and divided, as nearly as might be, in the manner provided in regard to the lands northwest of Ohio. The contemporaneous construction of this act by Mr. Gallatin is shown to have been, that the law was applicable to the whole territory claimed by the United States under the treaty of 1803.

It deserves to be remarked here-but the remark is one of which we are never to lose sight in discussing subjects connected with the land lawsthat these laws, however local they sometimes appear to be in particular provisions, constitute, in truth, one general system, characterized in the main by the same great outlines; and are, therefore, all to be taken as in pari materia. In this observation, I am only repeating an opinion of the same distinguished predecessor, in this office, whose authority I have been vouching on another point.-(Collection of Instructions, &c., vol. 2, p. 31.) But this by the way.

We have seen that the powers of the surveyor of public lands south of Tennessee were confined, in the act of 1805, to the surveying of such lands, in the Territory of Orleans, as the President should expressly direct. The act of 25th April, 1812, for ascertaining titles and claims to lands in that part of Louisiana which lies east of the Mississippi, &c., received (section 6) the grant of powers vested by law in the surveyor of public lands south of Tennessee; but omitted the qualification just mentioned, and extended those powers over all the lands, indiscriminately, in the said tract of country. Mr. Wirt's view of this subject was, that the power having been granted to the President by the act of 1805, and not revoked by this affirmative statute, still continued in him; and were it, in my view of the case, at all necessary to the validity of any survey made by the surveyor south of Tennessee, I should certainly invoke this clause in the preceding statute, as far as it could be reconciled with the provisions of the act of 1812; but I hold it to be unnecessary.

The act of 1805 contained a restriction upon the surveyor because the possession of a part of the country was still claimed, and even held, against the United States, by a foreign government; and how far that gov ernment should be suffered to continue in possession, and when and how it should be finally turned out of it, was a purely political question, which Congress, conforming its legislation to the law of nations, in this particular, wisely committed to the discretion of the Executive. In 1812 the United States were in possession; all obstacle to the execution of their laws in that district was removed. There was no reason why the pow. ers of the surveyor south of Tennessee should not be exercised over the public lands in that Territory, as freely as in any other part of his jurisdiction; and, accordingly, from that date, I consider him as having precisely the same authority there as had been vested by the act of 1796, the great fundamental constitution of the domain in this country, in the surveyor general of the Territory northwest of the Ohio. This is the express language of the act of 3d March, 1803, section 10, (an act regu lating grants and providing for the disposal of the lands of the United States south of the State of Tennessee.) Then the question is, “What were the powers of the surveyor general in the northwest under the act of 1796?" They were to carry into full effect the great scheme of disposing of the vast domain of the country, as soon as possible, with all the precision of a mathematical arrangement, with a view, at once, to accuracy in the public accounts, to facilitate sales, to certainty in titles, and

to the laying the foundations of that great social order which has been since built up in that wilderness, and the speediest improvement of the country and increase of population.

He is enabled, therefore, to engage a sufficient number of deputies, (without other stint than that it be sufficient,) to lay down rules for their government, to bind them by an oath of office, and to remove them at his pleasure for negligence or misconduct. His power is thus proportioned to the trust it was intended to execute. After many directions in detail for the execution of the surveys, according to the regular principles adopted for them-the making and preserving of plats, &c.-it is ordained in the 4th section that, as soon as seven ranges of townships shall have been surveyed, and the plats thereof executed and transmitted, the lands shall immediately be offered for sale. These are the powers and the duties of the surveyor general-to survey as soon and as perfectly as possible; to survey without waiting for the orders of any superior; to survey with a view to a speedy sale; at all events, to survey. It is clear that, according to the whole scope and spirit of the act of 1796, if the surveyor general is in any case whatever not to proceed forthwith to survey the public lands, that case is an exception, and the burden of proof is upon him that affirms it to exist, to show the special law by which it was created. Now, all these powers and duties were, by the act of 1803, ascribed in express terms to the surveyor south of Tennessee. Whenever, therefore, his powers are extended over any new tract of country, by virtue of an act of Congress, the order to survey the public lands in it as soon as possible, with a view to speedy sale and improvement, is implicitly conveyed by the same statute. Therefore, the omission in the act of 1812 of the words "by the direction of the President," had no effect whatever to defer the surveys which the surveyor general, by virtue of the general law, was empowered and enjoined to execute. It will not be pretended that the act of 1819 made any change whatever in this particular. By that act the surveyor general is authorized to appoint a deputy surveyor, whose business was to be the executing of the surveys of private claims. Of course this provision left the powers of the surveyor general, in regard to the public lands, just where they were before, and left him with the same discretion as before as to the choice and the manner of choosing the deputies, for whose performance of their duty he was responsible to the government. As to the objection that he did not, in the case under consideration, in fact perform his own duty in this respect-first, because the surveyor general (Mr. Davis) refused to have the surveying done; and, second, because the original plats (as they are called by Mr. Woodruff) were not duly approved, but copies of them-I am, on the fullest reflection, satisfied that neither of these objections ought to prevail.

As to the approval, there is no indispensable form prescribed. The substance of the thing-the spirit of the whole policy was, that the surveyor general, to whom, as we have seen, a high and important responsibility in this respect was confided, was to be satisfied, by comparing the field-notes with the plats, that the latter corresponded with the former. The field-notes were the original-just as much so as the entries in a shopkeeper's day-book. It was upon these, and these alone, that he was instructed by the lawgiver to rely. He was to take no evidence short of these; and, if he had these, he was to require no evidence

beyond them. As soon as by actual comparison he was satisfied that the plats corresponded with the notes on which they purported to have been formed, he was to transmit one of them to the Secretary of the Treasury-another to the land offices; and on this the authentic title, executed by a competent officer, according to law, the sale was to be made and the patent to issue.

This is a plain stating of the principle. The practice conformed to it. Thus, in the Collection of Laws, Instructions, &c., vol. 2, p. 861, there is an instance mentioned in which the recording the private survey, and the return of the township plats, including it, is considered as a virtual approval. So it is said at pp. 935, 936, of the same work, in relation to this very deputy surveyor in the district east of Orleans.

The examining and recording for which these deputies were to receive the fee of 25 cents, &c., I consider to be the examination of the fieldbooks of the deputy, in order to test the accuracy of the work, and making out the plat of survey; and the recording to be the copying of both the plat of survey and the field-books of the surveyor in the record books of the office. And in a letter from the Commissioner of the General Land Office to the surveyor general, at Washington, Mississippi, of the 12th February, 1828, (same collection, vol. 2, p. 882,) certified copies were returned to the latter, because he had not approved them, and he was required, as soon as possible, to compare the plats with the field notes, so as to enable him to certify their correctness. Other instances to the same effect might easily be cited. From all this, it is difficult to see how any objection can be made to the certificates in this case. The very refusal of Davis to certify, gives additional authenticity and solemnity to the certificate ultimately transmitted by his successor, Turner. This person, who, it seems, executed the surveys afterwards, became surveyor general by the express orders of the Commissioner at Washington, compared the plats with the field-notes, and, on that comparison, certified their correctness. If any objection is made to him as the deputy of the sur veyor general, I see no restriction upon the power of the latter as to the choice of his deputy. He is responsible, as I have said, to the government; and what he does by another, he does himself. Stringer's lessee vs. Young, 3 Pet., is a case somewhat in point. As to his approving a copy and not an original, the copy is, to all legal intents, the original, as soon as he approves it, by comparing it with what, in fact, is the original-the fieldnotes-though these would be of very little use to any but a surveyor; and therefore it is, that the law requires a certificd copy, and gives to it such effect as an authentic instrument. On the whole, I answer the first question in the affirmative. The surveys, so far as the evidence before us goes, are to be taken to be legal and sufficient. Before I close this head, I would call your attention particularly to two letters of Mr. Commissioner Graham, on this very subject, to the recusant Surveyor General Davis, in 1827 (See Collection, &c., vol. 2, pp. 872, 873, and 883, 885.) 2. Had the President of the United States any authority to proclaim these lands for sale?" I think he had; and I arrive at that conclusion, in some measure, by the same course of reasoning by which the authority of the surveyor general is established. It is true that Congress alone can dispose of the public lands, or make any appropriation of them; at least, whatever appropriation may be made of them, the authority to make it must proceed directly or indirectly from Congress. But I am of opinion

that Congress did authorize the President to proclaim these lands, because it authorized and enjoined the preparing them for sale. It ordered, as we have seen, that they should be surveyed-the first great step to sale; it established land offices, and authorized the appointment of a register and receiver-a second step, never taken but with a view to sale; and lastly, it did all this professedly with a view to the disposal of the public lands. Such is the very language of the act of 1819. Now, it is very true that that act, if all the conditions and regulations of a sale which had been established by general laws, such as the acts of 1808 and 1820, or which were become, by perpetual repetition for thirty years, mere words, of course, and a trivial formula had been inserted in it, would have been many times more prolix than it is But they would have been, in the then state of the land law, the merest surplusage, and expressio eorum quæ tacite insunt nihil operatur.

The President has authority to proclaim all sales which are ready to be made, provided he impose no terms not strictly authorized by law, because no sales are ever made without his proclamation; and all the public lands in this country not specially, and in express words, reserved or appropriated for other purposes, are destined, by our fundamental law, as a rapidly-progressive people, to as speedy a sale as possible. As soon as land enough was surveyed, under the act of 1796, it was forthwith sold; and from that day to this, so soon as the surveyor has done his work, and the register and receiver been appointed to do theirs, the proclaiming of the land for sale by the President has followed of course. A proclamation is indispensable in all cases, and has, I admit, been, in by far the majority of cases, expressly ordered by law to be made; but I maintain that it is implied where it is not ordered, by the very nature of the thing. A proclamation of some sort-that is, notice, timely and sufficient notice-has always been required, and for obvious reasons: first, that the treasury might have a good chance of an advantageous sale; second, that all the people might have an equal chance of buying. Accordingly, it is a fundamental law, that all lands must first be offered at public sale before they are subject to private entries.

The argument that the sale is void if the President is not expressly authorized to make proclamation that it is to take place, takes it for granted that the sale itself is an extraordinary thing, and so requires a special and solemn act to warrant the doing it. If our domains, for instance, were inalienable, as most crown lands are, everything relating to a pretended sale of them would be stricti juris. So, where Congress expressly reserve land, certainly the President has no authority whatever to proclaim it to be sold. But where they take no such order; where, on the contrary, they do everything necessary to a sale but proclaim it, which the President is always required to do by law, his doing it is a matter of course, and essential to protect the public against trespassers, who will otherwise take possession in spite of every prohibition.

In short, in this country every pre-emption is in favor of public sale; it is the first great tenure, so to express it, by which we hold our magnificent domain. This is plainly the result to be deduced from the whole tenor of the statute law of the United States in regard to the public lands, especially from the acts of Congress relating to the lands south of Tennessee. Over this whole tract of country a larger discretion has been allowed to the President than he ever had in respect of the territory north

west of the Ohio. By the act of 1796, the sale of the lands, as soon as they were surveyed, was confided partly to the governor or secretary of the Northwestern Territory and the surveyor general, partly to the Secretary of the Treasury, who was to give notice of not less than two months; and, if sales were made at different places, they should always take place at a month's interval. So, if they were suspended six months, the same policy required that the country should have notice of it through the newspapers. At this time, the President's agency in the sale was confined to an order for the issuing of the patents. As soon, however, as our popu lation began to spread itself over those extensive territories, and especially when new and vast acquisitions were made, the necessity of committing so important a charge as the giving publicity to the sale of the domain to the head of the central government became manifest. No one could be more safely trusted with the execution of these laws than he to whom was confided the execution of all other laws; and every purpose of publicity was better answered by his proclamation than it could possibly be in any other form. Accordingly, simultaneously with the appointment of the surveyor south of Tennessee, we see (act March 3, 1803, section 12) it adopted as a fundamental law "that all lands not otherwise disposed of, &c., be offered for sale to the highest bidder, under the direction, &c., on such day or days as shall, by public proclamation of the President of the United States, be designated;" with the usual provision that public sales shall be open at each place three weeks, and no longer. From that time to this, during a period of nearly forty years, I do not see a single instance in which this law has been deviated from; and public notice of a sale, which is of indispensable necessity in all cases, has become synony. mous with the proclamation of the President. This established power of the President is laid under some general regulations by the act of March 31, 1808; and the act of 1820, as was observed above, also contains provisions applicable to all sales whatever.

It is true that, for many years after the act of 1803, its words were, as is usual in such cases, formally repeated in all the other acts ordering sales-the President being expressly authorized to proclaim. But, generally, the principle is recognised as established, and the President is only indirectly authorized; that is, the acts recognise his proclamation as a thing of course-an incident inseparable-a condition indispensable to a sale. Forms of expression then occur of this kind: "whenever the sale of the public lands, in such and such a district, shall have been authorized by any proclamation of the President." (Act May 26, 1824, section 3-Missouri.) At length, in several instances, as in the act of 1819 under discussion, and those cited by the chief clerk of surveys in his letter to the Commissioner, which is now before me, the special authority to proclaim is omitted altogether. Thus, in the act of 1832, (July 10,) in the acts of March 2, 1833, June 26, 1834, and July 7, 1838. It is quite evident that the clause in all these acts was regarded, as it really was under the practice, as wholly superfluous, for the sales have gone on, he informs me, as usual, under them, and no one ever questioned their perfect regularity, although all purchasers were affected with full notice of the omission by the very law under which the sale, and consequently their titles were made, as Mr. Woodruff was, or must be taken to have been, in this instance.

Indeed, the great substantial prerequisites of a sale being accomplish