any of those branches to any others not enumerated. It did not, of course, restrain the President's discretion within the same branch of expenditure. But this supposes the appropriation to be made in general terms for particular branches, without designating any particular objects within those branches. Should Congress, however, appropriate money to a particular fortification expressly, my opinion is, that it was under the act of 1817 a distinct object of appropriation, and that the President could not under the law, as it stood before the act of 1836, exercise the discretion allowed by the act of 1809. But by the 2d section of the act of 2d July, 1836, the President is again authorized to make transfers from one head of appropriations for fortifications to another for a like object, under the restrictions (in all other respects) of the act of 1820. This contemplates the case of specific appropriations for particular fortifications, and obviates the difficulty just stated. Clearly this gives the authority needed in the present case. But the act of 1836 is an appropriation act, and the natural and usual construction is, that its provisions are only for the year. This, however, is only a prima facie inference; it may be repelled, and is constantly repelled, by expressions implying in general a permanent enactment. I think, upon the whole, the provision was in this case intended to be perpetual: 1st. From the word "whenever," which is too large for a single year. 2d. Because there is a reference in it to a general law, that of 1820, with which it must therefore be read. 3d. Because the act of 1842 expressly withholds this discretion from the President, so far as the navy is concerned; and it is a very strong negative pregnant, and an exception quæ probat regulam. In matters of so much nicety, statutes in pari materiâ must be used to explain each other, and the lawgiver be made his own interpreter. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, H. S. LEGARE. Secretary of War. DUTY OF THIRD AUDITOR RESPECTING THE CLAIM OF C. F. SIBBALD. The Third Auditor is to ascertain the actual damages sustained by the claimant, but nothing like exemplary or vindictive retribution is admissible. The damages must be such as the claimant would be entitled to recover upon the principles of law as applicable to other cases. By those principles no damages can be allowed but such as directly flow, in the natural and ordinary course of things, from the trespass or omission; distant and accidental consequences, however they may aggravate the claimant's loss, are to be laid out of the question. Neither can vague surmises and calculations of the fruits of projected enterprises be taken into the account; the damages must have been directly caused, not merely occasioned, by the interference of the agent of the United States. Whatever agents may have done beyond their instructions, they did in their own wrong, and the government is not responsible. OFFICE OF THE ATTORNEY GENERAL, SIR: The Third Auditor is charged with an examination into the facts which constitute the grounds of Mr. Sibbald's claim, under the direction of the Attorney General, in regard to their legal consequences. general rules that are to govern him are to be found in the act itself, in terpreted according to the principles of the law in other cases. They are as follows: 1. The Auditor is to ascertain the actual damages. Therefore, nothing like exemplary or vindictive retribution is admissible; what the legislature means is indemnity, and no more. 2. The damages must be such as the claimant would be entitled to recover upon the principles of law as applicable to other cases. By those principles no damages can be allowed but such as directly flow, in the natural and ordinary course of things, from the trespass or omission. Distant and accidental consequences, however they may aggravate the claimant's loss, are to be laid out of the question. Thus, no allowance whatever can be made under the description of actual damages for a consequential loss of credit, and all the alleged effects of such loss. No evidence on this head need be taken. Neither can vague surmises and calculations of the fruits of projected enterprises be taken into the account-as how much the claimant might have made if his mills had been worked as usual, by collateral speculations in commerce, and so forth. If it be proved that the interference of a government agent directly and necessarily stopped the working of the mills, or produced their destruction, the measure of damages must be the ascertained or probable net proceeds of the mill for the time during which it was so prevented from working, or the true value of the mil, not the price of the construction. So of the contract for live-oak timber-what was it worth? 3. The damages must not only have been directly caused, not merely occasioned, by the interference of any agent of the United States, but he must have acted under their authority. Whatever the agents did beyond their instructions, clearly they did in their own wrong, and the government is not responsible. 4. In case, after looking into all the facts, with the law applicable to them, any sum shall be found due, the Secretary of the Treasury shall pay it. Therefore, nothing is admitted to be due, and the whole case is open on its merits. In general the great and difficult points in such a question are: 1st, was the damage really caused, in legal contemplation, by the act of the party interfering? 2d, if so caused, how far is he liable for the consequences that have ensued, and all the consequences? Under the first head, it is far from being true that one is liable for all damages; for there is damnum absque injuria. For example: I suppose the agent to have done no more than threaten to sue out an injunction against Mr. Sibbald, or to bring an action; and that Mr. Sibbald, therefore, desisted from working his mills: it is quite clear the government would not be responsible, for no individual is liable to an action in such a case. To threaten to bring an action, or sue out an injunction, is not itself actionable, for the plain reason that no action lies (without proof of malice) for actually instituting such a proceeding. But malice is here out of the question. Therefore the Auditor is requested to state particularly, after looking into the evidence, how the alleged damage was done by the agent. Did he oust the claimant? Did he hold him in personal fear of life or limb? or did he merely threaten suit and legal consequences, &c.? Then as to the consequences, not only are all distant consequential damages to be refused, but it must be shown that even to the extent of his actual damage the claimant was not to blame for any omission in himself or his agents, or that no peculiar defect in his property caused it to suffer. No one, for instance, is allowed to say, You threaten a lawsuit, and so I will do nothing, and make you pay for my loss of labor, &c. I have, with a view to lay down these rules for the government of the Auditor, looked only in a very general manner into the facts of the case. I have been principally guided by the report (apparently a very exact and judicious one) made at the call of Congress, by the Solicitor of the Treasury (Mr. Gilpin) and the First and Second Comptrollers. The Third Auditor, however, is bound, under the late act, to take up the inquiry de novo, and examine, with the impartiality of an arbiter, all the evidence which, consistently with the principles of the law in other cases, can be admitted on the several heads of complaint, where these heads of complaint are themselves well grounded in law. The points to which his attention is particularly called are these four: Was there any, and what, mischief done? By what agent acting, under authority? How was it done? What were its effects? To judge from the report just mentioned, Mr. Sibbald's complaints of interference have reference to two distinct objects: 1st. The contract for live oak with the Navy Department and with Mr. Grice. It should seem that this live-oak all grew on the tract of 4,000 acres at Turnbull's swamp, and that between this tract and its wood and the mill-tract at Trout creek there was no sort of connexion, or at least a very slight one. Was it so? With regard to these contracts, the Third Auditor will examine into the obligations of the parties under them-how far they were performed; if not performed at all, then what prevented the performance; and whether, if the government agent interfered, the obstacles presented to the performance were quite insuperable. Was there any negligence, gross or slight, or any omission, on the part of Mr. Sibbald or his agents, in resisting or repairing the harm done? If, in consequence of that interference, Mr. Grice could not comply with his obligations, then what was Mr. Sibbald's loss by the non performance? Did he incur any penalty, or pay any damages? If he sustained no positive loss, then of what gain, reasonably to be expected and immediately to accrue from the performance of the contract, was he deprived? His possible damage under this head will, no doubt, consist in what he might have gained by the sale of his live oak at the stipulated price. But as his complaint is that he was not allowed to cut timber at that time, his laud is, of course, as valuable as it ever was, in this respect; and the value of the timber left standing, and whatever expenses he would have been at in the fulfilment of his contract, must be deducted. His damage (were there any) may have been merely nominal. 2d. The second head is the damage done to Mr. Sibbald's establishment on the 10,000 acres, or mill tract, at Trout creek. These consist, according to his own showing, of the following: 1. Damage for the destruction of his mills. 2. For stopping the operations, use, and profits of the same. 3. Stopping the use and profits of Woodworth's patent planing-machines at said mills. 4. Damage for breaking up and stopping his store business. 5. Damages and loss suffered in the injury of his commercial credit for several years. To these two heads must be added some charges of damages resulting, as it seems, from all the proceedings of the government agents taken together, and not, so far as I have discovered, referred with precision to any particular cause-as the breaking up of his trade with Havana, and his business in ship building. The questions of fact for the Auditor to examine are: 1. Did the mills suffer by the interference, and what interference, of government, by its authorized agent? What was Aiken instructed to do in the premises? What did he actually do? How, and to what extent, did his doings lead to the alleged destruction of Mr. Sibbald's property, and the loss of its use? 2. What was the value in money of the damages, if any there were? But on this head the Auditor, as I have said, is not to admit any evidence to show that, in consequence of any interference with the premises in question, Mr. Sibbald's credit was hurt, and, in consequence of that, his fortune ruined. 3. As to the patent for planing boards, it should seem from the report that no attempt was ever made to carry it into effect. Was this so? If yea, then what prevented the use of it? Did any agent of the government forbid it? If it was only in consequence of the straitened circumstances of Mr. Sibbald, no evidence is admissible in relation to it; for that would not make a case of actual damages which can be taken into the account, agreeably to the principles of law in other cases. These directions will, I trust, be sufficient to guide the Third Auditor in his inquiry into the facts of the case. Should he need any more particular instructions as the points successively present themselves, he will, of course, have no scruple to draw my attention immediately to them. I shall reserve the expression of a definitive opinion on the whole case for the coming in of his report on the facts. To the THIRD AUDITOR. H. S. LEGARE. CHEROKEE RESERVATIONS UNDER TREATY OF 1817. The treaty gave to the heads of Cherokee families an election to go, or stay and become citizens; and, until their election to stay, the reservations do not vest in them or their children. No compe sation ought to be made for ferries held by the tribe beyond the time allowed for their residence; and the same rule applies to those held as franchises by individual Indians, unless, &c. Office of the Attorney General, SIR: The questions of fact which I proposed in relation to the Cherokee treaty answers to which were indispensable to my giving an opinion with the requisite precision-have brought me an explanation from one of the commissioners, (General Eaton,) but by no means so detailed or so exact as I could have desired it to be. What I have to say, therefore, is necessarily hypothetical, and may, besides, not meet the very difficulties felt by the commissioners. With regard to the interest of the children in the reservations, (treaty of 1817, art. 8,) I am of opinion that an election to go or stay was given to the heads of families, and that, until such election was made, no title whatever vested either in them or their children. If this election was prevented from being made by undue interference, there may possibly be a ground of complaint against those who prevented it, and a demand of suitable reparation from them; but I do not see, as at present advised, that the United States are anywise responsible, under the treaty, for want of judgment in the father, or any efforts used by the States to induce him to waive his privilege under the treaty. That instrument commits absolutely to his decision the residence, and consequently all the incidental rights, of his offspring. With the motives that determined his election, the United States have nothing to do. The election itself is the casus fœderis. As to the ferries, (treaty 1835, art. 9,) there is, as it seems to me, a distinction in theory between ferries vested in the tribe, as such, and ferries vested by the tribe in individuals. For cases of this latter sort, see indian Treaties, pp. 266 and 289. These ferries were burdens imposed by previous treaties on the Indian tribes, wherever the general government stipulated for a right of way. 1 should think, on strict principles, that no compensation ought to be made for those kept up by the tribe, as such, in compliance with those treaties. They were an incident of political supremacy jura regalia, and passed with the country itself to the United States, the rights to keep them being merged in the general sovereignty, State or federal. When they were granted by the tribe to individuals, the case is a different one; and these, I think, were the ferries for which an indemnity was meant to be granted. Then comes the question, What indemnity? The treaty says they shall be appraised according to annual income, but it does not say for how long a time. For the fact, the case is clear enough. The measure of the indemnity must be the net annual income up to the last moment allowed by the treaty for the residence of the tribe on the ceded lands. But is it to be construed as embracing indemnity for the future? There is nothing in the words of the treaty to guide us here; and if we depart from them, the uncertainty of the principles in this part of the law is just as perplexing as the want of clearness in the words of the treaty. If any indemnity is to be allowed for the future, where are we to stop? For how many years were ferries granted by the Indians? This would be settled, under our laws, by the charters under which the right was held. Is there any usage that may be applicable to the case among the Indians? This is a question of fact, not of law. The words, if they import anything future, import a perpetuity; and on that supposition, turning the net income into a perpetual annuity is, no doubt, a fair rule. But I should have thought (had not the former commissioner allowed 10 per cent.) the analogy of the national debt, or 6 per cent., would be a reasonable rate of interest. But was the Indian possession in legal contemplation à perpetuity? For if it was not, how could a right incident to it be perpetual? Mr. Wirt thought it was; many other learned men are of the same opinion; but I find much difficulty in assenting to that view, and the result of the cases is doubtful. In the very last, the Indians' possession is treated as having always been temporary. (Martin vs. Waddel, 16 Peters, 409.) In a matter of so much doubt, the treaty requires us to decide in favor of the Indian; good faith and humanity concur to give them the benefit |