that the jurisdiction of a State or Territory should never be placed over the lands which they occupied, left their relations with the United States pre cisely as it found them. The United States by that treaty agree "to possess the Cherokees, and to guaranty it to them forever, of seven millions of acres of land;" but there is no grant of dominion or sovereignty-no relinquish ment of jurisdiction. Nay, their western outlet, it is stipulated by the same instrument, shall go as far as the "sovereignty of the United States" extends I apprehend, then, that nothing can be more clear than that a citizen of the United States cannot, by establishing himself within the limits of this tribe, and incorporating himself with it, by whatever form, withdraw hi self from the operation of the laws of the United States. It is certain, also 1 think, that it is only as a citizen of the United States, under the acts 1802 and 1822, that the individual whose case has given rise to your quiry can take a license to trade. The seventh section of the former act provides that "no citizen or other person shall be permitted to reside at any of the towns or hunting camps of any of the Indian tribes, as a trader. without a license," &c. And the first section of the latter act, which re peals the provision of the act above quoted, declares that "licenses shail be granted to citizens of the United States, and none others." By the 21st section of the act of 1802, recognised by the 2d section of that of 1822, the President is "authorized to take such measures as to him may appear expedient, to prevent or restrain the vending or distributing of spirituous liquors among all or any of the Indian tribes ;" and if, in the exercise of this discretion, or under the operation of the law, this right to trade is cofined to licensed traders who, since 1822, must necessarily be citizens of the United States, I apprehend such a restriction would be sustained upon all the principles which have been stated in the previous part of this argu ment. I have abstained from pressing the consideration that the claim contended for, if allowed, might be employed to the subversion of the whole legis tion and policy of this Government in relation to the Indian tribes within its limits; because, although this suggestion is certainly a forcible one, have thought that the negation of this claim might be fairly deduced from the constitution and laws of the United States, from established principles applicable to our Indian relations generally, and from the treaties with this particular tribe. To the SECRETARY OF WAR. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, SIR: I avail myself of the earliest moment of convalescence to reply to your communication of the 27th ult. You state to me that Mr. B. W. Richards was on the 5th January, 1830, appointed by the President, by and with the advice and consent of the Senate, a director of the Bank of the United States; that on the 4th of November last, Mr. Richards addressed to the President a letter, requesting him to consider him as having resigned that office; that this letter was un accompanied by the commission of Mr. Richards; that no answer was returned to it; nor did the President take any step in relation to the subject, either by accepting the resignation, or appointing a successor, until the ppointment of directors for the year 1831. Upon this state of facts, you ask my opinion whether Mr. Richards is to be considered as having been a director at the late annual election? I answer, that I think he is to be so considered. It was certainly competent to Mr. Richards to resign an office which is not imposed upon him by law; but to make his letter of resignation efficient for this purpose, it was necessary that the act of resignation should have been accepted by the President, either expressly or by the appointment of a successor. In the case of the King vs. the Mayor of Ripon, it was held that the resignation of an alderman was valid, because it had been accepted and acted pon by the corporation; but that, until this was done, it was in his power o withdraw it. A letter tendering a resignation is an inchoate act. It becomes complete y the acceptance of the appointing power. Until this is done, it is recovrable at the will of the officer-certainly with the assent of the authority Owhich it is addressed. If, in the case under consideration, the President ad returned Mr. Richards's letter, and the latter had consented to recall is resignation and to serve for the residue of the term; or if Mr. Richards ad asked leave to withdraw his letter of resignation, and the President had ceded to his request ;-it cannot, I think, be doubted that it would in either se have been competent to Mr. Richards to have resumed his functions ithout a new commission. But, if this be true, it serves conclusively to ow that something more than his mere letter of resignation was necessary vacate his office. So far as personal responsibility was concerned, Mr. ichards could not be held answerable for a neglect of duty after this dearation of his intention, because he could not be coerced to continue in is office; but until the acceptance of his resignation, his functions, although spended, might, with his assent, have been resumed; and I need scarcely y that it has been adjudged that the suspension of the functions of an icer does not necessarily vacate his office. There seems to be the less reason for questioning the truth of this docle, because, in its application to the case under consideration, it is in fect harmony with the spirit and intent of that clause of the bank charwhich has occasioned this reference. The provision was framed, doubtlessly, upon the supposition that the ection on the part of the Government would always be kept full, because interest of the public and the duty of the appointing power would conto keep it so. It was the object of that provision to secure a regular limited change in the direction, by the retirement (so far as it regards se appointed by the President of the United States) of one of the directors o had served the year preceding an annual election. This object has n answered in this case, by the omission to re nominate Mr. Richards; ile an opposite construction would extend the exclusion beyond what s contemplated by the framers of the act. The opinion which I entertain upon this question seems to me to disse with the necessity of replying to the alternative inquiry which you pose, or of adverting to the residue of your communication. If you nk differently, and will intimate your wishes, they shall be promptly ended to. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE TREASURY. ATTORNEY GENERAL'S OFFICE, February 11, 1831. SIR: I have considered the case of Messrs. Ward & Taylor, army co tractors, who claim an allowance of $1,795 933, for provisions lost in the public storehouse at Fort St. Philip, on the 19th August, 1812. This case has been referred to me, at the request of the Second Comptroller; and it is upon his statement of facts, now before me, that this opinion is given. The claim is founded on the Sth article of the contract between the Uni ted States and the claimants, which stipulates "that at all stationary posts proper storehouses shall be provided, on behalf of the public, for the recep tion and safekeeping of the provisions deposited from time to time; and the contractors shall suffer no loss for want of such storehouses ;" and upon the alleged insufficiency of the buildings in which these provisions were depos ited. No question is made as to the fact of the loss, nor as to the manner of its occurrence; since it is stated to have been proved that "the storehouse and the whole of its contents were swept away by the storm and current of the river, and destroyed; by which the provisions were lost." Nor is there any deficiency of proof as to the description of the store house. From the statement, it appears to have been a temporary building and is clearly proved to have been erected outside of the fort, on the mar gin of the river, greatly exposed to storms and to the overflowings of that stream. I confess I think this claim is very clearly within the provisions of the 8th article of the contract, on which the claimant relies for its support. The fact and manner of the loss being ascertained, the only remaining inquiry is, Was this a "proper storehouse"-such a one as the Govern ment contracted to furnish; and for the want of which, they stipulated th the contractors should sustain no loss? I think all must agree that it was not. A temporary wooden building, erected outside of the fort, on the mar gin of a river habitually overflowing its banks, cannot be considered a sale place for the permanent deposite of the provisions of an army. It was pe culiarly exposed to various injuries, from which a more judicious location and a more substantial structure would, in a great degree, have exemp it-from the description of the building, and from being outside of the fort to the torch of an incendiary, and to the pilfering of the thief; from its s uation on the margin of the river, to the fury of storms, and to the over flowing of the stream. It is no answer to this to say, that if a "proper storehouse" had been pro vided, the loss might still have occurred, because even such a building, of the best structure and in the most secure location, might not have withstood the fury of the hurricane and the violence of the current. The reply instant and obvious. Such an argument overlooks the positive violatis of the contract by the Government, to speculate upon what might have hap pened if that contract had been fulfilled. We know certainly that the Government did not fulfil its contract, by providing a "proper storehouse It must always remain uncertain what would have been the result if tha contract had been fulfilled; and this uncertainty is the consequence of that very neglect on the part of the Government. The Government, then, ca not take advantage of its own wrong to subject the claimant to a loss from the uncertainty produced by its own violation of its own contract. If a "proper storehouse" had been provided, all uncertainty would have been removed. Since the Government failed to do so, every presumption is in favor of the claimants, because it is the wrong of the Government which has occasioned the uncertainty. A question entirely analogous to this occurs in cases of marine insurance; and no court of justice would listen to such an objection as that which we are considering. There is an implied warranty on the part of the assured that their vessel is seaworthy; by which is meant, not only that the hull of the vessel is sound, and her sails and rigging in good order, but that she is properly manned and equipped, and in all respects fitted for the voyage. If the vessel be lost, and it should be ascertained that, from a deficiency in any of these particulars, she was unseaworthy, it is wholly immaterial whether the loss was owing to that cause or not; the covenant of the owners is broken, and they cannot recover on the policy. If the loss should be occasioned by a tempest, it would be no answer to say that its violence was such that any vessel, however seaworthy and stout, must have perished beneath its fury. The reply is, the vessel which the underwriters contracted to insure was a seaworthy vessel, and this is not so. The owners are referred to their covenant, and to the breach of it; and are compelled to abide the loss. And so in this case. The claimants agreed to take the risk of their provisions, upon being furnished with a "proper storehouse," which the Government contracted to provide. Until such a storehouse was provided, they were wholly at the risk of the Government. I think the right of the claimant in this view is so exceedingly clear, hat I deem it unnecessary to consider the other ground of the claim. Inleed, some further explanation would be necessary to enable me to deter. nine the question which it presents. I do not ask it, however, because I m entirely satisfied with the view which I have taken of the claim on the rst point. To the SECRETARY OF WAR. JN. MACPHERSON BERRIEN. ATTORNEY GENERAL'S OFFICE, SIR: I have considered your communication on the subject of sundry ccounts of marshals employed in taking the census of the inhabitants of he United States. I do not perceive that the district or territorial judges have any authority nder the act of the 23d March, 1830, besides that which belongs to every 1stice of the peace-that given by the fourth section, which provides for n increased allowance, under their sanction, in the case specified in the secon; and that contained in the tenth section, which makes a like provision the case designated in that section. As the cases upon which you desire y opinion do not fall within either of these special provisions, their corctness is to be tested by the provisions of the law. Your first question must be answered affirmatively. It is made the duty 7 the marshals "to appoint one or more assistants in each city or county their respective districts and territories." It is thus rendered obligatory on them to appoint one assistant, and the discretionary power to appoint ore is not limited by the act. It was perhaps intended to leave this to be gulated by the instructions to be issued from your department. Then the fourth section declares that every assistant shall receive at the rate of one dollar and twenty-five cents for every hundred persons of the first thre thousand who reside in a city or town; and the same for every thre hundred persons over three thousand residing in such city or town. I follows that a different exercise of the discretion given to the marshals the appointment of assistants in different cases of like population, will giv a different result for the expense of the enumeration. The second case mentioned in your communication cannot, I think, b allowed. It is a plain departure from the law, and derives no additions validity from the sanction of the judge. It ought, therefore, to be reduce to the scale of the fourth and last account, to which you have referred me which corresponds with the provisions of the fourth section of the act. JN. MACPHERSON BERRIEN. To the SECRETARY OF STATE. ATTORNEY GENERAL'S OFFICE, SIR: The question which you propose, in relation to the continuance in office of an inspector of the customs after the death, resignation, or removal of the collector by whom he was appointed, has (as you are aware) been the subject of judicial decision. In the case of the United States vs. Wood, in the circuit court of Massa chusetts, it has been held that these officers hold their offices during the pleasure of the collector, and cease to be such on his death, resignation, or removal. After giving to this subject as much reflection as my other e gagements have permitted, I find myself unable to acquiesce in this preposition; and, with all the respect which is due to so high an authority, I feel bound to communicate to you the opinion which I have formed. The doctrine laid down in the case referred to proceeds upon the English common-law principle, that commissions granted by the King expire on his demise. But this was true there, not only of commissions during pleasure, but of those also which were held by the more permanent tenure of good behavior; and it is only by express statute that, even now, the judges of England are relieved from the operation of the common-law principle. There the King is the fountain of dignity and honor. It is his prerogative to issue all commissions which are warranted by the common law, or by statute. To what consequences would the application of these doctrines lead us here? The President, under the constitution, is the great appointing power. Congress has the power to direct the manner in which certain subordinate offices may be filled. But each exercises a delegated trust. It is the people alone with whom sovereignty resides. They are here the source of dignity and honor. All delegated power originates with them. If the common-law principle, even in its application to offices held during pleasure, be enforced here, the death, resignation, or removal of the President, and, as certainly, the cessation of his official character by the expiration of his official term, would be productive of infinite embarrassment. What is commonly called the four years' law might be construed to protect the officers falling under its provisions, though such would no probably have been the case in England, in the application of this principle; |