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families. The direction that the money shall be paid to the Creek nation is not decisive, because payment to the heads of families is a mode of making payment to the nation. But the condition that a release of all claim for the whole sum shall first be executed by the Creek nation, is not equivocal, because such a release could not be executed by the heads of fami. lies, or by individuals. And when the act directs that the payment shall be made to the Creek nation, and that the release shall be executed by the Creek nation, the inference would seem to be very strong against a distribution per capita. But when the act goes one step further, and requires that the persons to whom the money shall be paid shall make satisfactory proof that they have full power and authority to receive and receipt for the same, the inference becomes irresistible against a distribution and payment to heads of families, which would be entirely irreconcilable with this provision. I am, therefore, of the opinion that this money must be paid to the nation, upon the execution of a release by the nation, and that the President has no power to direct a distribution of it under the act of 1847.
It has been suggested that a power of attorney should be required, conformable to the act of July 29, 1846. I think that act, upon a just con. struction, is not applicable to an Indian nation acting in its political or corporate capacity. A legislative body could not well acknowledge a power of attorney before a magistrate, or execute it with the attestation of witnesses. Besides, the act making the appropriation requires proof satisfactory to the President; and the only proof which, in the nature of the case, would be satisfactory, is an authenticated copy of the act of the legislative council, with proof of sufficient proceedings under it.
The 4th section of the act provides that there shall be paid to the Creek nation of Indians, or to the order of the delegation of Indians aforesaid, the sum of $43,333 33} in satisfaction of the claim of thirteen hundred Creek Indian emigrants, friends and followers of General Mclatosh,” &c., with the same proviso as to proof as is contained in the 30 sec. tion; and with a further proviso, “that said money shall be paid only on con. dition that a release be first executed to the United States in full of claims for principal and interest, on account of the emigration of said thirteen hundred Creek Indianis."
A similar release of this claim is presented, executed by the same dele. gation, under the same instructions, and is liable to the same objections. But there are other considerations, also applicable to the appropriation, which I now proceed to state. It will be observed that this is the claim of individuals, not of the nation. The faith of the United States was pledged to thein to pay to each one individually the sum of $33 33, if he would leave his country and remove to the west. It is understood that they emigrated against the general will of their nation, and it would be no satisfaction of the engagement of the United States, but a breach of faith on their part, to withhold the promised bounty from the emigrants, and pay it over to their nation or its chiefs.
It will be observed, also, that the release required is not of the Creek nation, but a release of the claims of the thirteen hundred emigrants-that is to say, a release is to be executed which will have the effect of dis. charging those claims upon the government of the United States, legally and equitably, so as to relieve the United States from the necessity of paying them again. The necessary intendment is, that these claims of individuals are to be released by themselves, as no other release can es.
tinguish them, and there is no intervening sovereignty here, which can interpose and relieve the United States from the obligation to observe the faith which the governnient has pledged to these individuals. Having dealt directly with them, it must continue to deal with them until the transaction is consummated, and is bound in equity and good faith to see that the money promised to them is paid over to them. I think, there. fore, that the true construction of this section is, that the release must be executed by those persons who are entitled to the money, as otherwise an appeal by them hereafter to the equity and good faith of the government to pay the money over again would be irresistible.
Should it be said that Congress, by this act, has constituted the Creek nation, or the Creek delegation, lawful agents to receive this money in behalf of the thirteen hundred emigrants, the answer is obvious that Congress has also required a release to be executed before the payment can be made; and if it be done, they will assent to the agency.
The Commissioner of Indian Affairs has reported to the Secretary of War that this claim has been already paid by the United States, and that the present re-appropriation has probably been made under a mistake of fact. If this be so, this fact should be submitted to Congress at the session which is near at hand. In the present state of the matter, it is not to be expected that there will be any difficulty in pursuing that course. I have the honor to be, with great respect, your obedient servant,
ISAAC TOUCEY. To the PRESIDENT OF THE UNITED STATES.
PAYMASTERS MAY RECEIVE PAY AND PENSIONS.
An officer who, having lost a limb in the war of 1812, was mustered out of the service upon
a captain's pension, and afterwards appointed battalion paymaster, may be regarded as having been appointed to the civil branch of the service within the meaning of the act of
30th April, 1844, and entitled to receive both his pension and his pay. The phrase "civil branch of the service," employed in the act of 1844, commented on and explained.
ATTORNEY GENERAL'S OFFICE,
November 1, 1848. Sir: I have the honor to reply to the inquiry, which you have submit. ted to me at the request of the Second Comptroller, whether David S. Townsend, a paymaster in the army, and an invalid pensioner, is entitled both to his pay and his pension under a just construction of the act of April 30, 1844 ?
In the war of 1812 Major Townsend lost a leg in battle. Shortly after he was inustered out of the service upon a captain's pension. He was, at the time, captain of the ninth regiment of infantry, major by bre. vet, and held the appointment of assistant adjutant general in the army. On the 29th of April, 1816, he was appointed battalion paymaster; and is now a paymaster under the act of March 2, 1821.
The act of April 30, 1844, (5 Stats. at Large, p. 656,) provides that no person in the arny, navy, or marine corps, shall be allowed to draw both a pension as an invalid, and the pay of his rank or station in the service, unless the alleged disability for which the pension was granted be such as to have occasioned his employment in a lower grade, or in some civil branch of the service."
It cannot, I think, be said, within the true meaning of this law, that the disability of Major Townsend has occasioned his employment in a lower grade. If he had been put upon his brevet rank at the time when he left the service, he is not in a lower grade, as he is entitled to the rank and pay of a major. Before the act of Congress conferring or es. tablishing that rank, he had, under the army regulations, that assimilated rank. And if, at the time, his disibility did not occasion his employment in a lower grade, it would hardly be admissible to depart from the actual fact, and to enter the field of conjecture or speculation, as to any grade which he might have reached but for that disability. His title to receive his pension, in addition to his pay, must, therefore, depend upon the question whether his employment is in “some civil branch of the service.” The service here spoken of is not “civil service" of the govern. ment, in its general sense. It is restricted to the military and naval ser. vice. The proviso applies only to a “person in the army, navy, or ma.
referred to, is “the pay of his rauk or station in the service.” When, therefore, the exception is introduced of “his em. ployment .. in some civil branch of the service,” it necessarily imports the same service. What, then, is the civil branch of the military service? If there be any such branch as that expressly alluded to, and excepted by Congress, it must comprehend an office, the duties of which are, in their character, altogether civil. Such is the office of paymaster, whose employment is to pay money and keep accounts—whose duty is to deal with pecuniary matters, and whose qualifications are not necessarily military, but civil only. Such a construction, by every rule of law, must be put upon this act, as to give some meaning to these words, and to carry the intention of Congress into effect. And when it is considered that the pension, in this class of cases, is given for a disability incurred in the service of the country, and had been already granted w the pensioner before the art was passed, it would be necessary that a clear intent to take it away should appear before that result can be arrived at by those who are charged with the execution of the law.
I think, therefore, on this ground, that Major Townsend's pension must be continued to him. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. Wm. L. MARCY,
Secretary of War.
TRANSFER OF THE NAVY YARD BRIDGE, STOCK, &c, TO THE UNITED
SI'ATES. The president and directors of the Navy Yard Bridge Company are competent to execute a
deed of said bridge to the United States, pursuant to a resolution instructing them to do so, passed at a regular meeting of the stockholders, upon obtaining the concurrence of the presie dent and directors of the Eastern Branch Bridge Company; but they cannot convey the individual stock of said company unless the shareholders shall have conveyed it to them. If the several stockholders shall convey their shares to the individuals who are 10 execute a
deed to the United States, and the latter shall execute a deed as well for themselves as the company, a valid transfer of the bridge and the stock will have been effected.
ATTORNEY GENERAL'S OFFICE,
November 15, 1848. Sır: I have examined the accompanying deed, proposed to be executed by the corporation called the “Navy Yard Bridge Company,” for the
purpose of conveying their bridge, causeways, lands and rights of way, and the shares of stock to the United States. It is proposed to be executed by the president and directors of the company, in pursuance of authority given at a general meeting of the stockholders.
The form of the deed is unobjectionable. The only questions are, whether the president and directors have power to execute it in behalf of the corporation, and whether the corporation has power to convey what purports to be conveyed by it. In order to confer the requisite authority upon the president and directors, the meeting of the stockholders must have been a legal meeting; and it could not have been so unless called by a majority of the directors, and by one third of the members, or the proprietors of one-third of the shares, with public notice of the time and place previously advertised in one or more gazettes in the District of Columbia, and unless a quorum was formed consisting of a majority of the members, or consisting of the proprietors of two-thirds of the shares. They might appear by proxy. It is a question of fact whether these prerequisites existed; and it will be necessary that an inquiry be instituted for the purpose of ascertaining the fact of their existence.' If they shall be found to have existed, the meeting may be regarded as legal. The resolution adopted at the meeting of the stockholders, giving authority to the president and directors to convey the bridge, &c., contains a reservation of all the powers under their charter necessary to wind up and close the affairs of the company;" and a proviso that “the president and direct. ors of the Eastern Branch Bridge Company concur, in conformity with the articles of agreement heretofore entered into between the two companies.” Under the resolution, it will be necessary to be shown that the president and directors of the Eastern Branch Bridge Company have so concurred, as the grant of authority is made to depend upon their concurrence. If the meeting of the stockholders shall appear to be legal, and if the proviso has been complied with, still the corporation has no power to convey the stock of the shareholders, as this deed purports to convey it. The stock is the private property of the shareholders, not of the corporation; and the corporation has no power over it, either to annihilate or to convey it.
If the several stockholders shall convey their shares to the individuals who are to execute the deed, and they execute as well for themselves as for the company, it will then accomplish what it proposes to do. If this be done, it will be unnecessary to inquire into the regularity of the previous proceedings of the corporation, as the title of the government will not be liable to be disturbed. I have the honor to be, sir, very respectfully, your obedient servant,
ISAAC TOUCEY. Hon. R. J. WALKER,
Secretary of the Treasury.
JURISDICTION OF THE FEDERAL JUDICIARY.
The courts of the United States have no authority to try a captain of a Georgia battalion of
infantry on the charge of murder, alleged to liave been committed by him on the person of Lieutenant Goff, of ihe Pennsylvania volunteers, at Perote, in Mexico, whilst that place was occupied by American troops, and under the authority of a military governor appointed by Major General Scott.
The United States have no common law respecting crimes-no unwritten criminal code; and
their courts have no jurisdiction except that conferred by acts of Congress, (7 Cr., 32; 1 Wheaton, 415; 3 do., 336; 5 do., 76,) which fail to confer any jurisdiction over crimes com
mitted in Mexico. There is no criminal code which had any validity within the Mexican territory, The offence, if committed, was either against the temporary government which has ceased to
exist, or against the rules and articles for the government of the army, to which the troops since dismissed and mustered out of the service are not now amenable.
ATTORNEY GENERAL'S OFFICE,
November 15, 1848. Sir: I have the honor to express an opinion, as required, upon the question arising on the communication made by Major General Patterson, late of the United States army, to the governor of Pennsylvania, and by him transmitted to the President of the United States. In this com. munication it is stated that, during the late war with Mexico, while Perote was occupied by our troops, and was under the jurisdiction of the United States, a military and civil governor having been appointed by Major General Scott, Lieutenant Gotl, of the Pennsylvania volunteers, was deliberately killed by Captain Foster, of the Georgia battalion of in. fantry; that Captain Foster was arrested upon the charge of homicide, and put upon his trial before a military coinmission, organized and constituted to take cognizance of the case, by the order of General Scott; and that, after the trial had proceeded for several days, Captain Foster escaped from his guard and fled to the State of Georgia, where he now re. sides. The question that arises is, whether he can now be tried for the offence with which he is charged ?
It was formerly a subject of much discussion, whether the courts of the United States could exercise a common-law jurisdiction in criminal cases. It was said that they had no jurisdiction until conferred by act of Con. gress; that the United States had no common law respecting crimes—m unwritten criminal code; and, of course, no act could be an offence against a law which did not exist, and no judisdiction could be derived from any such source. This opinion seems to have prevailed. In the case of the United States vs. Hudson and Goodwin, 17 Cranch, 32,) the defendants were indicted at common law for a libel on the President and Congress of the United States; and the court held that the indictment could not be sustained. The Supreme Court alone possessed jurisdiction, derived immediately from the constitution; and all other courts, created by the general government, possessed no jurisdiction but what was given them by the power that created them. Although the indispensable power existed to fine for contempt, to imprison for contumacy, and to en. force the observance of order, yet before the courts of the United States could take cognizance of an act as criminal, the legislative authority of the Union must make the act a crime, affix a punishment to it, and declare the court which should have jurisdiction. In the case of the United States vs. Coolidge, (1 Wheaton, 115,) this decision was reaffirmed; and it must be regarded as the settled law until reversed by the court which declared it.
But, instead of reversing it, the court has since gone very far to sustain it; indeed, it is difficult to say that it has not been fully sustained. Al. though the constitution declares that the judicial power of the United Stales shall extend to all cases of admiralty and maritime jurisdiction, it has been adjudged by the Supreme Court that the courts of the Union, as