by the explanatory act of the 3d ultimo, the benefits of the provision are extended to such persons. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF WAR. ATTORNEY GENERAL'S OFFICE, April 17, 1837. SIR: In the case of the children of Captain A. Sinclair, who died in the naval service, leaving no widow, but leaving five children, all under 21 at his death, and all now living, and of whom two are now over 21, I have the honor to inform you, in reply to your letter of the 15th instant, that, in my opinion, the two children now over 21 are entitled to share in the pension, from the date of the father's death until they respectively arrived at that I am, sir, &c., &c. age. To the SECRETARY OF THE NAVY. B. F. BUTLER ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to inform you, in reply to the question proposed by your letter of the 16th ultimo, that, in my opinion, the proviso in the 1st section of the act of the 3d ultimo, making appropriations for harbors, &c. does not suspend the operation of the 2d section of the act "in addition to the act for the relief of sick and disabled seamen," approved March 2, 1799. The section referred to authorizes the Secretary of the Navy to deduct from the pay of the officers, seamen, and marines of the navy of the United States," at the rate of twenty cents per month, &c. The prior law, to which it was an addition, applies exclusively to seamen employed in merchant ves sels, and requires the master or owner of such vessels to pay at the like rate for every seaman so employed, which sum he is authorized "to retam out of the wages of such seamen," and the subsequent laws in relation to merchant vessels are in similar words. The proviso in question declares "that, from and after the first day of April next, all laws enacted whereby seamen are required to pay twenty cents a month, or their employers are required to retain that sum out of their wages, to create a fund for the sick and disabled seamen, shall be suspended for one year, during which no such exaction shall be made; and that, instead of said tax, there be appropriated out of any money in the Treasury not otherwise appropriated, the sum of one hundred and fifty thousand dollars, to be disbursed in the same manner as the sum above mentioned.” This language, it will be seen, is in exact accordance with the provisions relative to merchant vessels, but is inappropriate to the 2d section of the act of March 2, 1799. Independently of other difficulties, we should be driven to the necessity, were it construed to extend to seamen of the navy, of supposing that Congress intended studiously to discriminate between them and the officers and marines also employed in the naval service-a discrimination for which no reason would seem to exist, and which is avoided by confining the proviso to the cases literally described in it. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF THE NAVY. ATTORNEY GENERAL'S OFFICE, SIR: It appears from the letter of the Senators and Representatives in Congress of the State of Michigan, referred to your department by the President of the United States, and enclosed to me in your letter of the 24th ultimo, and from the treaty therein referred to, that in the 8th article of the treaty of March, 1836, with the Ottawa and Chippewa nations of Indians, the following clause was inserted: "The mission establishments upon the Grand river shall be appraised, and the value paid to the proper boards:" there being, in point of fact, at that time, two separate missionary establishments among these Indians upon the Grand river-one belonging to a Baptist missionary society, and the other to a missionary society of the Roman Catholic church; and the Indians being very desirous, as stated by Mr. Schoolcraft, the United States commissioner, that the societies should be included in the provisions, and being told by him that such would be its effect. In the ratification of the treaty, among other amendments made by the Senate, the clause above quoted was stricken out, and, in lieu thereof, the following inserted: "The net proceeds of the sale of the one hundred and sixty acres of land, upon the Grand river, upon which the missionary society have erected their buildings, shall be paid to the society, in lieu of the value of their said improvements." The question now arises-"whether the benefit of the substituted provision is to be exclusively confined to one, and, if so, to which of the two missionary societies; or whether they are both entitled to share therein ?” In answer to this question, I have the honor to inform you that, after mature consideration, I am of opinion that the words of the substituted clause are not sufficiently explicit to justify the application of the fund exclusively to either of the societies; and, consequently, that the proceeds of the sale of the premises must be divided between the two societies or boards. The only alteration distinctly provided for, in the new clause, is the substitution of "the net proceeds of the sale of the 160 acres of land" on which the buildings were erected, in lieu of "the value of the improvements," which, by the original treaty, was to be appraised and paid to the respective boards. For this alteration a very obvious and satisfactory reason may be assigned the Senate, aware of the liability to over-valuation in all cases of appraisement, were unwilling to bind the United States to pay such sum as might be assessed by appraisers, and preferred the more definite criterion of the proceeds of the actual sale of the 160 acres of land on which the improvements had been erected; and this general change is accordingly made in clear and unambiguous terms. If it had been the intention of the Senate to confine the benefit of the provision to one of the missionary societies, to the entire exclusion of the other, it is to be presumed they would have said so in explicit terms. No such intention is plainly expressed; and though the use of the word " ciety," twice, in the singular number, furnishes some ground for contending that such was their intent, yet it is almost counterbalanced by the phrases "have erected their buildings," and "their said improvements;" for, if it was intended to speak of one society, and one only, the language of these phrases, to be strictly accurate, should have been "has erected its buildings," and "its said improvements." But a decisive legal argument against the limited construction is found in the entire omission to use any such discriminating expression as might enable us to determine to which of the two societies the benefits of the provision are to be confined. The appellation used, "the missionary society," is as appropriate to one society as to the other; and we have no more right to confine it exclusively to one of them, than we would have to apply it exclusively to the other. If therefore, it were even admitted that the use of the woid "society,” in the singular, furnished clear evidence of an intent on the part of the Senate to select one society to the exclusion of the other, this would be one of those cases where the intent of the party cannot be carried into execution, for the want of provisions appropriate and indispensable to render it effectual. In this state of the case we are necessarily thrown back, so far as regards this point, upon the two societies; and must either defeat the provision altogether, or hold it to have been made, like that in lieu of which it is subsu tuted, for the equal benefit of both. This conclusion, it may be added, is agreeable to the plain equity of the case, and is further recommended by its conformity to the original desire of the Indians, as stated by Mr. Schoolcraft. I am, sir, &c., &c., To the SECRETARY OF WAR. B. F. BUTLER ATTORNEY GENERAL'S OFFICE, SIR: In answer to the questions proposed in the communications of the Fourth Auditor, referred to me by your letter of the 17th instant, I have the honor to inform you that, in my opinion, neither the widow nor the personal representative of Mr. Rathbone, the navy pensioner named by the Auditor, is entitled to any arrears of pension under the late act "for the more equitable administration of the navy pension fund." The second se tion of that act makes no reference to widows; and, in accordance with decisions already made by me, Mr. Rathbone, having died before the enact ment of the law, cannot be regarded as possessing any interest which could pass to his personal representative. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF THE NAVY. ATTORNEY GENERAL'S OFFICE, April 19, 1837. SIR: In answer to the question presented by the communication of Lieu tenant Colonel Abert, and referred to me by your letter of the 15th instant, I have the honor to inform you that, according to an opinion heretofore formed and expressed by me, the proviso annexed to the first section of the "act making additional appropriations for the Delaware breakwater," &c., approved March 3, 1835, is to be considered as a permanent provision, and therefore as yet in force. The point is certainly by no means free from doubt, but as no reason exists for such a provision for the year 1835, which does not equally apply to every subsequent year, I have considered it more agreeable to the spirit of the law, and to the probable intent of Congress, to give it this construction, than to treat it as a temporary provision. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF WAR. ATTORNEY GEneral's Office, April 20, 1837. SIR: In the letter of Messrs. Lumpkin and Kennedy, commissioners under the treaty of 1836 with the Cherokees, enclosed to me in your communication of the 23d ultimo, the following questions are stated, on which you ask my opinion: 1. As to the limits imposed by the treaty, on the gross amount to which laims for professional services rendered to the Cherokees by citizens of the United States may be allowed ? 2. What constitutes a just claim under the treaty for such services? and 3. To constitute such a claim, is it necessary that the claimant should ave been employed by the authority of the nation? I. In answer to the first of these questions, I have the honor to inform ou, that, after maturely considering the statement of Mr. Schermerhorn, one f the commissioners who negotiated the treaty, and the arguments of Mr. fansell, in behalf of himself and the other claimants, I am of opinion that the um of sixty thousand dollars constitutes the whole amount which can be aid by the United States, under this treaty, for the claims of citizens of the nited States for services rendered to the Cherokee nation; and that, if this im is insufficient to meet the whole amount of the just claims of such perons, they must resort, for the balances which may be due to them respectely, to the Cherokee nation. The tenth article of the treaty provides as llows: "The United States also agree and stipulate to pay the just debts d claims against the Cherokee nation, held by the citizens of the same, d also the just claims of citizens of the United States, for services renered to the nation; and the sum of sixty thousand dollars is appropriated r this purpose: but no claims against individual persons of the nation all be allowed and paid by the nation." The appropriation of the sum of 50,000, in the above clause, is expressly and solemnly made; and such a nstruction must be given to the clause, and to the whole treaty, as to give me reasonable effect to this appropriation. But it is impossible to give y such effect to it, except by treating it as the limit to which the United ates were to go in paying the claims embraced in it. If the full amount the just claims referred to, even though they should exceed $60,000, yet to be paid, the appropriation of that sum was worse than an idle ste of words; it was calculated to produce ambiguity and dispute, where vas perfectly easy to avoid both by simply omitting the specific appro ation. As we have no authority to reject this appropriation, the only remaining question under this head is as to the claims embraced in it. Here, it m be admitted, there is a serious ambiguity in the language. The approp tion admits of two constructions: it may apply to all the debts and clas spoken of in the clause-that is to say, the just debts and claims against Cherokee nation held by citizens of that nation, as well as the just clai of citizens of the United States for services rendered. But, if this had bee intended, the more accurate and natural expression would have been, " the sum of $60,000 is appropriated for these purposes;" because, the j claims of the citizens of the United States are enumerated in the clause a second class of cases, and the strict grammatical construction of the ph "for this purpose," confines it to this latter class. I construe the clause though the phraseology had been, "and also the just claims of citizens: the United States for services rendered to the nation, for which purpose t sum of $60,000 is appropriated." This, I think, is the precise grammatic effect of the language used; and, in a case of doubt, the grammatical cat struction should be preferred, unless plainly repugnant to the probable in In the present case, the grammatical construction will produce no injuste. whereas the extension of the appropriation to both classes of cases ell merated in the clause might do great injustice. It is, moreover, in acc ance with the statement of Mr. Schermerhorn, who informs us that t sum of $60,000 was named in the first draught of the article, exclusive with reference to the last description of claims. It is true this gentle also thinks that, although this peculiar appropriation was intended to the claims of our citizens for services rendered to the Cherokee nation does not necessarily limit the amount to be allowed and paid to $6¿Â1 in the aggregate, provided the just claims shall actually exceed that s an opinion from which, as already stated, I wholly dissent. But, the formation given by him as to the origin of the appropriation may well resorted to, where the language is obscure, for the purpose of settling t construction. II and III. In answer to the second and third questions, I can only serve that, in my opinion, the claim, to be a just one under the treaty, be for services of a lawful nature, performed at the instance and reques the acting authorities of the nation. I am, sir, &c., &c., To the SECRETARY OF WAR. B. F. BUTLER ATTORNEY GENERAL'S OFFICE, SIR: Upon the principles settled in the cases already disposed of, n the act of March 3, 1837, I think Mrs. Andrews (now Mrs. Gonld) is entitled to the arrears claimed by her. The fact that she received a p sion under the act of June 30, 1834, does not, in my judgment, vary case materially from that of the widow of Purser Timberlake. I am, sir, &c., &c., To the SECRETARY OF THE NAVY. B. F. BUTLER |