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,
January 2, 1839.

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, 1836.)

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 ob tained, 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, 1503, 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 seeins 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 individuals; 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

June 30, 1834, did operate and transfer to the half-breeds. In the next place, the language of the act itself, upon a sound interpretation, excludes the land in controversy. I am therefore of opinion that a patent should issue to Reddick's heirs.

I am, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

CONTINUATION OF THE CONSTRUCTION OF THE CUMBERLAND ROAD.

By force of the act of 3d March, 1837, modifying that of July 2, 1836, the question whether the work in each State on said road shall be executed continuously or not, is left to the discretion of the Secretary of War; except that in the exercise of his discretion, he must observe the last proviso of the act of 3d March, 1837.

ATTORNEY GENERAL'S OFFICE,
January 4, 1839.

SIR: In answer to yours of the 3d instant, asking my opinion as to the legality of ordering the work on the Cumberland road to be conducted continuously, I have the honor to state that, prior to the act of July 2, 1836, the manner of conducting the work in each State, whether continuously or otherwise, seems to have been left to the direction and discretion of your department. By the 2d section of the act above referred to, Congress directed that the moneys appropriated by that act, for the construction of said road in the States of Ohio and Indiana, should be expended in completing the greatest possible continuous portion of said road in the said States. This provision took away from your department its discretion upon the subject upon which my opinion is now asked.

By the 2d section of the act of the 3d of March, 1837, entitled "An act to provide for continuing the construction and for the repairs of certain roads, and for other purposes, during the year 1837," it is declared that the 2d section of an act for the continuation of the Cumberland road, in the States of Ohio, Indiana, and Illinois, approved the 2d of July, 1836, should not be applicable to expenditures hereafter to be made on said road.

This, in my opinion, restores to your department the power it possessed before the passage of the first act; and, whether the work in each State on said road shall be done continuously or not, is again left to the discretion of your department, except that, in the exercise of that discretion, a compliance with the last proviso contained in the first section of the act of the 3d of March, 1837, must be observed.

Your obedient servant,

FELIX GRUNDY.

To the SECRETARY OF WAR.

POWER OF SECRETARY OF THE TREASURY OVER BANKS IN WISCONSIN.

The Secretary of the Treasury has no legal authority to investigate the condition of the banks of Wisconsin Territory against their consent.

Such a power is not conferred by their charters, nor by any of the acts of Congress confirming them.

ATTORNEY GENERAL'S OFFICE,

January 9, 1839.

SIR: I have received yours of the 8th instant, asking my opinion as to the power of your department to examine into the condition of the banks of the Wisconsin Territory against their consent.

In the opinion now to be given, I wish to remark, that I refrain altogether from the expression of any views in regard to the right of a legislative body to examine into the condition of a corporation created by it. Whether such right exists, and is inherent in the law-making power, without any express reservation to that effect, is not necessary now to be considered; the question presented being merely whether your department possesses the authority to do so.

In the charter accompanying your letter there is no such authority conferred; nor is any reference made to your department, either in the charter or the act of Congress confirming it. I cannot, therefore, see any authority which you possess to investigate the condition of said banks against their consent.

I am, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

SEIZURE FOR SUSPECTED INTENTION TO PROSECUTE SLAVE-TRADE.

Where the American consul at Havana, to whom an American brig reported herself, suspected her papers to be fraudulent, and not such as to entitle her to the protection which belongs to vessels sailing under the American flag, and ordered the commander of a ship of war lying at that port to seize and detain her until the government could be advised of the facts and direct as to the course to be adopted; and a correspondence having ensued between said consul and the Captain General of Cuba, disposing of the question of the violation of the sovereignty of Spain, in making the seizure in the port of Havana; and the question under the several navigation acts, and the laws to prohibit the slave-trade, being presented as to the legality of the seizure, and the course to be pursued under the circumstances-DEcided, that, whenever there is just cause to believe that any merchant vessel is engaged in an illicit trade, a public vessel has the right to detain her until our government can act upon the subject; and that the question of the violation of the sovereignty of any foreign government in nowise affects the question in respect to the liability of the suspected vessel to seizure under such circumstances.

Although the laws turn out to be improvident for the punishment of just this species of fraud, it was competent for the consul to give the order, and for the public vessel to make the seizure and dentention-nevertheless, without further proof that the vessel was engaged or arranged to be engaged in the slave trade, further proceedings should not be taken in the premises.

ATTORNEY GENERAL'S OFFICE,
January 12, 1839.

SIR: I have the honor to acknowledge the receipt of yours of the 9th instant, accompanied by the communication of the consul of the United States at Havana, and the correspondence between him and the Captain General of that place; and you ask my opinion upon the subject-matter embraced in these documents.