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PRE-EMPTIONS.

The claims of pre-emption in question cannot be allowed under the acts of Congrese, for

lands acquired by the treaty of November 6, 1838.

OFFICE OF THE ATTORNEY GENERAL,

August 19, 1842. Sir: In reference to pre-exnption rights in the lands acquired by the treaty of 6th November, 1835, with the Miamies, and the question propounded in the letter addressed to you by the present Commissioner of the General Land Office, as well as in that addressed by his predecessor to the register at Fort Wayne, Indiana, I have carefully collated all the acts upon the subject, and am of the opinion that the claims in question cannot be allowed. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. Walter FORWARD,

Secretary of the Treasury

ENLISTMENT OF MARINES.

The act of 1837, providing for enlisting boys for the naval service, and to extend the term for

the enlistment of seamen, does not include the enlistment of marines. The apprenticeship had in view by Congress, relates only to those who may not be called on for military service on the land. OFFICE OF THE ATTORNEY GENERAL,

August 26, 1842. SIR: I have looked into the subject propounded for my consideration by the judge advocate of the court martial now sitting at New York, and am very decidedly of opinion that the act of 1837 does not apply to ma. rines. It is no more than it purports to be—“An act to provide for the enlistment of boys for the naval service, and to extend the term for the enlistment of seamen.” The act of 1834 only does somewhat more precisely what the act of 1798 and all other acts had done. It puts the marine, while acting on ship-board, into the naval category-while acting on shore, by the President's orders, into the class of soldiers. It were a strained construction to apply a law applying to an exclusively maritime service, to one that might or inight not be maritime, according to the President's pleasure. Would you enlist a boy of thirteen to carry a musket? What was meant was an apprenticeship so necessary for marines, and for them only. The other persons mentioned in the same section (1st of the act of 1837) are contradistinguished from boys or minors, but are obviously in the same category as to the nature of the service. To put any other construction upon the act of 1834 were to give it a sweeping effect as a repealing statute, totally inconsistent with all the established rules of interpretation, besides confounding the landmarks of our statute law in regard to the marine corps, in relation to the military and naval establishments.

For instance, the act of 2d March, 1833, regulates, together, enlistments for the army and marine corps. The act of that very session of 1834 (30th June) makes an allowance, eo nomine, to officers of the ma.

rine corps. So, innumerable other acts, since the first in 1798. Finally, the enlistment of minors is not to be extended by loose construction, es pecially in a service which (unlike that of mariners) prepares them for no civil avocation hereafter. On all grounds, I concur with what seems to be the opinion of the judge advocate. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. A. P. UPSHUR,

Secretary of the Navy.

ACCEPTANCES OF DRAFTS BY GOVERNMENT OFFICERS.

When the United States, by their authorized officers, become a party to negotiable paper, they

incur all the responsibilities of individuals who are parties to such instruments.-[ 1 he United States vs. Bank of the Metropolis, 15 Peters, 377.)

OFFICE OF THE ATTORNEY GENERAL,

September 1, 1842. Sır: In answer to your inquiries as to the liability of your department on acceptances and drafts upon it, I refer you to the case of the United States vs. the Bank of the Metropolis, 15 Peters, 377, which settles the rule, that when the United States, by their authorized officers, become a party to negotiable paper, they incur all the responsibilities of individuals who are parties to such instruments. In that case, the question arose on acceptances by the Postmaster General, and the judgment of the court was for principal, interest, and costs of protest. No question was made and no doubt expressed that the head of the department had a discretion to accept drafts of that kind. I would just add, that such being the liabilities incurred, the heads of departments ought to be cautious not unnecessarily to accept drafts of any kind. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. A. P. UPSHUR,

Secretary of the Navy.

PENSIONS TO WIDOWS UNDER ACT OF 1838.

In consequence of the Executive construction given to the laws of 1838, Congress has declared,

by resolution, that it embraces the cases of widows whose husbands were alive in 1832. Widows take for five years, beginning in 1836, and are to be paid, according to the letter of the

law, from that time.

OFFICE OF THE ATTORNEY GENERAL,

September 2, 1842. Sır: In the matter of widows' pensions under the act of 1838, it appears that one of your predecessors and one of mine settled the law to be, that in all cases under the acts of 1836 and 1838, the widow began to take only upon the husband's death. In a former opinion on the meaning of the law of 1838, I thought the inconvenience of a double pension, a pension to the husband till 1838 and a pension to the wife from 1836,

so glaring an objection to the construction that widows in that category should take at all, that I gave it as my opinion that they did not come within the act of 1838.

In consequence of that Executive construction, Congress has declared the law to mean that, non obstante that apparent inconvenience, the law of 1838 does embrace the case of widows whose husbands were alive in 1832. Strictly interpreted, this means only that the widows in question take something; it does not settle how much they take, or when they begin to take under the act of 1838. That has been settled, and, no doubt, very sensibly settled, by your predecessor, according to principles laid down by mine, and no doubt according to the general principles of our republican policy, adverse to pensions at best, and particularly adverse to double pensions. But the joint resolution is general; it is passed in a full view of the objection. It orders the law of 1838 to be carried into effect without reserve; and the words of that law are express: the widow shall take for five years, beginning in 1836. Ita lex scripta est. I do not see any better reason to limit the claiın by implication than to reject it altogether; but to reject it is impossible in the face of the resolution. If my opinion is to govern you, and the practice of your department to be changed, you will pay, according to the letter of the law, from 1836. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. John C. SPENCER,

Secretary of War.

PRE-EMPTIONS-CONSTRUCTION OF THE HOUMA GRANT.

The sales made to pre-emptioners within the admitted or ascertained limits of the Houma

grant, are entirely void under the sixth section of the act of 1811. (See opinions of Graham

and Wirt.) In the cases of patents issued, there is no remedy awarded except in the courts.

OFFICE OF THE ATTORNEY GENERAL,

September 2, 1842. SIR: There can be no doubt, in my opinion, that the sales made to pre emptioners within the admitted or ascertained limits of the Houma claim are entirely void, under the 6th section of the act of 1811. But Commissioner Graham's order proceeded on the assumption that the lands he offered for sale were not included within the bounds of that claim. Commissioner Brown, without conceding its validity to the whole extent, seems to have admitted that it had been regularly preferred before the commissioners to that extent. I am not yet prepared, from any information I possess, to speak to this fact. I only answer hypothetically-assuming the lands in question to be within the claim, as propounded to the commissioners under the acts of 1805–’6, and '7—ihe Executive clearly had no authority to dispose of them without a special act of Congress. The Land Office will therefore refuse patents on all certificates which they shall be satisfied fall within that category: Whether the entries not heretofore patented shall be cancelled, depends upon the practice of that office, which must have been, I should think, settled long ago,

and which I do not wish or mean to disturb. As to patents issued by Mr. Graham, I see no remedy but in the courts. If issued on lands covered by a complete Spanish grant, they are of course void, and will be so declared whenever they are set up in an ejectment. I should have greatly preferred to retain my opinion on this, as on the other points of this case, for further consideration, and give it now only because it seems to be impatiently called for by the claimants. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. M. Young, Esq.,

Acting Secretary of the Treasury.

THE LEASING OF LEAD MINES.

The several acts of Congress relating to the saline and mineral lands confer a general authori

ty upon the President to lease the lead mines. The question, however, is not res integra; it having been decided by Attorneys General Wirt and Butler, and a settled practice having been adopted pursuant to their opinions. OFFICE OF THE ATTORNEY GENERAL,

October 14, 1842. Sır: I have had the honor to receive your letter of the 12th instant, presenting the following question:

“ It has become a question of great importance, whether the laws authorizing the President to lease the mineral lands extend to that portion of the Territory of lowa lying west of the Mississippi river; and I have to request your opinion on the point. The accompanying letter from the chief of the Ordnance Bureau will afford you information on the sub

ject."

After the opinions of my predecessors, Mr. Wirt and Mr. Butler, and in the face of a settled practice in regard to the matter, I do not feel at liberty to treat this question as res integra. But were it so, I should consider the last proviso of the 2d section of the act of 3d March, 1807, (concerning settlers on public lands,) taken in connexion with all the provisions of our land laws in relation to mines and salines, from the ordi. nance of 1785 and the act of 1796 up to the present moment, as clearly vesting in the President a general authority to lease lands of the description in question. I have the honor to be, sir, your obedient servant,

H. S. LEGARE, Hon. John C. SPENCER,

Secretary of War.

COMPENSATION OF CLERKS OF PAYMASTERS.

If the accounting officers are satisfied that Paymaster Andrews had authority to employ clerks

to assist in paying the militia and volunteers, they may allow him a reasonable compensa

tion for them, irrespective of the act of July 5, 1838. The act of 1838 relates to clerks of paymasters paying the regular army, and not to the paying

of militia and volunteers.

OFFICE OF THE ATTORNEY GENERAL,

October 19, 1842. Sir: I have had the honor to receive your letter, enclosing a communication from the Second Comptroller, requesting an opinion whether Pay. master Andrews, employed in the payment of militia and volunteers in the service of the United States, can be allowed for clerks at a rate exceeding the amount prescribed in the 20th section of the act of 5th July, 1838.

If the accounting officers are satisfied that the paymaster had authority from the department 10 employ clerks on the terms stated, viz: "at a reasonable compensation," to assist in paying the militia and volunteers, I think the allowance ought to be made. The act of 1838 applies directly only to the regular army. In the case of the militia, it furnishes, indeed, a standard or measure for regulating the discretion of the department, from which it ought not lightly to depart. But if it should authorize a higher rate of compensation, I am of opinion that the rate laid down in the United States vs. Fillebrown (7 Pet.) would protect the disbursing agent who should act under such authority. I have the honor to be, sir, your obedient servant,

H. S. LEGARE. Hon. John C. SPENCER,

Secretary of War.

MILEAGE OF NAVY OFFICERS.

The construrtion put upon the act of 1835, allowing 10 cents a mile to naval officers who may

be required to travel upon the public service, confining such allowance to travelling in this country, re :arded as res judicala; yet it is an interpolation not exactly warranted by the letter of the statute. The rendering of “may” for “shall," and the "ten cents” per mile treated as the maximum only, &c., recommended.

OFFICE OF THE ATTORNEY GENERAL,

October 19, 1842. SIR: I have had the honor to receive your letter, enclosing a communi. cation from the Fourth Auditor, requesting an opinion whether the compensation of 10 cents per mile allowed to officers of the navy for travelling expenses by the act of 3d March, 1835, is restricted to travelling in the United States, or is applicable as well to voyages by sea and travelling in foreign countries; and, if restricted to the United States, whether any allowance can be made for travelling expenses elsewhere, and, if any, whether at a rate of more than 10 cents per mile.

It is plain, on the most superficial consideration of the subject, that the words of the act of 1835 cannot be literally construed without producing the gravest practical inconvenience and absurdities. It was, no doubt,

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