of the public lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government of the United States, shall be subject to the supervision and control of the Commissioner of the General Land Office, under the direction of the President of the United States.

The second section of the act of Congress of March 3, 1803, was intended to confer a bounty on a numerous class of individuals, and in construing the ambiguous words of the section, it is the duty of the court to adopt that construction which will best effect the liberal intentions of the Legislature. Ibid. 667. The time when the territory over which this law operated was evacuated by the Spanish troops, was very important, as the law was intended to provide for those who were actually at that time inhabitants of, and cultivated the soil within it; but whether it was in 1797 or 1798, was comparatively unimportant. The decision of the commissioners upon the period when the evacuation took place, is sufficient: and the court are disposed to adopt the construction of the act given by the commissioners west of Pearl river; that the evacuation took place on the 30th March 1798, by which persons coming within the objects of the section were entitled to donation certificates. Ibid. 667.

Congress have treated as erroneous the construction given to the law by the commissioners to settle claims to lands east of Pearl river, who have decided that only those who were settled on the lands within the territory in the year 1797 were entitled to donation certificates, and who had granted to others pre-emption certificates. Ibid. 668.

The commissioners appointed under the act of Congress relative to claims to lands of the United States south of the State of Tennessee, were authorized to hear evidence as to the time of the actual evacuation of the territory by the Spanish troops, and to decide upon the fact. The law gave them power to hear and decide all matters respecting such claims, and to determine thereon, according to justice and equity; and declared their deliberations shall be final. The court are bound to presume that every fact necessary to warrant the certificate, in the terms of it, was proved before the commissioners; and that, consequently, it was shown to them that the final evacuation of the territory by the Spanish troops took place on the 30th of March 1798. Ibid.

By the treaty of St. Ildefonso, made on the 1st of October 1800, Spain ceded Louisiana to France; and France, by the treaty of Paris, signed the 30th of April 1803, ceded it to the United States. Under this treaty, the United States claimed the countries between the Iberville and the Perdido. Spain contended that her cession to France comprehended only that territory which at the time of the cession was denominated Louisiana, consisting of the island of New Orleans, and the country which had been originally ceded to her by France, west of the Mississippi. The land claimed by the plaintiffs in error, under a grant from the crown of Spain, made after the treaty of St. Ildefonso, lies within the disputed territory; and this case presents the question, to whom did the country between the Iberville and Perdido belong after the treaty of St. Ildefonso? Had France and Spain agreed upon the boundaries of the retroceded territory before Louisiana was acquired by the United States, that agreement would undoubtedly have ascertained its limits. But the declarations of France, made after parting with the province, cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations, to permit their declarations to decide the course of an independent government, in a matter vitally interesting to itself. Foster et al. v. Neilson, 2 Peters, 306.

If a Spanish grantee had obtained possession of the land in dispute so as to be the defendant, would a court of the United States maintain his title under a Spanish grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the treaty of St. Ildefonso was right, and the American construction wrong? Such a decision would subvert those principles which govern the relations between the legislative and judicial departments, and mark the limits of each. Ibid. 309. The sound construction of the eighth article of the treaty between the United States and Spain, of the 22d of February 1829, will not enable the court to apply its provisions to the case of the plaintiff. Ibid.

314.

The article does not declare that all the grants made by his catholic majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and it would have repealed those acts of Congress which were repugnant to it; but its language is, that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and, if it is, the ratification and confirmation which are promised must be the act of the Legislature. Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject. Ibid.

A title to lands, under grants made by Indian tribes or nations, north-west of the river Ohio, to private individuals, in the years 1773 and 1775, cannot be sustained in the courts of the United States. Lessee of Johnson et al. v. M'Intosh, 8 Wheat. 543; 5 Cond. Rep. 515.

The title to lands depends entirely upon the law of the nation in which they lie. Ibid.

Discovery constitutes the original foundation of title to lands on the American continent, as between the different European nations; the title thus derived, was the exclusive right of acquiring the soil from the natives, and establishing settlements upon it; the title was to be consummated by possession. Ibid. The rights of the original inhabitants were, to a considerable extent, impaired, but in no instance entirely disregarded. The Europeans respected the right of the natives as occupants, but asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in the possession of the natives. Ibid.

By the treaty between Great Britain and the United States, which concluded our revolution, the powers of government and the right to soil which had previously been in Great Britain, passed definitively to these States. Ibid.

The United States, or the several States, have a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy; and the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it. Ibid.

It is a principle of universal law, that, if an uninhabited country be discovered by a number of indivi

A principal clerk of public

lands, and one on private land claims, to be appointed.

SEC. 2. And be it further enacted, That there shall be appointed in said office, by the President, by and with the advice and consent of the Senate, two subordinate officers, one of whom shall be called Principal Clerk of the Public Lands, and the other Principal Clerk on Private Land Claims, who shall perform such duties as may be assigned to them by the Commissioner of the General Land Office; and in case duals, who acknowledge no connection with, and owe no allegiance to any government whatever, the country becomes the property of the discoverers in common, so far as they can use it. Ibid.

If the discovery be made and possession taken under the authority of an existing government, which is acknowledged by the emigrants, the discovery is made for the whole nation; the country becomes a part of the nation; and the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains. Ibid.

According to the theory of the British constitution, all vacant lands are vested in the crown as representing the nation; and the exclusive power to grant them is admitted to reside in the crown as a branch of the royal prerogative. Ibid.

Congress, in order to guard against imposition, declared by the law of 1804 that all grants of land made by the Spanish authorities in the territory west of the Perdido, after the treaty of St. Ildefonso, should be null and void, excepting those to actual settlers, acquired before December 20, 1803. Garcia v. Lee, 12 Peters, 511.

The controversy relative to the country lying between the Mississippi and the Perdido rivers, and the validity of the grants made by Spain in the disputed territory after the cession of Louisiana to the United States, were carefully examined in the case of Foster & Elam v. Neilson. The Supreme Court in that case decided that the question of boundary between the United States and Spain was a question for the political departments of the government: that the legislative and executive branches having decided the question, the courts of the United States are bound to regard the boundary determined by them as the true one; that grants made by the Spanish authorities of lands, which, according to this boundary line, belonged to the United States, gave no title to the grantees in opposition to those claiming under the United States, unless the Spanish grants were protected by the subsequent arrangements made between the two governments; and that no such arrangements were to be found in the treaty of 1819, by which Spain ceded the Floridas to the United States, according to the fair import of its words, and its true construction. Ibid.

In the case of Foster & Elam v. Neilson, the Supreme Court said that the Florida treaty of 1819 declares that all grants made before the 24th of January 1818, by the Spanish authorities, "shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid, if the territories had remained under the dominion of his catholic majesty:" and in deciding the case of Foster & Elam, the court held, that even if this stipulation applied to lands in the territory in question, yet the words used did not import a present confirmation by virtue of the treaty itself, but that they were words of contract: "that the ratification and confirmation which were promised must be the act of the Legislature; and until such shall be passed, the court is not entitled to disregard the existing laws on the subject." Afterwards, in the case of the United States v. Percheman, 7 Peters, 86, in reviewing the words of the eighth article of the treaty, the court, for the reasons there assigned, came to a different conclusion, and held that the words were words of present confirmation, by the treaty, where the land had been rightfully granted before the cession, and that it did not need the aid of an act of Congress to ratify and confirm the grant. This language was, however, applied by the court, and was intended to apply, to grants made in a territory which belonged to Spain at the time of the grant. The case then before the court was one of that description. It was in relation to a grant of land in Florida, which unquestionably belonged to Spain at the time the grant was made, and where the Spanish authorities had an undoubted right to grant, until the treaty of cession in 1819. It is of such grants that the court speak, when they declare them to be confirmed and protected by the true construction of the treaty, and that they do not need the aid of an act of Congress to ratify and confirm the title of the purchaser. The court do not apply this principle to grants made within the territory of Louisiana. The case of Foster & Elam v. Neilson must, in all other respects, be considered as affirmed by the case of Percheman; as it underwent a careful examination in that case, and as none of its principles were questioned except that referred to. Ibid.

The power over the public lands is vested in Congress by the constitution without limitation, and has been considered as the foundation on which the territorial government rests. The United States v. Gratiot et al., 14 Peters, 529.

The words "dispose of" the public lands, used in the constitution of the United States, cannot, under the decisions of the Supreme Court, receive any other construction than that Congress has the power in its discretion to authorize the keeping of the lead-mines on the public lands in the territories of the United States. There can be no apprehensions of encroaching on State rights by the creation of a numerous tenantry within the borders of a State, from such reasons. Ibid.

The authority as given to the President of the United States to lease the lead-mines, is limited to a term not exceeding five years. This limitation, however, is not to be construed to be a prohibition to renew the leases from time to time, if he thinks proper so to do. The authority is limited to a short period, so as not to interfere with the power of Congress to make other dispositions of the mines, should they think the same necessary. Ibid.

The law of 1807, authorizing the leasing of the lead-mines, was passed before Illinois was organized as a State. She cannot now complain of any disposition or regulation of the lead-mines previously made by Congress. She, secondly, cannot claim a right to the public lands within her limits. Ibid.

Under the acts of 1805, chap. 26, 1806, chap. 39, 1807, chap. 36, it was necessary to file the evidence of an incomplete claim under French or Spanish authority, which bore date anterior to the 1st of October 1800, as well as those which were dated subsequent to that day; and in cases of neglect, the bar provided in the act applied to both classes. Ibid.

A title resting on a permit to settle and warrant of survey, dated before the 1st of October 1800, without Ibid. settlement or survey of any kind having been made, was an incomplete title within that act. K

of vacancy in the office of the Commissioner of the General Land Office, or of the absence or sickness of the Commissioner, the duties of said office shall devolve upon and be performed, ad interim, by the Principal Clerk of the public lands.

SEC. 3. And be it further enacted, That there shall be appointed by the President, by and with the advice and consent of the Senate, an

In making an entry of land, where mistakes occur which are occasioned by the impracticability of ascertaining the relative positions of the objects called for, the court will correct those mistakes, so as to carry out the intentions of the locator. Croghan's lessee v. Nelson, 3 Howard, 187.

There is no principle of the common law which forbids individuals from associating together to purchase lands from the United States, on joint account, at public sale. Oiner v. Pratt, 3 Howard, 333.

Where the purchaser of land from the United States has paid for it, and received a final certificate, it is taxable property, according to the statute of Michigan, although a patent has not been issued. Carroll v. Strafford, 3 Howard, 441.

Taxation upon lands so held is not a violation of the ordinance of 1787, as "an interference with the primary disposition of the soil by Congress;" nor is it a tax on the lands of the United States. The State of Michigan could rightfully impose the tax. Ibid.

It was competent to the State to assess and tax lands at their full value, as the absolute property of the holder of the final certificate; and, in default of payment, to sell them as if he owned them in fee. Ibid. The act of 26th May 1830, chap. 106, providing for the final settlement of land claims in Florida, must be construed to contain the same limitation of time, within which claims are to be presented, as that provided by the act of May 23, 1828, chap. 70. The United States v. Marvin, 3 Howard, 620.

Under the act of Congress providing for the subdivision of the public lands, and the instructions of the Secretary of the Treasury, made under the act of 24th April 1820, chap. 49, entitled, An act making further provision for the sale of the public lands, it is the duty of the Surveyor General to leave out a fractional section in such a manner as that an entire quarter section may be had, if the fraction will admit of it. Brown's Lessee v. Clements, 3 Howard, 650.

The Surveyor General has no right to divide a fractional section by arbitrary lines, so as to prevent an entire quarter section from being taken up. Ibid.

The treaty by which Louisiana was ceded to the United States, recognised complete grants, issued anterior to the cession; and the decision of a State court against the validity of a grant set up under such a title, would be subject to reversal by the Supreme Court, under the 25th section of the Judiciary Act. M'Donogh v. Mullander, 3 Howard, 693.

But if the State court only applies the laws of the State to the construction of the grant, it is not a decision against the validity of the grant, and the Supreme Court has no jurisdiction. Ibid.

Congress, in asking a complete grant, recognised them as they stood; and the act of May 11, 1820, chap. 87, confirming such as were recommended for confirmation by the register and receiver, had no reference to any particular surveys. A decision of a State court, therefore, which may be in opposition to one of these surveys, is not against the validity of a title existing under an act of Congress; and the Supreme Court has no jurisdiction. Ibid.

By the treaty of 1795 between the United States and Spain, by which Spain admitted that she had no title to land north of the 31st degree of north latitude, her previous grants of land so situated were of course void. The country thus belonging to Georgia was ceded to the United States in 1802, with a reservation that all persons who were actual settlers on the 27th October 1795, should have their grants confirmed. Congress provided a board of commissioners to examine these grants, and declared that their decision should be final. The Court of Chancery of Mississippi had no right to establish one of these grants which had not been brought within the provisions of the act of Congress. The claim itself being utterly void, and no power having been conferred by Congress on that court to take or exercise jurisdiction over it, for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation of judicial power, and the whole proceeding of the court void. Lessor v. Hickey & Stewart, 3 Howard, 750.

The Supreme Court has repeatedly declared, and in cases too where the instrument contained clear words of grant, that if the description was vague and indefinite, and there was no official survey to give a certain location, it could give no right of private property in any particular parcel of land, which could be maintained in a court of justice. The United States v. King et al. 3 Howard, 733.

An equitable title is no defence in a suit at law brought by the United States. An imperfect title, derived from Spain before the cession, cannot be supported against a party claiming under a grant from the United States. Ibid.

The act of Congress of 29th April 1816, chap. 159, confirming the grant to a league square, restricted it to that quantity, and cannot be construed as confirming the residue. Ibid.

The act of Congress, entitled "An act to create additional land districts in the States of Illinois and Missouri, and the territories north of the State of Illinois," approved June 26, 1834, chap. 76, does not require the President of the United States to cause to be offered for sale the public lands containing lead-mines, situated in the land districts created by the said act. United States v. Gear, 3 Howard, 120. The lands containing lead-mines in the Indiana territory, or in that part of it made into a new land district by the act of 26th June 1834, chap. 76, are not subject, under any of the pre-emption laws which have been passed by Congress, to pre-emption by settlers upon the public lands. Ibid.

Digging lead-ore from the lead-mines upon the public lands of the United States, entitles the United States to a writ of injunction to restrain it. Ibid.

such a waste as

The United States now hold the public lands in the new States by force of the deeds of cession, and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that purpose. Pollock's Lessee v. Hager, 3 Howard, 212.

The shores of navigable rivers, and the soil under them, were not granted to the United States, but were reserved to the States respectively; and the new States have the same rights, sovereignty and jurisdiction over this subject, as the original States. Ibid.

officer to be styled the Principal Clerk of the Surveys, whose duty it shall be to direct and superintend the making of surveys, the returns thereof, and all matters relating thereto, which are done through the officers of the Surveyor General; and he shall perform such other duties as may be assigned to him by the Commissioner of the General Land Office.

A principal clerk of the sur

veys.

A recorder of

office.

SEC. 4. And be it further enacted, That there shall be appointed by the President, by and with consent of the Senate, a Recorder of the the general land General Land Office, whose duty it shall be, in pursuance of instructions from the Commissioner, to certify and affix the seal of the General Land Office to all patents for public lands, and he shall attend to the correct engrossing, and recording, and transmission of such patents. He shall prepare alphabetical indexes of the names of patentees, and of persons entitled to patents; and he shall prepare such copies and exemplifications of matters on file, or recorded in the General Land Office, as the Commissioner may from time to time direct.

A solicitor of

office.

SEC. 5. And be it further enacted, That there shall be appointed by the President, by and with the advice and consent of the Senate, an the general land officer to be called the Solicitor of the General Land Office, with an annual salary of two thousand dollars, whose duty it shall be to examine and present a report to the Commissioner of the state of facts in all cases referred by the Commissioner to his attention which shall involve questions of law, or where the facts are in controversy between the agents of the Government and individuals, or there are conflicting claims of parties before the Department, with his opinion thereon; and also, to advise the Commissioner, when required thereto, on all questions growing out of the management of the public lands, or the title thereto, private land claims, Virginia military scrip, bounty lands, and pre-emption claims; and to render such further professional services in the business of the Department as may be required, and shall be connected with the discharge of the duties thereof.

SEC. 6. And be it further enacted, That it shall be lawful for the President of the United States, by and with the advice and consent of the Senate, to appoint a Secretary, with a salary of fifteen hundred dollars per annum, whose duty it shall be, under the direction of the President, to sign in his name, and for him, all patents for land sold or granted under the authority of the United States.

SEC. 7. And be it further enacted, That it shall be the duty of the Commissioner to cause to be prepared, and to certify, under the seal of the General Land Office, such copies of records, books, and papers on file in his office, as may be applied for, to be used in evidence in courts of justice.

SEC. 8. And be it further enacted, That whenever the office of Recorder shall become vacant, or in case of the sickness or absence of the Recorder, the duties of his office shall be performed, ad interim, by the Principal Clerk on Private Land Claims.

A secretary to sign patents for lands.

Certified co

pies of records,

&c.

Duties of recorder may depal clerk on privolve on princi

vate land claims.

Receivers to

returns.

SEC. 9. And be it further enacted, That the Receivers of the land offices shall make to the Secretary of the Treasury monthly returns of make monthly the moneys received in their several offices, and pay over such money pursuant to his instructions. And they shall also make to the Commissioner of the General Land Office like monthly returns, and transmit to him quarterly accounts current of the debits and credits of their several offices with the United States.

SEC. 10. And be it further enacted, That the Commissioner of the General Land Office shall be entitled to receive an annual salary of three thousand dollars; the recorder of the General Land Office, an annual salary of fifteen hundred dollars; the principal clerk of the surveys, an annual salary of eighteen hundred dollars; and each of the said principal clerks an annual salary of eighteen hundred dollars; from

Salary of commissioner and

others.

Provisions of acts inconsistent with this repealed.

1812, ch. 68.

The General Land Office

to be open during certain hours.

and after the date of their respective commissions; and that the said commissioner be authorized to employ, for the service of the General Land Office, one clerk, whose annual salary shall not exceed fifteen hundred dollars; four clerks, whose annual salary shall not exceed fourteen hundred dollars each; sixteen clerks, whose annual salary shall not exceed thirteen hundred dollars each; twenty clerks, whose annual salary shall not exceed twelve hundred dollars each; five clerks, whose annual salary shall not exceed eleven hundred dollars each; thirty-five clerks, whose annual salary shall not exceed one thousand dollars each; one principal draughtsman, whose annual salary shall not exceed fifteen hundred dollars; one assistant draughtsman, whose annual salary shall not exceed twelve hundred dollars; two messengers, whose annual salary shall not exceed seven hundred dollars each; three assistant messengers, whose annual salary shall not exceed three hundred and fifty dollars each; and two packers, to make up packages of patents, blank forms, and other things necessary to be transmitted to the district land offices, at a salary of four hundred and fifty dollars each.

SEC. 11. And be it further enacted, That such provisions of the act of the twenty-fifth of April, in the year one thousand eight hundred and twelve, entitled "An act for the establishment of a General Land Office in the Department of the Treasury," and of all acts amendatory thereof, as are inconsistent with the provisions of this act, be, and the same are hereby, repealed.

SEC. 12. And be it further enacted, That from the first day of the month of October, until the first day of the month of April, in each and other offices and every year, the General Land Office and all the bureaus and offices therein, as well as all those in the Departments of the Treasury, War, Navy, State, and General Post Office, shall be open for the transaction of the public business at least eight hours in each and every day, except Sundays and the twenty-fifth day of December; and from the first day of April, until the first day of October, in each year, all the aforesaid offices and bureaus shall be kept open for the transaction of the public business at least ten hours in each and every day, except Sundays and the fourth day of July.

Penalty of Register for false information giv. en by him.

Officers of the

land office propurchasing, &c.

hibited from

public lands.

STATUTE I.

July 4, 1836. [Obsolete.]

1836, ch. 7.

for members of

SEC. 13. And be it further enacted, That if any person shall apply to any register of any land office to enter any land whatever, and the said register shall knowingly and falsely inform the person so applying that the same has already been entered, and refuse to permit the person so applying to enter the same, such register shall be liable therefor to the person so applying, for five dollars for each acre of land which the person so applying offered to enter, to be recovered by action of debt in any court of record having jurisdiction of the amount.

SEC. 14. And be it further enacted, That all and every of the officers whose salaries are hereinbefore provided for, are hereby prohibited from directly or indirectly purchasing, or in any way becoming interested in the purchase of any of the public land; and in case of a violation of this section by such officer, and on proof thereof being made to the President of the United States, such officer, so offending, shall be forthwith removed from office.

APPROVED, July 4th, 1836.

CHAP. CCCLIII.-An Act in addition to the act entitled "An act making appropriations, in part, for the support of Government, for the year eighteen hundred and thirty-six, and for other purposes.

Be it enacted by the Senate and House of Representatives of the Appropriations United States of America in Congress assembled, That the followthe Senate and ing sums be, and the same are hereby appropriated, to be paid out of House of Rep any money in the Treasury not otherwise appropriated: For compen