ed-first, extinction of the Indian title; second, survey of the lands; third, establishing land offices; fourth, regular appointment of register and receiver (see Mr. Wirt's opinion, Collect., vol. 2, p. 25)—what could prevent the rushing of the emigrant population into the vacant lands? What ought to prevent it? The pre emption acts-acts of grace continually passed by Congress, ratifying by wholesale titles thus acquired-show the sense of the country to be, that, as soon as any tract of country is ready for sale and occupation, it must be sold and possessed. But, if this is true of any part of the United States, most especially is it applicable to the whole country south of Tennessee. I have said that, in all the legislation on this subject, a larger discretion seems to have been allowed the President than in the older acts in regard to the Northwest Territory. This is probably owing to the same cause which led, as I observed just now, to the charging him with the duty of proclaiming lands ready for sale. In the progress of things, it was seen that discretion must, in such matters, be confided somewhere; and it was obviously rational and fit to trust it to the Executive of the nation.

Thus, under the act of 21st April, 1806, supplementary to the act of the 2d of March, 1805, for ascertaining and adjusting the titles and clainis to land within the Territory (this very territory) of Orleans, and the district of Louisiana, section 11, the President is authorized to offer for sale so much of the land as shall have been surveyed, conformably with the act to which this is supplementary, whenever he shall see fit.. This section relates to lands in the district of Louisiana; and by the act of 3d March, 1811, section 4, the power so vested in the President in relation to lands lying in the western district of the Territory of Orleans, by the 11th section of the act of 21st April, 1806, are extended to the public lands lying in the eastern district. So by act of 12th December, 1811, the land offices in the Territories of Louisiana and Orleans shall be respectively opened on such days as the President of the United States shall, by proclamation, designate for that purpose. So the act of 6th May, 1822, providing for the sale of lands in Mississippi, section 2, the President may cause, when he shall think proper," so much of the land, &c., which may be surveyed, to be exposed to sale. So act of 8th March, 1823, supplementary, &c., to provide for surveys and disposal of lands in Florida, section 8, authorizes the President to establish land offices where he shall think proper, &c., (section 9,) so soon as land enough, in his opinion, should have been surveyed in either district to authorize the opening of them, (I call your attention to that very significant provision;) and this being done, section 10 directs, that whenever a land office shall have been established, and a register and receiver appointed, (the essential prerequisites being all executed,) the President is authorized to direct so much of the land as shall have been surveyed to be sold in the usual manner. It would be a sheer waste of time to refer particularly to the numerous other acts, by which large discretionary powers over every thing connected with the sale of the public lands in the territory south of Tennessee are vested in the President. General phrases become frequent in later acts. The law of sale being perfectly settled by so many statutes in pari materia, it is thought sufficient barely to refer to them. Act of 11th May, 1820, (Indiana.)

One remark must be added to the preceding. We have seen, that by the act of 3d March, 1811, the President has all the power vested in him,

in regard to the eastern district of the Territory of Orleans, that the act of 1806 had vested in him in regard to the western. There can be no doubt, I think, that the construction put upon this act was the same as we have seen put upon the statute of 1805. It was considered as extending to the whole territory that passed, by the treaty of 1803, under the denomination of the Territory of Orleans. That construction is not without its plausibility, and I think it at all events too late to disturb it now. But, in my view of the subject, it is not necessary to lay any stress upon it, and so I put it entirely out of the question.

I am of opinion, upon the fullest consideration, that the President had authority to proclaim the sales in question, and was right in exercising it.

3. The next question is, whether the case of Mr. Woodruff is within the act of 12th January, 1825. I have already discussed this point, and have only to repeat that, from any thing that as yet appears in evidence before me, it does not.

4. Whether patents ought to issue, under all the circumstances of the case, without further inquiry, is a point about which I have felt a great deal of difficulty. On the whole, however, I think it would be well to wait at least for the report of Mr. King. I perceive that both Mr. Wirt and Mr. Butler, my learned predecessors in this office, consider that the General Land Office have always used a proper discretion in suspending the execution of patents in cases of serious doubt or conflicting claims until the discretion of Congress or the decision of a competent tribunal can be obtained. I respectfully refer you to the opinion of Mr. Butler, in Collection, vol. 2. p. 86.

5. If the patents are not to issue, what ought to be done in this and similar cases? The passage just referred to from my learned predecessors' opinion on the preceding point indicates the course to be pursued here, if, on a further examination, it should be thought improper to issue the patents at all without a resurvey. As yet, nothing, not even the letter of Mr. Whitcomb, before me, seems to require that such a measure should be had recourse to. But, should it be discovered, on the examination of Mr. King, that the surveys are so badly executed that the whole work must be done over again, then I see no adequate remedy but in a special reference of the whole case, or rather of all the cases, to Congress. there be still any doubt about the title under the law as it now is, an act of Congress can remove it, as has often been done. (See 9 Wheat., 481, Doddridge vs. Thomson; 7 Wheat., 23, Taylor's lessee vs. Myers; 6 Pet., 666, Lindsay vs. Miller.) There was an analogous case of sales of land in Monroe county, Mississippi, made at the land office of Huntsville and Tuscaloosa since 30th October, 1822, legalized and declared valid, as though made at the proper land office, &c.

If

Mr. Woodruff's equity is of course indisputable, and his case a hard one, although as a purchaser, with constructive notice of the state of the law on this subject, he is not stiretly entitled to a very indulgent consideration on some of the points he has raised. But in regard to the alleged inaccuracy of the surveys, that was a matter of fact, of the existence of which nobody had any suspicion until after he had purchased and paid his money. That is an obstacle to his enjoyment of the property which the vendor is bound to see removed; or, specific performance being impossible, to return the purchase money. Congress, as the vendor, must see to this.

I ought to apologize for the extraordinary length to which this opinion is run out, but the subject is so complicated in all its bearings that I found it impossible to compress what I had to say within a narrower compass, and even now am apprehensive that I have omitted much that was necessary to bring out the whole argument fully and perspicuously. I have the honor to be, sir, your obedient servant,

The Hon. WALTER FORWARD,

Secretary of the Treasury.

H. S. LEGARE.

EVIDENCE BEFORE COURTS-MARTIAL, &c.

There is no doubt of the competency of the evidence of the prosecutor before a court-martial; but how far his credibility may be affected by the relation in which he stands towards the accused, is a question of discretion for the court itself.

The prosecutor may, after giving evidence, remain in coart to conduct the prosecution. (2₫ McArthur, p. 53.)

OFFICE OF THE ATTORNEY GENERAL,

November 25, 1841.

SIR: I had the honor to receive, yesterday, your letter covering one from Henry M. Morfit, esq., judge advocate, which propounds the following inquiries: "In the preliminaries of the trial of Lieutenant George F. Lindsay, before a general marine court-martial now in session at this place, the judge advocate proposed that, after examining Lieutenant Alexander G. Gordon of the navy, upon whose information the charges and specifications were preferred, the witness should be permitted to remain in court as the prosecutor, to aid, by his suggestions, the judge advocate in bringing out the evidence. The court, being desirous to proceed with all regularity, and there being a contrariety of opinion among the members as to the usage in such cases, have directed me to address the Secretary of the Navy this letter, respectfully requesting him to submit the inquiry to the Attorney General, so that in this and future trials the practice may be settled."

1st. My opinion is, that there can be no doubt of the competency of the evidence of the prosecutor. How far his credibility may be affected by the relation in which he stands towards the accused, is a question of discretion for the court itself.

2d. I consider it as settled law in England, that the prosecutor, after giving evidence, may remain in court to conduct the prosecution. I refer you for the doctrine and the case to 2d McArthur, p. 53, and app. 31. This, in the absence of uniform practice to the contrary, is the rule to be followed by our courts martial.

I have the honor to be, sir, your obedient servant,

The Hon. A. P. UPSHUR,

Secretary of the Navy.

H. S. LEGARE.

CONSTRUCTION OF THE MAISON ROUGE GRANT.

The error as to the date of a certain report of the Commissioner of the Land Office, embracing the Maison Rouge claim, set out in a confirmatory act of 29th April, 1816, (being December 4, 1812, when it should read December 14, 1812,) is not fatal to claims mentioned in the said report.

The construction of a statute is placed by the law in very much the same category as that of wills, and such erroneous recitals are susceptible of correction by parol evidence.

The "league square" is the extent of the satisfaction granted to claimants under the act of 29th of April, 1816; and, whatever may be the extent of the claim, this satisfaction may be had under the act.

OFFICE OF THE ATTORNEY GENERAL,

November 27, 1841.

SIR: Mr. Coxe's case, which you did me the honor to submit to me for my opinion, is thus stated: "The claim of Louis Boligny, under the Marquis de Maison Rouge, for 30 square leagues, is entered as No. 16 B, in the report of the commissioners, dated December 14, 1812, for the western district of Louisiana. (American State Papers, Public Lands, printed by D. Green, vol. 2, pp. 637 and 639.) By reference to the report of October 16, 1812, p. 617 of the same volume, it will be seen that the commissioners, in classifying claims, state that to the second class, comprising clains which, though not embraced by the provisions of the said acts, (certain acts referred to in that report,) ought nevertheless, in the opinion of the commissioners, to be confirmed in conformity with the laws, usages, and customs of the Spanish government, the letter B will be affixed.

"Daniel W. Coxe, esq., in the enclosed letter to me of the 23d instant, claims the confirmation of this claim to the extent of a league square, under the act of Congress approved the 29th of April, 1816. (Clark's Comp. of Land Laws, p. 699, No. 290.) The original (in the Department of State) of the said coufirmatory act of the 29th of April, 1816, refers, it seems, to the date of the Commissioner's report as being the 4th of December, 1812, (not the 14th of December, 1812, the date of the report,) and provides as follows: That the claims marked B, described in the several classes in the above-mentioned reports of the commissioners for the western district of the State of Louisiana, (formerly Territory of Orleans,) and recommended by them for confirmation, be, and the same are hereby, confirmed: Provided, nevertheless, That under no one claim shall any person or persons be entitled, under this act, to more than the quantity contained in a league square. In this case the Solicitor of this office has made a report, (No 322,) herewith transmitted, with the accompanying documents, Nos. 1, 2, 3, and 4. That officer's opinion is to this effect: that the claim of Boligny, under the Marquis de Maison Rouge, by virtue of the said act of the 29th of April, 1816, for the reasons stated by the Solicitor, is void; that, by the terms of the said act, any claim above a square league is excluded; and that the act of the 29th of April, 1816, does not confirm claims in the report of the 14th of December, 1812.

"Commissioner Graham, in his letter of the 9th of February, 1826, (document 4, above referred to,) seems to have regarded the error in the confirmatory act, as to the date of the report, as fatal to the confirmation, and also to have considered that the act was designed (had the date been correct) to embrace such cases as are under a league square. After ex

amination and due consideration of the case, in connexion with the Solicitor's report, I gave a decision, in a letter of the 7th of August last, to Messrs. King and Wilson, that the error in the date was fatal to the confirmation. I inclined to the opinion then, and, on further reflection, am satisfied, that had not the error as to the date of the report existed in the confirmatory act, that act would have confirmed, to the extent of a league square, all claims marked B, exceeding that quantity, which are embraced in that report, and recommended for confirmation. In submitting Mr. Coxe's present application, before referred to, with the foregoing statement, I respectfully request the opinion of the Attorney General, and your instructions, for the government of this office, on the following points:

"1st. Whether or not the error as to the date of the report, (December 4, 1812, instead of December 14, 1812,) in the aforesaid confirmatory act of the 29th of April, 1816, is fatal to the confirmation of any claim embraced by the said report of the 14th of December, 1812?

"2d. If not fatal, whether or not the said act of the 29th of April, 1816, confirms, to the extent of a league square, the present and all claims exceeding that quantity, marked B, which are embraced in that report, and recommended for confirmation?"

To this statement the Commissioner, on my application to him, has added the following: "Pursuant to the request of Mr. D. W. Coxe, I have to state, that I know of no report from the commissioners of the western district of Louisiana, dated the 4th of December, 1812; that the report from the commissioners embracing the Maison Rouge, or Boligny claim, is dated the 14th of December, 1812. The recital in the act of the 29th of April, 1816, (Clark's Comp. Land Laws, p. 699, No. 290,) as regards the date of the report, is believed to be an error in stating or referring to the date of the report as being the 4th of December, 1812, instead of the 14th of December, 1812."

On this state of facts I have no doubt on either of the points submitted: 1st. The construction of a statute is placed by the law in very much the same category as that of wills, (3 Rep. 27, 6, Butler and Baker's case;) and such an erroneous recital in a will would clearly be susceptible of correction by parol evidence. In addition to this, I have the honor to refer you to the case of Ross vs. Barland's lessee, (1 Peters, 655,) in which the court ruled almost the very point in question here.

2d. The league square is the extent of the satisfaction granted to claimants under the act of the 29th of April, 1816; and I have no doubt that, in all cases, whatever the extent of the claim, this satisfaction may be had under the act. But I also think that it will be taken, and ought to be accepted, as a full satisfaction of the claim, be it what it may, so far, at any rate, as the Land Office is concerned.

I have the honor to be, sir, your obedient servant,

Hon. W. FORWARD,

Secretary of the Treasury.

H. S. LEGARE.