THE RIGHT OF BARTHOLOMEW PELLERIN TO A PATENT FOR LAND. The claim of Bartholomew Pellerin to a patent for seventeen thousand and eighty-four arpens of land in Mississippi, on pretence that his title is founded on a legal British grant made previous to 1783, and recognised and confirmed by the Spanish government in 1810, cannot be recognised at the General Land Office. His claim having been reported and confirmed as one founded on a private conveyance for twelve hundred and eighty acres only, as a donation, a patent for that quantity only can issue, unless further legislation shall authorize it. ATTORNEY GENERAL'S OFFICE, July 16, 1840. SIR: I had the honor to receive your letter of the 1st instant, enclosing a communication and numerous documents from the Commissioner of the General Land Office, relative to the claim of Bartholomew Pellerin, for a patent for certain land in Mississippi, under the act of 3d of March, 1819, and inquiring whether that claim ought to be confirmed by the General Land Office, and the patent issued. The act of Congress of the 25th of April, 1812, provided that, for the purpose of ascertaining the titles and claims to lands in the tract of country which lies south of the Mississippi Territory, east of the river Missis sippi and island of New Orleans, and west of the river Perdido, and a line drawn with the general course thereof to the southern boundary of the Mississippi Territory, the lands within the said limits should be laid off into two land districts, between which Pearl river was to be the boundary. It also provided that for each of these districts a commissioner of land claims should be appointed, whose duty it was made to attend and receive notice and evidence of titles and claims to lands within his district. By the fourth section of the same act, every person claiming lands in that tract of country, by virtue of any French, British, or Spanish grant, order of survey, or other evidence of claim, was to present a notice and statement of his claim, with the evidences, which were to be entered of record; and the commissioners were required by the act to examine into the justice and validity of the claims, and to ascertain, in every instance, "whether the lands claimed had been inhabited and cultivated; at what time such inhabitation and cultivation commenced; when they were surveyed, and by whom and what authority; and into every other matter respecting the claims which might affect the justice and validity thereof." The commissioners were further required to prepare abstracts from the records of claims, arranging them in classes according to their respective merits, and embracing the substance of the evidence, and such information as might be necessary for a correct decision. They were also required to report a list of all the actual settlers on lands in their districts who had no claims derived either from the French, British, or Spanish governments. In compliance with this law, William Crawford, the commissioner for the district east of Pearl river, transmitted a report, which was laid before Congress on the 2d January, 1816, containing eleven lists or abstracts of claims, and also a list of actual settlers. Among these abstracts were lists of claims founded, or alleged to be founded, on grants derived from the French, British, or Spanish governments, with the opinion of the commissioner, in nearly all of them, in favor of or against their validity. There was also an abstract or list which is marked No. 10, and is thus described by the commissioner: "A register of claims founded on private conveyances, which have passed through the office of the commandant; but founded, as the claimants suppose, on grants lost by time or accident." At the end of this register, the commissioner subjoins the following remarks: "Though the original grants, upon which the preceding claims were founded, have been lost, yet it is conceived that the claims to such lands, not exceeding a reasonable quantity, as were inhabited and culti vated under the Spanish government, ought to be confirmed." On this list is found entered (No. 62) the claim of Bartholomew Pellerin, the original settler being the widow Masmer, (Asmard,) for seventeen thousand and eighty-four arpens, situated on the bay of St. Louis, and stated to have been inhabited and cultivated from 1775 to 1814. The report contains no further remarks whatever upon this claim. On the 3d of March, 1819, Congress passed a law in regard to the claims which it was thus intended to provide for by the act of 25th of April, 1812. The first section of that act recognises as valid and complete titles against the United States-First, all claims to lands founded on complete grants from the Spanish government, which are contained in the reports of the commissioner, and which are, in the opinion of the commissioner, valid agreeably to the laws, usages, and customs of that government:-Secondly, all claims founded on British grants contained in the reports, which had been sold or conveyed, according to the treaty of 3d of September, 1783, between Great Britain and Spain, or which were settled and cultivated by the person having the legal title therein at the date of said treaty. The second section of the same act (after making provision for certain claims founded on incomplete titles) goes on to provide, generally, that "for all the other claims to land comprised in the reports aforesaid, and which ought, in the opinion of the commissioner, to be confirmed, the claimant to such land shall be entitled to a grant therefor as a donation." But such grant, as a donation, is not to be made to any one person for more than twelve hundred and eighty acres; and the confirmation of the incomplete titles and the grants of donations, are to amount only to a relinquishment forever, on the part of the United States, of any claim whatever to the tract of land so confirmed or granted; and no such claim is to be confirmed to any person to whom a title to any tract of land shall have been recognised under the preceding provisions. The twelfth section of the same act goes on to provide that the register and receiver in the proper district may examine the claims recognised or confirmed by the act, and grant a certificate, according to the nature of the case, under instructions from the General Land Office; that office is then authorized, on presentation of such certificate for a confirmed claim or for a donation, according to the provisions of the act, to grant a patent in the usual manner, if it shall be satis fied that the certificate was fairly obtained according to the true intent and meaning of the act. It appears that on the 24th of November, 1838, the register and receiver of the land office at Augusta, Mississippi, granted a patent certificate (No. 24) to Bartholomew Pellerin, for twelve hundred and eighty acres, under an opinion that the claim, being comprised, in the manner above stated, in the report of Commissioner Crawford, was confirmed to the extent of twelve hundred and eighty acres, as a donation, by the second section of the act of 3d of March, 1819. This certificate has been returned to the General Land Office, with a plat of survey for the quantity designated in the certificate, but no patent has yet been issued thereon. The present application is, that the Commissioner of the General Land Office shall direct a survey to be made of the entire claim for seventeen thousand and eighty-four arpens, and, when the survey is completed, award a patent therefor. It is accompanied with an elaborate argument, and a mass of documentary evidence to sustain the ground taken, that the claim is founded on a legal British grant made previous to the year 1783, and recognised and confirmed by the Spanish government in the year 1810. I am of opinion that the General Land Office has no authority to award the patent asked for in this case. The authority so to do, if it exists, is derived under the first section of the act of 3d of March, 1819; and I do not think that it was the intention of Congress to embrace such a case within the provisions of that section. It is not contended that the claim falls under the first class of cases therein mentioned-those derived under the Spanish grants reported by the commissioner to be valid. If, then, it is included at all, it must be a claim founded on a British grant, con. tained in the report of Commissioner Crawford, which had been sold or conveyed according to the treaty of 1783, or which was settled and cultivated by the person having the legal title thereto in 1783. There are many claims answering this description in the reports of the commis sioner. Is this one of them? Is this claim so reported to Congress in the abstract upon which that body legislated? Is there any evidence whatever that it was regarded by the commissioner, or intended to be reported by him, as a claim founded on a British grant, where the person having the legal title was settled in 1783? We must certainly answer in the negative. For not only is there no such description of it in terms in his report, but it is there stated to be a claim founded on a private conveyance, though derived, as the claimants suppose, under a grant lost by time or accident, and, as such, it is recommended to be confirmed for a reasonable quantity, and as being inhabited and cultivated under the Spanish government. There is nothing to indicate the intention of Commissioner Crawford to report this case as a legal British grant, or one that had been "settled and cultivated by the person having the legal title therein in 1783;" on the contrary, his intention appears to be to recommend the confirmation of the claim for such a quantity of land as Congress may deem reasonable, on the ground of habitation and cultivation under the Spanish government. It will hardly be urged that it was the design of Congress, when legislating upon these reports, to confirm grants which should be established by evidence before the General Land Office to be of a different character from that in which they are presented by the reports. It has been a settled decision of the General Land Office, when acting by the special authority of Congress upon claims embraced (as this is) in the report of a commissioner, that they must appear, from the face of the reports themselves, to fall within the rules prescribed for their confirmation; and that Congress have not, in such cases, invested the General Land Office with power to act upon facts that are not evidenced by the reports. I cannot doubt that this decision is correct, and that where the facts shall present the claim in a manner different from that in which it is set forth in the report, further legislation is necessary to authorize the General Land Office to award a patent. Considering this view of the case as sufficient to oblige the Commissioner of the General Land Office to refuse the present application, I deem it unnecessary to prejudge, by the expression of a present opinion, other points involved in this case, which would arise if that officer were at liberty to act upon it: that is, the extent to which the donation clause of the second section of the act of 3d of March, 1819, above referred to, was meant to include the claims reported by Commissioner Crawford in list No. 10; how far the acceptance of a patent, under the circumstances stated, for the donation of twelve hundred and eighty acres, would interfere with a recognition of the claim under the other provisions of the act; and whether the evidence on which the claimants rely does or does not establish a valid British grant, and settlement, and cultivation, in 1783, by the person legally holding under it. It is also proper to observe, that, as the claimants rely upon a title which is prior to the cession of Louisiana, it is as abundantly sufficient to secure to them all their rights, if they can establish it to be valid, as any act upon the part of the United States or their officers; and though it is of course improper to expose any party to the trouble of judicial investigation, where Congress has evidently provided for his case, yet there could be no justification for exercising a doubtful authority in a case where such a remedy is open. To the SECRETARY OF THE TREASURY. H. D. GILPIN. BONDS OF DEPUTY POSTMASTERS UNDER ACT OF JULY 4, 1840. Deputy postmasters who shall be required to execute the functions of depositaries under the act ATTORNEY GENERAL'S OFFICE, July 18, 1840. SIR: I had the honor to receive your letter of the 17th instant, in which you inquire whether, under the Sth section of the act of 4th July, 1840, deputy postmasters are to execute new bonds; and if so, whether they are to be called on for the same directly by the Treasury Department, or, by it, through the Postmaster General. In reply, I have to state that, in my opinion, the deputy postmasters who shall be required to execute the functions of depositaries under the act ought to give new bonds, suitable in their terms to the new and increased duties imposed upon them, and with sureties in sums such as shall seem reasonable and safe to the Solicitor of the Treasury. As the 8th section of the act is the only one which provides for this case, and as it imposes this duty specially on the Secretary and Solicitor of the Treasury, it must emanate from that department; but as it is evident, from the whole scope of the act, that the general superintendence of such of its provisions as are connected with the Post Office Department was intended to be vested in the Postmaster General, I am of opinion that the latter officer is the one through whom the necessary directions to the subordinate officers of that department should be given. To the SECRETARY OF THE TREASURY. H. D. GILPIN. LIABILITY OF UNITED STATES FOR FEES OF CIRCUIT COURT CLERKS. The United States are liable to clerks of circuit courts for their fees properly chargeable to plaintiffs, in suits in which the United States are plaintiffs, and the accounting officers may allow them, even though marshals may have collected them of defendants and have not paid them In such cases the United States have recourse against marshals on their official bonds. over. ATTORNEY GENERAL'S OFFICE, July 20, 1840. SIR: I had the honor to receive your letter of the 16th instant, enclosing one from the First Comptroller of the Treasury, relative to certain costs stated to have accrued in favor of Duncan N. Hennen, clerk of the circuit court of the United States for the eastern district of Louisiana, in suits brought by the United States; and inquiring whether the United States are liable for such taxed costs as have not been collected by the marshal, or, being collected by him, have not been paid over. In reply to the first inquiry, I have to state that I understand, under the long established construction by the Treasury Department of the laws allowing certain costs to the several officers of the courts, and making appropriations for defraying the expenses of suits in which the United States are, concerned, all the costs legally payable by a plaintiff in the courts of the United States, after being duly taxed and certified by the judges, are allowed by the accounting officers, and, if they cannot be made by execution out of the estate of the defendant, are paid by the United States. I see no ground whatever for expressing an opinion at variance with this established construction of the laws on the subject. Suitable regulations should be, and I presume are, made in all districts, to secure the payments of the costs by the defendants wherever it can be obtained. In reply to your second inquiry, I have entertained considerable doubts whether, as the costs have been collected by the marshal, the officers entitled to them should not look to him and his sureties exclusively for payment. On reflection, however, I am satisfied that, as they are charges authorized by law for services actually rendered to the United States in pursuance of law, and falling within the designated class of "expenses of suits in which the United States are concerned," for which appropriation is made, the liability of the United States as plaintiff's does not cease until they are actually paid, or the officer is himself guilty of negligence in collecting them. The United States have their recourse against the marshal, and security for repayment in his official bond. To the SECRETARY OF THE TREASURY. H. D. GILPIN. PRE-EMPTIONS. The rights of pre-emption, if otherwise mature, may be allowed to lands reserved from sale under the supposition that they fall within the limits of the grant in aid of the Milwaukie and Rock River canal, but subsequently found not to be included. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 24th instant, enclosing a communication from the Commissioner of the General Land Office, and |