allowed to officers of similar grades in the infantry of the army." Previous to the 3d March, 1835, the allowances of officers of the army, of grades similar to a quartermaster in the marine corps, embraced a commission of one per cent. on purchases; and that allowance was accordingly made to Major Weed. On the 3d of March, 1835, Congress prohibited extra allowances or compensation in any form to an officer of the army, on account of the disbursing any public money appropriated by law, during that session, for the purchase of public supplies of any description. This law, in accordance with an opinion given by my predecessor, (Mr. Butler,) on the 7th of March, 1835, has ever been considered as a permanent regulation In conformity, therefore, with this law, no commission similar to that claimed on behalf of Major Weed has been allowed to any officer of like grade in the army-or, indeed, to any officer whatever. It cannot, then, be allowed under the act of the 30th of June, 1834, to the quartermaster of the marine corps, for it was obviously the object of that act to make the allowance to infantry of the army and to the marine corps exactly the same; any changes in the allowances to the latter being made to conform to those which might take place in the former, whether they increased or lessened the compensation the officer was thus to receive. H. D. GILPIN.

To the SECRETARY OF THE NAVY.

SALES OF CHOCTAW RESERVATIONS.

Where a Choctaw reservee conveyed his reservation to D, in trust, to sell and apply the pro ceeds to the payment of a debt owing by the reservee to A. and R., who thereu, on sold a portion of the land, and with the proceeds raid a part of the said debt; and, at this stage of the affair, the reservee died, leaving two children, whose guardian, under pretence that he was acting for the children, bought the residue at a sum far below its value, who, after taking H. into partnership with him, conjointly with him sold the land to Banks and Lewis, without the consent of the President, and refused to pay over any part of the proceeds to said children-DECIDED, that the President ought not to give his approval to the sale to said Banks and Lewis, as it would probably deprive the children of their inheritance.

SIR: I had the honor to receive your letter of the 24th of March, enclosing two reports from the Commissioner of Indian Affairs, relative to the application of Messrs. Banks and Lewis for the consent of the Presi dent of the United States to a sale to them of part of a reservation made to Jack Pitchlynn by the Choctaw treaty of the 27th September, 1830; and inquiring whether, in my opinion, this consent ought to be given.

The material facts of the case are as follows: The nineteenth article of the treaty referred to, declares that certain reservations of land were to be admitted; but provides that the several reservations so secured "may be sold with the consent of the President of the United States." In the treaty, no reservation is secured to Jack Pitchlynn; but, in a supplement. ary article, dated the following day, and ratified as a part of the treaty, the commissioners agree to request that he may be entitled to a reservation of two sections of land. In an opinion given to the War Department by my predecessor, (Mr. Taney,) on the 1st of November, 1831, that supplement is held to be a part of the original treaty; and the reser

vations mentioned in it are regarded as subject to sale in the manner and on the terms prescribed in the 19th article.

On the 13th of April, 1831, Jack Pitchlynn conveyed the whole of his reservation to William Downing, in trust, to sell and apply the proceeds to pay Abert and Raser a debt he owed them of $2,428 40, with interest. This conveyance does not appear to have been made with the consent of the President. Downing sold a portion of the land, and applied the proceeds, to the amount of $2,655 53, to the payment of the principal, and part of the interest of Abert and Raser's debt-leaving, however, $312 96 of the interest still unpaid. In the mean time, Jack Pitchlyun died, leaving two children; and John Pitchlynn, senior, his father, became their guardjan. Old Pitchlynn then proposed to Abert and Raser to pay them the balance still due, if they would agree to transfer to him the benefit of the deed of trust; and an arrangement was accordingly made, by which Mr. Abert gave an order to Mr. Downing, the trustee, to sell the residue of Jack Pitchlynn's reservation, for the purpose of satisfying what remained due under the deed of trust. On the 4th of October, Mr. Downing, the trustee, offered for sale the residue of the reservation, which consisted of fractional sectional 30, of township 19, in range 18 east. At the sale, it was proclaimed that the land was to be bought in by old Pitchlynn, for the benefit of his grandchildren, Jack Pitchlynn's heirs. Accordingly, it was sold to John H. H. Hand, for John Pitchlynn, senior," for $1,012-a sum far below its value. The sale also appears to have been made entirely without the consent of the President. On the day of the sale, an agreement was entered into between old Pitchlynn and Mr. Hand, by which it was stipulated that, "in consideration of a note for $506, given by Mr. Hand to old Pitchlynn, the former was to become," in every respect, a full and equal partner in the tract of land aforesaid." On the 8th of October, 1834, four days after the sale, Mr. Hand and old Pitchlynn sold the same tract of land to Messrs. Banks and Lewis for the sum of five thousand dollars, cash in hand. This sale, also, was made without the consent of the President, though no doubt is expressed as to its having been made bona fide, and that the purchase-money was a fair equivalent. It would have left for the heirs of Jack Pitchlynn the sum of $4,686, after discharging his debt, principal and interest. No portion of this sum has ever been paid or accounted for by old Pitchlynn to his grandchildren. On the 12th of October, 1837, he was superseded in his guardianship by the appointment of Grant Lincicum, the uncle of the heirs of Jack Pitchlynn, as their guardian. Lincicum forthwith objected to an approval by the President of the sale to Messrs. Banks and Lewis. This objection he afterwards withdrew, in consideration of receiving the sum of $1,000, though it is not alleged that he had any legal or competent authority to do so. The heirs of Jack Pitchlynn are still minors, living in the Choctaw country beyond the Mississippi. Old Pitchlynn is dead; and any recourse which the children might have against him or his property, may be regarded as desperate.

Upon this state of facts, application is made to the President, by Messrs. Banks and Lewis, to give his consent, pursuant to the 19th article of the treaty, to the sale made to them; and you inquire whether, in my opinion, that consent ought to be given.

In reply, I have the honor to state, that I think it should not be given. It cannot be doubted that the minor children of Jack Pitchlynn are en

titled to the full amount of the consideration money of the sale in question, after the payment of their father's debts chargeable upon it. The evident intention of the clause requiring the President's consent to sales which the reservees might make, was to protect the Indian against any injustice or impropriety in the sale. A sale made by Jack Pitchlynn himself, in his lifetime, would have been subject to examination on those grounds, and would have been approved only on satisfactory evidence of its being bona fide, and in accordance with the legal and equitable rights of the reservee. Much more must this principle govern the Executive, when the legal and equitable rights of minor Indian children, residing beyond the Mississippi, are to be affected by the decision. Yet the approval which is now asked for would not only certainly, and, as I think, unjustly interpose a serious obstacle in the way of these minors while prosecuting their claims to their inheritance, but would probably, in point of fact, deprive them totally of every portion of that inheritance. I cannot think that there is any thing in the treaty which would, under such circumstances, make it obligatory on the President to give his consent to the sale; on the contrary, I am of opinion that the clear intention of the treaty authorizes him to withhold it.

The only grounds on which the request for his approval appears to be strongly urged are, that the purchase by Messrs. Banks and Lewis was bona fide; the price given was the fair value of the land; and that price was actually paid by them to old Pitchlynn and Mr. Hand. To these reasons it may be answered, in the first place, that if a refusal on the part of the Executive to approve the sale involves them in the risk of losing their purchase-money, his consent will, on the other hand, in all probability, subject the minor children to the loss of every portion of their inheritance. But, in addition to this, it is to be observed that the purchase was voluntarily made by Messrs. Banks and Lewis, with a full knowledge of the consent of the President being necessary to give a valid title to the land in question. It was in their power so to have made their contract of purchase as to leave the actual payment of the money dependent on their receiving a valid title. It was well known that the land in question was the reservation of Jack Pitchlynn, and therefore subject, when sold, to the equally well known provisions of the treaty regulating the sale of reservations. It was also obvious that, by the death of Jack Pitchlynn, his interest had passed to his minor children; and, therefore, that any purchaser was especially bound to look to the legality and correctness of all the intermediate proceedings by which his title might be affected. He could have no just grounds to complain of any difficulty arising from a neglect to do so.

The objections which I thus entertain, for the reasons stated, to an approval of the sale, make it unnecessary to express an opinion on the other ground of objection taken by the Commissioner of Indian Affairs,-that the sale in question is not such a one as is contemplated by the nineteenth article of the treaty; and that, therefore, the laws of the State of Mississippi should be left to operate on the case, without any interference between the parties on the part of the Executive.

To the SECRETARY OF WAr.

H. D. GILPIN.

DUTY OF ACCOUNTING OFFICERS RESPECTING CLAIM OF WILLIAM OTIS. Although it is doubted whether an account which has been finally adjusted, settled, and closed, ought to be reopened, the claim in behalf of William Otis, late collector of customs at Barnstable, not having been fully settled, may now be settled without violating such a rule.

ATTORNEY GENERAL'S OFFICE,

April 20, 1840.

SIR: I have examined the documents relative to the case of William Otis, deceased, late collector of the customs for the district of Barnstable, which were transmitted with the letter of the First Comptroller of the Treasury, dated the 27th of March; and have now the honor to state that, in my opinion, the sum reported by the accounting officers to be still due, may be paid in pursuance of the provisions of the act of Congress of the 2d of March, 1829. That act directed those officers to audit and settle his accounts upon principles of justice and equity; appropriated a sum of money sufficient to discharge the amount that they might decide to be due; and directed its payment upon their decision being sanctioned and approved by the President.

Shortly after the passage of this act, an account was presented by Mr. Otis, of which a portion was admitted and paid with the sanction and approval of the President. This, however, was not stated to be, or regarded as, a final settlement under the act; on the contrary, not long af terwards an additional allowance of $3,120 35 was admitted, approved by the President, and paid; and a still further allowance has been made by the present accounting officers, and sanctioned and paid in the same manner. The present report of the First Comptroller presents to the President for his approval an item of $10,585 67, which is stated to be a final decision on the claim of Mr. Otis, and a final settlement of his accounts, in pursuance of the act.

That Mr. Otis is entitled to the allowance in question, "upon principles of justice and equity," does not appear to be doubted. The accounting officers and the Secretary of the Treasury concur in this opinion from the testimony produced. The statement of the case, as exhibited in the report of the First Auditor, dated 25th of January, 1840, is, I think, conclusive to show that the item in question should never have been disallowed. The only ground on which a doubt is expressed, as to the propriety of making the allowance, arises out of the fact that the claim was rejected by the First Auditor, when originally presented in 1829. This is regarded as a final decision, with which the present Auditor thinks it would be improper to interfere. The First Comptroller, on the other hand, is of opinion, that as the account has never been finally adjusted or settled, there has been no such decision as precludes an allowance of this item, if justly due to the claimant. To this view may be added the facts, that the decision of the former Auditor does not appear to have been reg. ularly or explicitly confirmed by the Comptroller, although it is supposed to have been assented to by him; that it does not seem to have been submitted to or passed upon by the President, as the act of Congress requires, before the proceedings under it can be considered as final; and that, since it was made, evidence has been produced to show that at the time the former Auditor examined the account, Mr. Otis was laboring under a mental incapacity to manage his business.

It may be reasonably doubted whether an account which has been finally adjusted, settled, and closed, ought to be reopened, without very strong circumstances to warrant such a course. But the present case does not fall within that rule. The amount in question certainly was not closed, or even finally adjusted; it is doubtful whether even the item in dispute can be considered as formally rejected, under the act which submitted it to the accounting officers and the President. While the account thus remained unclosed, the particular items were subject to examination. I am, therefore, of opinion that the claim, being founded "on princi ples of justice and equity," ought to be sanctioned and approved by the President; with the understanding that the present decision is a final one upon the whole claim of Mr. Otis, and that no further allowance be made under the act of Congress above referred to.

To the PRESIDENT OF THE UNITED STATES.

H. D. GILPIN.

TESTIMONY OF NEGROES BEFORE COURTS-MARTIAL.

The Executive will not set aside the proceedings of courts-martial merely because they have admitted the testimony of negroes or made other mistakes, though objected to, where it appears, upon the whole case, that justice has been done and that the verdict is substantially right.

SIR: I had the honor to receive your letter of the 20th instant, enelosing a copy of that of the Honorable J. Taliaferro, of the House of Rep resentatives, together with the record of the proceedings of the courtmartial convened for the trial of Lieutenant George Mason Hooe, on board the United States ship Macedonian, in the bay of Pensacola, on the 18th of March, 1839, and the opinion of the attorney of the United States for this district thereon.

In reply to your request for my opinion on the point submitted by Mr. Taliaferro-that the proceedings and judgment of the court-martial ought to be set aside, on the ground that it admitted the testimony of two negroes on board the vessel, who were produced and examined as witnesses, notwithstanding an objection made thereto-I have to say, that on a care. ful examination of the record, I find that the testimony objected to is in no respect material to the finding of the court. That testimony related to the second charge, of which the accused was entirely acquitted; and also to the fourth specification in the first and second charges, the finding in regard to which was fully sustained, in all particulars, by witnesses whose competency was not denied. Indeed, the only fact found by the court, under any portion of the charges to which this testimony relates, is the punishment of a person on board the ship by direction of Lieutenant Hooe a fact mentioned by many witnesses, and not at all denied in the defence, which rests not upon the fact itself, but the authority of the accused to direct the punishment. If, therefore, we adopt the well-established and reasonable rule laid down in regard to similar applications in common-law proceedings, that "where, upon the whole case, justice has been done, and the verdict is substantially right, no new trial will be