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enters the same for his or her own use, and for the purpose of actual settlement and cultivation, or for the use of an adjoining farm or plantation owned or occupied by him or herself, and, together with said entry, he or she has not acquired from the United States, under the provisions of this act, more than three hundred and twenty acres, according to the established surveys.

And the question submitted is, whether aliens can enter lands under this act?

I think we shall discover the true answer to this question by closely adhering to the axiom of statutory construction, that all acts in pari materia are to be construed together as one law.

If doubt on this point could exist in any case, it cannot in this : for the brevity of the act, and the generality of its provisions, compel us to have recourse, in the execution of it, to other acts, for a multitude of administrative details, without which it would be a dead letter.

In truth, the act presupposes the entire existing land system of the United States in all its completeness of legislation, and of judicial or administrative construction and regulation, and then superadds to the system a specific new fact, namely, sale of certain lands, and in certain quantities, at a reduced price for personal use and for actual settlement and cultivation, either in the first instance, or by annexion to an existing farm or plantation, including, of course, as well pre-emptors as purchasers who are not pre-emptors.

Hence, in administering this act, it becomes necessary for the Commissioner of Public Lands to draw from the body of statutes, and from other legal authorities, such rules as appeared to be requisite, in order to give, in this case, due effect, and no more, to the legislative will of Congress. As the benefits of the act were designed to be for actual settlers only, and to a limited amount, it became necessary to exclude all persons not sui juris, such as married women or minors, meaning, of course, married women and minors unemancipated, and constituting subject members of the family of a husband or father; because, otherwise, it would not be personal use, and an actual settler might double or treble his allotment by causing entries to be made by his wife and minor children.

The regulations which the Department adopted in these and other respects, have been sanctioned by Congress. 10 Stats. at Large, p. 649. (No. 277.)

But those regulations do not profess to determine the present question : which, of course, must be decided by consideration of the general tenor and of the particular provisions of the several statutes for the disposal of the public lands, including this one.

Now, the general law, in so far as regards the United States, undoubtedly enables aliens to purchase the public lands, subject orly, as to their tenure, to such limitation as the particular States may enact.

Originally, an alien, there is no doubt, was also entitled to enter lands by pre-emption. (See Mr. Butler's opinion, of April 18, 1836.)

But thelaw now in force gives the right of pre-emption only to a person being a citizen of the United States, or having filed his declaration of intention to become a citizen, as required by the naturalization laws. (Act of September 4, 1841, (No. 48,) s. 10; 5 Štat. at Large, p. 458: see Mr. Legaré's opinion, of March 15, 1843.)

Aliens, who have not filed the declaration of intention to become citizens, are now excluded generally from pre-emption, and, of course, from preemption under the Graduation Act.

But what is there in the act to forbid the alien to purchase the gradu

ated lands for cash, without pre-emption, and in open competition with all the world, as he may other public lands? I do not perceive anything.

He is not of the class of persons, who, not being sui juris in law, are constructively excluded from the benefits of the act, because incapable to buy for their own use, and to engage to make, or to make actual settlement and cultivation in their own persons. Notwithstanding his alienage, he has, or may have, the personal use and the full competency of a head of family, or a cultivation in his own right.

He has the power, beyond all question, to enter one of the graduated parcels at the ordinary price, even for the purpose of investment or speculation, as it is called, and without limitation of quantity. But in order to obtain a certain quantity at a reduced price, there is a condition that the party should swear to and make actual settlement and cultivation. No other condition is mentioned. It is purchase at the ordinary price without condition, and at the reduced price with condition. No other apparent distinction is made by the statute, none other seems to be implied. In terms and in legal intendment, it applies to all persons competent to buy public lands : provided they are also competent to take for their own use, and to make and execute the engagement of settlement and cultivation.

In my opinion, therefore, save in the matter of pre-emptions, the Graduation Act extends to aliens equally with citizens of the United States. I have the honor to be, very respectfully,

C. CUSHING. Hon. Robert M'Clelland, Secretary of the Interior.

DECISIONS. No. 521. Proof of settlement and cultivation of lands claimed under the Gradua

tion Law, required.


September 18, 1855. Extract from letter to Commissioner in relation to the Graduation Act :

" The actual settlement and cultivation' of the land, were the governing reasons for the grant of the Act of 4th August, 1854, (No. 251,) and the Department should not be called upon to consummate the grant merely because the law allowed the first step towards its consummation to be taken by the party, upon his making oath as to his 'intention' to make such settlement and cultivation. A person may have had such intention at the time of entry, (as in charity it is to be supposed of those who have made the affidavit and subsequently disposed of the entries effected, without any settlement and cultivation, but that is not regarded as conferring on him a right to the land without that intention being subsequently evinced by acts demonstrative thereof; and it is regarded as perfectly within the power of the Department, and its duty, in order to prevent frauds under the law, to require a performance, within a reasonable time, of that which alone forms the basis of the right designed to be conferred, by engrafting a specified period to the form of affidavit, to give every one thus due notice of what is required of him.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 522. Where land was selected by the State, and also sold under the Graduation

Law, the purchaser selling to another, the latter would have an equitable right to complete the purchase from the United States, if the selection failed in a given case.


January 17, 1857. Sir :--The report from your office of the 12th inst., on the appeal of Bazil G. Puckett, referred to you on the 20th August last, has been received. It appearing that the land in question was selected by the State, many month before the erroneous sale thereof was made to John K. Jackson, under the Graduation law of 1854; that such selection was submitted to the Department, and approved, prior to the passage of the Act of 3d March, 1855, leaving nothing to be done but the issue.of the patent, to carry the title to the State; that within forty days after the entry, by Jackson, he disposed of his entry and left the State, without furnishing any proof that he had made any settlement or improvement, even of the land, thus raising a strong presumption against his entry by reason of that cause alone, I am of opinion, and so determine in the case, that the only question involved therein really is, whether the land was swamp land or not, and of this you should take the necessary steps to enable you to be fully satisfied. If it was, the selection and approval thereof by this Department would leave nothing necessary to complete the title of the State but the issue of the patent, as if no subsequent sale had been made. If it was not swamp land, then the equities of the present occupant of the land, Mrs. Lane, should be considered, and an opportunity afforded her to obtain a legal title thereto, in her own name, should it be discovered that nothing had been done by Jackson to consummate his right by making the necessary settlement and cultivation, and thus by this, with the subsequent sale of his entry and departing the State, clearly evincing the illegal character of his entry.

The Department does not regard the deficiency, in the amount paid by Jackson, as of any consequence under the circumstances. That can be remedied by an additional payment in his behalf, if it should be the only obstacle to his right. Respectfully, your obedient servant,

R. M-CLELLAND, Secretary.

No. 523.
Graduated lands may be entered with Revolutionary Bounty-land Scrip.


Washington, June 14, 1858. Sir :—The entries of Graduated lands at the Springfield, Missouri, Land Office, made in whole or in part with the Revolutionary bounty-land scrip, if otherwise in accordance with law, should be patented in the usual


The act of Congress approved the 31st August, 1852, provides that such scrip “shall be received in payment for any lands owned by the United States, subject to sale or private entry.” These words are general, and it appears to be practicable and consistent with other laws, to give them the force and meaning which they most obviously bear.

The holders of such scrip, accordingly, would have the right to use the same in payment for public lands subject to sale or private entry, without regard to the price to be paid per acre; unless there be some special inhibition in the case—and I find no inhibition in the Act of August 4, 1854, under which the price of the lands, in the list now before me, was fixed.

With these views the list of entries which accompanied your report of the 8th instant is now returned for the further action of your office.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 524. Patents to lands entered under the Graduation Law, to be delivered upon the production of the required proof.


September 14, 1858. Your communication of the 11th instant, proposing “to release all entries under the Graduation law, which are suspended solely for the want of proof of actual settlement and cultivation,' and to patent the same, and to transmit the patents to the proper local officers to be delivered to the respective purchasers, upon the surrender of the duplicate receipts, and the production of the required proof aforesaid” has been considered.

The plan suggested may be adopted, and at the same time you will instruct the Register and Receiver to give public notice to purchasers thereof, advising them that unless their patents are applied for, and the terms of the proposed order complied with within a reasonable time, the same will be returned to the General Land Office.

J. THOMPSON, Secretary. Commissioner of the General Land Office.



Suspended Entries .

No. 525,


[Under the Act of Congress, approved 3d of August, 1846, entitled "An Act providing for the adjustment of all suspended pre-emption land claims in the several States and Territories," the following general equitable rules and regulations are established for the government of the Commissioner of the General Land Office.

The Commissioner will recognize as valid, and place in the first class, suspended entries of the following description :

1st. All pre-emption entries, in which one or more legal requirements do not appear in the papers, because of the neglect or inattention of the land officers, but where the existing testimony shows a substantial and bona fide settlement and improvement of the lands; or where such facts were satisfactorily shown to the local officers, by proof which was lost in ansmission to the General Land Office, and cannot now be renewed, by reason of the death of witnesses, or other cause.

2d. All pre-emption entries under the Acts of 12th April, 1814, 29th May, 1830, 5th April, 1832, 19th June, 1834, 22d June, 1838, and 1st of June, 1840, which have been allowed in the names of assignees, instead of the pre-emptors themselves, where the claim is bona fide, and the assignees or subsequent purchasers, are in possession.

3d. All entries in virtue of “floats,” under the Acts of 29th of May, 1830, and 19th June, 1834, where the original settlement, (from which the "float" was derived) was bona fide, and had been actually entered, but where such original settlement was on land reserved for private claims, the survey of which had not been returned at the time of entry; and also all entries by such “floats," on land liable to sale, where the “float entries had been made prior to the return of the official plat of survey for the original settlement.

4th. Entries allowed by pre-emption on "sketch maps,” (obtained by the parties,) before the return of the regular approved plat of the township embracing the land.

5th. All entries allowed by pre-emption on land which was reserved at the date of the Pre-emption Act, but which was released from reservation before the expiration of said act, where such entries are in other respects regular.

6th. Pre-emption entries under laws requiring actual residence on public land, in which the residence was found to be on private property, but where the tract entered formed a substantial part of the farm of the claimant, and was improved and cultivated by him at the period required for residence.

7th. Pre-emption entries of legal subdivisions of a fractional section, which contain more than one hundred and sixty acres, but which are as near that quantity as the existing subdivisions will allow.

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