other person whose salary, or whose pay or emoluments, is or are fixed by law and regulations, shall receive any extra allowance or compensation in any form whatever for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be authorized by law. And the third section of the act of 1842, following up the policy of tying up the Executive discretion in regard to allowances, declares that no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation in any form whatever for the disbursement of public money, or any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation. As indicative of the views of Congress upon this subject, I beg leave to refer also to the proviso to the 200th clause of the act of the 18th May, 1842, and the 12th section of the act of the 26th of August, 1842. In looking at these several enactments I cannot perceive that there is room for doubt upon the question submitted to me, or that there can occur a case in which an officer or person in the public employment, whose salary is fixed by law, can be entitled to receive an extra compensation for the discharge of a public service. I do not propose to reason about the question, because it is impossible, as it strikes me, by argument or illustration to make the laws more clear than they are upon their own face. I beg leave like. wise to refer to the opinions of Mr. Legaré, of the 29th of November and the 23d of December, 1842, the first relating to the pay of the officers of the exploring expedition, and the other to certain claims of the officers of West Point, for compensation for extra services, which maintain the view herein expressed. I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON. Hon. JOHN Y. MASON, Secretary of the Navy. LAND CLAIMS UNDER TREATY OF DANCING RABBIT CREEK. By the treaty of Dancing Rabbit creek, if any portion of a section on which a claimant under the 14th article of said treaty resi ed at the date thereof had been sold by the United States prior to the passage of the law of 1842, the commissioners were not authorized to award to said claimant scrip instead of land, unless it was then impossible to give to said claimant the quantity of land to which he was entitled, including his improvements, or any part thereof, on the adjoining lands. If two or more claimants under the 14th article resided, at the date of the treaty, upon the same section, and a portion of it had been sold by the government, there existed no authority to issue scrip, unless it were impossible to give them the quantity of land to which they were entitled, including their improvements, or any part thereof, agreeably to the terms of the 3d section of the act of 1842, on adjoining lands. A claimant who, having complied with the 14th article, has been expelled from or induced to leave his land by the fraud of the government or its agents, and kept out of possession by a sale thereof by the government, has not forfeited his rights. If two grants have been made for the same land to the same claimant, under two separate articles-one for 640 acres, upon conditions with which he complied, and another for 320 acres― his acceptance of the larger grant, if prior in point of time, will render the smaller grant unavailing; and where the smaller was made first, the larger will be available only for the excess. Locations under the 19th article, before the passage of the act of 1842, worked a forfeiture under the 14th in certain cases. Many other points are settled by this opinion. ATTORNEY GENERAL'S OFFICE, October 21, 1844. SIR: I have examined the questions propounded by John B. Forrester, attorney and agent for certain claimants under the treaty of Dancing Rabbit creek, in his communication to the Commissioner of Indian Af fairs of the 3d instant, and am of opinion: 1st. That, if any portion of a section on which a claimant under the 14th article of said treaty resided at the date thereof had been sold by the United States prior to the passage of the law of 1842, the commissioners were not authorized to award to said claimant scrip instead of land, unless it was then impossible to give to said claimant the quantity of land to which he was entitled, including his improvements, or any part thereof, on the adjoining lands. 2d. That, if two or more claimants under the 14th article of said treaty resided, at the date thereof, upon the same section of land, and a portion of it had been sold by the government, there existed no authority under the law to issue scrip to said claimants, unless it was impossible to give to said claimants the quantity of land to which they were entitled, including their improvements, or any part thereof, agreeably to the terms of the 3d section of the act of 1842, on the adjoining lands. 3d. That, in the case stated in the third interrogatory, the commissioners had no authority to issue scrip, the parties being entitled under the law to land only. 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, and who was kept out of the possession from which he was so expelled 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. 5th. That, if two grants are made for the same land to the same claimant, under two separate articles of said treaty-the one for 640 acres, upon conditions with which he complied, and the other for 320 acres— the acceptance of the larger grant, if prior in point of time, will render unavailing the smaller subsequently made; whilst, if the smaller be made first, the larger will be available only to the extent of the excess of such grant over and above the smaller one. 6th. That a claimant under the 14th article of said treaty, who complied with its provisions, did forfeit his claim under said article, if, in point of fact, before the passage of the act of Congress of 1842, he did procure a location, in his name, of a claim under the 19th article of said treaty. 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 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 for a reserve 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 step towards perfecting the title taken since said location. 8th. That a claimant may be debarred the benefit of the 14th article of said treaty, although he may have complied with its provisions, if he has applied for and received, under location, without patent, a grant under the 19th article of said treaty. 9th. That a white man in the predicament stated in the additional interrogatory of Mr. Forrester is not entitled to the benefit of the 14th article of said treaty, as the Choctaw head of a family under the treaty and the law of 1842. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. The PRESIDent. LAND CLAIMS UNDER TREATY OF DANCING RABBIT CREEK. All assignments or agreements to assign claims, under the Choctaw treaty of Dancing Rabbit creek, previous to the expiration of five years from the ratification thereof, are causes of forfeiture, without reference to the consideration upon which they may be founded; and these matters are specially cognizable by the commissioners, whose judgment respecting such assignments is conclusive. ATTORNEY GENERAL'S OFFICE, October 28, 1844. SIR: The terms of the 9th section of the act of Congress of the 23d of August, 1842, are so plain and unambiguous as to be susceptible, in my opinion, of but one interpretation. They explicitly declare that no claim shall be allowed under the 14th article of the treaty of Dancing Rabbit creek, "if the commissioners shall be satisfied, by such proof as they may prescribe, that said claim had been, previous to the expiration of five years from the ratification of said treaty, assigned either in whole or in part; and, in case of a partial assignment or agreement for an assignment thereof, the same shall be allowed so far only as the original Indian claimant was at that date the bona fide proprietor thereof." All assignments or agreements to assign are therefore declared cause of forfeiture of claims under said treaty, without reference to the consideration upon which they may be founded. It is not necessary, to operate such a result, that these assignments should be found to be fraudulent or mala fide. The fact that they were made previous to the expiration of five years from the ratification of said "treaty," forfeits the interest of the claimant to the extent of the interest assigned. That the assignments referred to in your communication were made for value, as doubtless many of them were, does not make them the less assignments, or less liable to be affected by the provisions of the statute. It will not have escaped your attention, however, that these are inquiries specially cogni zable by the cominissioners, who are to be satisfied of the existence of the assignments, and whose judgment would be conclusive both in regard to the fact and to their legal effect. I have no doubt that the instruments to which you have referred me are assignments, and agreements to assign, within the meaning of the 9th section of the act of 1842; and that, in carrying that law into effect, the commissioners ought not otherwise to have regarded or treated them. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. WILLIAM WILKINS, Secretary of War. COMPENSATION OF DISTRICT ATTORNEYS. The district attorney for the eastern district of Pennsylvania is not entitled to extra compensation for services rendered in prosecuting for violations of the law respecting post offices. ATTORNEY GENERAL'S OFFICE, October 30, 1844. SIR: I have had the honor to receive your communication of the 25th instant, and the accompanying letters of Mr. Watts, district attorney for the eastern district of Pennsylvania, and Mr. Dallas. I am very clear that you have no power to make to Mr. Watts any compensation for his extraordinary labor in the cases to which your refer. I regret this, because I am sure his claim is a meritorious one. But the laws of the United States explicitly forbid it. Besides the act of 1839, to which you refer, I beg leave to call your attention to the 2d section of the act of the 23d of August, 1842, chapter 183. This enacts "that no officer, in any branch of the public service, or any other person, whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any ditional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation." ad. This provision seems to me clearly to cover the case of Mr. Watts; to whom, therefore, no allowance or compensation can be made, except by the authority of Congress. I return you the letters, &c., enclosed in your communication. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. C. A. WICKLIFFE, Postmaster General. COMPENSATION OF OFFICERS OF THE NAVY. An officer of the navy, receiving an ante-dated commission, is not entitled to pay from such ante date. The opinion of Mr. Crittenden, in the case of Lieutenant Drane, disagreed to. ATTORNEY GENERAL'S OFFICE, SIR: I have had the honor to receive your communication of the 4th instant, transmitting sundry papers relating to the claim of Lieutenant Richard W. Meade, of the navy, to back pay, upon which you suggest, for my consideration, the following inquiry: "Does Mr. Meade's receiving his commission with a back date, carry with it the right to pay from that date?" In reply, I beg leave respectfully to refer you to my opinion in the case of Lieutenant Chandler, communicated to you on the 15th of April last, and to the opinion of Mr. Legaré, in the case of Surgeon du Barry, likewise communicated to your department on the 29th of November, 1842, and to express my clear and undoubting conviction that the claim of Lieutenant Meade cannot, upon any sustainable principle, be allowed. I was before aware of the opinion given by Mr. Crittenden in the case of Lieutenant A. Drane; but, with the most deferential respect for the high source from which it emanated, I cannot assent to the principle maintained in that opinion. The practice to which it refers, and upon which it seems to have been reposed, is, in my mind, utterly repugnant to reason, and should no longer be pursued. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN Y. MASON, Secretary of the Navy. LETTERS NOT TRANSPORTED BY MAIL, NOT SUBJECT TO POSTAGE. Letters transported on the mail routes by private carriers cannot be charged with postage. Nor is it competent to detain a carpet-bag containing letters carried on a mail route contrary to law. All that the department can do is to enforce the penalties to which all unauthorized carriers of letters are subjected. ATTORNEY GENERAL'S OFFICE, SIR: The case to which my attention was called by your communication of the 4th instant, shows very clearly the necessity of legislative interposition more effectually to protect the Post Office Department against the frauds that are daily, and in so many ways, practised upon it. But I have not been able to discover any provision in the existing laws to justify the detention by the department of the carpet bag referred to, or to charge its contents with postage. All that the department is competent to do is to enforce the penalties to which all unauthorized carriers of letters on the mail routes are by law subjected. This is the remedy, and the only remedy, provided by law; and however inefficient it may prove in practice, it is not competent to the Executive to pursue any other. If the carpet bag in question had constituted a part of the United States mail, the letters contained in it would have been chargeable with postage; but the circumstance of its having been transported in the same cars with the mail, puts it and its proprietors in no predicament varying from that in which is placed every letter or package, and the carriers thereof, illegally transported on a mail route. I return herewith the papers accompanying your communication; and, I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. C. A. WICKLIFFE, Postmaster General. ENLISTMENTS OF SAILORS AND MARINES. An alien can be enlisted in the naval or marine corps service of the United States, and is bound, * the same as citizens, to serve for the term of his enlistment. |