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vision of the act of 23d August, 1842, which enacts that no officer in any branch of the public service, or any other person, whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or any other service or duty whatever, unless the same shall be authorized by law, and the appropriation there. for explicitly set forth that it is for such additional pay, extra allowance, or compensation.” After the passage of this act Mr. Nelson, as Attorney General, held that collectors might receive compensation for superintend. ing light-houses, because there was an appropriation for such compensation, and it came within the exception. There is no such appropriation for the disbursement of moneys under the direction of the Topographical Bureau. The act of 1842 was intended to put an end to extra allowances or compensation to officers receiving fixed pay or emoluments, unless Congress in the appropriation explicitly provided for it. The introduction of this strong language, in lieu of that employed in the act of 1839, indicates very clearly the meaning and purposes of the law. A collector being such an officer, and there being no appropriation explicitly setting forth that he may be employed and compensated by the War Departmeut for disbursing money appropriated for topographical purposes, I am of opinion that the War Department cannot employ and conipensate him for such service, even to the extent of the act of 1822. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. WILLIAM L. MARCY,
Secretary of War.
DUTIES OF COLLECTORS RESPECTING VESSELS FREIGHTED WITH LIVE
Collectors of customs within Mississippi, Alabama, Louisiana, and Florida, may withhold
clearances from any vessels on which there is reason to believe live-oak or red cedar, cut from the public land, is freighted. It is their duty, also, to prosecute for the violations of the law whenever violations come to their knowledge.
ATTORNEY GENERAL'S OFFICE,
July 15, 1845. SIR: I have received your letter of the 11th instant, with communications from the chief of the Bureau of Yards and Docks and from the col. lector of the customs at Jacksonville, Florida. My opinion is asked as to the authority and duty of the collector in granting or withholding a clearance from a vessel on which there is reason to believe timber, cut from the public lands, is freighted. The 3d section of the act of March 3, 1833, directs that, in addition to the provisions now in force on the subject of the live-oak growing on the public lands, it shall be the duty of all collectors of customs within the Territory of Florida and the States of Alabaina, Mississippi, and Louisiana, before allowing a clearance to any vessel laden in whole, or in part, with live oak timber, to ascertain satis. factorily that such timber was cut on private lauds, or, if from public ones, by consent of the Navy Department. And it is hereby made the
duty of all officers of the customs, and of the land officers, within said Territory and States, to cause prosecutions to be seasonably instituted against all persons known to be guilty of depredations on or injuries to the live-oak growing on the public lands. This section requires the collector to ascertain satisfactorily if timber cut from the public lands without authority forms a part of her cargo; and if so satisfied, he not only is not authorized to grant a clearance, but is required to cause prosecution to be seasonably instituted. He must be satisfied of the fact: and this he deterniines on the evidence before him, on his responsibility. If a satisfactory allegation be made, he must perform this duty, unless the master of the vessel shall satisfy him that the timber was cut on private lands, or on public lands, with authority. The act clearly devolves on the master the proof that the timber was not cut in violation of law. of the provisions of law referred to in this section, that contained in the 2d section of the act of March 2, 1831, declared “that, if the master, owner, or consignee of any ship or vessel shall knowingly take on board any timber cut on lands reserved or purchased as aforesaid, (meaning for the navy of the United States,) without proper authority, or shall take on board any live-oak or red-cedar timber cut on any other lands of the United States, with intent to transport the same to any port or place within the United States, or to export the same to any foreign country, the ship or vessel on board of which the same shall be taken, transported, or seized, shall, with her tackle, apparel, and furniture, be wholly forfeited to the United States.” The reasonable institution of prosecution, and enforcement of this penalty, requires of the collector to withhold the clearance, and to apply for process against the vessel itself, which is forfeited if, on the trial, the facts are found which will justify her condem. nation. The case must be made to appear satisfactory to him before he can be required to perform this duty. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. GEORGE BANCROFT,
Secretary of the Navy.
RIGHTS OF PRE-EMPTIONERS IN FLORIDA RESPECTING LIVE-OAK, &c.
Pre-emptioners under the act for the armed occupation and settlement of the unsettled part of
the peninsula of East Florida, approved August 4, 1842, have no right to cut live-oak or other timber for any purpose other than to clear and fence their land, until after the five
years'occupation shall have enabled them to acquire a perfect title. All lands within the prescribed limits as to boundary and quantity were open to such settle
ment, with the single reservation contained in the third section, which prohibits any such settlement within two miles of any permanent military post of the United States, establish
ed and garrisoned at the time such settlement and residence was commenced. Settlers have all the rights necessary to enable them to perfect their title by clearing, improv.
ing, and enclosing the land, but have no right to cut, or to have cut, valuable timber for sale
or export. Slave property cannot be held for damages.
ATTORNEY GENERAL's Office,
July 16, 1945. Sir: In the letter of the chief of the Bureau of Yards and Docks, da. ted May 28th ultimo, and which accompanied your communication to
me of the 29th May, there are three questions stated on which my opinion is asked, at the request of the agent for the preservation of live oak in Fast Florida. They are thus stated: “Ist. It being my opinion that the permit does not authorize the settler on the public lands in Florida to locate on public land abounding in live oak and red cedar, I wish to be informed what their privilege is under those permits. 20. How far, under the law of pre-emption, the settler is permitted to destroy timber calculated for ship-building? 30. Can slave property be held liable for damages where they have been instrumental in destroying timber, under the su. perintendence of their owners or agents ?”
1. By the act to provide for the armed occupation and settlement of the unsettled part of the peninsula of East Florida, approved August 4, 1842, it was enacted that any person, being the head of a family, or single man over eighteen years of age, able to bear arms, who has made, or shall, within one year from and after the passage of this act, make an actual settlement within that part of Florida situate and being south and east of the base line, shall be entitled to one quarter section of said land, on four conditions, which are specified. I respectfully refer you to an opinion given by Mr. Nelson, at the request of Mr. Henshaw while Secretary of the Navy, dated 11th August, 1843. I concur in his opinion that the settler, under this act, has no right to cut live-oak or other timber for any purpose but to clear, improve, and enclose his land and bring it inio cultivation, before he has occupied the same five years and acquired a perfect title. All lands within the prescribed limits as to boundary and quantity were open to such settlement, with the single reservation con. tained in the third section, which prohibits any such settlement within two miles of any permanent military post of the United States, established and garrisoned at the time such settlement and residence was commenced. The permit gives to the settler, while occupying the land on which he has settled, an inchoate right, which is not perfected until he has resided on the lands for five years, and in other respects complied with the requisitions of the law. He has all the rights necessary to enable him to perfect his title by clearing, improving, and enclosing the land. But he has no right to cut, or to have cut, valuable timber for sale or export. The growth of timber on the land does not affect the settler's right; the great national object contemplated by the passage of the act was of paramount importance, and Congress has not reserved from the operation of its provisions lands within the limits set forth, although they might have on them live-oak and red cedar.
2. Where the right of pre-emption exists, the settler who has complied with the provisions of the act of 4th September, 1841, has a right of oc. cupancy for twelve months, within which he may perfect his title by pay. ing the minimum price of the land claimed. Like the settler under the armed occupation act, his right is inchoate merely; and he has only those rights of property which are necessary to the perfecting of his title. He may clear the land, build on it, and enclose it with a view to cultivation. For these purposes he may use or destroy any trees which may be neces. sary; but within these restrictions, and necessary fire wood, he is confined. I speak of cases in which the right of the pre-emptor exists; it does not exist in lands which have been reserved from sale on account of live oak timber which it was desirable to preserve for the use of the navy.
3. In answer to the third inquiry, I cannot conceive any principle on
which slave property may be impounded or seized and held liable for damages. There is no forfeiture of such property by trespass on the lauds; and there is no authority for distraining property before judgment. Trespassers may be driven off ihe public lands when detected in the commission of trespasses. But until trial and judgment of conviction on prosecution, there is no process by which property not specifically forfeited can be taken by the United States. The agent is apprinted for the protection of the valuable timber on the public lands. He is a mere minis. terial officer, without judicial authority, and certainly has not and ought not to have power to take and detain the property of those against whom he may deem it his duty to institute legal proceedings-a power of so delicate a character, that a mistake on his part might involve innocent individuals in ruin, and subject the treasury to immense claims for indemnity. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. GEORGE BANCROFT,
Secretary of the Navy.
RATES OF POSTAGE CHARGEABLE ON CERTAIN NEWSPAPERS, MAGA
The contents, rather than the form and dimensions of publications, should be the criterion for
determining the rates of postage thereon chargeable. To entitle any publication to the privileges of a newspaper, its main object and purpose must
be the dissemination of intelligence of passing events; must be issued in numbers consisting of not more than two sheels, whose superficies do not exceed 1,900 inches, at short stated
intervals of not more than one month. This opinion defines magazines and pamphlets, and advises that the publication styled the
“Living Age” be rated as a magazine.
ATTORNEY GENERAL'S OFFICE,
July 22, 1815. Sir: I have received your communication of the 12th instant asking my opinion on a question involving“any, and what, difference there exists between newspapers, pamphlets, magazines, and periodicals-if the latter should be under 1,900 quare inches," under the act of Congress of March 3, 1845, in view of the rates of postage to be charged. The act recognises these four descriptions of mailable matter, and prescribes the rate of postage. The difficulty consists in determining, under its provisions, what particular publications belong to each class. This has been found to be embarrassing to the department; and opinions have been given by Mr. Legaré and by Mr. Nelson, at the request of the Postmaster General. I do not regard it as yet freed from difficulty. The 2d section of the act of March 3, 1845, declares that all newspapers of no greater size or superficies than 1,900 square inches may be transported through the mails, by the editors or publishers thereof, to all subscribers or other persons within thirty miles of the publication, free of postage. It also prescribes the rates of postage on newspapers of less size and of greater size; thus show. ing that Congress did not intend to fix an arbitrary standard of size or dimension to determine what is a newspaper. The 3d section prescribes the postage of all pamphlets, magazines, periodicals, and every other kind
and description of printed or other matter, except newspapers. Pamphlets, magazines and periodicals, have no free circulation; nor have all other kinds and descriptions of printed or other matter, except newspapers, however short the distance.' It appears to me that the exception applies to the descriptive general terms immediately preceding "every other kind and description of printed matter, except newspapers;'' and, as a consequence, the pamphlets, magazines, and periodicals, are not synonymous with newspapers.
In the 15th section, “ mailable matter” and “matter properly transportable by mail” are defined to be all letters and newspapers, and all maga, zines and pamphlets, periodically published. The continued and repeated distinctions beiween these several publications would lead to the construction of the act without much difficulty. But in the 16th section, Congress has, for the first time, given a definition of the term “newspaper. It is declared that the term “newspaper,” herein before used, shall be, and the same is defined to be, “any printed publication issued in numbers consisting of not more than two sheets, and published at short stated intervals of not more than one month, conveying intelligence of passing events, and bona fide extras and supplements of any such publication.' This definition is substantially that given by McCulloch, in his Commercial Dictionary. The act of 1825 had defined a sheet to consist of four folio pages, eight quarto pages, sixteen octavo pages, or twenty four duo. decimo pages, less than that of a pamphlet size or magazine. This is the meaning of the term “sheet” used in the act of 1845. McCulloch's definition of “newspaper” is, “publications in numbers, consisting commonly of single sheets, published at short and stated intervals, giving intelligence of passing events." His article on the subject throws much light on the class of publications which come within the definition. “Their utility,' says he, “ to commerce is unquestionable. The advertisements they circulate, the variety of facts and information they contain as to the supply and demand of commerce in all quarters of the world, their prices, and the regulations by which they are effected, render newspapers indispen. sable to commercial men; supersede a great mass of correspondence; raise merchants in remote places towards an equality, in point of information, with those in greater marts, and wonderfully quicken all the movements of commerce. This is the legitimate commentary on the publication called “a newspaper”-a publication conveying intelligence of passing events. A magazine is defined by Webster to be “a pamphlet, periodi. cally published, containing miscellaneous papers or compositions.” A paniphlet is defined to be a small book, consisting of a sheet of paper, or of sheets stitched together, but not bound.” Magazines and pamphlets are not newspapers; but it may be admitted that a newspaper, of a superficies not exceeding 1,900 square inches, may be put up in magazine or pamphlet form, and not be subject to postage as one or the other. I conclude, therefore, that neither the dimensions nor the manner of putting up determines the character of the publication. What, then, is the criterion ? The definition given in the law affords a satistactory answer: it must be a publication communicating to the public intelligence of passing events. And it is to the contents, raiher than to the form, that you must refer to determine the question. To entitle such a publication to the privileges of a newspaper, its main object and purpose must be to disseminate intelligence of passing events; and the employment of a portion of its column