ably no one representing the interests of the Indians would have been satisfied with such a construction. It would then have been unjust, in the extreme, to have held that they have agreed to accept the sum of six hundred thousand dollars in full discharge of all the stipulations specified in both provisions; and yet such would be the effect if the two articles are equivalent provisions-the one being a substitute entirely for the other. If such a construction would have been erroneous at the date of the treaty, it is no less so now, when most of these claims have been paid. It was agreed in the first supplementary article that "all the pre-emption rights and reservations provided for in articles twelve and thirteen shall be, and are hereby, relinquished and declared paid." It is difficult, it seems to me, to misunderstand this provision. No pre emption rights had been acquired; and all such being inconsistent with the determination of the President, that the whole Cherokee people should remove together, the provision which proposed to grant such rights was annulled, and an equitable addition in lieu of it was made to the gross amount allowed to the nation. Reservations which it had been proposed to confirm by the thirteenth article, being also inconsistent with the purpose of removal, were likewise relinquished, and all such reservations were provided for in the new provision, to wit: the supplementary article.

But reservations under former treaties, which had been previously lost, or abandoned by compulsion, remained unaffected by the stipulations of the first article of the supplement. For all such, a right of compensation had been secured in the thirteenth article, which the United States agreed to pay, independently of the consideration-money allowed to the Chero kees for their claims for spoliations and the cession of their lands. In regard to those last named reservations, the treaty, as it was first negotiated, required no change to enable the President to carry out his expressed determination, that the whole Cherokee people should remove together Without any alteration, all such reservces were to remove, and to receive compensation for the rights which they had lost, or been obliged to abandon. The alteration effected by the supplement was, therefore, made to embrace reservations for which a compensation had been provided. It extended to those only which it had been proposed to confirm by the thirteenth article; and this was the view taken by Mr. Butler shortly after the treaty was ratified; and I have no doubt it is correct.

In the course of my investigation of this question, my attention has been drawn to the joint resolution of Congress of the 15th of June, 1844. That resolution merely directs the Secretary of the Treasury to pay, or cause to be paid, the several sums found due to claimants under the Cherokee treaty of 1836, out of the unexpended balance of appropriations made for the payment of such claims. In my opinion no appropriation was ever made for the payment of this class of claims; and, of course, there cannot be any balance unexpended. I am urged to adopt the views of the claimant, inasmuch as similar claims were paid prior to the treaty of the 6th of August, 1846. Error should be corrected, when practicable, as soon as it is discovered. Moreover, all the previous errors in this respect were corrected by the third article of that treaty, and provision made for reimbursing the fund for the amounts thus paid for this class of reservations. In correcting the previous errors, it is manifest that the parties themselves, as well as the President and Senate, must have adopted the construction that none of the appropriation acts before referred

to authorized the payment of these claims. After the parties have adopted this construction, and secured its benefits in the form of a new treaty stipulation, it is too late to insist upon the opposite view of their rights.

The United States and the Indians are bound by this construction; and it is the duty of the accounting officers of the treasury to adhere to and enforce it.

I have the honor to be, very respectfully, sir, your obedient servant, NATHAN CLIFFORD.

Hon. R. J. WALKER,

Secretary of the Treasury.

ACCOUNTS AND ACCOUNTING OFFICERS.

The accounting officers of the treasury are not authorized to allow a claim for unliquidated damages, alleged to have been sustained by a contractor for emigrating Indians, in consequence of the interference of and performance by the officers of the government of a part of the services.

If the contractors in this case have any equitable claim upon the government for damages, they
can be awarded only pursuant to a future act of Congress.
This question having been several times decided, must be, so far as the office of the Attorney
General is concerned, considered to be closed.

ATTORNEY GENERAL'S OFFice,
September 31, 1847.

SIR: The claim of Alexander Anderson, and others, to which the accompanying papers relate, has been twice referred to this office. On the first occasion, after I had bestowed some consideration upon the subject, the papers were withdrawn, I believe at the instance of the claimants, before an opinion was prepared, to afford them an opportunity to be further heard before the Commissioner of Indian Affairs, in relation to the facts set forth in his first communication. On the 15th ultimo, during your absence, the papers were again submitted to me by the acting Secretary of War, together with certain additional documents, all of which are herewith returned. The facts of the case are very fully set forth by the Commissioner of Indian Affairs in his communications of the 5th January, and 14th September, 1847. From these, and the accompanying papers, it appears that a contract had been entered into between the government of the United States and certain persons for the removal of the Choctaw tribe of Indians from the State of Mississippi to the country provided for them west of the Mississippi river. Under this contract some of the Indians had been emigrated, and the accounts of the contractors for their services, on that behalf, had been adjusted and paid; and the present dispute arises in reference to a party of two hundred and sixty two that were collected for emigration through the instrumentality of Colonel Fisher, who had acted as their attorney. After they had been collected by Colonel Fisher they were encamped about four miles from Jackson, where he subsisted them in the encampment at his own expense. The letter of Colonel Fisher discloses the circumstances under which he collected this party of Indians and subsisted them previous to their emigration. The substance of his statement is, that an arrangement had been made between H. K. Barstow, an agent of the contractors, and himself, in the month of March, 1846, that he should return to the interior, where the

Choctaws lived, and collect a party for removal, and have them ready to start by the 1st of May; by which time Barstow was to return and take charge of them. He agreed to leave his brother with him, with funds to subsist the Indians and pay all exp enses. It seems, however, that no funds were furnished by Barstow; for Colonel Fisher says he paid all expenses of removing and subsisting hem until they reached the camp, near Jackson. When he arrived, no agent of the contractors being there, either to receive the Indians or to refund him the money he had expended, he delivered them over to the superintendent. The expenditures incurred by Colonel Fisher have since been paid to him by the United States. General Armstrong, the superintendent, informed the agents of the contractors that these Indians were assembled and ready to emigrate, and that he expected the agents, or some one properly authorized by the contractors, to be at the camp and remove them in pursuance of the stipulations of the contract; by which they were bound "to act with the greatest energy and industry, and to use all proper persuasion and means to induce the said Indians to remove within the shortest practicable period."

The agents informed him that they were unable to raise the necessary means. In consideration of this information, and of the circumstances in which the Indians were placed, General Armstrong, deeming it essential to the interests of the United States that they should not be permitted to disperse, felt it to be his duty to undertake the business in behalf of the government, and accordingly hired wagons and moved on to Jackson the next day. As he was about to start for Vicksburg, another agent of the contractors arrived, with authority from his employers to superintend the emigration.

Regarding the contract as forfeited, by the neglect of the contractors to meet the terms and stipulations of their agreement, and having com menced the journey, the superintendent concluded to carry forward the removal on behalf of the government, and declined to surrender over the Indians to the agent of the contractors, and the Indians were emigrated by the agents of the United States, at an expense of $2,747 52.

Under these circumstances, more fully detailed in the papers, the ac count for removal is presented by the contractors, charged at the full contract price, amounting to $7,099 33.

It appears, however, from the argument of their counsel, that they would be satisfied with the difference between that sum and the amount actually expended by the government in effecting the removal of the Indians. The claim was first presented to the Commissioner of Indian Affairs, who rejected it 5th January, 1847. It was afterwards submitted to the Second Auditor, and also to the Second Comptroller, who, without expressing their views upon the merits of the claim, concur in the opinion that the accounting officers of the treasury have no authority to adjust it. Considering the facts in the most favorable light for the claimants, in my view of the case it is but a claim for damages, in not allowing the agent of the contractors to carry forward the removal of these Indians after it had been undertaken by the superintendent in behalf of the United States. The fact is beyond question, that the Indians were removed by the govern ment, and not by the contractors. They paid no part of the expense, and rendered none of the services in accomplishing that object. It is admitted that the services in the emigration of the Indians were rendered by

the agents of the United States, and the expenses incident thereto have been paid from the national treasury. In view of all the circumstances, I think it would be unreasonable to regard Colonel Fisher as the agent of the contractors, in collecting the Indians and subsisting them in the encampment, especially after he has presented his account to the department, and it has been adjusted and paid.

The arrangement spoken of by Colonel Fisher cannot be regarded as an effective contract, neither party having any legal right to enforce it. At best it was but a loose conversation, of no binding effect, without any specification of the number to be collected, or of the compensation to be paid for the service. Surely it might well be disregarded by Colonel Fisher after the agent had neglected to furnish the necessary funds, according to the understanding of the parties. It is an undisputed fact, I believe, that the arrangement was never complied with by the agent, and it was finally repudiated by Colonel Fisher when he turned over the Indians to the superintendent. If the rule that a subsequent ratification is as good as a previous authority has any application to the facts of this case, certainly it cannot avail in favor of the claimants.

It was the government, and not the contractors, that ratified the acts of Colonel Fisher, by paying him for his services. The conclusion is ir resistible that the contractors did nothing in reference to this party of In dians, in execution of their contract. Their claim, if any they have, is on account of the refusal of General Armstrong to relinquish the undertaking and accept the services of their agent when tendered. If that refusal was rightfully made, then they have no claim whatever; if wrong. fully, then their claim is for damages for a breach of the contract. The only question, therefore that arises, which it is necessary to decide, is, have the accounting officers jurisdiction of such a claim? I think not. The powers and duty of the Commissioner of Indian Affairs in reference to accounts are very clearly defined by the third section of the act 9th July, 1822: it provides "that all accounts and vouchers for claims and disbursements connected with Indian affairs shall be transmitted to the said Commissioner for administrative examination, and by him passed to the proper accounting officer of the Treasury Department for settlement." It is made the duty of the Auditor, by the fifth section of the act of 2d September, 1789, "to receive all public accounts, and, after examination, to certify the balance, and transmit the amount, with the vouchers and certificate, to the Comptroller for his decision thereon " The Comptroller is directed, by the third section of the same act, "to examine all accounts settled by the Auditor, and certify the balances arising thereon to the Register." Subsequent acts, not necessary now to be considered, create. additional auxiliary oflicers and distribute their duties. It is evident that damages for a breach of contract, occasioned by the interference of the officers of the government, are not embraced within the terms of the law authorizing the accounting officers of the treasury to adjust "public accounts." If the contractors have been damaged in this respect, Congress alone can redress the injury. The authorities cited by the Comptroller are conclusive on this point. The question must be considered as closed, so far as this office is concerned, by the opinions given by my predecessors, in which I entirely concur.

Under this view of the case, I consider it unnecessary to express any

opinion as to the merits of the claim for damages, deeming it more appropriate to leave that question to be determined by Congress.

I have the honor to be, sir, respectfully, your obedient servant, NATHAN CLIFFORD.

Hon. WILLIAM L. MARCY,

Secretary of War.

PENSIONS OF WIDOWS OF NAVY OFFICERS AND SEAMEN.

The acts of Congress granting pensions to widows of officers, seamen, and marines, who have died whilst in the service, or from disease contracted or injuries received whilst in the line of their duty, do not include cases of widows of engineers in the navy appointed pur suant to the act of 1842.

There being no law authorizing the allowance of pensions to such widows, it follows that there is none prescribing the rate at which they shall be paid.

Pensions to widows of officers, seamen, and marines, when allowable, commence from the date of the passage of the act (1834) in cases where the death of the husband occurred prior to that time, and from the death of the husband in all other cases.

ATTORNEY GENERAL'S OFFICE, October 14, 1847. SIR: I have examined the papers in the case of Mrs. Sarah Heberd, and submit the following opinion for your consideration:

The applicant in this case claims a pension under the act of June, 1834, to commence from the date of the act. She is the widow of Andrew Heberd, late a chief engineer, who died on the 4th of August, 1847. The law authorizing the employment and regulating the pay of engineers was passed on the 31st August, 1842. The first section of the act provides that the Secretary of the Navy shall appoint the requisite number of engineers and assistant engineers, not exceeding one chief engineer, two assistant, two second assistant, and three third assistant engineers, for each steam ship-of war for the naval service of the United States." By the fourth section the Secretary is directed to appoint "a skilful and scientific engineer-in-chief, who shall receive for his services the sum of three thousand dollars per annum, and shall perform such duties as the Secretary of the Navy shall require of him touching that branch of the service." The seventh section of the naval appropriation act approved March 3, 1845, provides "that, in lieu of the mode heretofore provided by law, the engineer-in chief and chief engineers of the navy shall be appointed by the President, by and with the advice and consent of the Senate."

It is worthy of special notice, in the outset, that the act to regulate the appointment and pay of engineers, while it prescribes the necessary rules for the distribution of prize money, is entirely silent in relation to the allowance of pensions. The same remark applies to firemen and coalheavers authorized to be enlisted by the second section of the same act. The closing sentence of the fifth section, in my opinion, has no reference whatever to pensions. It relates exclusively to the laws, rules, and regulations for the government of the naval service, to which engineers are made subject.

The questions submitted are: 1st. Is an engineer's widow entitled to a pension? 2d. If so, at what rate per month shall she be paid?