by the United States, their trustee, and an investment in stocks by the same

trustee for the Choctaws. The money could only be raised by a sale of the stocks, which, it appears, were not then worth par in the market; and the reason assigned for the convenient arrangement of transfer by which the payment and investment were both made in one operation, that it would have been attended by a great sacrifice to the Chickasaws, presents a strong equity on behalf of the Choctaws that they should not be required to take it at a price beyond its market value and beyond its cost to the Chickasaws. The Chickasaws were bound to pay $500,000, and they have paid stock which cost them only $495,000, and which was certainly not worth more than that sum at the date of the transfer. Justice to the Choctaws forbids that the Chickasaws should have the double advantage of liquidating their debt in stocks at a rate beyond their market value, and of realizing the excess above what they had paid for them. But the treaties existing appear to me to interpose an insuperable obstacle to the Executive affording the relief asked for. The stocks held for the Chickasaws could only be transferred by the consent of the President and Senate. The convention of 1837 secured to the Choctaws, in effect, the same solemnities in making investments for them. The resolution of the Senate and the action of the President was the execution of these powers. If the $5,000 ought to be paid to the Choctaws with the interest claimed, it ought to be paid out of the Indian fund; and this cannot be done by the President alone, but he must have the consent of the Senate. I am, therefore, of opinion that it is a subject for the consideration of the Senate, and would advise that in justice to the Choctaws it ought to be submitted to that body.

I have the honor to be, respectfully, sir, your obedient servant, J. Y. MASON. Hon. W. L. MARCY,

Secretary of War.

THE STAFF OF THE MARINE CORPS NOT REMOVED FROM THE LINE.

A captain or lieutenant of the marine corps, holding a staff appointment, is still such captain or lieutenant, and entitled to promotion in the line as though such staff appointment had never been conferred. His acceptance in the one, does not produce any vacancy in the other. Wherefore, Lieutenant Landon N. Carter, of the marine corps, is not entitled to promotion by reason of any vacancy in the line having been produced by the appointment of senior offioers to the staff.

ATTORNEY GENERAL'S OFFICE,
August 11, 1845.

SIR: In your letter of the 9th of April last, you requested my official opinion, in writing, on a question which you thus stated: "Lieutenant Landon N. Carter, of the marine corps, claims to be entitled to promotion in the said corps, on the ground that its staff officers are, under the law of 1834, removed from the line." I regret that my opinion has been so long delayed; but engagements of a more urgent character, and a desire to give to the subject a careful examination before I complied with your request, made the delay unavoidable.

This subject has been agitated by officers of the corps for several years past, and it has been in various modes gravely considered. The con

struction of the law, and the usage of the Executive, have been uniformly against the claim now asserted by Lieutenant Carter from the organiza. tion of the corps, in 1798, before and since the passage of the act of 1834. While I discharged the duties of Secretary of the Navy, it was brought to my attention by another officer of the corps, and received due consideration. I referred the question to the Attorney General, who gave his opinion, under date of the 5th October, 1844, against the claim to promotion. 1 concurred in that opinion, and the staff officers were not disturbed in their right to their staff and lineal commissions. I have carefully reviewed the opinion, and examined the several laws touching the question, and the arguments of Lieutenant Carter's counsel which accompanied your letter. The staff of the marine corps consists of one adjutant and inspector, one paymaster, one quartermaster, and one assistant quartermaster. These four staff officers were taken from the captains or subalterns of the said corps; were nominated to the Senate; and, with the advice of that body, commissioned in their respective staff appointments. They still hold their lineal commissions; and the question on which you ask my opin ion is, whether the acceptance of the staff appointment vacates the commissions of captains or lieutenants which they bore at the time of receiving such staff commission.

Lieutenant Carter's claim to promotion depends on the inquiry, whether there are vacancies, or by law must be vacancies, in the cases of those captains in the marine corps who now hold staff appointments.

This inquiry resolves itself into the questions: Ist, is there any incompatibility in holding both? 2d, does the law of 1834 require that the same officers shall not hold both?

With a view of examining the questions more satisfactorily, I propose to refer to the provisions of the act of 1834, and those acts which precede it, and to the practice of the department in the construction and execution of these laws.

The marine corps was established by the act of 1798. The first section enumerates the number of officers without specifying any staff; the second section fixes the pay of the majors, captains, and lieutenants, and contains this provision: "And if the marine corps, or any part of it, shall be ordered by the President to do duty on shore, and it shall become necessary to appoint an adjutant, paymaster, quartermaster, &c., the major or commandant of the corps is hereby authorized to appoint such staff officer or officers from the line of subalterns, who shall be entitled, during the time they shall do such duty, to the same extra pay and emoluments which are allowed by law to officers acting in the same capacity in the infantry."

An augmentation of the corps was authorized by the act of the 16th of April, 1814. By the first section, the President was authorized to cause the marine corps in the service of the United States to be augmented by the appointment and enlistment of not exceeding one major, fourteen captains, thirty two lieutenants, &c., who shall receive the same pay, bounty, &c., as the marine corps are, or shall be, entitled to. No mention is made of any staff officers as a part of the organization or increase; and yet in the 2d section it is enacted, that the adjutant, paymaster, and quar. termaster of the marine corps may be taken either from the line of cap tains or subalterns, and the said officers shall respectively receive thirty dollars per month in addition to their pay in the line in full of all emolu.

ments.

The act of March 3, 1817, fixed the peace-establishment of the marine corps. The first section enacts that the peace establishment of the corps shall consist of one lieutenant colonel-commandant, nine captains, twentyfour lieutenants, sixteen second lieutenants, one adjutant and inspector, one paymaster, and one quartermaster, to be taken from the said captains and lieutenants. The 2d and 3d sections relate to the disbanding and appointment of officers. The act of June 30, 134, was passed for the better organization of the marine corps.

The first section declares that it shall consist of one colonel-commandant, one lieutenant colonel, four majors, thirteen captains, forty lieutenants, first and second; one adjutant and inspector, one paymaster, one quartermaster, and one assistant quartermaster.'

The fifth section gives to the officers of the marine corps the same pay, emoluments, and allowances as are now, or may hereafter be, allowed to officers of similar grades in the infantry of the army, except the adjutant and inspector, who shall be entitled to the same pay, emoluments, and allowances as are received by the paymasters of the same corps; and the 6th section enacts" that the staff of said corps shall be taken from the captains or subalterns of said corps." It is by virtue of this law, and its provisions here recited, that it is claimed that the staff of the marine corps must be separated from the line, and their places as captains or subalterns filled by promotions or new appointments.

This result is not the effect of any incompatibility in holding both commissions.

The military establishment is the creature of the law, and the lawmaking power may devolve staff duties with staff appointments on officers with commission in the line. This was unquestionably done in the marine corps by the acts of 1798 and 1814; and it is not denied that the same was the effect of the act of 1817. It is done by express provisions of law in regard to officers of the army. By the act of 5th July, 1838, the President is authorized to appoint as many assistant adjutants general, not exceeding six, as he may deem necessary, and they shall be taken from the line of the army. They are allowed a different pay from that of their lineal rank, and by law hold both commissions. By the 9th section of the same act, the President is authorized to add to the quartermaster's department by appointing assistant quartermasters; and to this section is added a proviso that all appointments in the quartermaster's department shall be made from the army; "and when officers taken for such appointments hold rank in the line, they shall thereupon relinquish said rank, and be separated from the line of the army' Under this act officers appointed assistant adjutants general did not cease to retain their lineal commission; but those appointed in the quartermaster's department did. But, on the 7th day of July, 1838, two days after the passage of the act of 5th July, a supplemental act was passed, modifying the former act by repealing "so much of the said act as requires assistant quartermasters to be separated from the line;" and they also, by law, hold, at the same time, their lineal and staff commissions. Hence, although the staff duties may interfere with the discharge of his duties as a captain or lieutenant, under our laws there is no legal incompatibility in the same officer at the same time holding both and this applies to the marine corps as well as to the army. It is a question of intention in the framers of the law, and the inquiry is narrowed down to this: Is there anything in the act of 1834 which shows that Congress intended