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remain theirs until they choose to sell the same to the people of the United States who may have the right to purchase." It is understood to be in relation to this land that Mr. Ogden's question arises. It appears that a question once existed between the States of Massachusetts and New York as to the eminent domain over these lands; which was com. promised by assigning the right of soil to the former, and the jurisdic. tion to the latter. Massachusetts having granted her right of soil in these lands to a company of individuals, and these individuals being desirous of making partition among themselves, Mr. Ogden, acting in their behalf, proposes to have a survey of the lands for the purpose of this partition, and has requested your department to facilitate this measure by giving the necessary instructions to the United States agent. Hereupon you request my opinion as to the right of the individuals claiming under Massachusetts to enter upon these lands for the purpose of making this survey.
The answer to this question depends on the character of the title which the Indians retain in these lands. The practical admission of the European conquerors of this country renders it unnecessary for us to speculate on the extent of that right which they might have asserted from con. quest, and from the migratory habits and hunter state of its aboriginal occupants.-(See the authorities cited in Fletcher and Peck, 6 Cranch, 121.) The conquerors have never claimed more than the exclusive righé of purchase from the Indians, and the right of succession to a tribe which shall have removed voluntarily, or become extinguished by death. So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. Of the admission of this principle, the treaty above referred to furnishes a proof. The United States stood in need of a road through the lands of the Senecas from Fort Schlosser to Lake Erie; yet, inasmuch as they had no authority to enter upon the lands of the Senecas, even for the purpose of passing through them, without their consent, their right of way became the subject of compact. Although the Indian title continues only during their possession, yet that possession has been always held sacred, and can never be disturbed but by their consent. They do not hold under the States, nor under the United States; their title is original, sovereign, and exclusive. We treat with them as separate sovereignties : and while an Indian nation continues to exist within its acknowledged limits, we have no more right to enter upon their territory, without their consent, than we have to enter upon the territory of a foreign prince.
It is said that the act of ownership proposed to be exercised by the grantees under the State of Massachusetts will not injure the Indians, nor disturb them in the usual enjoyment of these lands; but of this the In. dians, whose title, while it continues, is sovereign and exclusive, are the proper and the only judges. Those who hold only a remainder, depending on a contingency which may be very remote, have an interest in rendering the Indian possession unquiet and troublesome. It must be mani. fest that such an operation as that which is proposed (more especially if it be done without their consent) is calculated to excite great inquietude in their minds, and to dispose them to yield the possession of their lands on terms to which they would not assent while their title is respected. We have acknowledged by treaty that these lands are theirs; and by the same treaty have bound ourselves not to disturb them in the free use and enjoyment of these lands. By the same treaty, also, we have disclaimed the right to pass through their lands, or to navigate their waters, without their consent.
I am of opinion that it is inconsistent, both with the character of the Indian title and the stipulations of their treaty, to enter upon these lands, for the purpose of making the proposed surveys, without the consent of the Indians, freely rendered, and on a full understanding of the cuse. The papers are returned. I have the honor to be, &c.,
WM. WIRT. To the SECRETARY OF WAR.
The act of 24th April, 1816, authorizing certain charges for forage, for horses, servants, &c.,
for certain officers, is prospective in its operation, and refers only to the act of 3d March, 1813, for a standard to govern the subject in future.
OFFICE OF THE ATTORNEY GENERAL,
April 30, 1821. Sir: General Jackson's account has, I think, been settled according to law. The act of the 3d of March, 1815,"fixing the military peace estab. lishment of the United States," retains in service two major-generals; and expressly enacts that they shall be entitled to the same compensation as is provided by an act entitled “An act to raise an additional military force, passed eleventh January, one thousand eight hundred and twelve; and the act thus referred to as fixing the compensation, provides, expressly, “that the major generals, respectively, shall be entitled to two hundred dollars monthly pay, with twenty dollars allowance for forage monthly, and fifteen rations per day.” This allowance has been made io General Jackson. The same act of the 3d of March, 1815, first referred to, provides also that the officers, &c., retained in the peace establishment by that act should be entitled to the same benefits and allowances in every respect, not inconsistent with the provisions of that act, as were authorized by the act of March 16, 1802, entitled "An act fixing the military peace establishment of the United States;" by which latter act there was an allowance to every commissioned officer who shall keep one servant, of one additional ration. This also has been allowed to General Jackson; and thus the whole compensation authorized by the act of the 3d of March, 1815, fixing the peace establishment, has been allowed in the setilement of the accounts of that officer. The claim which General Jackson makes of forage for seven horses, at the rate of $8 per month each, and of the pay, rations, and clothing of a private soldier of the line, for four servants each, is not sustained by law. These allowances, which were made during the war, did not grow out of the acts of the 11th of January, 1812, and of the 16th of March, 1802, which the act of the 3d of March, 1815, assumes as the standard of compensation; they grew out of subsequent and independent acts and regulations, the whole of which were suspended by the act of 1815 fixing the peace establishment, and, consequently, could no longer give the rate of compensation. The act of the 24th of April, 1816, authorized these charges to be restored, and to be thereafter made; since which period, I understand, they have, in conformity with this act, been allowed.
General Jackson is understood to rely on the 9th section of this last act as looking retrospectively to the intermediate period, and authorizing these charges to be allowed through the whole of that period. But I understand the operation of this clause as merely prospective; it does look back, indeed, to the 3d of March, 1813, and to the regulations in force at the reduction of the army; but it looks back to these merely as furnishing the standard which shall in furure govern the subject, "so far as the same shall be found applicable to the service-subject, however, to such alterations as the Secretary of War may adopt with the approbation of the President.” In short, the account could not have been settled otherwise than it has been, without a violation of the act of the 3d of March, 1815, from which the accounting officer had no authority to depart. I have the honor to be, sir, very respecifully, your obedient servant,
WM. WIRT. To the SECRETARY OF War.
THE MILITARY ACADEMY, PROFESSORS, &c.
The existing regulations for the government of the military academy may be altered by the
Secretary of War, with the approbation of the President.
meaning of the 64th article of the rules and articles of war, for the purpose of being detailed as members of a general regimental court-martial; nor can such court be formed of professors,
for the trial of cadets. Cadets may be tried by a regimental or garrison court-martial, according to the 66th and 67th
articles of the rules and articles of war.
OFFICE OF THE ATTURNEY GENERAL,
May 19, 1821. Sır: As the corps of engineers which constitutes the military academy is retained in service as part of the military peace establishment of the United States, and as the ninth section of the act of the 24th April, 1816, (to which you refer,) after recognising the regulations for the army which were in force before its reduction in 1815, expressly subjects those regulations to such alterations as the Secretary of War may adopt, with the approbation of the President, I have no doubt that the Secretary of War may, with the approbation of the President, alter, at pleasure, the existing regulations for the government of the military academy, or any other portion of the army, even although such alteration should go to an entire change of the present system; provided that the regulations, as proposed to be al. tered, be consistent with the constitution and laws of the United States.
On the second question, I am of opinion that the professors of the military academy, as such, and the cadets attached to that academy, are not commissioned officers, within the meaning of the 64th article of the rules and articles of war, for the purpose of being detailed as members of a general regimental court-martial; nor can such court be formed of the professors for the trial of cadets, which I understand to be the precise ques. tion intended to be submitted. If the professors are commissioned officers at all, within the meaning of the 64th article, their qualifications to sit on courts-martial cannot be restricted to the trials of cadets; that article looks to the whole army, and those who are commissioned officers, within its meaning, are qualified as members of a general court-martial for the trial of any part of the army. The professors of the academy constitute a part of what is called in the second section of the act of the 29th April, 1812, the “academical staff;" like the other portion of the non-combatant or civil part of the staff of the army, they have no military conimand, nor rank, lineal or assimilated; and consequenıly have no portion of that military power or authority, of which the aggregate power of martial courts is composed. The President may, by his regulations of the civil police of the academy, invest them with authority adequate to all the purposes of their professorships; but he can invest them with no portion of judicial power to affect the life or liberty of others. With respect to cadets, they have still less pretensions to that character of commissioned officers which is contemplated by the sixth article. By adverting to the fourth article of the act of April 29, 1812, “making further provision for the corps of engineers and military acadeniy," you will perceive that they are expressly contradistinguished, not only from commissioned officers, but even from brevetted officers of the lowest grade; for, according to this article, they are not considered even as candidates for commissions until they shall have received a regular degree from the academical staff; and the section further provides, that in case there be no vacancy for such graduate, he may be attached, " by brevel of the lowest grade, as a supernumerary officer.'
On the third question, I am of opinion that cadets at the military acad. emy may be tried by a regimental or garrison court-martial, according to the 66th and 67th articles of the rules and articles of war; hecause they are not commissioned officers, and belong to a separate and detached corps. I have the honor to remain, sir, your very humble, obedient servant,
WM. WIRT. To the SECRETARY OF WAR.
REMOVAL OF INTRUDERS ON PUBLIC LANDS.
Intruding settlers on the public lands may be removed by military force, under act of 3d
March, 1807. The United States have, also, all the common law and chancery remedies enjoyed by individuals, under similar circumstances, for protection and redress.
OFFICE OF THE ATTORNEY GENERAL,
May 27, 1821. SIR: It would seem from the Land Office endorsement in Mr. Beauchamp's letter of the 23d ultimo, which you have referred for my opinion, that the waste of timber of which he complains was committed by intruding settlers on the public lands in Illinois: if so, the intruders may be removed by military force, under the act of the 3d March, 1807,“ to pre. vent settlements, &c.;" and, by the 4th section of that act, the intruders are subject to fine and imprisonment if they continue to remain on the land under the circumstances therein stated.
Even if the intrusion be avowedly not for settlement, but for waste, I think that the intruder may be removed by the marshal, under the instructions of the President, under the 4th section aforesaid; that permanent instructions may be issued for this purpose; and that any and every intruder may be forth with removed the moment that he indicates any intention of exercising an act of ownership over the land, (which the cutting of timber would be,) or if he refuse to withdraw on the order of the marshal: all lawless intrusions being within the mischief of the act, and it being impossible to infer with certainty from the mere act of intrusion whether it be with a view to settlement or not.
I find no act of Congress which provides for the waste of timber on the public lands, separately considered, except in relation to timber growing on land reserved for naval purposes, and live-oak or red cedar timber growing on any other public lands of the United States, in relation to which the act of 1st March, 1817, subjects the offender to fine and imprisonment.
But, independent of positive legislative provisions, I apprehend that in relation to all property, real or personal, which the United States are authorized by the constitution to hold, they have all the civil remedies, whether for the prevention or redress of injuries, which individuals possess. It was on this principle that the right of the United States to in. stitute an action on a protested bill of exchange was sustained in the case of Dugan against the United States, reported in 3 Wheaton, 181. The United States being authorized by the constitution to contract, have a right to enforce the performance of such contract, or to recover damages for its violation, by actions in their own name, unless a differ. ent mode of suit be prescribed by law." " It would be strange," said the court, « to deny them a right which is secured to every citizen of the United States.” So the United States, being authorized to accept and to hold these lands for the common good, must have all the legal means of protecting the property thus confided to them, that individuals enjoy in like cases; for it would be quite as strange in this case, as in bills of ex. change, to deny them a right which is secured to every citizen of the United States. They are, therefore, in my opinion, entitled to the injunc. tion of waste, by way of prevention, and to the action of trespass, by way of punishment, in like manner as individuals similarly situated are enti tled to them. Of the applicability of both or either of these remedies to any given case, the district attorney must, of course, judge. It may not be improper, however, to remark, generally, that the injunction would apply properly to all coterminous or neighboring settlers, by whom any previous act of waste may have been comınitted, and who, from their po sition, have a facility in repeating the offence; to all who have been in the habit of committing this waste; and to all who menace it. And I should apprehend that this remedy, connected with the power which the courts of chancery have to enforce it, and with the other power before mentioned, of the immediate removal of intruders, would, under the superintendence of vigilant officers, be strong enough to prevent the habitual recurrence of the mischief; while the action of trespass, rigorously enforced, would be sufficient to punish those who might elude the means of prevention. It may not, however, be amiss to suggest that it would be advisable for Congress to extend to this case at least the remedy which they have provided against the spoliation of timber for naval purposes; if, indeed, the offence, from its greater frequency, and the greater