ularity, in which attempts to dispose of a portion of the public domain have been made by persons having no authority to sell. It is not a case in which a sale made by the United States cannot be effectuated for the reason contemplated by the act of 1825, but one in which the United States deny the fact of a sale made, and refuse to carry into effect the attempted contract, because those who in their name proposed had no authority to make it. That the sale has been erroneously made is true; but that such error was the result of a want of title in the United States, "from any cause whatsoever," is not true; and this latter is the only class of cases covered by the act of Congress.

I am, therefore, of opinion that the purchase money in this case cannot be refunded by warrant under the act of January 12, 1825; nor am 1 aware of any principle upon which, under any supposed general authority of the department to refund, the money once being in the treasury, the repayment can be made.

It is quite certain, assuming the contract of sale to have been one which the United States should not have consummated, (and that is a question upon which the decision already acted on by the proper department precludes present inquiry,) that the purchase-money now asked to be refunded should never have been received into the public treasury. It is there wholly without consideration, and is the money of Mr. Shannon, to which the United States have no claim, and to which he is unquestionably entitled. But who is to restore it to him? It can be withdrawn from the treasury only by virtue of some law. I know of no enactment authorizing repayments, except that of 1825, which I have endeavored to show does not apply to this case.

It will not do to say that the department may refund simply because it is just that the money should be repaid, or that it is in the hands of the government by mistake, or without consideration. The same thing might have been predicated of the cases provided for by the act of 1825; and if in those cases the intervention of the legislative power was necessary, it seems to me to be equally so in this. The case of Mr. Shannon is unquestionably a hard one, and may evince the propriety of some general legislative provision, by which the Secretary of the Treasury may be clothed with authority to grant relief in like cases; but it can afford no warrant for the disregard by the department of a most wholesome and salutary restraint, upon the due and strict observance of which the most important interests depend.

I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

THE MISSIONARY LOT IN MICHIGAN.

The sale of the missionary lot to the Baptist Mission being irregular and unsatisfactory to the Catholic Mission, it should be rescinded, and the property placed in the situation in which it existed before any proceedings were had in regard to it, and be resold, upon such notice and terms as shall be satisfactory to all the parties concerned.

ATTORNEY GENERAL'S OFFICE, October 2, 1843. SIR: I have examined the papers connected with the questions re specting the distribution of the proceeds of the sale of the tract of land

called the Missionary Lot, in Michigan, under the Sth article of the treaty of 1836 with the Chippewa and Ottowa Indians, accompanying your communication of the 15th September, and am of opinion that, in the present state of the information in possession of the government, it is impossible for the board created by the President's order of the 24th of August to perform the duty assigned to it; the report of the Commissioner of Indian Affairs showing satisfactorily that no appraisement of the improvements upon the lot in question has been made, whereby the relative claims of the Baptist and Catholic Missionary Societies can be ascertained. It is indispensable, therefore, that some mode of making a valuation should be adopted, and no means more likely to prove efficient suggest themselves to my mind, than those recommended by the Commissioner in his letter to you of the 6th of September.

With regard to the sale made to the Baptist Missionary Society, I am of opinion that, if unsatisfactory to the Catholic Mission, it should not be confirmed, since it is quite manifest that it was made under a misapprehension superinduced by the mistaken representations of the agents of the Baptist Mission themselves, and a misapprehension which tended, by placing those representing that interest in a position of advantage, to preclude competition in the biddings, to the obvious prejudice of the Catholic Missionary Society. Apart from all other considerations affecting its validity, I think, therefore, that this sale, on many accounts irregular, should be rescinded, and the property placed in the situation in which it existed before any proceedings were had in regard to it; and that it should be resold at such time and place, and upon such notice and terms, as may be satisfactory to all the parties concerned; and, with this view, it may be expedient to address to the agents of the respective societies, a communication explanatory of the opinions entertained by the government, and inviting, in the measures to be hereafter pursued, mutual cooperation. This course may tend to allay unpleasant excitement, and in the end will promote the interests of all parties.

I have the honor to be, very respectfully, sir, your obedient servant,

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

JOHN NELSON.

AUCTIONEERS IN THE TERRITORY OF FLORIDA.

Where an officer of the general government employs an auctioneer of a Territory to make sales therein which such officer was required himself to make, such auctioneer has the right to retain the per-centage which the laws of the Territory require him to retain, and to pay over the same to the treasurer thereof.

ATTORNEY GENERAL'S OFFICE,

October 3, 1843.

SIR: The letter accompanying your communication of the 30th of September is so vague in its statement of facts, as necessarily to render the opinion I am asked to give, in some degree hypothetical. The only law of Florida affecting the question, that I have been able to find, is that of the 21st of November, 1829. This statute provides for the appointment by the Territorial authorities of auctioneers, and prescribes the mode of their

qualification and their duties. Amongst the last of these is that of paying to the treasurer two per cent. upon the gross amount of all sales at auction made by them; and to secure the fulfilment of this obligation, it is embraced in the condition of their official bonds. The 3d section of the act declares that it shall not be lawful for any auctioneer to charge or receive a greater per cent. than four per cent., over and above the tax accruing to the Territory, upon any goods or other articles sold by him, to the ex. tent of one thousand dollars; and for all sums above that, two per cent. on the amount of such excess.

Assuming, as a matter to be inferred from the statement of Mr. Hill, that the sales to which his letter refers were made at auction, by an auctioneer appointed and commissioned pursuant to the terms of the act of 1829, I am of opinion that the two per cent. on the amount of such sales may be rightfully demanded and retained by such auctioneer. If an officer of the government of the United States, submitting himself to the laws of the Territory, employs one of its public functionaries to dis. charge a duty devolved on him by statute, he is bound to conform him. self to the requirements of such statute. It would be most unjust that an auctioneer thus employed, who is bound to account to the Territorial treasury for what the law terms "the tax," should not be entitled to receive it from his employer, who is presumed, at the time of employing him, to know the extent of his obligations.

I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON.

Hon. JAMES M. PORTER,

Secretary of War.

JURISDICTION OF UNITED STATES COURTS OVER THE CASE OF ROGERS.

Where a person having Cherokee-Indian blood in his veins, and living as a trader, by permission, within the limits of the Cherokee nation west of the Mississippi river, who is at the same time recognised by law as a citizen of the State of Georgia, commits a crime, he is amenable to the laws of the United States, and entitled to a trial under them, instead of the laws enacted by the councils of the Cherokees.

Lovely Rogers, charged with participating in the murder of David Vance, treasurer of the Cherokee Indians, being a citizen of Georgia, is entitled to a trial in the United States courts, and may be surrendered to the proper officers of Arkansas by the Indian agents; or he may apply for a habeas corpus, which will be efficient for his relief, if he is entitled thereto, as represented.

ATTORNEY GENERAL'S OFFICE,

October 9, 1843.

SIR: The case of Lovely Rogers, to which the papers accompanying your communication of the 10th instant relate, presents for my considera. tion the single question of jurisdiction, upon which, assuming as true the facts stated in the letter of J. K. Rogers, and the report of the Commissioner of Indian Affairs, I have no doubt.

Those facts are: That, on the 8th of August last, David Vance, the treasurer of the Cherokee nation, was violently assaulted by several persons, of whom Lovely Rogers is alleged to have been one; that Vance is supposed to have died of the injuries then inflicted; that the assault was made upon Vance within the limits of the Cherokee nation, west of the Mississippi river; that Rogers, who is charged with having participated in

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it, although having "Cherokee blood in his veins," is a citizen of the State of Georgia, under a law of that State recognising him as such; and that he went from the said State of Georgia to the Cherokee nation west for the purpose of trading, and resides there by permission granted according to law.

The question arising under the circumstances is, whether Rogers, charged with a participation in the above stated offence, is subject to the jurisdiction of the tribunals of the Cherokee nation, or is entitled to a trial in the courts of the United States.

The 25th section of the act of the 30th of June, 1834, declares: "That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country; provided the same shall not extend to crimes committed by one Indian against the person or property of another Indian." This enactment embraced the territory which now constitutes that of the Cherokee nation, in which the alleged offence is charged to have been committed, and, apart from the modifications introduced by the treaty of New Echota, concluded on the 29th of December, 1835, would have furnished the rule applicable to the case of Mr. Rogers. But the treaty referred to essentially changed this rule the 5th article providing that the United States should secure to the Cherokee nation the right, by their national councils, to make and carry into effect all such laws as they (might) deem necessary for the government and protection of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them, with the limitation that they should not be inconsistent with the constitution of the United States, and such as had been, or might thereafter be passed, regulating trade and intercourse with the Indians, and that they should not be considered "as extending to such citizens of the United States as may travel or reside in the Indian country by permission, according to the laws and regulations established by the government of the same."

It is very clear, under this treaty, that citizens of the United States residing in the Indian country by permission, cannot be made subject to the laws enacted by the Cherokee councils-the jurisdiction over them belonging to the courts of the United States, under the act of 1834.

The only inquiry, then, is, was Mr. Rogers, at the time of committing the alleged offence, in the predicament contemplated by the treaty? This is a question of fact which I am incompetent to decide. If the statement of J. R. Rogers be correct, his brother's case is precisely that designed to be covered by the proviso above quoted. An opinion of Mr. Butler upon a question of an analogous character may be found in the volume of Opinions of Attorneys General, p. 984. Assuming Mr. Rogers to be entitled to be tried in the courts of the United States, (and whether he is so entitled depends, as I have already said, upon the fact of his citizenship,) it remains to inquire what should be done to assure to him the enjoy. ment of the privilege.

This may be effected in two modes the one through the instrumentality of the powers of the War Department, the other by an appeal to judicial authority. In the first, by the surrender, through the Indian agents, to the proper officers of Arkansas, of the party charged, to be dealt with according to law. In the second, by a petition to be preferred by the prisoner himself, if he be confined, for a writ of habeas corpus, which would be efficient for his relief if he be entitled to it.

In any event, it strikes me as calculated to subserve the purposes of humanity, as well as of justice, that the courts of Arkansas should inves tigate this case-try it, if, upon inquiring into the facts, they are found to have jurisdiction; and if not, remand the accused for trial to the tribunals of the Cherokees.

I have the honor herewith to return the papers transmitted to this office, and to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. JAMES M. PORTER,

Secretary of War.

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COMPENSATION OF COLLECTORS OF CUSTOMS, NAVAL OFFICERS, &c.

The compensation of collectors, naval officers, and surveyors depends on the amount received from the sources enumerated in the acts of 122 and 1841, read together-to the maximum of $4,000, $3,000, and $2,500, for commissions upon duties; and to $2,000 from the sources enumerated in the fifth section of the act of 1841; and is in each case separately dependent on the fund derived from such sources respectively.

ATTORNEY GENERAL'S OFFICE,

October 20, 1843.

SIR: I have considered the question propounded in your communication of the 16th instant, and am of opinion that the fifth section of the act of the 3d of March, 1841, therein referred to, does not absolutely change the preexisting maximum allowance to collectors, naval officers, and surveyors, and increase it $2,000 per annum, without regard to the sources of emolument; but that the increase thereby provided for is relative, and dependent on the amount received from the sources of emolument therein enumerated.

These officers of the customs, under the acts of the 31st of July, 1789, the 10th of August, 1790, and the 2d of March, 1799, were compensated for their services by fees and emoluments arising from certain specified official acts and papers, and a per-centage on all moneys received by them on account of duties on goods imported, and on the tonnage of ships and vessels; all of which received by them during their continuance in office, whatever might be their amount, belonged to them absolutely and for their own use.

This system seems to have continued in operation till 1802, when, for the purpose of limiting the compensation of collectors and others, Congress passed the act of the 30th of April of that year, by which it was declared, "that from and after the 30th day of June (thereafter,) whenever the annual emoluments of any collector of the customs, after deducting therefrom the expenditures incident to his office, should amount to more than five thousand dollars; or those of a naval officer, after like deduction, to more than three thousand five hundred dollars; or those of a surveyor, after a like deduction, to more than three thousand dollars-the surplus shall be accounted for and be paid by them, respectively, to the treasury of the United States: provided always, that nothing in the act contained should be construed to extend to fines, forfeitures, and penalties, under the revenue laws of the United States. Then followed the act of

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