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claimants under the 19th article, whose names do not appear, it repu: diates Ward's lists and official acts, by making no reference to them. The legislation of Congress seems to have been governed by the same spirit which suggested that part of the 19th article by which it was “fur. ther agreed that, in the construction of this treaty, wherever well founded doubts shall arise, it shall be construed most favorably for the Choctaws."
The first question has already been considered and disposed of by Mr. Nelson, who, in an opinion dated 21st October, 1844, expressed these views: "4th. That a claimant under the 14th article of said treaty, who complied with its requisitions, and who was expelled from his land by the force, or induced to leave it by the fraud of the government or its agents, by virtue of a sale of said land made by the government of the United States, does not forfeit his claim under said treaty and the law of 1842.
7th. That a claimant under the 14th article of said treaty, who complied with all its provisions, did not forfeit his claim by the treaty or the law of 1842, when, by the fraudulent acts alone of the properly constituted agent of the government of the United States, he was induced to apply under the 19th article of said treaty, which was located for him, and which he has not sold or transferred, and on which no patent has issued or been applied for, or any further steps towards per. fecting the title taken since said location.” Although it is hardly possible to conceive of any fraudulent act of the government, I do not perceive any ground to dissent from these opinions. The claim of the Indian rests on treaty stipulation, and is entitled to the highest favor; but to perfect his claiın under the 14th article, preferred under the act of 1842, it is necessary that he shall show he owned an improvement, and resided on that identical improvement for the space of five years from the 24th of February, 1831, or was dispossessed by the act of the government in selling or disposing of the same, with the exceptions above stated.
But if he were prevented from performing this condition by the forcible or fraudulent acts of third persons having no authority from the govern. ment, it does not appear to me that the government is responsible for such wrongful acts, or that the claim can be established and satisfied under the treaty and act of 1842.
2d. After the most mature deliberation, I do not consider Armstrong's list conclusive, except to the extent already stated. I cannot perceive on what principle such an effect should be given, not to the list of Major Armstrong, but to the endorsements of others, as evidence against the Indians. The act of 1842 does not produce this result. The official report of an agent, however incompetent or careless, ought to be regarded as prima facie evidence that the Indians had done what the certificate of the agent imports him to have done. It is a question of evidence, to be judged of by one party affecting important interests of the other party to the treaty, and care should be taken to do them full justice. But I cannot perceive any principle of law which justifies the Executive in giving it the weight of conclusive testimony for any purpose beyond the act of Congress. The fact that Congress has made the list conclusive, in one respect fortifies the argument that it is not so in others. The fact that the law makes Armstrong's list conclusive for a certain purpose, strongly fortifies the argument that Ward's certificates of his oflicial acts are not to have that effect.
The third section of the act of 1842 authorizes the examination and
allowance of claims under the 14th article of the treaty, and the proviso contains nothing to affect them. In setting up a claim under this article, the presumptions of law are against the claimants, but these presumptions may be rebutted by testimony; and such a claim is to be allowed or not, according to the weight of the evidence. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. To the PRESIDENT.
POWER OF THE PRESIDENT TO REMIT FINES AGAINST DEFAULTING
JURORS. The power derived from the constitution to grant reprieves and pardons for offences against the
United States, invests the President with authority to remit fines imposed by the judiciary upon defaulting jurors The pardoning power, except in the single case in which it was withheld by the constitution,
is co-extensive with the punishing power, and applies as well to punishments imposed for contempt of the process of the United States, as for the violation of any other law. 'It, therefore, includes the remission of fines, penalties, and forfeitures. (See opinion of Mr. Gilpin, delivered on the 27th February, 1841, and the case of the United
States vs. Wilson, in 7 Peters, 160, for commentaries upon the subject of the pardoning power generally.) The President has authority, therefore, to remit the fines imposed on Rowan and Wells.
ATTORNEY GENERAL'S OFFICE,
November 28, 1845. SIR: I have the honor to return enclosed the petitions of Thomas Rowan and the administrator of Wiley Wells. By these papers, it appears that Rowan and Wells were defaulting jurors, and were fined by the circuit court of the southern district of Mississippi, and the prayers of the petitions are, that the fines so imposed may be rernitied. The question submitted for my consideration is, whether the President has the power to remit these fines.
By the judiciary act of 1789 the courts of the United States were invested with power to punish, by fine or imprisonment, at their discretion, all contempts of authority; and by the act of 1831, declaratory of the law concerning contempts, one of them is defined to be the disobedience by any juror of any lawful writ, process, order, rule, decree, or command of the said courts. The question whether the President has authority to remit a fine imposed for a contempt of court, has been considered by two of my predecessors. Mr. Gilpin, in an opinion delivered in 1841, states: “I have the honor to receive your letter of the 2d of February, enclosing the application of Richard L. Dixon to the President, and the recommend ations of Judge McKinley and Judge Gholson, and other persons in the State of Mississippi, for a pardon of the fine of $400 imposed on Mr. Dixon for a contempt committed by au affray between himself and another person in the presence of the judges of the circuit court of the United States at Jackson, in that State; and inquiring whether the executive authority to pardon properly extends to such cases. If we adopt, as the Supreme Court of the United States has decided we should do, the principles estab. lished by the common law respecting the operation of a pardon, there can be no doubt that it may embrace such a case. A pardon has been held to extend to a contempt committed in Westminster Hall under circumstances not materially different from those which occurred in the case submitted to the President. 1 am, therefore, of opinion that should the President consider the facts such as to justify the exercise of his consti. tutional power to grant reprieves and pardons for offences against the United States, there is nothing in the character of this offence which withdraws it from the general authority.' Mr. Nelson, in an opinion of the 14th of April, 1847, has also decided that the pardoning power clearly embraced the case of a fiue imposed on a defaulting juror. I concur in these opinions.
In the case of the United States vs. Wilson, (7 Peters, 160,) Chief Justice Marshall, in delivering the opinion of the court, says: “The constitution gives to the President, in general ternis, the power to grant reprieves and pardons for offences against the United States. As this power has been exercised from time immemorial by the Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual upon whom it is bestowed from the punishment the law inflicts for a crime he has committed."
The law of England is thus summed up in 13 Petersdorf's Abridg. ment, page 78: “The King's right to pardon and remit the consequences of a violation of law is confined to cases in which the prosecution is carried on in his Majesty's name for the commission of some offence affecting the public, and which demands public satisfaction, or for the recovery of a fine or forfeiture to which his Majesty is entitled. Non protest ex gratiam facere cum injuria et damno aliorum. Hence the King's pardon can. not be considered a legal discharge of an attachment for non payment of costs or non-performance of an award; for, though such attachment be carried on in the shape of criminal process for a contempt of court, yet it is in effect and substantially a civil remedy or execution for a private remedy," &c.
In Rockingham's case, (2 Peters, 106,) referred to by Mr. Gilpin, being the case of a party indicted for beating another in Westminster Hail during the sitting of the court, the Court of King's Bench gave effect to a plea of pardon.
Thus, it appears that the prerogative of pardon in England extends to contempts of court, except in cases where they are for the enforcement of private rights; and both there and in this country the proceedings are on the criminal side of the court, and the State becomes a party.–Folger vs. Hoagland, 5 John., 235.
The elementary writers on the constitutional law of the United States state the President's power of pardon as follows, (Kent, vol. i, p. 284:) “ The power of pardon vested in the President is without any limitation, except in the single case of impeachments."
Rawle, p. 164: “ The power to grant pardons extends to all cases, except impeachments. In respect to another jurisdiction, it may be doubted whether he possesses the power to pardon. It seems to result from the principle on which the power to punish contempts of either house of legislature is founded, that the executive authority cannot interpose in any shape between them and the offender. The main object is to preserve the purity and independence of the legislature for the benefit
of the people, &c. In all other than these two cases, the
general and unqualified. It may be exercised as well before as after a trial, and it extends alike to the highest and the smallest offences. The constitution nowhere expressly prescribes any mode of punishment. The powers of Congress as to this are express in four cases, and in others is derived from implication only; but it is necessary, to carry the consti. tution into effect, and is embraced in the general provision to pass all laws which may be necessary and proper. The pardoning power is as extensive as the punishing power, and applies as well to punishments imposed by virtue of laws under this implied authority as to those where it is expressed. The only exceptions are the two cases already mentioned; in one of which the power of pardoning is expressly withheld, and in the other it is incompatible with the peculiar nature of the jurisdiction."
Story, (vol. 3, p. 350,) after treating of the exceptions of impeachments and contempts against the legislature, says: “ Subject to these exceptions, and perhaps there may be others of a like nature standing on special grounds,) the power to pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission of fines, penalties, and forfeitures, is also included in it, and may, in the last resort, be exercised by the Executive, although it is, in many cases, confided to the Treasury Department. No law can abridge the constitutional powers of the executive department, or interrupt its right to interpose, by pardon, in these cases.
It is true that the judicial and executive departments are independent of each other. But the disobedience of a defaulting juror is an offence, made so by law; and the judgment for the contempt is a judgment of the court as much as a judgment of death declared by the law. It is in the name of, and the forfeiture inures to the benefit of, the United States. I cannot, therefore, doubt the President's authority to pardon. It is neces. sary to the liberty of the citizen that it should be exercised under proper circumstances. The power has been exercised on more than one occa. sion by the President. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. To the PRESIDENT.
SUTLERS ATTACHED TO ARMY OF OCCUPATION. Where the authorities of Texas, after the acceptance by that republic of the terms of annex. mation proposed by the United States, and before the formation of a State government,
required the sutlers attached to the army sent there for their protection, and commanded by General Taylor, to execute bonds for the payment of duties on supplies imported for such army-HELD, that such requirement was improper, and that the President ought to address the government of Texas, requesting the duty-bonds thus given to be surrendered, to be cancelled.
ATTORNEY GENERAL'S OFFICE,
Junuary 6, 1846. Sir: In obedience to your direction, I have examined the question submitted for your consideration by certain sutlers attached to the United States troops at Corpus Christi, in Texas. By the letter of General Taylor, commanding the army of occupation, it appears that the supplies imported by the sutlers of the army from the Uuited States into Texas have been used by them exclusively in their dealings with the officers and soldiers of our army, and that they have been required to execute bonds for the payment of duties on such importations, according to the revenue laws of the republic of Texas. I have not the means of exam. ining the provisions of the laws of Texas; but I presuine they provide an impost on importations for the trade and consumption of the country in the usual mode. After the acceptance by the authorities of Texas of the terms of annexation proposed by the United States, and before the formation of a State goverument and the admission of that republic into the American Union as a State, the United States government, with the assent of Texas, and mainly for the purpose of her defence, intro. duced into her territory the troops commanded by General Taylor. Sut. lers are a necessary part of this military force; they are duly appointed; their duties and privileges are regulated by law; and, by the 60th article of war, they are made subject to orders according to the rules and discipline of war.
The troops of the United States having entered Texas with the assent of the government of that republic, and supplies for them by their sutlers being indispensable, I regard them as no more liable to duties on im. portations than would be the cannon and munitions of war imported for the use of the arıny, or the medicines and surgical instruments necessary for the treatment of the sick and wounded.
There is a comity amongst independent nations which protects from tax or impost such articles as are of prime necessiiy, and even of luxury, which are carried into one by the accredited agents of the other for their own consumption.
I do not mean to countenance, by this opinion, any abuse of the privi. lege—which I think they have a right to enjoy-of importing for the use of the army free of duty. If, under this pretext, they import for the purposes of general trade, their importations would not be protected.
It appears to me that the President ought to address the government of Texas a request that the duty bonds which the sutlers have been required to execute may be cancelled, and the duties remitted. I have the honor to be, sir, your
JOHN Y. MASON. To the PRESIDENT.
COMPENSATION OF CLERKS IN THE PENSION OFFICE.
A clerk in the Pension Office ordered to perform the duties of secretary to commissioners ap
pointed to treat with a delegation of Indians is not entitled to extra compensation therefor, but must be limited to the compensation provided by law for his services as a clerk in the
Pension Oflice. The exceptions to the general rule of disallowing extra compensation are only applicable as
in the case where extra compensation is allowed by law, or where, from death, absence from the seat of government, or sickness of some officer, the President orders another officer to perform the duties.
ATTORNEY GENERAL'S OFFICE,
January 10, 1816. Sır: I have examined the question submitted for my opinion in your letter of the 29th December, 1845. By the statement of the Commissioner of Indian Affairs it appears that Andrew Porter, a clerk in the Pension Office, was, on the 4th of Noveniber, 1845, ordered to perform the