No. 70.-(Ops. Aty. Gen.; G. L. O. p. 107.) When the purchase-money is paid direct to the Treasurer, the specific tract of land must be stated, the same as if applied for at the land district; the same form must be pursued. ATTORNEY GENERAL'S OFFICE, October 24, 1836. SIR In your letter of the 4th instant, enclosing a communication addressed to you by the Treasurer of the United States, you request my opinion on the following question submitted by that officer: "Does the law of 1820 authorize the Treasurer to require such a specification of the land to be purchased, when payment is made to him, as . is required by the receiver of public moneys?" In reply to this question, I have the honor to inform you that, in my opinion, the Treasurer has authority, under the law of 1820, to require the like specification of the land to be purchased, as was required in his office in such cases under the former law, and as is now required by the receivers of public moneys. There is nothing in the act of 1820 which indicates an intent to depart, in this respect, from the former usage; on the contrary, the language seems to require that the specific amount of purchase-money should be paid on each tract; and, as the usage of the receivers has been in accordance with the former practice, and as the act of 1820 places the receipts of the two officers on precisely the same ground, I see no good reason for allowing payments to be made into the Treasury on any different principle from that which was formerly pursued, and which is yet followed by the receivers. I have, &c. B. F. BUTLER. Hon. LEVI WOODBURY, Secretary of the Treasury. No. 71. (Ops. Aty. Gen.; G. L. O. p. 108.) All patents emanating from the General Land Office after the 4th July, 1836, must be executed by the Recorder. ATTORNEY GENERAL'S OFFICE, SIR In reply to the question proposed by the Commissioner of the General Land Office, and referred to me in your communication of the 27th of October last, I have the honor to inform you that, in my opinion, all patents issuing from the General Land Office, whether of land sold, or of lands in respect to which private claims are recognised by acts of Congress as valid, or other lands, must be certified or countersigned by the Recorder of the General Land Office. It is true that the fourth section of the act of the 4th July last, reorganizing the General Land Office, which prescribes the duties of the Recorder, speaks only of patents for "public lands," and it is therefore with much doubt, and considerable hesitation, that I have come to the above conclusion. But, after looking at the question on several different occasions, and reflecting very maturely upon it, I am obliged to say that, in my judgment, the phrase "public lands," as used in the fourth section, must be regarded as a comprehensive generic phrase, designed to include all lands the title to which is so circumstanced as to require for its complete transmission a patent from the United States. The words may well enough admit of this enlarged construction, and unless we adopt it, the most important duties of the Recorder, as prescribed by the act, will be confined to those lands which are strictly "public lands;" that is to say, the Recorder is to attend to the correct engrossing, recording, and transmission of patents, and to prepare alphabetical indexes of the names of patentees, and of persons entitled to patents, in those cases, and in those only, in which he is to certify, and affix the seal of the office; so that all those cases which are excluded in the latter respect from his jurisdiction, must also be excluded in the other respects above mentioned. This surely could not have been intended by Congress; nor can I think it at all probable that they designed that one set of patents should be signed by one officer, and another set by another, when there is no reason in the nature of the things themselves for such a distinction, and no explicit direction to that effect contained in the law. Hon. LEVI WOODBURY, I am, &c. Secretary of the Treasury. B. F. BUTLER. No. 72.-(Ops. Aty. Gen.; G. L. O. p. 113.) Pre-emption acts of May, 1830, and June, 1834, together with former opinions, re-examined, fully explained, and applied. Settlers and occupants are those who personally cultivate and reside on, or who personally cultivate, use, and manage the public lands. The party must have a direct personal connexion with the tract claimed. Actual residence on the land not indispensable, but, with cultivation, is in the highest degree evidence of personal connexion. The head of a family, whose dwelling is not on the land, but who improves and cultivates by the application of his personal labor, or by that of his hired men, domestic servants, family, or slaves, under his immediate personal direction, is, for the purposes of the pre-emption laws, entitled to the benefit of the maxim, "qui facit per alia, facit per se." Law of landlord and tenant inapplicable to the subject, but having been the basis of instructions the rule ought to be followed. The act of 2d July, 1836, confirms an entry under such instructions. A pre-emptor cannot be undermined by a subsequent fraudulent purchaser. Right of preference, named in the act, is a right of pre-emption-the solicitor's opinion "that no improved lands in the actual adverse possession of another, can be floated upon" is incorrect. The rights of actual settlers, in this respect, deserve the attention of Congress. ATTORNEY GENERAL'S OFFICE, March 29, 1837. SIR: Pursuant to the request contained in your letter of the 2d instant, I proceed to state my opinion on the several questions proposed by the Solicitor of the General Land Office, in the case of Adams and Lapsley, and which are as follows: "1. Whether the application of the law to the facts, under the opinions of the Attorney General and Secretary, and the instructions of the General Land Office, is, or is not, correct?" ( If I correctly understand the object of this question, the Solicitor desires a re-examination of that part of my opinion in this case of the 21st June, 1836, in which a definition was given of the terms "settler" and 'occupant,' as used in the acts of the 29th May, 1830, and the 19th June, 1834. The observations then made on this point were as follows: "There is some difference in the meaning of the words settler' and 'occupant.' It cannot be said with much propriety that one is an occupant of the public lands,' unless he actually and personally resides on, or personally occupies or uses such lands; but I suppose that a person who places a family or an individual on the public lands, and thus causes a settlement to be made, may, in an enlarged sense of the term, properly enough be called a settler of the public lands,' notwithstanding he may not personally occupy the same. But I do not believe that Congress intended, in the provision before me, to recognise this distinction. The title of the act of 1830 is as follows: An act to grant pre-emption rights to settlers on the public lands,' (not of the public lands,) and though the word 'occupant' is not used, yet the preposition 'on' necessarily restricts the word settler' to one who personally occupies and resides on, or personally occupies and uses, the public lands, and excludes all idea of settlement by proxy. "The first enacting clause of the act of 1830, like that of 1834, commences with the phrase 'every settler or occupant of the public lands;' but it is evident, from the whole context, as well as from the general spirit of all our pre-emption laws, that this phrase was deemed equivalent, and only equivalent, to the words used in the title. The same remark applies to the section above quoted from the act of 1834; and I am therefore of opinion that no person can be deemed a settler or occupant' within the meaning of that section, unless he shows that he had personally settled on the public lands prior to the 19th June, 1834." I adhere to the general views expressed in the above extract; and I do not know that I can make the language more precise, unless it be by repeating, in respect to the last sentence, what had been twice stated in the prior parts of the paragraph-that I regard those persons, and those only, as settlers or occupants," within the meaning of the law, who either 1. Personally cultivate and reside on the public lands; or 2. Personally cultivate, use, and manage, the public lands. In other words, I regard the words "settler" and "occupant" as used synonymously; and I think it necessary, in order to constitute either a "settler" or an "occupant," within the meaning of the law, that the party shall have a direct personal connexion with the land claimed by him. Residence or inhabitancy on the land, in addition to cultivation, is the highest degree of such personal connexion of which the subject is susceptible; but I have not supposed that actual residence or inhabitancy on the land was indispensable. A single man, by personal labor, may make an improvement on a particular quarter section, and reduce it to cultivation; but although he may board and lodge elsewhere, such a person, in my opinion, may well be regarded as a settler and occupant of the public lands. So, too, may the head of a family, whose dwelling is not on the public land, but who actually improves and cultivates a tract of public land by the application of his personal labor, and the labor of his family, or by the application of the labor of his family alone, under his immediate personal direction. In his family, I mean to include domestic servants and hired men, and where slavery is authorized, slaves. So far as regards the labor of all such persons, I think that when applied to the improvement and cultivation of the public lands, it should be deemed the labor of the head of the family, and that he is entitled, for all the purposes of the pre-emption laws, to the benefit of the maxim qui facit per alium, facit per se." But I have supposed that this liberality of construction could not, with propriety, be so far extended as to give to a person who takes possession of a tract of public land, and before such possession has ripened into a pre-emption right, leases the tract to another, the benefit of the cultivation and possession of the latter. Such a lessor as between himself and the United States, is a mere trespasser, and has no authority to make a lease. It is true the lessee, as between himself and his lessor, cannot dispute the lessor's title; and the possession of the lessee is regarded in ordinary cases as the possession of the lessor; but, in my judgment, these principles are inapplicable to cases under the pre-emption laws, which, as already explained, seem to demand a more direct personal connexion with the cultivation and settlement of the land, than such as can be effected through the agency of a tenant. In connexion with this point, my attention has been called by the Solicitor of the Land Office to the opinion of one of my predecessors, Mr. Berrien, on several questions arising on the act of the 29th May, 1830, and to the regulations in accordance therewith, prescribed by the Commissioner. In reply to the question, "In cases where the first settler rented his improvements to another person, who is entitled to the right of pre-emption conferred by the act, the landlord or the tenant ?" Mr. Berrien, under date of the 23d of August, 1830, gives the following answer: "I am of opinion that the right of pre-emption belongs to the landlord. That a lessee cannot dispute the title of his lessor, and that the possession of the former is to be considered as the possession of the latter, are settled principles of law, founded in justice and policy. They seem to me to point very clearly to the conclusion which I have stated; and if the object of pre-emption laws be, as I suppose it is, to compensate the occupant for the labor and expense incurred in making his settlement, this consideration will lead to the same result. This opinion is strengthened by the provision in the third section, which declares that all assignments and transfers of the right of pre-emption given by this act, prior to the issuing of patents, shall be null and void."" It will be seen, by the very terms of the question, that it was taken for granted by the General Land Office and by the Secretary of the Treasury, that one or other of the parties in the case stated, was entitled to the pre-emption; a view of the subject to which I cannot subscribe, because I think it very plain, that cases may exist in which the land may have been cultivated and possessed for the term required by the law, and yet not long enough by any one person to entitle him to its benefits. The manner in which the question was put was somewhat calculated to divert the attention of my predecessor from the real difficulties of the case, and his reasoning has not convinced me of the soundness of his conclusions. The above quoted opinion not being noted in the index of the record-book kept in the office, was unknown to me when my former opinion was prepared. Had I then been acquainted with it, and with the fact (now communicated to me) of its having been adopted by the Secretary and Commissioner as the basis of instructions to the land officers, I should have deemed it unnecessary and improper to enter into a discussion of the points settled by it, and in accordance with the usual course of the office, would have adopted and applied, so far as it extended, the decision of Mr. Berrien; and although not yet convinced that my own construction of the statute is erroneous, I think this a proper case for advising your Department to adhere to his exposition rather than to mine. The point on which we differ is by no means free from doubt; and as the views of my predecessor were deliberately adopted by the Department, and as many cases have no doubt been disposed of on the principle established by him, it would seem to be due to certainty and uniformity of judgment, that the first decision should be followed; at all events, in all cases arising under the act of 1830. tr "2. Whether or not title is confirmed to Adams by the act of the 2d July, 1836?" This act is in the following words: "AN ACT to confirm the sales of public lands in certain cases. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases where public lands, taken from the bounds of a former land district, and included within the bounds of a new district, have been sold by the officers of such former district, under the pre-emption law or otherwise, at any time prior to the opening of the land office in such new district, and in which the Commissioner of the General Land Office shall be satisfied that the proceedings, in other respects, have been fair and regular, such entries and sales shall be, and are hereby, confirmed, and patents shall be issued thereupon as in other cases. "And be it further enacted, That in all cases where any entry has been made under the pre-emption laws, pursuant to instructions sent to the register and receiver from the Treasury Department, and the proceedings have been, in all other respects, fair and regular, such entries and sales are hereby confirmed, and patents shall be issued thereon as in other respects." The entry of Adams was made pursuant to instructions sent to the register and receiver from the Treasury Department, on the 7th of February and 17th of October, 1831; and the entry and sale are, therefore, confirmed by the second of the above sections, provided the proceedings have been fair and regular in all respects other than the irregularity of making the sale after the erection of the Danville district. This irregularity is to be excepted, because cured by the first section, and, therefore, tacitly excepted from the irregularities and unfairness referred to in the second section, as explained in my opinion of the 10th |