TO WHOM PATENTS FOR CREEK RESERVES SHALL BE ISSUED.

On completion of payment for Creek reserves conveyed by the reservees to other persons, certified by some person appointed by the President for that purpose, and approved by the President himself, patents must issue to the purchasers.

It will not be a compliance with the treaty of 24th March, 1832, to issue patents in such cases where the right is controverted to the original reservees to abide the result of suits and to inure to the successful parties.

ATTORNEY GENERAL'S OFFICE,

February 7, 1839.

SIR: I have considered the subject referred to this office by yours of the 21st ultimo, respecting the Creek reservations under the treaty of the 24th of March, 1832. You say in substance, that a request has been preferred to you to issue the patents for the lands in controversy to the original Creek reservees, that the respective claimants may have a fair opportunity of trying their rights before the courts in Alabama; the patents to inure to the benefit of the successful parties.

However reasonable this proposition may appear, a preliminary question presents itself: Have you the power to make this disposition of the sub. ject?

The third article of the treaty of the 24th of March, 1832, entered into between the United States and the Creek tribe of Indians, is as follows: "These tracts [meaning Creek reservations] may be conveyed by the persons selecting the same to any other persons for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appointed by the President for that purpose, but shall not be valid till the President approves the same; a title shall be given by the United States on the completion of the payment." By this it appears that, by a solemn compact between the contracting parties, a tribunal was created which is to decide to whom the patents are to issue, and that tribunal is the President of the United States. In the discharge of this duty, he is to guard the rights of the Indians against frauds and impositions, at the same time that he protects the rights of the United States. Until the President has acted in compliance with the duties enjoined on him by the treaty, I can see no authority in any other department of the government to interfere with these titles; nor can the President delegate such authority, either directly or indirectly, to another tribunal.

The treaty authorizes the Creek reservees to sell their lands and convey them for a fair consideration. The fact of sale, and the fairness of the consideration, are all to be inquired into; and the contracts are to be certified to the President by a person selected by himself for the purpose. Still, the contract is not valid until the President approves the same; nor is a title to be given until the whole consideration shall have been paid, &c. Surely, to issue the patents to the original reservees, where they have sold their lands, would be an evasion of the treaty stipulation. The fact of sale, the fairness of the consideration, and the completion of the payment, would all be tried and decided on in a manner and by a tribunal different from the one designated by the treaty.

There are other reasons which might be suggested against the issuing the patents in the manner proposed, which need not be enumerated at this time. My opinion is, that the President must act agreeably to the pro

visions of the treaty before any patents can issue for the lands selected as reservations, and which have been sold by the reservees.

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

To the SECRETARY of War.

FELIX GRUNDY.

TRANSFERS OF APPROPRIATIONS TO THE SURPLUS FUND.

The law does not require a transfer of the unexpended balance of the appropriation made by Congress for carrying into effect the treaty of December 29, 1835, with the Cherokees; and, although two years have elapsed, Congress has shown no disposition to abandon the project of their removal, but, on the contrary, passed acts to promote the object.

Wherefore, it is competent for the War Department to make a requisition for such unexpended balance.

ATTORNEY GENERAL'S OFFICE,

February 14, 1839. SIR: I have received yours of enclosing the communication of the Secretary of the Treasury to you; from which it appears that there is in the treasury an unexpended balance of $1,231,848 66, being the balance of an appropriation to carry into effect the treaty with the Cherokees of December 29, 1835; said appropriation being made by the act of July 20, 1836. You also state that this money is required to carry into full effect the said treaty; and that inconvenience will result from a transfer of it to the surplus fund, as the Indians are entitled to receive it upon their arrival at their new homes in the west, they being now on their way thither.

It seems to me that the law does not require that this unexpended balance should be transferred to the surplus fund. The second section of the act of May 1, 1820, points out the duties of the different Secretaries in regard to subjects of this kind, and, in my opinion, fully warrants your department now to make the requisition for this unexpended balance. The object of that section, as well as the first section of the act, was evidently to have the surplus money refunded, which had been appropriated for particular objects, and which remained on hand after the accomplishment of the said objects. And it could never have been the intention of Congress to impede or defeat the prosecution of an object while in the progress of accomplishment, and which Congress had itself directed to be accomplished. Otherwise, they would never have inserted the following proviso at the end of the second section: "Provided, That when an act making an appropriation shall assign a longer duration to the accomplishment of its object, no transfer of any unappropriated balance to the account of the surplus fund shall be made until the expiration of the time fixed in such act."

This shows that the limitation of two years was introduced for the purpose of embracing moneys not needed for the objects contemplated at the date of their appropriation, but not to defeat the objects designed to be accomplished by Congress. By the treaty with the Cherokees, article 16, it is stipulated and agreed that they shall remove to their new homes in two years from the ratification of the treaty. All parties expected that the remeval would be effected within that period. Had this been done, the

money appropriated, and which is now in the treasury, would have been expended within the two years after its appropriation. The Indians could not be removed within the two years, for reasons which I need not mention. The last of them are now probably on their way to their homes west of the Mississippi, and will be entitled to this money upon reaching the place of their destination. Congress has shown no disposition to abandon the object of this appropriation-that is, the removal of the Cherokees; so far from it, that, since the appropriation was made, Congress have passed acts to promote this same object. I am, therefore, of opinion that the unexpended balance of the appropriation referred to should not be carried to the surplus fund, but be applied as originally directed by Congress. I am, sir, &c., &c.,

To the SECRETARY OF War.

FELIX GRUNDY.

CLAIM OF GENERAL SCOTT TO COMPENSATION FOR SUPERINTENDING REMOVAL OF CHEROKEES.

The claim of General Scott for compensation, at the rate of eight dollars per day over and above his regular salary, for arranging and superintending the removal of the Cherokees, even though he were a special commissioner to effect that object, cannot properly be allowed.

ATTORNEY GENERAL'S OFFICE,
February 15, 1839.

SIR: I have the honor to acknowledge the receipt of yours of the 7th instant, enclosing General Scott's letter. All the views and arguments presented by him were considered before my opinion of the 22d of December, 1838, was given; except that the fact of his appointment by the President, as commissioner to make arrangements with the Cherokees for their removal, was not known at this office. That fact produces no change in my opinion. The proviso to the act of the 3d of March, 1835, operates upon the claim set up by General Scott, acting under such an appointment, as fully as if he had acted without it. Such, I am of opinion, is the fair construction of the act of Congress; nor do I see any reason, in the nature of this claim, why it should be exempt from the full operation of the proviso of said act.

In this case, a major general of the army of the United States, in the receipt of his full pay and emoluments of office, has been directed to proceed to the Cherokee country, and by force, if necessary, to cause a removal of the Indians agreeably to treaty stipulations; but the President, desirous to prevent violence and bloodshed, gave to General Scott authori ty to make arrangements or contracts for the removal of the Indians, if thereby the objects of the treaty could be accomplished on reasonable terms, and without a resort to force. Under this authority General Scott acted, and acted faithfully and successfully. But, has he even an equitable claim for the $8 per diem claimed by him while engaged in this service? I think not. When performing this service, he was receiving his pay and emoluments as major general; and by virtue of the authority conferred upon him as commissioner, he was enabled to change his character

from that of a destroying warrior to that of a kind pacificator. The duty was easier and of a more agreeable character. Upon the whole case, I am of opinion that General Scott has no right to the money claimed by him, either in law or equity.

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

To the SECRETARY OF WAR.

FELIX GRUNDY.

REPRIEVES AND PARDONS.

The power of the Executive to grant reprieves and pardons extends to the remission of fines, penalties, and forfeitures, and costs in criminal cases, and may be exercised in degrees at different times at the discretion of the incumbent of the office.

A portion of a sentence may be remitted at one time, and another portion of it at another time, and by another Executive

And the same power is possessed by the Executive over a judgment after security for its payment shall have been given, as before.

ATTORNEY GENERAL'S OFFICE,

February 16, 1839.

SIR: In yours of the 12th of February, 1839, my opinion is asked as to the power of the President to remit the costs in the case of the United States vs. Martin.

The constitution of the United States clothes the Executive with the power to grant reprieves and pardons," &c. This power has been construed to extend to a remission of fines, penalties, and forfeitures; and the power to remit the costs in criminal cases, after judgment against the defendant, has been exercised, and has never been questioned, so far as I can learn. The view taken upon the subject seems to have been, that the costs are a part of the judgment or sentence; and the same constitutional power which can remit a portion of the sentence, may remit the whole sentence. This practice has prevailed so long, and is so well sanctioned by a fair censtruction of the constitution, that I presume it ought not at this day to be disturbed.

The only remaining inquiry is, Has any thing occurred which deprives the Executive of the United States of the power which he possessed over the judgment at the time it was originally rendered in this case? The late President issued his pardon, releasing Martin from his imprisonment, upon his paying or securing the costs which had accrued in the prosecution. The said Martin did give security for the payment of the costs in two years, and was thereupon discharged from his confinement. That the Executive, possessed of the pardoning power, may exercise it in part at one time, and in part at another, I think can admit of no doubt. The pardoning power given by the constitution is plenary, cases of impeachment only excepted. Its exercise, and the mode of its exercise, are placed, without condition or limitation, wholly in the discretion of the President. He may, therefore, in my opinion, pardon or remit a portion of the sentence at one time, and a different portion at another. I therefore do not think that the remitting the imprisonment by the late Chief Magistrate, upon condition of the defendant's paying or securing the costs, deprives the present Chief Magistrate of the power of remitting the costs, the payment of which was so secured.

The giving sureties to secure the costs cannot, in a legal point of view, affect the power of the President. The security is but collateral. It is the judgment that is to be discharged; and if the money were paid by the sureties, it would be in satisfaction of that judgment. I should therefore conclude that the President possesses the same power now over the judgment, which he possessed at the time of its rendition.

The expediency or inexpediency of exercising the pardoning power, in the form and in the case now presented, is a subject exclusively within the power and discretion of the President; and in relation to which I therefore forbear to express any opinion.

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

To the SECRETARY OF STATE.

FELIX GRUNDY.

CONSTRUCTION OF AN APPROPRIATION ACT.

Where an appropriation act for the expenses of preventing and suppressing Indian hostilities expressed a sum for the aggregate less than the aggregate, in fact, of the several items there in enumerated-DECIDED, that the amount equal to all the items was appropriated, and that an erroneous addition of said items produced no effect upon the law.

ATTORNEY GENERAL'S OFFICE,

March 13, 1839.

SIR: Yours of yesterday proposes for my opinion a question arising upon the act of the late session of Congress, entitled "An act making appropriations for preventing and suppressing Indian hostilities for the year 1839." The difficulty arises from the fact that the gross sum stated in the first section of the act is less than the amount of the several items which are enumerated in the act.

The phraseology of the first section of the act seems to me to obviate all difficulty. It is, "that the following sums, amounting to one million eight hundred and four thousand seven hundred and seventy-four dollars, be, and the same are hereby, appropriated out of any money in the treasury not otherwise appropriated."

The sums enumerated and specified in the act are appropriated; and a mistake in the addition or otherwise, which shall produce an erroneous result as to the amount, can produce no effect upon the appropriation. The different items of appropriation should be looked to and respected; these Congress certainly intended to have effect, and an error which shall make the aggregate amount either greater or less than the different sums enumerated in the act should not be regarded. The appropriation would be perfect without the addition of the gross sum. The unnecessary insertion of a mistaken amount, in my opinion, produces no legal effect whatever.

Yours, with great respect,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.