CLAIM OF GENERAL SCOTT FOR SUPERINTENDING REMOVAL OF THE CHEROKEES. The claim of General Scott for a compensation of eight dollars per day over and above his regular pay as major general, for superintending the removal of the Cherokees under the direction of the Secretary of War, cannot be allowed without violating the proviso to the act of 3d March, 1835. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the claim of General W. Scott, accompanying yours of this day, and have the honor to report the following opinion thereon: General Scott is a military officer in the regular service and pay of the United States; and on the 6th of April, 1838, General Macomb, his superior officer, by his order, (which was strictly military, for no other could be issued by General Macomb,) directed him to repair to the Cherokee country, and there to discharge those duties which properly appertained to him as an officer of the army of the United States. On the 23d of May, 1838, the Secretary of War authorized General Scott to enter into arrange ments with the agent of the Indians for their removal. On the 25th of June, 1838, he was directed by the Secretary of War to superintend the removal of the Indians. It is understood that General Scott faithfully discharged all the duties enjoined on him. He now charges eight dollars per day for the services rendered under these orders, in addition to his pay and emoluments as a major general in the army of the United States; and the question you ask me to decide is, "whether he is lawfully entitled to the claim thus preferred by him?" Whatever difficulty formerly existed relative to extra allowances or compensation to officers of the army, seems to me to be obviated by the proviso to the act of the 3d of March, 1835; which, upon a proper construction, in my opinion, forbids the allowance of the claim now under consideration. That proviso declares "that no officer of the army shall receive any per cent., or additional pay, extra allowance, or compensation, in any form whatever, on account of the disbursing any public money appropriated by law during the present session, for fortifications, execution of surveys, works of internal improvement, building of arsenals, purchase of public supplies of any description" Had the proviso stopped here, it might have been insisted that its whole operation was confined to appropriations made at the then session of Congress; but the following general and comprehensive expression is added: "or for any other service or duty whatsoever, unless authorized by law.". It appears to me that Congress intended by this expression to confine military officers to their regular pay and emoluments, and not to permit them to receive extra allowances or compensation for services which might not be considered by them in the strict line of military duties. I am, sir, &c., &c., FELIX GRUNDY. To the SECRETARY OF WAR. NAVY COURTS-MARTIAL-JUDGES ADVOCATE. Judges advocate of courts-martial are required to be sworn; and where the proceedings of such courts do not show that they were, it may be properly considered that the fact does not exist, and that they were not sworn, and that, therefore, the proceedings were irregular and void. The accused may be put upon another trial; but not before the same officers who constituted the first court. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the proceedings of the general court-martial in the case of Peter Clark, a seaman in the navy of the United States, and have the honor of now submitting my opinion upon the various points submitted to me in your communication of the 20th instant. The first inquiry is in relation to its not appearing in the proceedings of the court-martial that the judge advocate was sworn, agreeably to the act entitled "An act for the better government of the navy of the United States." My opinion is, that upon this branch of your inquiry the maxim well applies that that which does not appear, should be considered as not existing; and, therefore, this question must be decided upon the assump. tion that the judge advocate was not sworn. When the very important duties of this officer are considered-that he is to keep the record of the evidence given, and the proceedings of the court; and that upon this evidence and proceedings, as recorded by him, the fate of the accused is ultimately to be decided, every reflecting mind would concur in saying that the fidelity of this officer should be secured by at least the usual sanctions. Add to this that the Congress of the United States, in prescribing rules and regulations for the government of the navy, have given the form of the oath to be administered by the president of the court to the judge advocate, before proceeding to trial, and I think no doubt should exist in declaring the proceedings irregular and void. You will remark that the objection stated above goes to the construction and organization of the court. Had the court been regularly and legally organized, I should not think that its not appearing on the record that the prisoner had been furnished with a copy of the charges, or been asked if he had any objection to the members of the court, would be sufficient causes for setting aside the proceedings. If any injustice was done to the accused in these particulars, he should make the question before the court, and in that way make it appear on the face of the proceedings. In answer to your next inquiry, my opinion is, that the accused can be legally and constitutionally put upon another trial. He has not been tried by a tribunal legally competent to try and punish him. In our civil tribunals, if a party be convicted upon an insufficient indictment, and judgment be arrested, the accused may be again put upon his trial; and this is not considered as an infraction of that injunction of the constitution which forbids that any person be twice put in jeopardy for the same offence. In answer to your last inquiry-which is, whether the same officers who have acted upon the court martial, the proceedings of which are now under examination, would be competent to sit on a second trial of the accused; or whether it would be necessary to organize a new court for such trial?I am decidedly of opinion that a new court, should you think the case requires further action, must be organized. The officers who sat on the former should all be excluded from the second trial. They have formed and expressed opinions upon the case, which would disqualify them from serving as jurors in a criminal case in a common law court; and I can see no reason why officers under the same circumstances should not be excluded from a court-martial, and especially as they are the triers of the facts as well as the law. I am, sir, &c., &c., To the SECRETARY OF THE NAVY. FELIX GRUNDY. RIGHT OF HEIRS OF T. F. REDDICK TO A PATENT FOR LANDS. The United States are bound by their treaty stipulations with France, and by the universal usage among civilized nations, to go on and perfect the title of the heirs of Thomas F. Reddick to a tract of land on the bank of the Mississippi, held under a Spanish grant and relinquished by act of Congress of 1st July, 1836, unless the same shall be taken by an older and better claim not emanating from the United States government; and no such title having been set up, a patent ought to issue to the said heirs. ATTORNEY GENERAL'S OFFICE, SIR: I have had the honor to receive your communication of the 24th ultimo, with the accompanying papers, relative to the conflicting claims of Thomas F. Reddick's heirs, and Marsh and others, to a tract of 640 acres of land situate on the bank of the Mississippi river, about 18 miles above the mouth of the Des Moines river, in fractional township number sixty six, north of the base line, of range number five west of the fifth principal meridian. I deem it unnecessary to give a separate answer to each of the interrogatories or questions propounded in your letter; believing that the present case may be properly decided without an explanation of my views in relation to some of the matters involved in your inquiries. Congress, by the act of the 1st of July, 1836, "relinquished all the right, title, claim, and interest that the United States have in and unto the said six hundred and forty (640) acres of land to the said Thomas F. Reddick's heirs, with the following proviso: That if said lands shall be taken by any older or better claim not emanating from the United States, the government will not be in anywise responsible for any remuneration to said heirs; and provided, also, that should said tract of land be included in any reservation heretofore made under treaty with any Indian tribe, the said heirs be, and they are hereby, authorized to locate the same quantity, in legal divisions or sub divisions, on any unappropriated land of the United States in said territory subject to entry at private sale." If this act of Congress be available to the heirs of Reddick for no other purpose, it at least proves that the claim set up by them is fair and honest, and such a one as the United States are bound to satisfy in some way under the treaty ceding Louisiana to them. Taking it, then, for granted that the orginal claim of Tesson, which is dated the 30th of March, 1799, and under which Reddick's heirs derive their title, gave him an inchoate right to the land in controversy, (as is proved and admitted by the act of Congress above referred to, I will proceed to examine whether it can be affected by the last proviso in said act (of July 1, 1936.) The first question which arises is, whether this land was reserved by any Indian treaty, so as to affect the title of Reddick's heirs? In the treaty of the 4th of August, 1824, between the United States and the Sacs and Foxes, there is this provision: "It being understood that the small tract of land lying between the rivers Des Moines and the Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the use of the half-breeds belonging to the Sac and Fox nations; they holding, however, by the same title and in the same manner as other Indian titles are held." From this, it is evident that no other or greater title is vested in the halfbreeds to this particular tract of land, than was originally held by these tribes to that portion of the land described in the said treaty to which the Indian title was thereby extinguished. It gave the half breeds the Indian right of occupancy, not the title in fee. This the United States was competent to do; they might, if the consent of the Indian tribes could be obtained, extinguish the Indian title, or not, at their pleasure; and no individual claimant to lands occupied by the Indians would have just cause of complaint. But, to transfer the land to which an individual has a just and legal claim, presents a very different case. While this land was the property of Spain, that government granted it to Tesson, who immedi ately settled upon it; and he, and those claiming under him, have occupied the same ever since. The second article of the treaty with France by which the United States acquired the territory in which this land is situated, and which is dated the 30th of April, 1803, provides, "that in the cession made by the preceding article are included the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifi cations, barracks, and other edifices, which are not private property," &c. No difficulty, it seems to me, can arise as to the true meaning of this article. It is a cession of the public, not of the private property of indi viduals; and this is in conformity to the public law, as understood and practised by all civilized nations: which is, where a cession of territory is made by one nation to another, it is understood to pass the sovereignty only, including the public property, but does not affect the rights of private property; and if any doubt could exist on this subject, it would be removed by the expression used in the treaty. The vacant lands are ceded; which shows that the intention of the parties was not to interfere with lands owned by individuals. It has already been stated that the grant of Tesson was made in 1799, and that possession was taken immediately thereafter; and such possession was continued until after an execution sale of the land on the 15th of May, 1803, and for two years thereafter, about which time Thomas F. Reddick, the ancestor of the claimants, on the one part, in this case, became the purchaser, and took possession. During the occupation of Tesson, several improvements were made on said land; cabins were erected; and enclosures made; and an orchard, consisting of one hundred trees, planted, and several arpens of land cultivated in different years. This possession, improvement, and cultivation, must have been known' and sanctioned by the Indians. No complaint whatever appears to have been made by them. I therefore think it not unreasonable to infer, from these circumstances, that they (the Indians) knew of the grant to Tesson made by the Spanish government, and recognised the same; and, therefore, the following article, which was added to the treaty of November 3, 1804, applies to the case under consideration: "Additional article.-It is agreed that nothing in the treaty contained shall affect the claim of any individual or individuals who may have obtained grants of land from the Spanish government, and which are not included in the general line laid down in this treaty: provided that such grants have at any time been known to the said tribes, and recognised by them." From this, it seems that the Sacs and Foxes, as well as the United States, did not intend, by any agreement or treaty of theirs, to impair the rights of grantees under the Spanish government. It was understood by both parties that such claims existed; and, under certain circumstances, their validity is acknowledged by the foregoing article. statutes. It is a sound rule of law, that all statutes made on the same subject shall be taken into view, and construed together, when the object is to ascertain the true meaning of the legislature relative to the subject-matter of such The same rule should be applied in relation to treaties or compacts made between the same parties. Therefore the foregoing "additional article" ought to be considered as in full force, and applicable to all the subsequent treaties and proceedings between the same parties, it never having been changed or annulled by them, but, on the contrary, expressly reaffirmed by another portion of these tribes and the United States in the year 1815. It is insisted that the act of June 30, 1834, vests the title to the land in controversy in the half-breeds of the Sac and Fox tribes of Indians. This cannot be maintained if the views which I have presented be correct. That act only provides that the right, title, and interest, which might accrue or revert to the United States, to the reservation of land lying between the rivers Des Moines and Mississippi, which was reserved for the use of the half-breeds belonging to the Sac and Fox nations, now used by them, or some of them, under the treaty of 1824, is relinquished, and vested in the said half-breeds, with full power to sell or devise, &c. By this act the half-breeds are to have all the right, title, and interest to the reservation which might accrue or revert to the United States, &c. Now, suppose the Indian title had been extinguished to the whole tract of country given by this act to the half breeds in the ordinary way by purchase and removal of the Indians; would it have been said that the 640 acres of land now claimed by Reddick's heirs could have belonged to the United States, and been subject to their disposal? or, on the contrary, would not all men have concurred in saying that the land was the property of Reddick's heirs, and that the United States were bound by their treaty stipulations with France, and by the universal usage among civilized nations, to go on and perfect the title? If this be so, I can see no principle upon which the claim of the half breeds, or their assigns, can be sustained. It ought never to be presumed that the government intended to make two grants for the same lands, or that it intended to grant land again which had been granted by the government under which it derives title; and if a construction can be put upon the acts of government which will avoid such an effect, it ought to be done in this case. Although the exterior boundaries of the reservation in the treaty of 1824 embrace the land in controversy, still it by no means follows that Congress intended to convey it to the half-breeds; because, in the first place, there is a body of valuable land (this being excepted) on which the act of |