James and Simeon, two of the children of Mauk nah-tee see, by the fifth article of the Winnebago treaty of 1st of August, 1829, and inquiring whether the approval of the President of that location, on the 8th of June, 1838, vests the title of the reservee, notwithstanding the fact that the two sections so located are included in the selections made on the 18th of April, 1836, by certain Polish exiles, under the act of 30th of June, 1834, but which were never definitively or formally approved by the Secretary of the Treasury or the Commissioner of the General Land Office. In reply, I have to state, that it appears from the papers submitted to me that a question exactly similar was presented to my predecessor Mr. Butler, when Secretary at War ad interim, in regard to a location made under the same circumstances, by Catherine Myott, another of the reservees under the same treaty. In that case, it is stated in the letter of the Commissioner of Indian Affairs to the Commissioner of the General Land Office, dated 20th of February, 1837, that "the objection arising from previous selections for the Polish emigrants, of sections thirteen and fourteen, township forty four, range one east, had been submitted to the Secretary of War, who was of opinion that the rights of the reservees are not thereby in any degree impaired." In consequence of this decision, the location of the reservee was confirmed, and notice given to, and a new selection of a corresponding quantity made by, the agent of the Polish exiles. Unless there is some essential variation between that case and the one now before me, which I do not perceive, the point you submit should be regarded as decided. If there is any such variation, and you will have the goodness to apprize me of it, I will examine the case more fully. To the SECRETARY OF WAR. H. D. GILPIN. PATENTS TO CREEKS WHO HAVE REMOVED INTO GEORGIA. Heads of Creek families who otherwise would be entitled to a patent for land in Alabama, have not forfeited their right to the same by having become residents and citizens of Georgia, before the expiration of five years from the time when his reservation was selected. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 31st July, enclosing a communication from the Commissioner of Indian Affairs, with certain papers relative to the claim of Dick Spiller, a head of a Creek family, for a patent under the fourth article of the Creek treaty of the 24th of March, 1832, and inquiring whether the fact of his having become a citizen and resident of Georgia, before the end of five years from the time when his reservation in Alabama was selected and set apart to him, precludes him from receiving a patent therefor, now that the five years are expired. In reply, I have to say that I concur with the Commissioner of Indian Affairs in the view of the case which he has submitted to you; and am of opinion that the fact above stated does not preclude the right of the Indian to a patent for his reservation, if he is entitled to receive it in other respects, and if he exhibits satisfactory evidence of his having remained east, and of his desire still to do so. To the SECRETARY OF WAR. H. D. GILPIN. COLLECTORS' BONDS UNDER ACT OF JULY 4, 1840. Collectors are not required to give bonds in a larger amount than before under the act of July 4, 1840, unless it shall be deemed necessary by the proper officers of the department; but they are required to give new bonds with new conditions embracing the new duties devolved upon them, as well as those previously required. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 6th instant, relative to the opinion expressed by me on the 31st July, as to the propriety of the collector of the port of New York giving a new bond to embrace the duties and responsibilities that may devolve upon him under the provisions of the act of 4th of July, 1840, and enclosing a letter from Mr. Hoyt on the subject. In compliance with your request, I have carefully considered Mr. Hoyt's remarks, but am unable to feel myself warranted in advising a deviation from the course which has been decided, and, as I understand, already acted upon by your department in other similar cases. On one suggestion of Mr. Hoyt's it may be proper for me to say a word. He observes, that he is already under bond for $200,000, and that to require him to give a new bond in the sum of $200,000 is somewhat oppressive-evidently understanding that the new bond is in addition to the former. I am of opinion that such an additional bond is not required by the act of July 4, 1840, but merely a new bond which shall embrace the new duties and responsibilities that may be devolved on the collector, as well as those previously required of him; and the amount of which need not exceed his present security, if that sum is such as seems reasonable and safe to the proper officers of the department. To the SECRETARY OF THE TREASURY. H. D. GILPIN. OD COMPENSATION OF OFFICERS OF THE CUSTOMS. The compensation of officers of the customs is to be regulated and graduated by the importa tions of the present year; the act of July 21, 1840, merely substituting the present for the year 1838. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 11th instant, relative to the construction of the seventh section of the act of July 21, 1840, which revives the third section of the act of July 7, 1838; and inquiring whether the payments to the officers of the customs, therein referred to, are to be regulated by the importations of the present year, or by those of 1838. In reply to this inquiry, I have to state that, in my opinion, it was the intention of Congress that the allowance should be regulated by the importations of the current year. The part of the third section of the act of July 7, 1838, which is referred to, authorizes the Secretary of the Treasury to pay the officers of the customs who are designated such sums as will give them, respectively, "the same compensation in the year 1838, according to the importations of that year, as they would have been entitled to receive if the act of July 14, 1832, had not gone into effect." In reviving this provision, the seventh section of the act of July 21, 1840, declares that it is "revived and continued in force for the year 1840, and until otherwise directed by law." The obvious intention of this is to substitute for the year 1838 the year 1840, and to make an allowance for the latter, corresponding in its character with that which had been made for the former-that is, an allowance graduated on the current importations. To suppose that the allowances for one year were to be graduated by the importations of another, would be in direct variance from such intention, and make the provision of 1840 essentially different in its nature from that of 1838, with which it was intended to conform. If any doubt could exist upon this point, from the language of the present act, it would be removed by observing that a provision exactly similar is found in the acts of March 2, 1833; June 27, 1834; March 3, 1835; July 4, 1836, and March 3, 1837; and in each the compensation is graduated by the import ations of the current year. To the SECRETARY OF THE TREASURY. H. D. GILPIN. EXTRA COMPENSATION TO NAVY AGENTS FOR EXTRA SERVICES. Navy agents employed to make purchases, or to perform any services for a department other than the Navy Department, are not entitled to extra compensation unless compensation for the extra services is expressly authorized by law. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive the letter of Mr. Stubbs, written by your direction, and inquiring whether a navy agent, employed to make purchases or perform any services for a department other than the Navy Department, can be allowed a commission or compensation for such ser vices. The third section of the act of March 3, 1839, provides "that no officer in any branch of the public service, or any other person, whose salary or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation shall be authorized by law." The construction of this section, as given by my predecessor (Mr. Grundy) in his opinion of the 4th April, 1839, was-" First, that in case of any general appropriation of a sum of money for the accomplishment of any object, no part can be paid to a person receiving an annual salary, or pay and emoluments fixed by law, for any service he might render in relation to it, which services are not directed to be paid for by the act. Secondly, that no portion of the contingent fund of a department can be applied to the payment for extra services rendered by any person receiving an annual salary, or whose pay or emoluments are fixed by law; because no particular services are designated in the acts making such appropriations, to which the money, or any part of it, is to be applied. If, therefore, the services to which you refer are not those which come properly within the duties of the navy agent, or those for which an allowance or compensation is expressly authorized by law, I am of opinion that it cannot be given. To the SECRETARY OF STATE. H. D. GILPIN. EXTRA COMPENSATION TO JUDGES FOR EXTRA SERVICES. Extra compensation to the judge of the superior court at St. Augustine, for examining and adjudging certain cases of claims, cannot be allowed, as there is no appropriation for the services, and no provision for their payment, in the act requiring them. ATTORNEY GENERAL'S OFFICE, October 21, 1840. SIR: I had the honor to receive your letter of the 24th September, relative to the allowance to be made to Judge Reid for services performed under the act of 26th June, 1834, and inquiring whether the 3d section of the act of 3d March, 1839, has precluded a continuance of the allowance. The third section of the act of 3d March, 1839, provides "that no officer in any branch of the public service, or any other person, whose salary or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation shall be authorized by law." The construction of this section, as given by my predecessor (Mr. Grundy) in his opinion of the 4th of April, 1839, was "First, in case of any general appropriation of a sum of money for the accomplishment of any object, no part of it can be paid to a person receiving an annual salary, or pay and emoluments fixed by law, for any services he might render in relation to it, which services are not directed to be paid for by the act. Second, that no portion of the contingent fund of a department can be applied to the payment for extra services rendered by any person receiving an annual salary, or whose pay or emoluments were fixed by law; because no particular services are designated in the acts making such appropriations, to which the money, or any part of it, is to be applied." This opinion has since formed the invariable rule, so far as I am aware, in the allowance to officers receiving salaries, or compensation, for any services they may perform, in addition to those which are embraced within their regular official duty. The act of 26th June, 1834, which requires the judge of the superior court at St. Augustine to receive, examine, and adjudge the cases of claim therein referred to, does not provide or authorize any payment therefor. Nor is there any appropriation by law for the payment of these services, or any clause in the general appropriation acts which refers to it, or provides for them. Previous to the passage of the act of 3d March, 1839, they were paid for under the clause in the general appropriation law which set apart a certain sum "for the discharge of such miscellaneous claims against the United States, not otherwise provided for, as shall be ascertained and admitted in due course of settlement at the treasury.' It will be seen that, under the above construction given to the third sec tion of the act of 3d March, 1839, and since uniformly adopted, such payment cannot be made, since its passage, out of that fund, to an officer receiving a salary fixed by law, where such services are not expressly directed to be paid for. Being sensible of the force of the views taken by Governor Reid in his communication submitted with your letter, I have given to them very deliberate consideration; but I have been unable to bring myself to the opinion that, under the settled construction which has been given to the act in question, in regard to the payment of extra compensation to salaried officers, the payment for which he applies can be made by the department, without additional authority from Congress. To the SECRETARY OF THE TREASURY, H. D. GILPIN. TRANSFER OF STOCKS FROM THE CHICKASAW TO THE CHOCTAW FUND. The Chickasaw invested stocks belonging to the fund created by the treaty of 20th October, 1832, cannot be transferred to the Choctaws in payment of the land purchased of them, with out the previous consent of the President and Senate. The general assent of the President and Senate to the stipulations of the convention between the Chickasaws and Choctaws, by which the former were to pay the latter five hundred and thirty thousand dollars, cannot be regarded as such an assent as to authorize an application of the funds of the Chickasaws to the payment suggested. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 29th October, relative to the proposed transfer of stocks, to the amount of $500,000, from the Chickasaw fund, created by the treaty of 20th October, 1832, to the Choctaws, in payment of the land purchased from them; and inquiring whether, under the 13th article of the treaty of 24th May, 1834, and the third article of the convention of 17th January, 1837, between the Chickasaws and Choctaws, such transfer can be made without the previous consent of the President and Senate. The 11th article of the Chickasaw treaty of the 20th October, 1832, provided that a fund should be created for the benefit of that tribe, by investing three fourths of the net proceeds derived from the cession of their lands to the United States, "in some safe and valuable stocks," which might bring them in an annual dividend; this investment being made "under the direction of the President of the United States, by and with the advice and consent of the Senate." It was further provided, that if, for any valuable national purposes, it should become requisite to draw out a portion of the sum so invested, the same might be done "by the consent of the President and Senate." The thirteenth article of the Chickasaw treaty of the 24th May, 1834, (which was made when that tribe were about actually to leave the lands so ceded,) provides, that if they should be so fortunate as to procure a home within the limits of the United States, then," with the consent of the President and Senate," so much of their invested stocks as might be necessary to the purchase of a country for them to settle in should be permitted to be sold; or the United States would advance the necessary amount, on a guaranty and pledge of an equal amount of their stocks. On the 20th January, 1836, |