tion laws; for, both by the act of April 18, 1818, and that of the 15th May, 1820, the restriction on British vessels about to clear out from ou ports is expressly confined to such as "shall have been there laden for exportation with any article or articles of the growth, produce, or manu fucture of the United States, other than provisions and sea stores neces sary for the voyage."

Í have the honor to remain, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.`

WM. WIRT.

NAVY PENSIONERS.

A seaman disabled by punishment inflicted by an enemy for endeavoring to escape from hit after having been taken prisoner, is within the spirit of the act of 23d April, 1800, granun pensions to seamen disabled whilst in the line of their duty.

SIR: The case stated by you, for my opinion, is as follows: "One of our seamen, captured by the Tripolitans in 1803, on boar the frigate Philadelphia, after fifteen months' rigorous captivity, made a attempt, with five of his messmates, to recover liberty and rejoin th American squadron, then outside the harbor of Tripoli. The attemp proved abortive; he and his companions in his suffering were retaken brought back, and punished by bastinado in the most cruel manner, th effects of which were so severe as to render one of the party ever after wards incapable of performing duty as a seaman. This disabled seama now applies for a pension:"-and you request my opinion "whether h be, under the circumstances of the case as stated, and by the act of Con gress on the subject, entitled to relief from the navy pension fund?"

The act of Congress of the 23d April, 1800, which creates this fund provides "that every seaman or marine disabled in the line of his dul shall be entitled to receive, for life or during his disability, a pensio from the United States, according to the nature and degree of his disa bility, not exceeding one-half of his monthly pay."

By the same act, the navy pension fund is constituted "forever a fun for the payment of pensions and half pay, should the same be hereaft granted to the officers and seamen who may be entitled to receive th same: and if the said fund shall be insufficient for the purpose, the pu lic faith is hereby pledged to make up the deficiency; but if it should t more than sufficient, the surplus shall be applied to the making of furth provision for the comfort of the disabled officers, seamen, and marine and for such as, though not disabled, may merit by their bravery or lon and faithful services the gratitude of their country."

The navy fund, thus devoted to these broad and liberal purposes, wa by the same act, placed "under the management and direction of t Secretary of the Navy, the Secretary of the Treasury, and the Secreta of War, for the time being;" who were thereby authorized to receive t moneys appropriated to that fund, "and to employ and invest the san and the interest arising therefrom, in any manner which a majority them may deem most advantageous." By a subsequent act, (that of

6th March, 1804,) it was provided that the commissioners of the navy ension fund be, and are hereby, authorized and directed to make such egulations as may to them appear expedient for the admission of persons the roll of navy pensioners, and for the payment of the pensions." The authority thus given to the commissioners has not, so far as I can iscover, been taken away or abridged by any subsequent act. The uestion, therefore, whether the seaman, in this case, be entitled to the ension which he asks, belongs exclusively to them.

Subject to this paramount authority, I have no hesitation in expressing he opinion, that the case of the seaman now under consideration is not nly within the spirit and reason of the act of the 23d April, 1800, but, y a fair and liberal construction, within its letter too. He was, I think, s much within the line of his duty when the disability occurred, as if he ad been disabled in the original capture of the Philadelphia, or in a ecent attempt, immediately thereafter, to escape from captivity and reurn to his duty. A different construction would, I think, be too narow-would be inconsistent with the policy as well as the liberality of he provision, and wholly incompatible with the more expanded purposes o which this fund is expressly devoted.

I have the honor to be, sir, very respectfully, your obedient servant,

To the SECRETARY OF THE NAVY.

WM. WIRT.

CAPTURE WITHOUT A COMMISSION.

The profits of a capture made by individuals acting without a commission inure to the government, but it has not been the practice to exact them.-[2 Wheaton, p. 77, and Appendix.]

ATTORNEY GENERAL'S OFFICE,

April 24, 1821.

SIR: You ask my opinion as to the legal rights of the United States in the proceeds of the prize the Dos Hermanos, according to the facts of that case as reported in 2 Wheaton, 77, with the supplemental facts stated by Judge Hall and Mr. Francis S. Key. The case, as thus made, is that of a capture by individuals acting without commission: and there is no principle better settled than that individuals so circumstanced cannot make a capture to their own benefit; the whole profits of such a capture inure to the government to which they belong. As a question, then, of strict law, (in which light alone you present the case,) the United States are entitled to the whole proceeds of this prize; the proceeds, however, are only what shall remain after deducting the expenses actually incurred in making and securing the capture, and prosecuting the suit to final condemnation. But, although such be the legal rights of the United States, it is not the practice of governments to exact them. It is their constant practice to recompense the gratuitous enterprise, courage, and patriotism of their citizens, in such cases, by assigning them a part, and sometimes the whole of the prize. The authorities on this subject are collected by Mr. Wheaton in the second volume of his reports, appendix, pp. 7 (note c) and 71. Such, it is to be fairly inferred, was the intention of the government of the United States in this instance. The libel filed by Mr. Shields in this case claimed the whole prize to himself

and his comrades in the adventure; the United States never appeared as a party to the admiralty proceedings, in any stage of them. The decree of condemnation in the court below forfeited the proceeds to the libellants, who were Shields and his comrades only. This decree has been affirmed in the Supreme Court. Whilst the cause was before this latter court. the Attorney General, the legally authorized representative of the United States, withdrew from the argument, on the avowed ground that the United States had no interest in the subject. And under these circum stances it might have been very fairly inferred that, at one stage of the proceedings at least, it was the intention of the government to have re linquished all claim to the prize in behalf of the captors: had it been the intention of the government to have claimed any part of the proceeds, the prosecution should have been conducted by the officers and at the ex pense of the government. The government not only failed, however, to indicate this intention by pursuing this course, but threw the whole expense on the uncommissioned captors, (who were carrying on the claim for their own benefit,) and also, by their highest law officer, (who was to this effect their duly authorized agent,) explicitly disavowed all interest in the case. My opinion is, that if these facts had been fully and regularly before Judge Hall, he would have been authorized to consider the government as relinquishing its legal rights wholly to the captors, and to have adjudged the whole proceeds to them. This decree, however, has given the case a different attitude; and on the grounds on which you desire me to take up the subject, I consider the whole proceeds as belong. ing, in strict law, to the United States, if they think it proper to assert their claim in such a case as this.

I have the honor to be, &c., &c,,

To the SECRETARY OF THE NAVY.

WM. WIRT.

THE SENECA LANDS.

The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands, as defined and bounded in the treaty of Canandaigua, until they have voluntarily relinquished it.

A right of occupancy during pleasure has always been conceded by Europeans to the North American Indians, (6 Cranch, 121; 8 Wheaton, 548;) wherefore, the question whether purchasers from the State of Massachusetts may enter upon the Seneca lands, depends altogether on the character of the title which the latter retain in them.

So long as they remain in possession of the lands defined in the treaty, neither the government of the United States nor individuals can lawfully enter upon them, but by consent freely rendered on a full understanding of the case.

ATTORNEY GENERAL'S OFFICE,
April 26, 1821.

SIR: By the treaty of Canandaigua of the 11th November, 1794, between the United States and the tribe of Indians called the Six Nations, the land of the Seneca nation is designated by boundaries: "the United States acknowledge all the lands within the aforementioned boundaries to be the property of the Seneca nation;" and stipulate that they, "the United States, will never claim the same nor disturb the Seneca nation, nor any of the Six Nations, or of their Indian friends residing thereon and united with them, in the free use and enjoyment thereof; but it shall

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 compromised by assigning the right of soil to the former, and the jurisdicion to the latter. Massachusetts having granted her right of soil in hese lands to a company of individuals, and these individuals being deirous of making partition among themselves, Mr. Ogden, acting in their behalf, proposes to have a survey of the lands for the purpose of this parition, 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 he Indians retain in these lands. The practical admission of the Euopean conquerors of this country renders it unnecessary for us to specuate on the extent of that right which they might have asserted from conquest, 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 right 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 Indians, 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 manifest 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 an enjoyment of these lands. By the same treaty, also, we have disclaime the right to pass through their lands, or to navigate their waters, withou 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 o the Indians, freely rendered, and on a full understanding of the case. The papers are returned.

I have the honor to be, &c.,

To the SECRETARY OF WAR.

WM. WIRT.

MILITARY CLAIMS.

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 2d 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 to 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 mili tary 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 settlement of the accounts of that officer. The claim which General Jackson makes of forage for seren 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