From the commencement of the government, it is believed that a power has been exercised which would appear to be inconsistent with a construction of the section of the constitution which would confine the meaning of the word "happen" to the time at which the office is in fact vacated. In cases where an officer dies during the session of the Senate, but notice of his death is not received until after the adjournment, it has always been filled as a vacancy happening during the recess of the Senate. The constitution, undoubtedly, intended to create a check on the President's power of appointment, by requiring the advice and consent of the Senate as necessary to a permanent appointment. But it was not contemplated that the Senate would be perpetually in session, nor yet that the President should be required to convene that body in every case of vacancy. The qualified power of making temporary appointments was, therefore, given in the section which has been quoted. The constitution also requires that the President shall take care that the laws be faithfully executed. In the performance of public executive duties, it is important that officers filling the offices authorized by law shall be appointed. Offices without officers are useless to the public; and the constitution may fairly receive such a construction as will accomplish its ends without doing violence to its terms. In this case, the Executive appointment made during the recess in 1845 filled the office, according to law, until the end of the late session of the Senate. It is now vacant. When did it become so? In the language of the constitution, at the end of the session; although it may be said that the two events occurred eo instanti. Still the vacancy happened at a time, and continues now to exist, when the President cannot obtain the advice and consent of his constitutional advisers. The law requires that the duties of postmaster at Buffalo shall be performed; the public are entitled by law to the facilities of this part of the post office establishment. It is doing no violence to the language of the constitution to maintain, that this vacancy happening from the inaction of the Senate on the nomination made, is within the meaning of the section quoted, and may be filled by an Executive appointment. I am not disposed to enlarge the powers of the President, by narrowing the wholesome restraints imposed by the constitution. But that instrument invests him with powers in good faith, and sufficient to enable him, by their exercise, to acquit himself of his duties to the public. I am aware that the power to fill a vacancy, under such circumstances, has been denied, as enabling the President to evade the control of the Senate over his appointments, and to retain in office persons whose appointments could not receive the confirmation of the Senate. But an argument founded on the supposition of abuse of trust on the part of the President, is entitled to no great weight. It might be argued with equal propriety that there may happen to be a majority in the Senate, which, by withholding consent to nominations or by refusing to act on them, might so embarrass the President that the government could not be administered, if he had not the power to prevent the mischiefs by filling the vacancies by temporary appointments. The President is liable to impeachment, and there is no reason to apprehend that Senators will be influenced in their official conduct by such motives. Neither view of the case is entitled to great consideration. The constitution, as a general proposition, gives to the President the power of appointment. To guard against its improper exercise the concurrence of the Senate is made neces sary. But, for the reasons above stated, authority is given him to make temporary appointments; this power depends on the happening of vacancies when the Senate is not in session. It is no disrespect to the Senate to suppose that their failure to act on this nomination was accidental; ner is it an unauthorized conclusion, that in view of the construction estab lished by the opinion referred to, the Senate were aware that the President had power to avert any public mischief caused by this omission on their part; but whatever may have been the cause, the vacancy did happen to exist when their session ended, and it is entirely with the objects with which the qualified power was given to exercise it in this case. I have not stated the arguments as fully as I would have done if the question had not been so elaborately discussed in the opinions of my predecessors to which I have referred. Whatever may be the estimate of that construction, by which the vacancies in Swartwout and Binney's cases, occurring during the session, and not filled at the end of the session, I concur with Mr. Taney and Mr. Legaré, that when the office is lawfully filled until the session is closed, and happens to be vacant at that time, by reason of the inaction of the Senate on the nomination of the President, it may be filled by an Executive appointment. In the proceedings of the Senate, in executive session, on Gwinn's case, as published, it appears that a resolution was offered, declaring the Execu tive appointment of Gwinn, according to Mr. Taney's opinion, an unwarrantable exercise of power. The journal shows that, on a motion to lay this resolution on the table, the vote was-in favor of the motion, twentyseven; against it, four. This is the only question which, in the execu tive journal, as far as published, after the injunction of secrecy was removed, seems to have been taken on that resolution. Whether it was afterwards adopted or rejected, I have no means of ascertaining; but the nomination was afterwards confirmed. I cannot perceive that it is unsafe to adopt a construction which has been so long given, and to follow precedents so long established, especially in a case where there has been no desire to avoid the controlling action of the Senate, and where public considerations so imperiously require that the power shall be exercised. I have the honor to be, very respectfully, sir, your obedient servant, J. Y. MASON. To the PRESIDENT. PAYMENT OF AN UNCERTIFIED AWARD UNDER TREATY WITH THE CHEROKEES. Upon a reconsideration of the claim of David Taylor to payment of an award by the commis sioners, upon further evidence produced, it is made evident that the claim was not adjudicated within the terms of the treaty. The Attorney General, therefore, revises his former opinion in the case, and advises that payment to the claimant cannot be properly made unless the same shall be hereafter allowed by the commissioners. For this purpose, it will be just to afford the claimant and the board all the facilities and information on the subject which the records and files of the department contain. ATTORNEY GENERAL'S OFFICE, SIR: In your note endorsed on the papers relating to the claim of David Taylor, dated on the 11th instant, you state that, "it having been repre sented that there were additional papers in the case of David Taylor, not placed before this department when this case was before referred for your opinion, these papers have been obtained, and the case is again respectfully referred to you for your opinion as to the legality of the claim and right of David Taylor to receive payment." In addition to the papers sent by you, the books kept by Messrs. Eaton and Hubley, the commissioners charged with the execution of the treaty with the Cherokees, have been also submitted to my examination from the office of the Com missioner of Indian Affairs. These papers and books, with the state. ment of C. K. Gardner, esq., clerk of the commissioner who issued the instructions of August 23, 1843, have satisfied me that there was, in fact, no adjudication of the claim of David Taylor, which was the subject of my opinion of the 7th of July last. Without such adjudication, there can be no payinent. I deem it proper to remark, that, in the examination of the papers then before me, I considered it a "fair inference that, in the cases on the list, the decision had already been made, and, in fact, preceded the order for the valuation." This was an inference from the instructions, strengthened by the testimony of two witnesses; but, like all other presumptions, is open to explanation, and liable to be rebutted. At my request, Col. Gardner has furnished a written statement in regard to this claim; and I am satisfied that no adjudication or decision allowing the claim was made, within the treaty. The claim ought not, therefore, to be paid, unless hereafter allowed by the commissioners acting under the treaty. The claimant, David Taylor, has applied to me for the papers concerning his claim, to be laid before the board now in session. Not considering them as subject to my control, I herewith return them, to be disposed of as you may deem proper. I also send you Colonel Gardner's original statement. From the history of the claim, as it is presented by the books and papers before me, it would appear to be just to afford to the claimants the facilities, and to the board all the information on the subject, which the records and files of the department possess. I have the honor to be, respectfully, your obedient servant, To the SECRETARY OF THE TREASURY. J. Y. MASON. THE PRESIDENT'S CONSENT TO INDIAN SALES WHEN NECESSARY. The President's consent to sales of lands reserved to the Indians by the Pottawatomie treaty of 16th October, 1826, and the Miami treaty, concluded on the 23d of the same month, is only necessary in cases where the sales shall have been made by the reservees, Where the reservees shall have died, and sales are made under an order of court granted pursuant to the laws of the State in which the lands are situated, the President's consent is not necessary to their validity. Those treaties not only ext nguished the Indian right of occupancy, but granted the reserved lands as effectually to all intents and purposes as if patents had been issued to the, so called, reservees; and as the State laws are operative upon lands thus held in fee-simple, and have acted upon those in question in causing their transfer for the payment of the debts of their decedent owner, the title of the purchaser is perfec' without the President's consent. But as the rights of the heirs cannot be affected injuriously by the giving of the Executive consent, as the sale, in this case, appears to have been fairly made, and for a satisfactory price; and as it may possibly relieve the title from doubt, and thereby prevent litigation, it may nevertheless be given. ATTORNEY GENERAL'S OFFICE, SIR: On the 19th February last, a report from the Commissioner of Indian Affairs to you, with the accompanying papers, concerning certain sales of land reserved under Indian treaties for John B. Bourie, were referred to me, with a request that I would furnish you my opinion on the legal question involved. By the 3d article of the treaty with the Miami tribe of Indians of the 23d October, 1826, it is stipulated: "There shall be granted to each of the persons named in the schedule hereunto annexed, and to their heirs, the tracts of land therein designated; but the land so granted shall never be conveyed without the consent of the President of the United States." Annexed to the treaty there is a schedule with the following title: "Schedule of grants referred to in the foregoing treaty, article 3d," in which there is the following entry: " To John B. Bourie, one section on the north side of the St. Joseph, including Ocop-patee village." By the 6th article of the treaty with the Pottawatomie tribe of Indians of the 16th October, 1826, it is stipulated that "the United States agree to grant to each of the persons named in the schedule hereunto annexed, the quantity of land therein stipulated to be granted; but the land so granted shall never be conveyed by either of the said persons, or their heirs, without the consent of the President of the United States; and it is also understood that any of these grants may be expunged from the schedule by the President or Senate of the United States, without affect ing any other part of the treaty." The schedule annexed to the treaty bears the following title: "Schedule of grants referred to in the foregoing treaty," and contains the following entry: "To John B. Bourie, of Indian descent, one section of land, to be located on Miami river, adjoining the old boundary line below Fort Wayne." The laws of the State of Indiana were subsequently extended over these lands, which were held by Bourie until the time of his death, in May, 1839. Administration having been granted on his estate and effects, the administrators obtained an order for the sale of these lands under the laws of Indiana, for the purpose of paying debts. The lands were ac cordingly sold, and the sales confirmed by the court, and conveyances ordered to be made to the purchasers by a commissioner authorized for that purpose. The conveyances were approved by the court, and ordered to be presented to the President for his approval. The question in the case is, whether the President should give his consent to these conveyances; and this involves the inquiry, what estate had Bourie in the lands? When this question was under your consideration, previously to the decision by the President, you conversed with me, and I concurred with you in opinion, that the circumstances of the case did not properly require that the President should give his consent to this judicial sale. This view of the case was taken without much examination on my part, and was mainly influenced by the effect which might be produced on the rights of Bourie's heirs. I have since carefully examined the question involved, and have no doubt that the treaty grants are in fee-simple, and were liable for the payment of the intestate's debts under the laws of the State in which they lie. By the treaties, the Indian title of occupancy was extinguished; and the grants were as effectual to pass fee simple titles, as if evidenced by letters patent. No doubt exists as to the right of the government to at tach the condition, restraining alienation without the consent of the Pres ident. But this was personal to the grantee, and does not apply to sales by act of law, or proceedings in invitum. (4 Kent's Commentaries, 124; Doe vs. Carter, 8 Term Rep., 300; Jackson vs. Corlie, 7 Johnson's Rep., 531.) The interpretation of the treaties, in this respect, has been established in conformity with this view by the circuit court for the district of Indiana; (Godfrey vs. Beardsley, 2 McLean's Rep., 412;) and at the May term of the same court, in the present year, the case of Lowry vs. Weaver was decided. From a manuscript copy of Mr. Justice McLean's opinion, it appears that, by the treaty of St. Mary's, in 1818, two sections of land were granted to John W. Barnett, with a restriction, that he should not convey, nor his heirs, without the consent of the President of the United States. Barnett died, and the land descended to his heirs. Administration on his estate was obtained by Peter Weaver, who applied to the court for authority, under the statute of Indiana, to sell the land, or a part of it, for the payment of debts, there being no personal assets. The court held the consent of the President unnecessary; that the restriction in the grant applied personally to the grantee and his heirs; that, when the jurisdiction of the State was extended over this land, and Barnett and his heirs became subject to that jurisdiction, it was liable to the payment of his debts as in ordinary cases, &c. The rights of the heirs will not be affected by the act of the President in approving the deed, under the judicial sale. It will save litigation and relieve the title from embarrassment, if the President will approve the deed; but I do not deem the title of the purchase defective if it is withheld. The law substitutes an agency for the conveyance of land, as in this case, which protects the rights of the owner. I do not perceive any objection to the President's giving his consent to the conveyances in this case, as the sale has been fairly made, and for a satisfactory price. I have the honor to be, respectfully, sir, your obedient servant, To the SECRETARY OF WAR. COMMANDERS OF PUBLIC VESSELS NOT REQUIRED TO EMPLOY BRANCH PILOTS. Commanders of public vessels are not required to employ and pay branch pilots upon enter ing the ports and harbors of the United States. This exemption extends to all vessels belonging to the United States, and employed in the public service, whether they are armed or not. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 18th of August, ask. ing my opinion on a question submitted by the chief of the Bureau of Yards and Docks, in regard to the liability of the vessel Walter M., belonging to, and in the service of, the United States, to employ and pay branch pilots in the ports of the United States, to which she may resort in the performance of public duties. The public vessels of the government have the right of entering the ports and harbors of the United States without employment of pilots, if the officers in command, under instructions, shall deem it consistent with |