ATTORNEY GENERAL'S OFFICE, June 4, 1830. GENTLEMEN: Your letter of the 1st instant has been duly received. Re ferring to the contrariety of practice which has prevailed on the subject warrants for the execution of the sentences of the courts of the United States in capital cases, you state that you have thought it advisable, in re lation to the cases depending before you, to ask the sentiments of the Prest dent on the question; and express a desire to know whether it is his pleasure to issue the warrants of execution, announcing, at the same time, tha should he not do so, you would consider the duty as referred to you, and would proceed to its performance. In reply, I have the honor to state that your communication, with th record of the conviction, has been submitted to the President; and that I a instructed by him to inform you that he has, after mature deliberation, de termined in all cases to leave the execution of the sentence of the law the direction of the court, in full confidence that the courts will give a rea sonable time for the interposition of executive clemency in cases where ought to be interposed. I have the honor to be, very respectfully, gentlemen, your obedient servant. Judges of the Circuit Court United States. ATTORNEY GENERAL'S OFfice, June 28, 1830. SIR: The question which you propose to me is, whether a transfer by exchange can legally be made between Lieutenants Burke and Smith-the former of the second regiment of artillery, the latter of the marine corps, It is understood that the commissions of these officers are of equal date, an that this transfer by exchange is desired by them. The only legal provision which I find on this subject, is that contained in the 63d article of the rules and articles for the government of the armes of the United States; by which it is declared that engineers "are liable be transferred, at the discretion of the President, from one corps to another: regard being had to rank." The army regulations approved in January, 1820, recognise the right the War Department to make transfers of officers, by declaring that such transfers will only be made by that department, in general orders, on the mutual application of the parties, except in cases provided for by law; and by forbidding the transfer of an officer to a regiment, to the prejudice & the rank of any officer thereof. These regulations derive their force from the act of April 24, 1816, and from the approval of the President of the United States. The transfer by exchange, at the instance of the officers transferred, bas then, the sanction of custom, recognised in the regulations of the army. seems, moreover, perfectly reasonable that there should exist somewhere a power to effect such transfers, when the good of the service may appear require it. Can any difficulty arise in this case, from the fact that one of the parties belongs to the artillery, which is part of the army proper, and the other to the marine corps? Is the power to be confined in its exercise to the army proper, and restricted to exchanges between the officers of that branch of the military establishment? It may, and probably must, be so restricted, if exerted in the mode prescribed by the army regulations to which we have referred that is, by the mere volition of the President. But no good reason is perceived why, in the exercise by the competent authority of a sound discretion, it may not be co extensive with the whole military establishment of the United States. Even if this were not so, it would seem that it might very properly be made to extend to the marine corps. Admitting that this part of the military establishment is in many respects anomalous, attached both to the army proper and to the naval armament of the United States, and yet incorporated with neither, but rather sui generis,—still I apprehend that, for all the purposes of the present inquiry, it is much more analogous to the former. Having heretofore had occasion to consider this particular branch of the subject, I send you an extract from an opinion some time since submitted to the President of the United States, as illustrative of my views in relation to it. I think that there is no legal objection to the transfer of officers from the artillery to the marine corps, or the converse, arising from the character of the corps to which they respectively belong: that, attached as they are to a common service-that is, to the military establishment of the United States-and freely consenting to an exchange, such transfer may be justly made by the competent authority; care being taken not to prejudice the rank of any officer of the regiment to which the transfer is made. But what authority is competent for this purpose? Can the War Department legally make such transfer by a general order issued in the terms of the regulation which has been referred to? In other words, is it competent to the President, ex mero motu, to give to an officer of marines rank in the artillery, and the converse? I apprehend not. The authority is given to him in the case of engineers, by the rules and articles for the government of the army; and as relates to the army proper, by the regulation. But it cannot extend to the marine corps; because the act of 1916, on the authority of which that regulation is founded, is confined to the army-to "the military peace establishment of the United States;" which it declares shall consist of artillery, infantry, riflemen, and engineers, without including marines. While, therefore, I believe that there exists a right of transfer from the marine corps to the other branches of the military service of the United States, and vice versa; yet, as no mode is prescribed by law, or regulation under the authority of law, in which such transfer can be effected, it seems to me that it can only be accomplished by an exercise of the appointing power. Consider the nature of the act to be done it is to appoint Thomas Burke to a lieutenancy in the marine corps, and Constantine Smith to a lieutenancy in the artillery, on the condition that they shall severally surrender the commissions which they hold in these corps respectively. This is the practical effect of the exchange; which can, therefore, in my opinion, only be accomplished by the action of the appointing power-that is, by the President, by and with the advice and consent of the Senate. The President, as commander-in-chief, having satisfied himself that the exchange is consistent with the good of the service, and that the officers to be transferred have respectively assented to it, will then take care not to prejudice the rank of any officer of the regiment to which the transfer is made, by nomi nating the officer transferred to take the same rank in that regiment which was held by the officer whom he substitutes. I do not know the history of the cases to which I have been referredthose of James D. Burnham and Frederick Thomas. They appear on the executive journal of the Senate to have been mere transfers, not founded on exchange; but the nominations were made in the regular exercise ◊ the appointing power, by the President to the Senate, by whose advice and assent Lieutenants Burnham and Thomas were appointed; and, so far as these cases can affect the present inquiry, they only serve to confirm the opinion which I have expressed. To the SECRETARY OF WAR. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, July 10, 1830. SIR: The case which you have referred to me presents the following state of facts: A quantity of goods subject to an ad valorem duty were imported into New York on the 17th April last, and, in the absence of the owner, to whose order they were consigned, were lodged in the public stores. On the 3d of June these goods were entered by the owner, and the estimate of the appraisers having exceeded the invoice price, the inquiry which you propose is whether, supposing the goods to be falsely charged, they are subject, under the act of the 1st March, 1823, to the penalty of fifty per cent. on the appraised value, or liable to forfeiture under the act of the 28th May last? If this were a question of duties merely, it is not to be doubted that the act of the 1st March, 1823, would control the subject, because these accrue on importation; and that was certainly complete when the vessel arrived at the port of entry to which she was destined. But it is not a mere ques tion of duties. It relates (admitting the statement of facts to be true) to an attempted fraud upon the revenue, by means of a false or fraudulent invoice. This act is necessarily subsequent to the importation; and, under circumstances, may occur long after that is complete, and after the goods have been for a considerable time in the custody of the law. To obtain the possession of goods thus imported and deposited, the owner is required to enter them at the custom-house, and to present to the collector "a true invoice of the same." The allegation here is, that the invoice presented was false. It is this distinct and subsequent act, unconnected with the importation, which was already complete, which draws after it the penalty or forfeiture provided by the acts which we are considering. It would seem, therefore, that the law which was in force at the time of the entry and presentment of the invoice, is that which is to control the proceedings in relation to it; and this conclusion is fortified by the consideration that the last act-that of the 28th May, 1830-repeals so much of the act of the 3d March, 1823. as imposes the penalty of fifty per cent. on the appraised value. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY. ATTORNEY GENERAL'S OFFICE, August 12, 1830. SIR: I have received and considered your communication of the 10th instant. The following is the first in the order of your inquiries: Is the claim of Peter Johnson, or of his assigns, to the reservation of section No. 16, valid in law, under the circumstances stated by Mr. Compton, in his letter?" According to the statement of Mr. Compton, certain persons, who allege themselves to be the assignees of Peter Johnson, claim title to a part of this section, on the ground that it was surveyed for Peter Johnson, as an Indian reservation, under the treaties between the United States and the Cherokees, of July, 1817, and of February, 1819. These treaties stipulate to give a reservation of six hundred and forty acres to each head of an Indian family residing on the east side of the Mississippi river, in which he shall have a life estate, with a reversion (remainder) in fee simple to the children of such family; with a proviso, that if any of the heads of families for whom reservations may be made shall remove therefrom, the right shall revert to the United States. In the statement to which I am referred, it is said that Peter Johnson is a negro slave; that his wife, though an Indian, is not believed to be a Cherokee; and that he has long since ceased to occupy the land, having removed from the part of the country in which it lies. Upon these facts, I should think it very clear that the claim of Peter Johnson's assignees could not be sustained. It would seem to me that his itle was originally invalid, having been obtained by fraud; that the terms used in the treaties, "head of an Indian family," cannot apply to a negro slave, although married to an Indian woman; that it is void for this addi tional reason, if the fact be so-that his wife, though an Indian, is not a Cherokee, who alone were the beneficial objects of the treaties; and, inally, that as the life estate of Peter Johnson, if it had been valid in its origin, was obviously unaccompanied by the power of alienation, because xpressly clogged with the condition of personal occupancy of the premises, :will follow, that whatever right he acquired reverted to the United States, y the express provisions of the treaty, on his removal. Your inquiry does not extend to the claim of the children of Johnson. t may, however, be proper to remark, that the estates which they would ave derived under the treaties, if their father and mother had been within he provisions of those compacts, would have been a remainder (not a reverion, as it is called in the treaty) in fee, to take effect after the death of the ather, and subject to the dower of the mother; which would have been lefeated by the determination of the precedent estate consequent upon the emoval of Johnson from the land. This inquiry is not, however, importnt, so far as the assignees are concerned, who, according to the statement, re assignees of the life estate only. Your next question is "If that (Peter Johnson's) claim be not valid, can the commissioners of ackson county be lawfully permitted to select any other section in lieu of ection No. 16 ?" I apprehend not. By the express provisions of the compact with Alaama, such alternative selection was only to be allowed when section No. 6, which was first set apart for the use of schools, had been "sold, granted, r disposed of." A survey made in fraud of the treaties referred to above, by one who could derive no title under it, or who, if he did, has forfeited it by removal, does not divest the right of the United States, or take from them the power to grant the stipulated section in terms of the compact. Your third question is- "If the claim be valid as to the part of section No. 16 which has been surveyed as an Indian reservation to Peter Johnson, is it lawful to make up the deficiency from any other section; requiring the part not surveyed of reserved to be detained as school-fund for the township?" I have already stated that I do not think this claim is a valid one; but if it were, the present inquiry must, it appears to me, be answered in the negative. The commissioners cannot, I apprehend, be compelled to receive any portion of section No. 16, unless the United States are in a condition to grant the whole. The terms used in the compact seem to be applicable to the section in its totality. If this be not so, I know nothing to prevent the commissioners from taking the equivalent of the lands "granted, sold, or disposed of," from different sections, at their option; which was not, I think, within the contemplation of the parties to the compact. You ask, finally "If the selection of a section, or part of one, must be made from any other section than that specially reserved for school purposes, viz: No. 16can it be lawfully done, to the exclusion of a pre emption right under the act of 29th May, 1830?" Immediately after the passing of the act to which you have referred me. persons coming within its provisions had an inchoate pre-emption right to the land which they occupied, to the extent of a quarter section, which was capable of being perfected by entry and payment in terms of the act. But it was provided that this should not delay the sales of any of the public lands beyond the time appointed for that purpose in the President's procla mation; and the settler, or occupant, who wished to avail himself of its provisions, was required to do so before the day appointed for the com mencement of the sales of land, including the tract or tracts on which the right of pre emption was claimed. It was moreover declared that this right of pre-emption should not extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have bee appropriated for any purpose whatsoever. Here is the grant of a privilege, with a limitation of the time within which it must be claimed, and a restriction of the objects to which it shall extend. Within those limits and restrictions it cannot, I apprehend, be in terfered with by the claim in question. The section No. 16 is the only one which is specifically reserved for the use of schools. If that has been "sold, granted, or disposed of," the commissioners are at large within the township-or, at any rate, among the sections contiguous to No. 16; having in this event, an alternative right of location on any section which they may select. But it is only by the act of selection in terms of the compact that the selected section becomes appropriated to the use of schools; and if, when this is about to be made, the inchoate right of the settler or occupant under the act of the 29th May, 1830, is in existence, and capable of being perfected according to the provisions of that act, I should believe that, to the extent of the right of such settler or occupant, this land would not be liable to selection for the use of schools. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY. |