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officers to receive bank-notes in cases not required by the existing laws, introduces several new prohibitions on the receipt of such notes.

Nor do I think this one of those cases in which a choice is given to the debtor to pay in one or other of two descriptions of currency, both of which are receivable by law. Such a choice was given by the land law of the 10th of May, 1800, (section 5,) between specie and the evidences of the public debt of the United States then receivable by law; and also by the joint resolution of the 30th of April, 1816, between the "legal currency of the United States, or treasury notes, or notes of the Bank of the United States, as by law provided and declared." The option given by that resolution continued in force so long as the laws providing and declaring that treasury notes and notes of the Bank of the United States should be receivable in payments to the United States, and ceased when those laws expired. The distinction between that description of paper currency which is by law expressly made receivable in payment of public dues, and the notes of the State banks, which were only permitted to be received, is plainly marked in the resolution of 1816. While the former are placed on the same footing with the legal currency, because, by previous laws, it had been so "provided and declared," the latter were left to be received, or not received, at the discretion of the Secretary of the Treasury; except that he was restricted from allowing any to be received which were not payable and paid on demand in the legal currency. The bank notes spoken of in the bill before me, having never been made receivable by law, must be regarded as belonging to the latter class, and not to the former; and there can, therefore, be no greater obligation under the present bill, should it become a law, to receive them in payment, than there was to receive the paper of the State banks under the resolution of 1816.

As to the difference between this bill and the joint resolution of 1816, the bill differs from that resolution in the following particulars:

1. It says nothing of treasury notes, and the notes of the Bank of the United States, which, by the resolution of 1816, are recognised as having been made receivable, by laws then in force, in payment of public dues of all descriptions.

2. It abridges the discretion left with the Secretary of the Treasury by that resolution, by positively forbidding the receipt of bank-notes not hav ing the characteristics described in the first and second sections of the bill; whereas the receipt of some of the notes so forbidden might, under the resolution of 1816, have been allowed by the Secretary.

3. It forbids the making of any discrimination in respect to the receipt of bank-notes between the different branches of the public revenue; whereas the Secretary of the Treasury, under the resolution of 1816, was subject to no such restraint, and had the power to make the discrimination forbidden by this bill, except as to the notes of the Bank of the United States and treasury notes.

This bill, if approved, will change the resolution of 1816, so far as it now remains in force, in the second and third particulars just mentioned; but, in my opinion, as already suggested, will change it in no other respect.

II. "What is the extent of the supervision and control allowed by this bill to the Secretary of the Treasury, over the notes to be received by the

deposite banks? And does it allow him to direct what particular notes shall or shall not be received for lands or for duties?"

Answer. After maturely considering, so far as time has been allowed me, the several provisions of the bill, I think the following conclusions may fairly be drawn from them, when taken in connexion with the laws now in force and above referred to; and that, should it become a law, they will properly express its legal effect:

1. That the Secretary of the Treasury cannot direct the receipt of any notes, except such as are issued by banks which conform to the 1st section of the law, and such as will be passed by the proper deposite bank to the credit of the United States as cash.

2. That he may direct the receipt of notes issued by banks which conform to the 1st section, provided the deposite bank in which the notes are to be deposited shall agree to credit them as cash.

3. That, if the deposite bank in which the money is to be deposited shall refuse to receive as cash the notes designated by the Secretary, and which such bank receives in the ordinary course of business on general deposite, he may withdraw the public deposites, and select another depository which will agree to receive them.

4. That, if he cannot find a depository which will so agree, then, that the Secretary cannot direct or authorize the receipt of any notes except such as the deposite bank primarily entitled to the deposites will agree to receive and deposite as cash.

5. That, although a deposite bank might be willing to receive from the collectors and receivers, and to credit as cash, notes of certain banks which conform to the first section; yet, for the reasons before stated, I am of opinion that the Secretary is not obliged to allow the receipt of such notes.

6. The Secretary is forbidden to make any discrimination, on the funds receivable, "between the different branches of the public revenue;" and therefore, though he may forbid the receipt of the notes of any particular bank, or class of banks, not excluded by the bill, and may forbid the receipt of notes of denominations larger than those named in the bill, yet, when he issues any such prohibition, it must apply to all the branches of the public revenue.

7. If I am right in the foregoing propositions, the result will be, that the proposed law will leave in the Secretary of the Treasury power to prohibit the receipt of particular notes, provided his prohibition apply to both lands and duties; and power to direct what particular notes allowed by law shall be received, provided he can find a deposite bank which will agree to receive and credit them as cash.

III. "Are the deposite banks the sole judges, under this bill, of what notes they will receive? or are they bound to receive the notes of every specie-paying bank, chartered or unchartered, wherever situated, in any part of the United States?"

Answer. In my opinion, the deposite banks, under the bill in question, will be the sole judges of the notes to be received by them from any collector or receiver of public money; and they will not be bound to receive the notes of any other bank whose notes they may choose to reject, provided they apply the same rule to the United States which they apply to their other depositors: in other words, the general rule as to what notes are to be received as cash, prescribed by each deposite bank for the regu

lation of its ordinary business, must be complied with by the collectors and receivers whose moneys are to be deposited with the bank. But it does not therefore follow that those officers will be bound to receive what the bank generally receives, because, as already stated, they may refuse, of their own accord, or under the direction of the Secretary of the Treas. ury, any bank notes not expressly directed by act of Congress to be received in payment of the public dues.

I have thus answered the several questions proposed on the bill before me, and, though I have been necessarily obliged to examine the subject with much haste, I have no other doubts as to the soundness of the construction above given, than such as belong to discussions of this nature and a proper sense of the fallibility of human judgment. It is, however, my duty to remind you that very different opinions were expressed in the course of the debates on the proposed law, by some of the members who took part therein. It would seem, from those debates, that the bill (in some instances at least) was supported under the impression that it would compel the treasury officers to receive all bank-notes possessing all the characteristics described in the first and second sections; and that the Secretary of the Treasury would have no power to forbid their receipt. It must be confessed that the language is sufficiently ambiguous to give some plausibility to such a construction; and that it seems to derive some support from the refusal of the House of Representatives to consider the amendment reported by the Committee of Ways and Means of that House, which would, substantially, have given to the bill, in explicit terms, the interpretation I have put on it, and have removed the uncer tainty which now pervades it. Under these circumstances, it may reasonably be expected that the true meaning of the bill, should it be passed into a law, will become a subject of discussion and controversy, and probably remain involved in much perplexity and doubt, until it shall have been settled by a judicial decision. How far these latter considerations are to be regarded by you in your decision on the bill, is a question which belongs to another place, and on which, therefore, I forbear to enlarge in this communication.

I have the honor, &c., &c.,

To the PRESIDENT OF THE UNITED STATES.

B. F. BUTLER.

SALARIES OF CLERKS AND MESSENGERS OF PENSION OFFICE.

The clerks and messengers of the Pension Office authorized by the act of the 9th May, 1835, are entitled to the increase of salaries provided by the enacting clause of the third section of the act of the 3d March, 1837.

ATTORNEY GENERAL'S OFFICE,

March 25, 1837.

SIR: In answer to the question proposed by the Commissioner of Pensions, I have the honor to inform you that, in my opinion, the clerks and messengers of the Pension Office authorized by the act of the 9th of May, 1836, are entitled to the increase of salaries provided by the enacting clause of the 3d section of the act of the 3d instant, "making appropria tions for the civil and diplomatic expenses of government for the year

RIGHTS OF INDIAN RESERVEES.

The reservees under the Creek treaty of 1814, and the act of 1817, have not power to lease their lands; the renting for a term of years and removal from the S'ate may be regarded as an abandonment of their reservations.

On their abandonment, the title becomes immediately vested in the United States by operation of law, and is to be then treated as if then for the first time acquired by a treaty."

ATTORNEY GENERAL'S OFFICE,

May 23, 1837.

SIR: In compliance with your request, I proceed to state my opinions on the questions proposed in the communication of the Commissioner of the General Land Office, bearing date the 20th of August last, and some time since referred to this office.

Inquiries having been made of the General Land Office respecting the light in which abandoned Creek reservations, originally confirmed under the first article of the treaty of the 9th of August, 1814, and the act of Congress for the execution thereof of the 3d of March, 1817, are regarded by the government, the Commissioner proposes the following questions:

"1. What circumstances are to be considered as constituting an abandonment of a reservation; by what proof must those circumstances be established; and by whom is the decision to be made, as to the reservation having reverted to the United States in consequence of such abandonment thereof by the reservee?

"2. If it is decided that the reservation has been thus abandoned, can the land be considered as being liable to entry by floating claims before the officers for the district have been officially apprized of such decision, and the community have been notified by them that such tracts are subject to location or sale?"

I. The first of these questions embraces several particulars, which I will notice in their order.

1st. The first article of the treaty of 1814 provides, "where any possession of any chief or warrior of the Creek nation, who shall have been friendly to the United States during the war, and taken an active part therein, shall be within the territory ceded by these articles to the United States, every such person shall be entitled to a reservation of land within the said territory, of one mile square, (to include his improvements,) as near the centre thereof as may be, which shall inure to the said chief or warrior, and his descendants, as he or they shall continue to occupy the same, who shall be protected by and subject to the laws of the United States; but upon the voluntary abandonment thereof, by such possessor, or his descendants, the right of occupancy or of possession of said lands shall devolve to the United States, and be identified with the right of property ceded hereby." The act of 1817, so far as regards the tenure on which the reservations are to be held, is in substance the same as the treaty. The tract reserved to the friendly Indian is to be held by him. and his descendants "so long as he or they shall continue to occupy the same," and no longer.

Those circumstances, and those only, by which the party ceases to occupy the reservation, should be considered as constituting an abandonment thereof. I cannot particularly define them in advance, further than to say that they must be voluntary and unequivocal; leaving no reasonable doubt either as to the intention of the party, or as to the fact itself.

the word settler' to one who personally occupies and resides on, or per sonally 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" of 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 sus ceptible; but I have not supposed that actual residence or inhabitaney 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 ap plied 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

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