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Indians of the Cherokee tribe, wherever they may have resíded, who did not emigrate, are not entitled to the money allowances provided in the 8th article, of $53 334 a head. In the papers accompanying your com. munication are several statements furnished by the commissioner who negotiated the treaty on the part of the United States, and by respectable persons who were privy to the negotiations, tending to show that the Indians were assured that those who did not emigrate should have the benefit of this pecuniary allowance. An agreement entered into by William H. Thomas, on the part of the North Carolina Indians, and the treaty. party, is also transmitted.
This last mentioned paper bears date three days after the ratification of the treaty, and does not appear to have any title to be regarded as a part of the treaty. The 4th article of that agreement shows very conclusively that the commutation allowance was only to be expended for emigration and subsistence west. According to well established principles of law, 1 am of the opinion that the evidence is not admissible to establish a con. struction of the treaty inconsistent with its own provisions and unauthorized by its language. Whatever may be done by Congress to fulfil the expectations thus created, I am clearly of opinion that the Executive cannot execute the treaty on any such construction.
The other three questions may be resolved into one inquiry-whether the lands in North Carolina belonged to the Indians residing on them. These lands have been sold by ihe State of North Carolina, and are, I presume, in the possession of the purchasers. As the Executive of the United States would have no power to divest those in possession, and as the question is one for the judiciary, I have not deemed it necessary to embrace my views on it in this communication. Nor have I deemed it proper to express any opinion on the hard measure which seems to have been dealt out to the North Carolina Indians, whose lands have been sold, while they have received no corresponding benefit. I have examined the subject as one of legal construction only, and have no doubt of the correctness of my conclusions in that aspect. I have the honor to be, very respectfully, sir, your obedient servant,
J. Y. MASON. To the PRESIDENT.
LOCATION OF CERTIFICATES ON THE WYANDOT LANDS.
As locations of certificates must be according to sectional lines, it follows that no proper appli
cation for a location could have been made before the Wyandot land had been surveyed.
The case of Barry and Gamble, in 3d Howard, 32, is not in conflict with this advice. Nor were the Wyandot lands subject to pre-emption or private entry. They were required to
be offered at sale at not less than two dollars and fifty cents per a re.
ATTORNEY GENERAL'S OFFICE,
September 25, 1845. Sir: I have received your communication of the 12th instant, with the accompanying papers, asking my opinion on two questions stated by the acting Commissioner of the General Land Office, in a comniunication addressed to your predecessor, on the 9th September, 1844, concerning the location of a certificate granted to the children and heirs of Stephen Johnson by the act of 20th July, 1840.
The questions are thus stated: 1st. Whether an application could be legally made to locate lands before they were surveyed? 2d. If in the afirmative, is the application to locate the aforesaid certificate on these Wyandot lands legal and admissible!
I do not perceive any reason to distrust the decision made in this case by Mr Secretary Bibb, in September, 1844. Ist. The certificate issued by virtue of the act of July 20, 1840, was made “receivable in payment, at any land office in the United States, for any half section of land not subject to pre. eniption.” This privilege continued until the 4th of March, 1843, and no longer. I am of opinion that this certificate could not be received in payment for lands, at any land office, for any land which was not, prior to the 4th March, 1843. in a condition to be sold. I think that the location must have been according to sectional lines, and therefore that it could not be made before the survey of the lands. The recently decided case of Barry and Gamble (3d Howard, 32) is not in conflict with this opinion. 2d. The act of 3d March, 1843, clearly shows that the Wyan. dot lands were to be offered at sale. No right of pre-emption or of private entry existed; but the whole of the lands were to be offered at sale, and not to be sold, nor subject to private entry thereafter, at less than two dollars and fifty cents per acre. I do not think it an unauthorized conclusion that the certificate authorized by the act of 1840 could be used in payment of those public lands only which were liable to pre-emption claims. Such clainis could only be asserted as to lands at the minimum price of one dollar and twenty-five cents per acre. The holders of the certificate were to have a half section of land which was not subject to pre emption-which seems to show that Congress intended that it must be land which might be subject to pre emption. The Wyandot lands were not, and could not be, subject to pre emption, without further legis. lation.
The considerations which induced Congress thus to put them on a different footing are very obvions. To authorize the location of this certificate on these lands would be inconsistent with that manisest purpose. The question, it appears to me, was rightly decided by Mr. Secretary Bibb, and I do not perceive any ground on which his decision should be reversed. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. ROBERT J. WALKER,
Secretary of the Treasury.
COMPENSATION OF PUBLIC MINISTERS. In the case of William M. Blackford, chargé d'affaires to Bogota, who was superseded in
office whilst within the United States on leave of absence, and who, on settlement of his account with the executive department, asked to be credited the usual intit of three months' salary-DECIDED, that such infit cannot be properly allowed him without special authority
from Congress. (See opinion of Mr. Taney, in the case of Shaler, given November 30, 1831.)
ATTORNEY GENERAL'S OFFICE,
September 29, 1845. Sir: I have carefully examined the question arising under the letter addressed to you by William M. Blackford, esq., late chargé d'affaires
It appears to me that Mr. Blackford returned to the United States on leave of absence, and while in the United States was superseded. He asks a credit in his account with the United States for the usual infit, which is three months' salary from the date of his receiving his recall. I cannot perceive any reason for dissent from the opinion of Mr. Attorney General Taney of 30th November, 1831, on a similar claim of Mr. Shaler. Under the circumstances of this case, so far as they are known to me, it appears that the Executive would not be warranted in crediting Mr. Black. ford with the usual infit, without a special authority to be given by Con. gress. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. JAMES BUCHANAN,
Secretary of State.
POWER OF PRESIDENT TO MITIGATE SENTENCES OF COURTS-MARTIAL. The authority of the President to mitigate the sentences of courts-martial, in cases where he
deems the punishment unnecessarily severe, does not extend to the substitution of another and a milder punishment for that decreed by the court. He cannot suspend the pay of an officer under sentence of a court-martial, whose pay was
not suspended by the court. The mitigation must be of the punishment adjudged, by reducing and modifying its severity, except as in cases of sentences of death, where there is no degree.
ATTORNEY GENERAL'S OFFICE,
October 16, 1845. Sir: I had the honor to receive your communication of the 10th of April last, with the papers enclosed, in relation to a claim of Commander Ramsey for pay while suspended from duty; and, agreeably to your re. quest, have examined the subject, and now cominunicate to you my opinion.
The circumstances of the case, and the delicate questions involved, have made it a very embarrassing question to me; and the delay has been mainly induced by the purchase and collection of all the anthorities which I had reason to believe would afford me aid in arriving at a satisfactory conclusion. It appears that, in the month of May, 1843, Commander Ramsey was sentenced by a naval court-martial to be suspended from all rank and command in the navy of the United States, for and during the period of five years. The court-martial was ordered by the Secretary of the Navy, and was convened, and held its sitting at Norfolk, in Virginia.
On the 17th of July, 1843, the President of the United States endorsed on the record : “ Upon a full review of all the facts and circumstances in this case, I regard ihe sentence as too severe. Let it be commuted to a suspension of six months from this day, without pay.” The term of suspension, thus reduced, expired on the 17th of January, 1844; and, during this period, it appears that Commander Ranisey made an applica. tion for pay, and none was allowed him. On the 9th of April, 1845, the Fourth Auditor announces that Commander Ramsey has made the application which gives occasion to this examination. It does not appear that the commutation of the sentence was made at Commander Ramsey's request, or that the condition was accepted by him. The question is, Has the order of the President deprived him of his pay for the six months during which he was suspended, under the mitigation of sentence? The 42d article of the 1st section of the act of April 23, 1800, gives to the President of the United States, or, when the trial takes place out of the United States, to the commander of the fleet or squadron, “ full power to pardon any offence committed against these articles, after conviction, or to mitigate the punishment decreed by a court-martial.” The 40th article declares “that, whenever a court martial shall sentence any officer to be suspended, the court shall have power to suspend his pay and emol. uments for the whole or any part of the time of his suspension.” And, by the 41st article, all sentences of courts-martial, other than those ex. tending to loss of life, or to the dismission of a commissioned or warrant officer, may be carried into effect, on the approval of the sentence by the officer ordering the court-martial.
The sentence of the court in the case of Commander Ramsey did not involve th loss of life or of his commission, and did not require the approval of the President. It was submitted to him for the exercise of his power of pardon or of mitigation. The suspension from rank and com. mand for five years was the punishment inflicted. He would, under this sentence, have been entitled to receive pay. The court did not exercise the power given them to suspend his pay for any portion of the time; this, under the act of 1800, was an independent punishment which they did not inflict.
The first inquiry is, did the President, in his order of July 17, exercise his power of pardon, given not only by the act, but by the constitution; or did he exercise his power of mitigation? In the case of the United States vs. Wilson. (7 Pet. Reps., 150,) Chief Justice Marshall, in delivering the opinion of the court, says: “A pardon is an act of grace proceeding from the power intrusted with the execution of the laws, which exenipts the individual on whom it is bestowed from the punishment the law inflicts for a erime he has committed.
It is a deed, to the validity of which, delivery is essential; and delivery is not complete without acceptance. It may be rejected by the person to whom it is tendered, and we have discovered no power in a court to force it upon him.
A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.
“ It is the private though official act of the executive magistrate, deliv. ered to the individual for whose benefit it is intended, and not communi. cated officially to the court."
Applying these principles to the circumstances of this case, it is clear that the President did not exercise the power of pardon.
Did his power to mitigate the sentence include the power to commute or substitute another and different punishment for so much of the sentence as he remitted ?
It is very much to be regretted that the question has not been definitively settled under the law and constitution. At the War Department it has always been considered that the Executive has not the power, by way of mitigation, to substitute a different punishment for that inflicted by sen. tence of a court-martial--the general rule being that the mitigated sentence must be a part of the punishment decreed. In 1820, Mr. Wirt gave an opinion recognising this rule, but made a substitution of a dif. ferent punishment for the sentence of death an exception; and he places it on the ground that capital punishment can only be mitigated by a change of punishment. In the navy the practical construction has not been uniform. I have procured and carefully examined the most approved authorities on the subject of military law and courts-martial; and
the law seems to be established as laid down by Kennedy, (pages 236-7:) “ The sovereign may either canse the sentence to be put into execution, mitigate, or remit it, but he cannot substitute a different punishment for the one awarded by the court; nor can he in any respect add to that punishment. He may mitigate it; that is, a sentence of twelve months may be reduced to six months; but the mitigated punishment must be ejusdem generis with that inflicted by the sentence quod omne majus continet minus."
And McArthur remarks, “that this mitigation may, on a superficial view, appear to be an alteration of the sentence; but when it is considered that it does not add to the judgment, and that it is a fundamental law of England, of which the martial is a branch, that a man cannot suffer more punishment than the law assigns, but that he may suffer less, the mitiga. tion here alluded to from a greater to a less punishment exhibits, in a favorable view, the benign exercise of royal clemency.”
The act of Congress has made a suspension of pay a punishment to be inflicted, or not, in a single class of cases, at the discretion of the court,
The Executive may dismiss from the service without trial, and he may suspend from duty by arrest; but he has no power while an offices retains his commission, and is not sentenced by a court martial to thas effect, to take from him the pay which the law gives him.
When an officer is brought to trial, and is sentenced to be punished, the Executive may mitigate the severity of that punishment; but there is a guide-the discretion is a legal discretion, and the mitigation must not be according to a capricious will, but must have the sanction of the judg. ment of the court. It must inflict a part of the punishment awarded by the judgment, with the exception of those cases in which there is no de. gree, as where the whole punishment must be inflicted, or no part of it can be. Such is the case with a senience of death. I am constrained te the opinion, therefore, that Commander Ramsey is entitled to pay during the period mentioned in the Fourth Anditor's letter, notwithstanding the terms in which the President commnted his sentence. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. GEORGE BANCROFT,
Secretary of the Navy.
COMPENSATION OF DISTRICT ATTORNEYS.
District attorneys residing in Louisiana and other States, whose legislatures have omitted to
provide any rate or scale of fees for legal services in their supreme courts, are nevertheless entitled to a reasonable compensation for their official services, and as it has been the pretice of the treasury, in such cases, to allow bills of costs according to the rates certified and taxed by the judges for district attorneys in neighboring States, as reasonable, when cer. tified by one or more prominent members of the bar, such usage may be continued und
Congress shall otherwise determine. Baylie Peyton, the districi attorney of the eastern district of Louisiana, is therefore en utled
to compensation for official services rendered in civil and criminal suits in the circuit court of his district.
ATTORNEY GENERAL'S OFFICE,
November 10, 1845. Sir: On the 4th instant you made an endorsement on an account presented by Baylie Peyton, esq., to the treasury, in these words: “Referred