Doe, ex dem. Tillman v. Long & Freeman

WALKER, J. The certificate of J. R. Poinsett, secretary of war, endorsed on a deed, and not under the seal of his department, that the deed had been approved by the president, is not evidence of the fact of the president’s approval. The deed offered in evidence in this case was one made in 1834, by a Creek Indian, conveying his reservation under the treaty of 24th March, 1832; and does not convey the title, without the president’s approval. Therefore, the court did not err in excluding the deed from the jury. The clear and indisputable principle, that “the president speaks and acts through the heads of the several departments, in relation to subjects which appertain to their respective duties,” laid down in Wilcox y. Jackson, 13 Peters, has no application here. It is not a duty of the secretary of war to prove by his certificate the fact of the president’s approval. If it be true that the fact of the president’s approval is shown by the records in the war department, it may be that the record might be certified by the certificate of the head of that department; but it would be at war with principle and authority, to permit him to prove by his certificate the facts evidenced by the record. It would contravene the principle that the record is the best evidence, and would substitute the judgment of that officer for that of the court, as to the effect of the record. The authorities cited below fully sustain our several positions. 3 Phillipps on Evidence, C. &H. Notes, note 702; Greenleaf on Evidence, 637, § 498; Brown v. Chambers, 12 Ala. 713; See the treaty copied in a note to Phipp v. McGehee, 5 Porter, 413, The judgment of the court below is affirmed. Rice, C. J., not sitting.