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is, as to the amount of compensation to which they are entitled. On looking at the commission of Lieutenant Poor, (whose case, as I understand, has given rise to the above question,) I perceive that, although it is dated the 15th of April, 1836, it expressly appoints himn a lieutenant in the navy from the 22d of December, 1835; and this, I presume, is the general form. I have, therefore, no hesitation in saying that, in cases of this sort, the officer is justly entitled to the increased pay from the date to which the appointment is thus carried back, provided he was intermediately in the performance of duties which, though capable of being performed by the lower grade, were at the same time compatible with the higher grade. In other words, and applying the principle distinctly to the case of Lieutenant Poor: if that gentleman, from the 22d of December to the 15th of April, was in the performance of duties which were only appropriate to the grade of passed midshipman, I cannot think it either just or lawful to allow him the pay of a lieutenant; but if the duties performed by him were such as might have been lawfully assigned to a lieutenant, then I think it both just and legal to allow him the pay of that grade.

I am, sir, &c.,



Legal evidence from competent sources, (excluding the oaths of claimants and all interested

parties,) is what is intended by the word "proof” contained in the act of the 29th May,

1830. The Commissioner may prescribe the mode and kind of proof-how and by whom it should

be taken; but cannot prescribe anything as proof which is not such in fact, nor any rule as to its weight and force. Where it is intended to admit the oath of an interested party, it is generally provided for in

express terms. Unsupported affidavits of settlers are not admissible as proof under the act. Competent proof is required; yet the Commissioner cannot properly require competent proof

to be corroborated. An entry allowed by the register and receiver upon the affidavit of the interested party and

only corroborated by facts within their knowledge, is only erroneous and voidable, not void

as against the United States. Settlers or occupants, within the meaning of the law, are those who reside personally on the

public land in question, or who occupy and use it. Settlements and occupancy cannot be effected by proxy.



June 21, 1836. Sır: In your letter of the 16th ultimo, you enclosed a communication from the Commissioner of the General Land Office, presenting several questions growing out of the conflicting claims of Messrs. Adams and Lapsley under the pre-emption law of the 29th of May, 1830, and amending and reviving the same, on which you request my opinion, and to which I shall now proceed to reply:

"1. Is the affidavit of the interested claimant, unsupported by cortoborative testimony' from any other source, or by any other evidence, legal and competent proof to establish a right of pre-emption, when received as satisfactory by the register and receiver?

In order to come to a correct decision of this question, we must first inquire whether the particular regulation of the 10th of June, 1830, to which it refers, and by which it was prescribed that “ the fact of cultiva. tion in 1829, and possession on the 29th of May, 1830, must be established by the affidavit of the occupant, and by such corroborative testimony as may be entirely satisfactory," was valid and obligatory on the registers and receivers under the act of 1830. The third section of this act provides “that, prior to any entries being made under the privileges given by this act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which such lands may lie, agreeably to the rules to be prescribed by the Commissioner of the General Land Office for that purpose.” This section sets out with requiring, as an indispensable condition to the right of entry, that proof of settlement or improvement shall be made; and though it afterwards empowers the Commissioner of the General Land Office to prescribe rules for the purpose of such proof, it is yet very evident that this latter clause can. not authorize the General Land Office either to dispense with the preceding requirement, or to superadd to it any further one. The Commissioner is merely to prescribe rules, conformably to which the proof is to be made; the proof itself is indispensable. In other words, he may determine by regulations what kind of proof shall be received, and in what manner it shall be made: that is to say, whether by producing witnesses for personal examination before the register and receiver, or by depositions or affidavits: if in the former mode, who shall administer the oath, and by whom the witnesses shall be examined; if in the latter, by whom, and under what formalities, such depositions or affidavits are to be taken, &c. But he has no power to authorize the officers to receive anything as proof, which is not proof within the true meaning of that word; and as they alone are to judge of its sufficiency, he has no power to make any regulation concerning the weight or force of the evidence that may be offered.

The word “proof," when used in a statute relating to proceedings in courts of justice, or conferring powers of a judicial nature on any officer or board, is always interpreted to mean that sort of conviction which is produced by legal evidence coming from a competent source. ral rule, it cannot be allowed to include the oath of the claimant or other interested party; because, by the general rules of evidence, persons so circumstanced are incompetent witnesses. In some of the American States, the oath of an interested party is received, in connexion with his books of account, to establish a book debt; and it is usual to allow a party to testify to the loss of a deed or other document, for the purpose of let. ting in secondary evidence of its contents. But I am not aware that, in any part of the Union, a party claiming an interest in lands is entitled to offer himself, and to be examined as a witness in his own behalf, for the purpose of establishing such an interest. It is true that provision is frequently made in statutes for receiving affidavits of interested parties, to prove matters out of court; but, whenever the legislature design to au. thorize the reception of such evidence, they are careful to provide for it in express terms; so that these exceptions only serve to illustrate and confirm the general rule. In the present case, there is an entire absence of any such provision. If, therefore, I had been called upon for an opinion in regard to the validity of the above mentioned regulation, prior to its adop; tion, I should, with my present impressions on the subject, have advised

As a gene. the department that the oath of the claimant could in no case be received as evidence under the statute.

For the reasons above stated, I should also have said that, when legal evidence is once offered to the register and receiver, it is their exclusive province to judge of its weight and force; and that the Commissioner had no authority to prescribe, as a fixed rule, that competent evidence shall be corroborated by further testimony. Evidence received from a competent source, and credited by the tribunal to which it is offered, becomes, if not rebutted, proof, in the legal acceptation of the term. If, therefore, the oath of the party could be received as evidence in these cases, I should think the officers should be left to judge for themselves, in each particular case,

whether such an oath be entitled to credit without corroborative testimony, or whether additional evidence should be required in its support.

I am aware that, in a new country, there may be difficulty in producing disinterested witnesses to prove the settlement and cultivation required by the pre emption laws; and that in some cases, perhaps, if the oath of the interested party be rejected, he may not be able to find other evidence. This consideration, though it might well be addressed to Congress when framing a pre emption law, does not, in my opinion, authorize the other departments of the government to relax the general rules of evidence, and to introduce an exception so serious in itself, and so liable to abuse, as the one under review.

I am thus not only inclined to answer the question proposed by the Commissioner in the negative, but to go further. I think the affidavit of the interested claimant, even when supported by other testimony, is in. sufficient to establish a pre-emption right; unless, indeed, the further evi. dence of itself amounts to full proof, in which it ought to be regarded as principal testimony, and not as merely corroborative. But when I consider how many cases have probably been decided under the rule in ques. tion, I am happy to be able to add, that the erroneous construction which I suppose to have been given to the law in this respect does not render the proceedings void, but only erroneous and voidable. In all cases, therefore, in which the entry has been allowed, and the certificate granted on the affidavit of the claimant, but in which the proceedings are otherwise regu. lar, the certificate must be held good as against all parties, except the United States; and as against them also, until it be vacated by regular judicial authority.

“ 2. Can a claimant who caused the cultivation of an acre and a half of public land in 1833, on a particular quarter section, and was in possession thereof on the 19th of June, 1834, but who was engaged during the former years in cultivating other land not of the United States, and was boarding in the neighborhood, be entitled to pre-emption of the quarter section he so caused to be cultivated ?"

The first section of the act of the 19th of June, 1834, provides that every settler or occupant of the public lands, prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year one thousand eight hundred and thirty three, shall be entitled to all the benefits and privileges provided by the act entitled "An act to grant preemption rights to settlers on the public lands,' approved May 29, 1830. And the said act is hereby revived, and shall continue in force two years from the passage of this act, and no longer."

To entitle any person claiming under this section to the benefits granted by the law which it revives, he must prove

1. That he was, prior to the 19th June, 1834, a "settler or occupant" of some part of the public lands.

2. That in the year 1833 he cultivated some part thereof; and
3. That on the 19th of June, 1834, he was in possession thereof.

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 and 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 "occupantis not used, yet the preposition "on"' neces. sarily restricts the word settlerto one who personally occupies and resides on, or personally occupies and uses the public lands, and excludes all idea of a 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 ail 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 of June, 1834. According to the terms of the present question, the claimant seems never to have been, in the sense just explained, a "éseltler" or "occupant of the public lands;" and I must, therefore, answer the question in the negative.

«3. Are not the instructions of the 10th of June, 1830, continued in force, without being repeated, since the passage of the act of the 19th of June, 1834 ?"

In reply to this question, I have the honor to state that, so far as those instructions were agreeable to the original law, I think they were con. tinued in force by the revival of that law.

In the communication of the Commissioner of the General Land Office, enclosed to me in your letter of the 24th ultimo, several additional ques. tions are proposed, as also arising in the case of Adams and Lapsley, which I have also considered, and shall now answer.

"1. When a new land district is established, embracing lands that previously formed a part of another, can such lands be legally sold at the old office after the passage of the act of division ? and, if so, at what period does the jurisdiction of the officers of the old district over such land cease and determine?''

It was decided by the Supreme Court of the United States, in the case of Matthews vs: Zane's lessee, (5 Cranch, 92, that the erection of the Zanesville land district, which was partly formed out of the Marietta dis.

trict, suspended, in respect to lands included in the new district, the power of sale before vested in the Marietta district; and from the reporter's mar. ginal note, it would seem that he considered the decision as determining that this suspension took effect from the date of the act establishing the Zanesville district, (the 3d of March, 1803,) although the register and receiver for that district were not actually appointed until the 26th of March, 1804.

As a general rule, and except where special provisions are otherwise made in the law erecting the new district, I think the principle of this decision correct; and I must therefore adopt it in reply to the present question, with the following qualification: I do not understand the Supreme Court as deciding that the officers of the Marietta district might not have proceeded to consummate any sale substantially made before the date of the law erecting the Zanesville district. And where an entry and sale of a specific portion of the public lands have been substantially made in pursuance of law, the formal consummation of which is deferred for the want of necessary plats, or for any other cause, I should not think that the erection of a new district, with boundaries including such lands, could prevent the officers of the old district from completing the proceed. ings.

« 2. Do the terms of the act erecting the land office at Danville contain anything so essentially or materially different from that erecting the Zanesville district, as to render the decision in the case of Matthews vs. Zane inapplicable to the former?

In answer to this question, I have the honor to state that I have carefully examined the act of February 19th, 1831, by which the Danville district was carved out of the Vandalia district; and that I cannot find in it anything materially different from the act of 1803, which was the subject of decision in the case referred to.

3. Are there peculiarities in the recited circumstances of the Adams and Lapsley case that will take it out of a rule to be established by the decision of the two last questions?"

I think there are no such peculiarities in the case in question. If the claim of Adams had been made, and his proofs filed and adjudged satisfactory by the register and receiver, and the pre-emption right had been admitted by them prior to the 19th February, 1831; and if the complete execution of the sale had been prevented by the want of necessary plats, and by that cause alone, I should then have considered the sale as substantially made; and, in accordance with the above suggestion, I should have thought that payment might be received, and the certificate executed, whenever the plats came in. In the present case, however, the proofs of Adams were not filed until the 27th of May, 1831, more than three months after the erection of the Danville district; and there is nothing, therefore, in his case to take it out of the established rule. It is true that, by applying that rule to pre-emption cases thus circumstanced, we shall materially circumscribe the operation of the pre emption law of 1830, in respect to settlers residing within what was afterwards made the Danville district; for, as the Danville officers were not sworn in until the 18th of June, 1831, and as the year limited in the pre-emption law ex. pired on the 29th May, 1831, those settlers after the 19th February, 1831, had no office to which they could make application for the establishment of their claims. But this cannot alter the legal effect of the new statute.

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