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The warrant goes forth to the world under the sanction of the government tribunal appointed to decide what cases are genuine and what not, and it is made by law a negotiable instrument. Upon the faith of these endorsements of the claim by the Government, an emigrant purchases the warrant innocently, and without a suspicion of wrong, and locates it on a tract of land in the far west. He sets to work, clears his fields, builds his cabin, fences his pasture and plants his crop, expecting shortly to obtain the patent of the Government for his homestead. A year or more afterwards, a new claimant presents himself at the Pension Office, claiming bounty land for the same service as that in reference to which the first warrant issued. He avers that the papers in the first case are forged, or that the testimony is perjured. Upon these allegations the Commissioner of Pensions undertakes ex parte, without notice to the warrantee or his assignee, to declare the first warrant void for fraud. The assignee is living on his land one thousand miles off, and the warrantee may be dead, or if living, and notified of the objection, he has no interest in the subject, and takes no pains to establish the validity of his claim. Is it fair and just that the assignee of the warrant should be ousted of his home by such a proceeding as this, where he has no chance of being heard in his defence, and where there is no trial, and no judge, and no jury?

By what authority does the Commissioner of Pensions undertake to act in such cases? How can he recall the warrant which has been issued ? How does he obtain jurisdiction of the subject upon which he has finally acted, and which has passed beyond his control ?

But it may be said the Commissioner of the General Land Office can correct it. How? Has he any superior power over the Commissioner of Pensions ? Has he any right to look beyond the warrant? Are his duties in their nature judicial in such a case ? or are they merely ministerial, and is he bound to look merely to the regularity of the warrant?

I will not pretend to say that cases may not arise, in which it would be the duty of the Department, or of the President, to forbid the issue of the patent. Where there was collusion between the officers and the warrantees, or where the warrant was in the hands of a party to the fraud, there would be no doubt of the duty of the Department, or of the President, to arrest the issue of the patent. The matter is one of executive discretion, in my judgment, and it ought to be exercised in such a way as to do substantial justice. In these cases, no one would doubt that Congress would properly relieve the innocent assignee. Why then subject them to the delay and vexation, and the Government to the expense of such a proceeding, when justice may be done by refusing to interfere with the warrants as they stand. It may be said that such a decision will encourage fraud. It may be so. But a contrary decision would encourage negligence, and destroy the value of land warrants, and the security of land titles.

Sound policy, the settlement of land titles, the prevention of multiplicity of controversies, justice to innocent individuals, all seem to me to concur in requiring that these warrants should be recognized, although the Government may lose some land by their acknowledgment. Let the officers be more vigilant in future. Let them pass no claim until well assured of its authenticity. But when it is once allowed, the act of the authorized agent of the Government must be respected, and he inust be held responsible for it. The warrants and other papers which accompanied your letter of the 27th ult., are herewith returned, and you will conform your action to the views herein expressed. I am, &c.,

A. H. H. STUART, Secretary. Commissioner of the General Land Office.

No. 623.

A Warrant Locator, though not having paid Register's fees, but having the Certificate of Location, entitled.


July 17, 1852. I have received your letter of the 14th instant, enclosing certain papers representing the injustice practised upon Thomas Downs, by the Register of the Land Office at Stillwater, Minnesota, by permitting Robert Craig to enter a tract of land which Downs had previously located with a bounty land warrant. Notwithstanding that the fees to which the Register was entitled for locating said warrant were not fully paid, the regularity and completeness of the location is shown by the certificate of location, given by the Register to Downs; and I am of opinion, that Downs is legally and equitably entitled to the land, and that Craig's entry should be set aside.

A. H. H. STUART, Secretary. Commissioner of the General Land Office.

No. 624. No appeal entertained from Commissioner's decision in a case of assign

ment of a Land Warrant, in regard to which the law confers the power upon him of prescribing regulations.


March 16, 1854. I seriously doubt, whether the Department possesses any control or appellate jurisdiction over the acts of the Commissioner of the General Land Office, so far as this question is concerned, for I find by reference to the Act of 22d March, 1852, (No. 190,) that these warrants are declared to be “assignable, according to such form and pursuant to such regulations as may be prescribed by the Commissioner of the General Land Office,'' and this view seems to be sanctioned by the opinion expressed by the Supreme Court of the United States, reported in 12 Peters, pages 609, 610.

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

No. 625.

In relation to assignment of a Land Warrant and cancellation of a

warrant in a given case.


April 12, 1855. I herewith return the papers in reference to military land warrant No. 3801, under Act of 1850, which accompanied your letter of the 16th August last, as also the communication from Messrs. Washburn and Woodman, of the 1st ultimo, which was referred by you on the 10th of that month. After a careful examination of the case, I can see no good grounds for a reversal of the decision made by you in the case in reference to the location, nor that of the Commissioner of Pensions in the cancellation of

the warrant. The warrantee, Charles Smith, having obtained a warrant for his services under the Act of 1847, that subsequently issued in his name, under the Act of 1850, was illegal and invalid, and discovery having been made of the error in the issue of the latter, it was promptly recalled, but not returned. When it was returned to this Office, located by said Smith, the warrant was transmitted to the Pension Office, and by the commissioner of that office cancelled, he having no right to claim, as an indocent party, the benefit of a mistake committed by the Pension Office, he being the first wrong doer, in obtaining, knowingly, more than was legally due, and as the location was made, and the land located assigned, prior to the date of the Act of 22d March, 1852, (No. 190,) making land warrants assignable, the assignee of said Smith has no right to claim a patent for the land, inasmuch as Smith, at the time of such transfer, had no right to dispose of the land, any more than he would have to sell the warrant if it had been rightfully and properly issued to him. The purchaser of the land took it subject to all the equities between Charles Smith and the United States, and as laid down in the Attorney-General's opinion of 18th April, 1836, the assignee “even though he had no notice of such equities at the time of the assignment, could require a specific execution of the engagement” on no other terms than could have been insisted on by his assignor.'

These equities were entirely with the United States, inasmuch as the party had no legal right to the land assigned, and even if he had possessed such right, the law in existence at the time of such assignment absolutely prohibited his disposition thereof, no patent having been issued on the location of the warrant.

Respectfully, &c.,

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

No. 626.

A party making an invalid location by a Warrant, should generally have an opportunity to purchase the same.


March 19, 1856. As a general rule, a party who makes a location with a land warrant, which location is subsequently set aside, because of some defect in the warrant, should have an opportunity of securing the land by purchase, or by the location of another warrant, but the first location must have been made with clean hands, without any knowledge of the illegality of the warrant, or of objections which would affect the validity of the location.

R. M‘CLEĻLAND, Secretary. Commissioner of the General Land Office.

No. 627. Where land is put up between two bidders, the difference between a Warrant and the price bid must be paid in cash.


April 4, 1856. In reply to your letter of the 31st ultimo, on the subject of the receipts of warrants for land, where, by reason of simultaneous application of two or more persons, the same is, by law, put up at auction among said applicants, I have to state that the warrant is received for the particular tract of land agreeing in denomination with that of the warrant, and the excess of price bid by the successful applicant, above $1 25, must be paid for in


R. M'CLELLAND, Secretary.

B. F. Helen, Esq.

No. 628. The assignability imparted to Warrants, under the Act 22d March, 1852, does not affect lands claimed by pre-emption.


May 21, 1856. I return herewith the letter of Hon. G. W. Jones, of Iowa, and its enclosures accompanying your letter of the 13th instant.

The question is raised, under these papers, whether the assignability imparted to military bounty land warrants, and the location thereof by the Act of 22d March, 1852, (No. 190,) operates as a repeal of the restriction, in relation to the assignment of pre-emption, under Act of 4th September, 1841, where such pre-emption is secured by the application of a military bounty land warrant, “in payment” therefor; and it is stated that although your predecessor, in a letter to George H. Wood, of 19th October, 1852, held the affirmative of this question, you, upon a review of the subject, aided by experience, are disposed to hold a contrary opinion, and desire the advice and decision of the Department, on the question mentioned.

I am of the opinion that the Act of 22d March, 1852, was merely designed to declare, that military bounty land warrants, and all legal and valid locations thereof, " then authorized by law," should be assignable, and that the proviso in said law, in relation to pre-emptions, authorizing a preemptor to make use of such a warrant, owned by him, “in payment for his pre-emption, at the rate of $1 25 per acre," &c., was intended only to make such land warrant in his hands equivalent to so much cash, and not to make it technically a "location," assignable under the previous provisions of said Act, and against the positive provisions of the Act of 1841, which prohibited any assignment of his right of pre-emption. We are bound to reconcile the two laws if practicable, and as it is fair to presume that Congress did not design to make land warrants superior, or more valuable than cash, or to repeal merely by implication, any prior law in relation to preemptions, by simply furnishing a different mode by which they might be secured, I think this object can be fairly and properly attained, by viewing the warrant in the hands of the pre-emptor, as affording him only another means of securing his right of pre-emption, but leaving that right subject to all the restrictions of the law upon which it was based.

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

No. 629.

Warrants may be located by Pre-emption Claimants, on unoffered lands,

but cannot be received for lands bid off at public sale.


July 28, 1856. Sir :-In reply to your letter of the 14th instant, received this morning, I have to state, that by special Act of Congress, pre-emption claimants can make use of land warrants on securing their pre-emptions, although the land may never have been offered at public sale; but that such warrants cannot be received for land bid off at public sale, they being applicable to locations made, of land “subject to private entry” in all instances, except in preemption cases as above mentioned.

R. M‘CLELLAND, Secretary. S. Maxwell, Esq.

No. 630. Excess of Fees received by Land Officers on Military Locations required

to be paid over.


August 4, 1856. Sir :-I have the honor to submit for your direction, a letter from the Receiver at Council Bluffs, Iowa, Enos Lowe, Esq., on behalf of himself and the Register, asking an appeal to the President against the decision of the Department and of this Office, requiring those officers to pay over the excess fces received by them on military locations, under Act 3d March, 1855. All the papers on this subject are on file in the Department.

With great respect, &c.,

Jos. S. Wilson, Acting Commissioner. Hon. R. M-Clelland, Secretary of the Interior.

Answered, 9th August, 1856.
“The President and Attorney-General concur with the Secretary.

R. M'CLELLAND, Secretary."

No. 631.

The Commissioner will require the proper Fees to be paid before he will

order Warrants to be located, which may be sent to him.


February 19, 1858. . The proviso attached to the fourth section of the Act of Congress, granting bounty lands for military services, September 28, 1850, makes it the duty of the Commissioner of the General Land Office, under such regulations as may be prescribed by the Secretary of the Interior, to cause to be located free of expense, any warrant which the holder may transmit to the General Land Office for that purpose, in such State and land district as the said holder and warrantee may designate, on any good farming land, so far as the same can be ascertained from the maps, plats and field notes of the

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