It is said, by the present Second Comptroller, that the account remained in that office when he came into it; and this would induce a belief that his predecessor still retained it for final action; but I observe, by a letter from the Third Auditor to the Second Comptroller, under date of the 2d March, 1829, that he had returned the account of General Parker to the Second Comptroller at that time; and, therefore, the fact of its being in that office when the late incumbent left it, may not be inconsistent with the other fact of his having acted finally upon this case. In any event, however, it must be open, in my opinion, to the revision of the Secretary of War. If it was competent to the late Secretary to prescribe the princi ple on which the settlement should be made, it must be competent to his successor, when that decision is reported to him, to determine whether that principle has been adhered to in the settlement of the account.

If the sum allowed to General Parker had been payable to him, the Secretary of War must have issued his requisition for its amount; and, surely, before he did so, he would have been authorized to inquire into the validity of the claim, or he cannot be said to have the control of the expenditures of his own department. It can make no difference in this regard, that this money is not to be paid to General Parker, but placed to his credit on the books of the Second Auditor; for the same question would arise on the transfer of the fund as on its payment.

I will state very briefly my opinion on the merits. I do not think that this claim can with propriety be allowed.

It appears to me that General Parker received double rations during the time for which he seeks to obtain an allowance for fuel and quarters, under an order by which those double rations were expressly given as a commutation for this other allowance which he now claims. It seems to me that this was his own contemporary understanding; and that it was the motive which influenced the War Department to make the allowance, is proved by the fact, that it was recalled as soon as the government was in a condition to furnish the fuel and quarters, as a substitute for which these double rations had been allowed.

I do not think General Parker's claim is aided by referring to the allowances which were made to General Swift. It was competent to the Secretary of War of that day to distinguish between these officers, in those allowances which were under the control of the department, and he did so distinguish. Nor does it appear to me that the order of the late Secretary of War can change the state of this claim, by creating a right which did not exist either by law, or under contemporary regulation when the ser vice was rendered. In every event, so far as his order could affect the question, until the proceeding which was directed is consummated, it must be equally under the control of his successor.

The papers are returned.

I am, respectfully, sir, your obedient servant,

To the SECRETARY OF WAR.

JN. MACPHERSON BERRIEN.

THE CHEROKEE LANDS-SETTLERS, &c.

Acts of Congress should be so construed as to render their several provisions operative, and in accordance with the intent of the makers of the law.

Acts in pari materiâ are to be considered as one law; and those of 24th May, 1828, and of the 6th January, 1829, are such statutes for all the purposes of this inquiry.

ATTORNEY GENERAL'S OFFICE,
December 8, 1829.

SIR: I have received your letter of the 5th instant, in which I am requested to revise the opinion of my predecessor, "upon the question raised under the act of the 6th of January, 1829," as disclosed in the printed documents accompanying your communication.

The act of the 6th of January, 1829, refers to an act "to aid the State of Ohio," &c., passed the 24th of May, 1828.

The 8th section of the last mentioned act provides a donation of two quarter sections of land for each head of a family, widow, or single man over the age of twenty one years, actually settled on that part of the Territory of Arkansas which, by the first article of the treaty between the United States and the Cherokee Indians, &c., has ceased to be a part of said Territory. Looking to the western boundary of Arkansas, as it was fixed by the act of the 26th of May, 1824, and as it was defined by the treaty referred to with the Cherokees in 1828, it appears that a parcel of lands, forty miles in width, extending from Red river on the south, to a line on the north formed by the prolongation westward of the southern line of Missouri, and including as well the lands ceded to the Choctaws by the treaty of 1820, as those ceded to the Cherokees by that of 1828, ceased to be a part of the Territory of Arkansas by the first article of the lastmentioned treaty.

Thus far, it would seem that every head of a family, &c., actually settled on that part of the Territory of Arkansas included between the western boundary established by the act of 26th of May, 1824, and that pre. scribed by the treaty of 1828, whether on the land ceded to the Cherokees by that treaty, or to the Choctaws by that of 1820, who should remove from such settlement, according to the provisions of the treaty with the Cherokees, would be entitled to the donation. The concluding part of the section appears to limit the bounty of Congress to such persons as had sustained losses under the last mentioned treaty. The donation in each case is declared to be an indemnity for the improvements and losses of the settler. The only persons who sustained the loss of improvements, &c., by the operation of that treaty, were the settlers on the land which was ceded by the second article to the Cherokees; and which persons, by the stipulations of the 3d article, the United States obliged themselves to re

move.

Those who were settlers in 1828 on the remaining part of the land which was cut off by the treaty of 1823 from the Territory of Arkansas, sustained no other loss than the withdrawal of territorial protection; to which those who had become so since 1820 (if there were any such) could make no claim, since in that year it was ceded to the Choctaws. The treaty with the Cherokees contained no stipulation for their removal. The provisions of the act of the 6th of January, 1829, are next to be considered. It is entitled "An act restricting the location of certain land claims in the Territory of Arkansas," &c.; and in the second section it

provides, substantially, that persons residing south of the Arkansas river, and west of the present territorial line, shall be entitled to the donation of land given by the 8th section of the act of 24th of May, 1828, provided they move east of the said line. The provision is negatively expressed, but this is its substance. Now this expression, south of the Arkansas river and west of the present territorial line, will include not only the persons who were compelled to remove by the treaty with the Cherokees, but those also who had settled on the Choctaw lands, and who were not within the provisions of that treaty.

Such is the literal import of the act of 6th of January, 1829. It includes all settlers south of the Arkansas river, and west of the present territorial line, who shall remove east of said line; and, consequently, thus literally interpreted, extends the operation of the act of the 24th of May, 1828. By that act, the donation, which was designed as an indemnity for improvements and losses, was confined to those who were compelled to remove under the treaty with the Cherokees. The act we are considering, by its literal provisions, extends the grant to all settlers on lands which, by force of that treaty, ceased to be a part of the Territory of Arkansas, who shall remove east of the territorial line.

I am aware of the doctrine that statutes ought not to be construed ac cording to the letter, but according to the intent of the framers. I admit that statutes in pari materiâ are to be considered as one law; and that the acts of the 24th of May, 1828, and of the 6th of January, 1829, are such statutes to all the purposes of this inquiry. It is necessary, then, to determine whether, considering these statutes as one law, the extension of the donation to all the settlers south of the Arkansas and west of the ter ritorial line, which results from the literal interpretation of the statute, is consistent with the intention of its framers, as that may be ascertained by the established rules of construction. I think it is so, and will briefly state the reasons of my opinion.

The act of the 24th of May, 1828, provides for all those persons who were west of the territorial boundary line, and north of a line drawn from thence up the Arkansas and Canadian rivers. The lands included within these limits had been ceded to the Cherokees; and it is admitted that all the settlers on the lands ceded to the Cherokees were provided for by the act of 1828.

Then came the act of the 6th of January, 1829, which, in its second section, provides that persons residing west of the territorial line, and south of the Arkansas river, shall be entitled to the donation specified in the act of 1828, on condition of their removing east of the line. Now, it must have been the intention of Congress that this second section of the act of 1829 should have some operation. It is a rule of construction, that we must so interpret a statute as, if practicable, to give effect to all its provisions. But the opinion which I am requested to revise seems to me to allow no operation whatever to the second section of the act of January, 1829. If it is said to apply to those settlers who lived south of the Ar kansas and north of the Canadian river—that is, in the fork, and between the two rivers-it may be answered, that these persons (who it is understood were very inconsiderable in number) were already provided for by the act of 1828.

If, again, it is urged that the donation is made to the same persons as were provided for by the act of 1828 on the express condition of re

-the answer is, that the same condition is contained in that act, would, therefore, as to the settlers for whom it provided, have been ly nugatory. Unless, therefore, the provisions of the 2d section of act of January, 1829, are construed to apply to persons not living In the limits of the cession to the Cherokees-that is, to those who ed on the lands ceded to the Choctaws west of the present Terri 1. line of Arkansas, south of the river of that name and the Canadian , and north of Red river-it is, to all practicable purposes, a mere letter.

cannot think that it ought to receive an interpretation which would er it wholly inoperative. It seems to me that, having provided for whom they had bound themselves to remove by the treaty with the okees, Congress were disposed by this section to extend their bounty ose occupying the lands granted to the Choctaws by the treaty of . If any of these persons were settlers on those lands at the date of ast mentioned treaty, they were within the principle on which pron had been made in the act of May, 1828, for the settlers on the s ceded to the Cherokees; and if they were settlers of a more recent a desire to preserve the Choctaws from the intrusion of white setand to protect them in the enjoyment of the lands ceded to them by treaty, may be considered to have afforded a sufficient motive on the of Congress to induce these settlers to retire within the restricted ts which had been given to the Territory of Arkansas by the treaty the Cherokees.

I am, respectfully, sir, your obedient servant,

JN. MACPHERSON BERRIEN.

'o the SECRETARY OF THE TREASURY.

PENSIONS-FORMER DECISION.

ether or not a former Secretary of War committed an error in allowing a pension for partial instead of a total disability, the decision cannot now be reviewed.

OFFICE OF THE ATTORNEY GENERAL,
December 17, 1829.

SIR: Your communication on the subject of Thomas Fitzgerald, a sioner, is before me.

You state, substantially, that Thomas Fitzgerald, having been wounded er the passage of the act of the 29th January, 1813, which authorizes allowance of pensions graduated according to the rate of disability, having exhibited to the then Secretary of War a surgeon's certificate his total disability, was, nevertheless, placed on the pension-list, in 15, at half the allowance granted for a total disability; that the full wance for such disability was accorded to him in 1821; and that he w claims from you the difference between the allowance for a total and tial disability, from 1815 to 1821.

In answer to your inquiries, I have to state, that, not having before me e evidence on which the Secretary of War acted in placing Thomas tzgerald on the pension list originally, I cannot form an opinion ether he was or was not then entitled to the allowance provided for a

1

total disability; but I deem it the less important to make this inquiry, be ing of opinion that the error committed by your predecessor (if any erro was, in fact, committed) can only be remedied by an application to Cor gress.

I am, respectfully, sir, your obedient servant,

To the SECRETARY OF WAR.

JN. MACPHERSON BERRIEN.

LIENS AS AGAINST COLLECTORS AND SURETIES.

Liens extend to all the real estate of collectors and their sureties, owned by them at the tim the sums in default were committed to them.

SIR: In the case referred to me in the letter of the agent of the Treas ury, of yesterday's date, I am of opinion that the lien extends to all th real estate of the collector and his sureties, which was owned by then at the time the sums in default were committed to such collector for col lection, or at any time before the same were discharged according to law I am, very respectfully, sir, your obedient servant,

JN. MACPHERSON BERRIEN.

To the SECRETARY OF THE TREASURY.

DUTY OF THE ATTORNEY GENERAL.

It is the duty of the Attorney General to give his opinion on all questions referred to him by the heads of the departments touching any matters that may concern their departments not on questions in which the United States have no interest.

ATTORNEY GENERAL'S OFFICE, January 19, 1830. SIR: I have received your letter covering the communication of the Hon. Mr. Whittlesey, and one from Mr. E. Tifield. In reply, I would observe, that it is made my duty to give my opinion on all questions referred to me by the heads of the departments "touching any matters that may concern their departments;" that, upon a perusal of these papers, it does not appear to me that the United States have any interest in this inquiry, and, consequently, that any opinion on my part would not only be gratuitous, but unauthorized. If, however, you entertain a different view of this matter, I will cheerfully receive your suggestions, and reconsider, if it be necessary, the opinion I have thus expressed.

The papers are returned.

I am, very respectfully, sir, your obedient servant,

To the POSTMASTER GENERAL.

JN. MACPHERSON BERRIEN.