An affidavit has been filed for the purpose of showing that Betsey McIntosh was a white woman. However that may be, it is not perceived that it could make any difference in the result. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. TO MCCLINTOCK YOUNG, Esq., Acting Secretary of the Treasury. PENSIONS OF DISABLED OFFICERS, SEAMEN, AND MARINES. The act of July 10, 1832, transferred to the Secretary of the Navy all the powers theretofore possessed by the commissioners of the navy pension fund to make regulations for the admission of persons upon the roll of navy pensioners, and for the payment of such pensions. It therefore rests in the sound discretion of the Secretary of the Navy to decide, according to the regulations in force, when the pension of an applicant shall commence. If it has been the settled rule of the department that pensions shall commence at the time of completing the proofs, it will be very difficult now to depart from it. ATTORNEY GENERAL'S OFFICE, SIR: The 8th section of the act of April 23, 1800, entitles every offi cer, seaman, or marine, disabled in the line of his duty, to receive for life, or during his disability, a pension from the United States, according to the nature and degree of his disability, not exceeding one-half of his monthly pay. By the act of March 26, 1804, the commissioners of the navy pension fund were authorized and directed to make such regulations as might to them appear expedient for the admission of persons on the roll of navy pensioners, and for the payment of the pensions; and by the act of July 10, 1832, all the powers and duties of the commissioners were transferred to the Secretary of the Navy. An opinion was given on the 21st of December, 1832, by the present Chief Justice of the United States, as Attorney General, that the power conferred upon the commissioners by the act of 1804, authorized them "to fix the period at which the pensions should commence, and also the principles by which the amount was to be graduated;" that "they might have declared that the pension should begin from the time of the disability, or they might have determined that it should commence at the date of the application and the exhibition of proof, if they deemed the latter period more consonant to the spirit of the law;" and "that in the absence of any regulation on the subject, it was their province to exercise a sound discretion in this respect in every case as it came before them." This opinion, in which I fully concur, furnishes an answer to the inquiry when the pension of James Cochran shall commence. It rests with the Secretary of the Navy to decide according to the regulations now in force; or if there be no regulation, then to exercise a sound discretionnot an arbitrary discretion, but according to the settled course of the department. The Secretary has undoubtedly the power to correct any erroneous course heretofore pursued by a new regulation, or by setting a new precedent to be the guide in future, or to introduce a more perfect rule, or a class of exceptions, for sufficient reasons, to any general rule. This would be but the legitimate exercise of the power to make such regulations as might to him appear expedient for the admission of persons on the roll of navy pensioners, but it would be directly repugnant to the character of the power conferred, to suppose that a power to make rules was a power to dispense with them altogether, and to substitute in their place caprice or arbitrary discretion. And if it has been the settled rule of the department to decide that the pension shall commence at the time of completing the proofs, in conform ity with the rules prescribed by Congress in the case of those pensioners who were disabled by known wounds received in the revolutionary war, it would certainly be very difficult for the Secretary, in the exercise of a sound discretion, at this late day to depart from it. I have the honor to be, very respectfully, sir, your obedient servant, ISAAC TOUCEY. Hon. JOHN Y. MASON, Secretary of the Navy. POWER OF THE PRESIDENT TO MITIGATE SENTENCES OF COURTS MARTIAL. The President has ample power to mitigate the sentences of courts-martial, by commuting sentences of dismission from the service to suspension, without pay or emoluments, for a limited time. Hence an assistant surgeon of the navy, who was dismissed by a court-martial for disobedience, neglect of duty, and disrespect to his commanding officer, but whose sentence was commuted to suspension for twelve months without pay, is not entitled to pay during the period of such suspension. As dismission deprived the officer of his pay forever, the suspension of office and his pay for one year only is an inferior and a milder degree of the punishment decreed by the court. The opinions of former Attorneys General are not at variance with this advice. ATTORNEY GENERAL'S OFFICE, SIR: I have attentively considered the case of Assistant Surgeon Chas. F. Guillon, of the United States navy, who was sentenced to be dismissed from the naval service for alleged disobedience of orders, neglect of duty, and disrespect to his commanding officer. The judgment of the courtmartial was approved by the President, but he was "pleased to mitigate the sentence by commutation to suspension, without pay or emoluments, for twelve months from the 6th day of August, 1842." It is now insisted that the suspended officer is entitled to pay during the period of his suspension, on the ground that the President exceeded his power in substi tuting suspension for dismissal. It is not necessary to go into consideration of the nature or extent of the pardoning power conferred upon the President by the constitution, because the whole question in this case may be regarded as fully disposed of by the act of Congress approved on the 23d of April, 1800, entitled "An act for the better government of the navy of the United States." By the 42d article, it is provided that "the President of the United States, or, when the trial takes place out of the United States, the commander of the fleet or squadron, shall possess full power to pardon any offence committed against these articles after conviction, or to mitigate the punishment decreed by a court-martial." The sentence in the present case, of dismission from the service, was "the punishment decreed by the court martial;" and the power of the President to mitigate this punishment is as full and ample as Congress, by any act of legislation, in the most unrestricted terms, can confer. Unless, therefore, it be true that the punishment of dismission from the naval service is in itself so indivisible that no part of it can be remitted without a remission of the whole, and the act of Congress, so far as it authorizes a mitigation of this particular punishment, is a dead letter, from the necessity of the case, the legislative will must prevail, and the President is authorized, and in a proper case required, to carry it into effect. Is the punishment of dismission so entirely one and indivisible, that the attempt of the President to exercise the power conferred by this act of Congress, of mitigating the punishment by remitting a part of it, must be referred to the constitutional power of pardoning the offence, and be construed into a total remission of the sentence? It is very clear that here was an identity of purpose on the part of the President and of the court to cut off the accused from his pay and emoluments for the excepted period of twelve months. Why shall not this purpose, clearly expressed on the part of both, be permitted to prevail? It is true the court intended to cut him off from his pay and emoluments, not only for that period, but forever afterwards. But if the latter part should be remitted or annulled, did they the less intend that the former part should be executed? And what ground of reason can there be for supposing that, if the forfeiture of pay and emoluments after the period of one year should be remitted, it would of necessity operate as a remission of the forfeiture for that period also? Certainly the forfeiture for the period is comprehended in the larger sentence of the court, and has the efficacy which is given to it by judicial sanction. I do not see, therefore, why this part of the sentence, upon principles admitted on all sides, may not well stand and be carried into execution, unless it involves some new and further punishment, which is not embraced within the sentence of the court martial. And it is said that the tie by which the accused is connected with the navy is not severed, and that therefore he is still subject to the responsibilities of that connexion-that he may be ordered into active service at the pleasure of the President, and may be punished for future misconduct. The continuance of this connexion is certainly no part of the judgment of the court, nor embraced in it. If it is created by the President, and is inflicted as a new and additional punishment, extraneous to the judgment, then there would be ground for pressing into this case the supposed principle which I had thought it unnecessary to consider. But is a connexion with the naval service a punishment? Is a responsibility for misconduct an inflicted penalty? If so, it is suffered by every officer or other individual in the service, without trial, conviction, or offence. It was suffered by the accused, long before his conviction or trial, from the first moment he entered the service. It does not result from the judgment, nor from the approval, mitigation, or commutation, nor is it any part of either; but it results entirely from the voluntary act of the party, when he enlisted or accepted his commission. Indeed, the annulling of this connexion is a severe infliction, as a punishment: the omission to do so, after a sentence to that effect, is a remission, a mitigation-not a punishment. There is nothing in the opinions which have heretofore been given by my predecessors at all at variance with the present one. That of Mr. Wirt, in the case of William Bansman, to the effect that a sentence of death might be changed into a sentence of "service and restraint for the space of one year-after which, to cause him to be drummed from the marine corps, as a disgrace to it," goes much further than is required on the present occasion. In the case of William Ramsey, a commander in the navy, an opinion was given in April, 1845, by Mr. Mason, then Attorney General, that a sentence of suspension for five years, with pay, could not be changed by the President into a sentence of suspension for six months without pay. The President had no authority to take away the pay of the accused, given him by law, and not taken away by the judgment of the court; and it could not, in any legal sense, be deemed a mitigation of the sentence of suspension for five years, with full pay, to add to the punishment of suspension loss of pay for six months' full duty for the rest of the term. In the present case, the loss of pay and emoluments for the period of twelve months is strictly comprised within the sentence of the court, and is part and parcel of it, although the duration of it is more limited. Without, therefore, entering into the consideration of a question which is not necessarily involved in the case of Surgeon Guillon, I am of the opinion that he is not entitled to pay or emoluments during the period of his suspension. I have the honor to be, sir, very respectfully, your obedient servant, ISAAC TOUCEY. Hon. Wм. L. MARCY, Acting Secretary of the Navy. PAYMENT OF CERTAIN MONEYS TO THE CREEKS. It is not the duty of the Executive to pay over the moneys appropriated in the 3d section of the civil and diplomatic appropriation bill of 1848, to the Creek nation of Indians, except on the condition that said nation shall first execute a full discharge of principal and interest on account of the sum of two hundred and fifty thousand dollars. The unauthenticated instructions presented by the Creek delegation who demand the money, do not authorize them to receipt for what they do not receive. As this claim has been once paid by the United States to the State of Georgia, and Congress not having recognised the obligation to pay it to the Creek nation, except upon the condition of having a certain release in advance, it is the duty of the Executive to be strict in exacting the receipt and proof required before any part of the money shall be paid. ATTORNEY GENERAL'S OFFIce, SIR: The papers referred to me present several questions, to which I now have the honor to reply. By the 3d section of the civil and diplomatic appropriation bill passed at the last session of Congress, "it is directed that the President of the United States shall cause the said sum of $141,055 91 to be paid to the said Creek nation of Indians in the manner following, viz: one fifth on demand, and the residue thereof, without interest, to be paid in four equal annual instalinents; on condition, however, that a release of all claim for principal and interest on account of said sum of $250,000 shall be first executed by the said Creek nation to the United States, in such manner as the President of the United States shall direct, in full discharge of the same; and on condition, also, that the persons to whom said money shall be paid shall make proof, to the satisfaction of the President of the United States, that they have full power and authority to receive and receipt for the same." The Creek delegation in Washington have presented a release of the said sum of $250,000 executed by them under the following instructions, viz: "COUNCIL HOUSE, CREEK NATION, "February 3, 1848. "To Tuckabatchee Micco, Benjamin Marshall, George Scott, and G. W. Stidham: "By an act of our last general council, held at the council house of the Arkansas district, you were severally chosen delegates to represent our tribe at the city of Washington before the department of government, or Congress, now sitting; and by the advice of the said council to us, as head chiefs, we, as such, commission you as delegates aforesaid; and having full confidence in your integrity and good judgment, do appoint you jointly, with the following instructions and powers, viz: "1. You are instructed to repair to the city of Washington as soon as you can conveniently go. “2. You have full power to ask and receive any dues that may be coming to us as a nation, or individually, and to receipt on its payment.' The first question is, whether the release executed by the Creek delegation is a compliance with the condition prescribed by Congress, requiring a release by the Creek nation. I think it is not. The instructions authorize them to "receive any dues, &c., and to receipt on its payment." But there is no authority given to execute a receipt for what is not received, or to release what is not paid. The Creek delegation, therefore, had no power to release the sum of two hundred and fifty thousand dollars, principal and interest, upon receiving the sum appropriated by Congress. The release tendered is not a release by the Creek nation. This is now admitted by their counsel. But as this claim has been already once paid by the United States to the State of Georgia, and Congress, having now recognised and assumed the obligation of paying it to the Creek nation, has required not only the condition of a release by the Creek nation, but also the condition of satisfactory proof of authority to receive the money and to receipt for it, it is evidently the intention of Congress that the President should strictly exact such proof before any part of the money should be paid. It would therefore be necessary, if these instructions were broad enough to convey to the delegation the requisite power, to show that they were executed by the head chiefs, and to produce, in an authentic form, the act of the general council of the Creek nation, authorizing these chiefs to give those instructions. The mere filing of them in the office of the Commissioner of Indian Affairs would furnish no proof of their authenticity. The next question is, whether the President has power, under the act of 1847, to direct that this money be "divided and paid over to the heads of families and other individuals entitled to participate therein.” This question is disposed of by the act of 1848; which, being the last expression of the legislative will, must necessarily control a former one. The act is not susceptible of two constructions. It clearly discloses the will of Congress that this money shall not be paid to the heads of |