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mitigate the punishment of dismission from the service, imposed on an officer of the navy by a naval court martial, by substituting a suspension for a term of years without pay.
· By the 41st article of the rules and regulations for the government of the navy of the United States, adopted by the act of April 23, 1800, sentences of courts-martial, which go to the dismission of a commissioned or warrant officer, are first to te approved by the President. By the 420 article, the President of the United States possesses full power to pardon any offence committed against these articles, after conviction, or to mitigate the punishment decreed by a court martial.
The power of the President to pardon, conferred by the constitution, is plenary; and, so far as he is concerned, its repetition in this act was supererogatory. Tytler, in his Essay on Military Law, (page 172,) says: "A pardon may either be granted simply, which gives a complete dis. charge and immunity from the punishment decreed; or conditionally, which operates a commutation of capital sentence, or one inflicting a very high measure of punishment into a milder.'
er.” And at page 174, he further says: “ The right of the sovereign to extend his mercy in the pardoning ofoffences, either to a total and absolute remission of the punishment, or to a partial remission or commutation of a severer penalty into a milder, was never accounted a subject of question.”
The sentence of a court, going to the dismission of an officer, cannot be carried into effect without the approval of the President. On the principles laid down, he may, after conviction, direct it to be carried into effect in part, substituting a milder punishment for that decreed by the court. The power to mitigate, conferred on the President and other offi. cers by the act of 1800, appears to me to embrace the question under consideration. It has been held that where the sovereign exercises the power of mitigation, the substituted punishment ejusdem genıris, and the power is naintained on the principle quod omne majus continet in se minus.
The same power which can remit the rigor of the law altogether, and in its utmost extent, can mitigate that rigor in an inferior degree.
In any aspect of the case, I cannot doubt the power of the President to mitigate a sentence of dismission, by commuting it into a suspension for a term of years without pay. A dismission is a perpetual suspension without pay; and the limited suspension without pay is the inferior de. gree of the saine punishment. The minor is contained in the major. It does not affect this conclusion that the 40th article declares that the court shall have power, in case of suspension of an officer, to suspend his pay and emoluments for the whole or any part of the time. This article makes the suspension of pay an independent punishment, which may be inflicted by sentence of a court martial in certain cases. But the exercise of the power of mitigation necessarily implies that there is substituted for a higher, an inferior punishment. A sentence of death for murder could be mitigated by substituting any punishment which the law would authorize the court to inflict for manslaughter. This is an inferior degree of the offence. The punishment substiluted is not, in the nature of things, that which the court has decreed—it is one which the President substitutes. According to the strictest authorities, I am satisfied that
limited suspension, with the suspension of pay and emoluments, is a legal mitigation of a sentence of dismission from the service. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. To the PRESIDENT.
CLAIM OF CHEROKEES FOR COMMUTATION, &c., FOR REMOVAL AND
The Cherokees remaining in the States of North Carolina and Tennessee are not entitled to
the commutation for removal and subsistence given by the eighth article of the treaty to those who have removed west of the Mississippi. They can only receive their due portion of personal benefits accruing under the treaty, for
their claims, improvements, and per capila, whenever an appropriation shall have been made to carry it into effect. The statements of the commissioner and others that the Cherokees were assured that those
who did not emigrate west should have the benefit of the pecuniary allowance, are inadmis
sible as evidence in the case. Whether the lands in North Carolina belonged to the Indians residing on them is a question
for the judiciary, now that they have been sold and the purchasers put in possession.
ATTORNEY GENERAL'S OFFICE,
September 19, 1845. Sır: On the 11th of June last, you did me the honor to refer to me a report of the Commissioner of Indian Affairs of the 19th of May, and a reply thereto by William H. Thomas on behalf of certain Cherokee Indians, who claim a commutation for removal and subsistence under the Cherokee treaty, approved May 23, 1836, with the accompanying papers, and to direct me to communicate to you my opinion in writing touching the said claims, and the legal construction of the treaty and laws under which they are preferred. I regret that very urgent engagements have delayed so long my compliance with your direction. I have devoted a considerable portion of time to the examination of the subject, and have arrived at conclusions which I will now proceed to state
In a memorandum which is amongst the papers transmitted, there are four questions propounded in which you are desired to take my opinion. They are
1. Are the Cherokees remaining in the States of North Carolina and Tennessee entitled, under the eighth and twelfth articles of the Cherokee treaty of December, 1835, to $53 334 for their claims for removal and subsistence allowance which has been paid to the Cherokees in Georgia?
2. In the event that the Attorney General should be of opinion that the Cherokees in North Carolina and Tennessee are not entitled to com. pensation for their claims for removal and subsistence allowance, whether the grant made by the State of North Carolina to the Cherokee Indians in the year 1783 vested the fee-simple title in the Indians while they continued to reside thereon? and whether, under this provision of the grant, the fec simple title has not rested exclusively in the Cherokee Indiaus now residing within its limits ?
3. Whether the treaty of December, 1835, made with the Cherokees of Georgia, does or does not legally convey to the United States the land granted to the North Carolina Indians by the act of 1783? Whether the power of the Cherokees as a nation had or had not ceased to exist at the
time the treaty of December, 1835, was concluded, in consequence of the tribe having passed under the dominion of the States?
4. Whether the relinquishment of interest in the lands which the treaty of 1836 purposed to convey, is or is not confined to those Cherokees who have and do receive their due portion of the consideration money? and whether the title of those who receive no part of the compensation has passed to the United States?
The first of these involves an inquiry whether, under the treaty of New Echota, those Cherokees who had remained in the States of Tennessee and North Carolina are entitled, under the eighth and twelfth articles of the treaty, to $53 33} for removal and subsistence allowance?
This inquiry is embarrassed by the fact that these allowances have been made to Cherokees who have remained in Georgia by decisions at the War Department, and by the fact of payment being made to others of the tribe who did not emigrate, by the joint resolution of Congress approved June 15, 1844. The interpretation under which the Georgia Indians were paid appears to have been acted on by the War Department for but a short time, and the department for many years has uniformly rejected such claims.
The circumstances under which the payments were directed by the joint resolution are stated in the report of the Commissioner of Indian Affairs. It appears to me that the confirmation of the decision of Messrs. Eaton and Hubley, declared by that resolution, cannot, with all the respect due to Congress, be regarded as settling the construction of the treaty so as to furnish a guide to the Executive in carrying the treaty, as a law, into execution. In determining your duty in this respect, it appears to me that the only guide is the treaty itself in all its stipulations; and, if a measure of relief is withheld, it will be competent for Congress to supply the deficiency. The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and conse. quently admits their rank among those powers who are capable of making treaties. The words treaty and nation are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as well as to other nations.
The Indian nations (and as one of them the Cherokees) have been at all times regarded by this government as independent political communi. ties; and, while they have at all times been treated and acknowledged to have been within the jurisdictional limits of the United States, they have been dealt with as separate communities. Treaties of cession have been held to convey the joint property, and to divest the title of the tribe as to the community, and as to the individuals composing it. The Executive of the United States must, therefore, regard the treaty of New Echota as binding on the whole Cherokee tribe; and the Indians, whether in Georgia, Alabama, Tennessee, or North Carolina, are bound by its provisions. As a necessary consequence, they are entitled to its advantages. The North Carolina Indians, in asking the benefit of the removal and subsistence commutation, necessarily admit the binding influence of the treaty on them and their rights. They cannot take its benefits without submitting to its burden. 'The Executive must regard the treaty as the supreme law; and, as a law, construe its provisions.
In its construction it is said “that the language used in this treaty with Indians should never be construed to their prejudice.
How the words of the treaty were understood by this uplettered people, rather than their critical meaning, should form the rule of construction.” So far as there are conflicts of interest between the United States and the Indians, there ought always to be the utmost liberality in construing the language of treaties with Iudians. But in construing provisions which affect only the rights of different portions of the tribe, I cannot perceive on what principle the government, in its fiduciary character as the common trustee of the whole tribe, can depart from the established rules of construction, to benefit one portion at the expense of another. If this claim is paid out of the Cherokee fund, the per capita dividend of those Indians who have emigrated will be diminished to that extent. It is a question between the Indians themselves; and the treaty must be executed according to the intention of the parties to it, if to be derived from its stipulations and the language in which they are expressed. If there is no ambiguity, then parol evidence is not admissible to explain or to give to the language employed a different meaning than that which it plainly imports.
When the treaty of New Echota was negotiated, a portion of the Cherekee tribe had emigrated and were settled on their lands west of the Mississippi; and a larger portion still inhabited their lands in the States of Georgia, North Carolina, Tennessee, and Alabama. The primary object of the treaty was to promote the emigration of the Indians east, and a reunion with their brethren west. An entire cession of the lands of the nation east of the Mississippi was contemplated and provided for in the Ist article of the treaty. This cession comprehended all their lands east of that river. The nation ceased to be a landholder within the States on the ratification of the treaty. Individual Indians became proprietors of the lands reserved to them individually.
The United States agreed to pay five millions of dollars as the consideration, to be expended, paid, and invested, as stipulated in the succeed. ing articles. By the 8th article, the United States stipulated to remove the Cherokees to their new homes, and to subsist them one year after their arrival there, for which appropriations were to be made. The expense thus incurred was a charge on the fund. But this article provides that such persons and families as, in the opinion of the “emigrating agent, are capable of subsisting and removing themselves, shall be permitted to do so; and they shall be allowed, in full for all claims for the same, twen. ty dollars for each member of their family; and, in lieu of their one year's rations, they shall be paid the sum of thirty-three dollars and thirty three cents, if they prefer it.” It cannot be questioned that this article was exclusively io stipulate the mode of emigration; and its plain and unam. biguous provisions were intended to inure only to those who should em. igrate.
The United States agreed to remove the Cherokees to their new homes and to subsist them for one year there. If any chose to remove them. selves, and the agent thought them capable of doing so, a commutation in money is given them; that is, in lieu of bearing their expense of re. moval to, and subsistence at, their new homes. Fifiy-three dollars and thirty three cents, for each one thus deemed capable and permitted to emigrate himself, was to be paid in money. If there could be any doubt ou this subject, it would seem to be removed by the concluding clause of this
article: “Such Cherokees, also, as reside at present out of the nation, and shall remove with them, within two years, west of the Mississippi, shall be entitled to allowance, for removal and subsistence, as above provided.” Taking the 8th article by itself, I cannot perceive how it is possible to doubt that emigration and residence west of the river were indispensable conditions to a claim for the allowance for removal and subsistence. The 12th article provides that those individuals and families of the “ Cherokee nation that are averse to a removal to the Cherokee country west of the Mississippi, and are desirous to become citizens of the State where they reside, and such as are qualified to take care of themselves and their property, shall be entitled to receive their due proportion of all the personal benefits accruing under this treaty for their claims, improvements, and per capita, as soon as an appropriation is made for this treaty What were the personal benefits thus secured to those Indians who did not ern. igrate? They were limited to claims, improvements, and per capita. It cannot be maintained that the term “ claims'' covers the removal and subsistence allowance. It is true, the treaty secures many rights; and each individual of the tribe has, in some sense, a claim, given by the treaty, to each of its beneficial provisions; but this is not the sense in which the term is employed in the 12th article; because, if so, there would have been no propriety in using the terms " improvements and per capita;'' for, after the ratification of the treaty, the claim for the value of the improvements and for the per capita dividend, provided in the 15th arti cle, were at least as strong as that for removal and subsistence. The claims secured to those who did not emigrate were claims for spoliations which existed prior to, aud independent of, the treaty and the 12th arti. cle, which treats only of those who did not intend 10 einigrate, and affords a strong confirmation of the construction which I have placed on the 8th article. The 15th article and the supplemental article corroborate the interpretation of the term “claims.” It is not contended that the personal benefits for improvements include the pecuniary allowance of $53 33}. Does the term per capitu?. The 15th article provides that, after deducting the aniount which shall be actually expended for the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts and claims upon the Cherokee nation, the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee nation east, according to the census just completed.
This is the only per capita division or claim which the treaty contemplates, and does not take place until the expenditures for removal and subsistence have been made. Therefore, no personal benefit growing out of the commutation allowance in money can be based on this per capita division.
With one more remark I will close my examination of the subject. The United States were to remove and subsist the Indians. Those who were by the emigrating agent deemed capable of doing this for themselves and families were to have a commutation in money. It was not intended to be given to any class or division of the tribe, but to individuals ad. judged to possess these qualifications. Now, if the claim set up shall be recognised, it extends the benefit to the whole of the North Carolina Cherokees, without emigration, and without reference to their capacity to remove and subsist themselves. For these reasons, it appears to ine that, according to the plain and unambiguous stipulations of the treaty, those