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specified (among which is the village or town of St. Char!) their rights
of Missouri, and two commissioner's to recor ler of land titles in the State
he United States, by and with the ad-
examine all the unconfirmed claims
in the office of said recorder, accord-
'ete grant, concession, warrant, or
· of France or Spain, prior to the
de so as to show-first, what
been confirmed according to claims, in their opinion, would in fact have the laws,
h government, and the prac. usages, and ci istoms of the Spanis.
New Orleans, if the gov. tice of the Spanish auth orities under them, a.
continued in Missouri: ernment ui ader which sui :h claims originated ha
'estitute of merit in law and, secon dly, what claim.s, in their opinion, are a
actice of the Spanish or equity 1 inder si,ch laws, usages, customs,
ons for the opinions
missioners proUnder ti
iis provision of the law, the recorder and co. ceeded in the dischi urge of their duties, and subsequently reported to
which, was Congress 1
heir opinions in favor of various claims; amon this claim
mis. and for oth
infirmed the claims upon which the c sioners had
'y, with certain specified exceptions. A song, those confirmed, Chouteau's
ct, however, provides, « That if it shall
location or purchase, on any unap-
found that a ny tract or tracts a had been previously located by law of the l Inited States, or had States, this : act shall confer no tii right acquire d by such location or viduals whos e claims are hereby coni much thereof as interferes with such propriated lai id of the United States wi ritory of Arkansas, in whichever the on subject to entiy at private sale.
If, therefore, upon locating any of the ci tion of this act, it shall be ascertained that any other tract previously located under an States, then the claimant whose title is thus not be entitled to the same, but be allowed to public domain. The only remaining inquiry, ? controversy been previously located, under any la by any other person or persons ? or, in other word or appropriated for the inhabitants of St. Charles, u. gress of the 13th of June, 1812, the 26th of May, i January, 1831, relating to the settlement of various souri, and, among others, to the claim of the town Charles now in controversy?
The first section of the act of Congress of the 13th of titled “ An act making further provision for settling the the Territory of Missouri,” confirms to certain towns and
'aims confirmed by the first sec
it covers in whole or in part
or village of St.
ne, 1812, en
villages the 3.5)
titles, and claims to certain lots or lands " which had been inhabited, cultivated, or possessed by them, prior to the 20th of December, 1803, and directed the surveyor general to survey the said lots or lands, and transmit plats thereof to the General Land Office.
On the 26th of May, 1824, an act supplemenitary to this act was approved; the second section of which directs the sui veyor general, among other things, “to survey and designate, so soon after the passage of this act as may be, the commons belonging to the said towns and villages, [among which was the village or town of St. Charles,] according to their respective claims and confirmations, under the said act of Congress, (of 13th of June, 1812,] where the same has not already been done.”
On the 27th of January, 1831, another act of Congress was approved, relating almost exclusively to this same subject. It is entitled "An act further supplemental to the act entitled "An act making further provision for settling the claims to land in the Territory of Missouri,' passed the 13th day of June, 1812.”
The first section of this act is in these words: “That the United States do hereby relinquish to the inhabitants of the several towns or villages of Portage de Sioux, St. Charles, St. Louis, St. Ferdinand, Ville a Robert, Carondelet, St. Genevieve, New Madrid, New Bourbon, and Little Prairie, in the State of Missouri, all the right, title, and interest of the United States, in and to the town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to, the said towns or villages, confirmed to them, respectively, by the first section of the act of Congress entitled 'An act making further provision for settling claims to land in the Territory of Missouri,' passed the 13th day of June, 1812; to be held by the inhabitants of the said towns and villages in full property, according to their several rights therein, to be regulated or disposed of for the use of the inhabitants, according to the laws of the State of Missouri.”
This law clearly confirms the previous survey and locations of this land under the previous laws of 1812 and 1824, and makes a complete legislative grant of it to the village or town of St. Charles. And a legislative grant undoubtedly confers as good and valid a title, in every respect, as a patent regularly and fairly issued under the laws of the United States. That the land in controversy, then, had been located and granted to the village or town of St. Charles, under a law of Congress, prior to the 4th of July, 1836, when Chouteau's claim to the same, or a portion of the same land, was confirmed by Congress, admits of no doubt; and the contingency provided for in the second section of the same act has therefore occurred; and Chouteau's claim, so far as it interferes with the rights of the inhabitants of St. Charles, must, according to the provisions of the second section of this act, be located, if located at all, elsewhere upon the public domain. If this is not such a case as was contemplated by Congress in the second section of the act referred to, I can conceive of none to which that provision can be more appropriately applied. I am sensible, however, of the importance of the principles involved in the consideration and decision of the relative merits of these conflicting claims-principles involving the plighted faith and honor of the nation, expressed in the solemn form a treaty. I am aware, too, that it may possibly be said that the law of Congress referred to, being in violation of the rights of private property recognised and sanctioned by a national treaty, should be pronounced void. I am not called upon to decide that question. If a law
of Congress is to be pronounced void in a case like the present, the Gene. ral Land Office is not the proper forum for such purpose; and until it is so declared or pronounced by a competent tribunal, the General Land Office should follow its plain and obvious directions. And such, in my judg. ment, are its directions in the present case.
The second question submitted for my consideration is, “whether sales or locations made of lands claimed under unconfirmed titles derived from France or Spain, between the 26th of May, 1830, when the act of the 26th of May, 1824, expired, and the 9th of July, 1832, when the act for the final adjustment of private land claims in Missouri was approved, are valid ?” This question, in my judginent, admits of no doubt; so far as relates to the action of the General Land Office, such entries and locations are to be treated as valid.
Leaving the rights of all parties to be ultimately decided on by the judi. ciary, my opinion and advice is, that no patent should issue from the Gene. ral Land Office, under the confirmatory act, for lands already granted by Congress, or for lands located under and in pursuance of any law of the United States prior to the passage of the act above referred to. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF THE TREASURY.
THE CHEROKEE FUND NOT LIABLE FOR DAMAGES, &c.
The Cherokee fund is not liable for damages arising from the non-fulfilment by the govern
ment of contracts made for the removal of, and supplies for, the Cherokee Indians.
ATTORNEY GENERAL'S OFFICE,
March 20, 1839. SIR: Your letter of the 16th instant is before me, in which you ask my opinion upon the following point:-whether the money agreed by the United States to be paid for the cession of land made by the treaty of 1835, with the Cherokees, or the sum appropriated by the law of the 12th of September last, is liable for the damages claimed in the three cases enumerated in your communication ?
I have given to this subject a careful and anxious consideration, and now proceed to give you the result of my reflections. The three cases are the following:
1. Williamson Smith made a contract with the government for the removal of the Cherokees to the west of the Mississippi. He, at great expense, prepared himself to fulfil his engagement, and actually removed a portion of them, and was ready to proceed and effect an entire removal.
2. Clemens, Bryan, & Co., made a contract for provisioning a portion of the Cherokees in their removal. To enable them to comply with their contracts, they made large purchases of cattle, provisions, &c., which have been thrown upon their hands, much to their injury, &c.
3. Langtry and Jenkins contracted to deliver three thousand pairs of shoes for the Indians, at the Indian agency, at $1 30 per pair. They purchased the shoes, and carried them to the agency, according to contract; they were not received, because John Ross, the new agent for the
removal of the Cherokees, refused to receive them; by reason of which a considerable loss has been sustained by Langtry and Jenkins. All these contracts appear to have been fairly entered into by persons authorized to make them on the part of the government; and the contract with Williamson Smith was even approved by the Commissioner of Indian Affairs, before its completion. If nothing more existed in these cases, the conduct of the government would be indefensible in refusing to proceed in the fulfilment of its engagements. But a cause did exist, which, in the opinion of those to whom the constitution and laws intrusted the removal of the Indians, required arrangements of a different character, and wholly incon, sistent with those already made. There was a moral necessity-a high overruling policy-which demanded that a removal of the Indians should be effected, if practicable, without bloodshed, or the destruction of those who, however misguided, however great their errors, are entitled to the paternal care of the general government. This object could be accom. plished, and, as was believed, could only be accomplished, by the em. ployment of John Ross, one of the Cherokee chiefs, as removing agent: A contract was accordingly made with him; and this, of course, annulled all preceding contracts; and annulled them, too, without the consent of the individuals who were parties to the same. In this state of things, what should now be done? Justice and good faith both require, in my opinion, that prompt and full indemnity be made to those who have suffered loss, by a failure of the government to fulfil its contracts.
I have examined the treaty with the Cherokees, of the 29th of December, 1835, the 15th article of which is as follows:“It is expressly understood and agreed between the parties to this treaty, that, after deducting the amount which shall be actually expended for the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts and claims upon the Cherokee nation, and for the additional quantity of lands and goods for the poorer class of Cherokees, and the several sums to be invested for the general national funds provided for in the several articles of this treaty, the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee nation east,”' &c. The third supplemental article of the treaty gives the Cherokees $600,000, to include the expense of their removal, and all claims of every nature and description not herein otherwise provided for," &c. The second section of the act of the 12th of June, 1838, adds the further sum of $1,047,067, for the same purposes as the third supplementary article above cited, with the further object of subsisting them for one year after their removal west.
Neither in the treaty nor in the law can I discover anything which would warrant an application of any part of the Cherokee fund to the payment of damages sustained by individuals, by the non-compliance on the part of the United States with contracts made with such individuals. My opinion, therefore, is, that although the demand for indemnity made by the persons whose cases have been referred to me is well founded, and should be promptly and liberally met, still you have no power to apply any portion of the fund provided by the treaty or law to any such purpose. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF WAR.
PENSIONS TO WIDOWS AND CHILDREN OF PAYMASTERS.
Widows and children of paymasters of the army who shall have died while in service, by
reason of wounds received in actual service, are entitled to the benefit of the fifteenth section of the act of the 16th of March, 1802, fixing the military peace establishment.
ATTORNEY GENERAL'S OFFICE,
March 22, 1839. Sir: By yours of the 15th instant, my opinion is asked whether the widows and children of paymasters of the army are entitled to the benefit of the fifteenth section of the act of the 16th of March, 1802, fixing the military peace establishment of the United States ?
It was decided by my immediate predecessor, in an opinion given on the 16th of March, 1836, that the fifteenth section of the act referred to was still in force. Adopting that opinion (which accords with my own) as correct, the only inquiry is, Does it embrace paymasters? The language is, “That if any commissioned officer in the military peace establishment of the United States shall, while in the service of the United States, die by reason of any wound received in actual service of the United States, and leave a widow," &c.
Paymasters are nominated by the President, and confirmed by the Senate, and then commissioned by the President. They are then commis. sioned officers; they belong to the military branch of the public service, and are at all times subject to the orders of the War Department. It therefore seems to me that they are clearly within the terms and meaning of the fifteenth section of the act of the 16th of March, 1832; and, of course, my opinion is, that the widow and children are entitled to the benefit of the provisions of said section. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF WAR.
ARREARS OF PENSIONS-TO WHOM TO BE PAID.
Arrears of a pension due a navy pensioner at the time of his death must be paid over to his
legal representatives. It does not revert to the navy pension fund.
ATTORNEY GENERAL'S OFFICE,
March 23, 1839. Sir: I have the honor to acknowledge the receipt of yours of the 9th ultimo, in which you state that Hamlet Moore, a navy pensioner, died on the 19th of October, 1838; that, under the act of Congress of the 3d of March, 1837, for the more equitable administration of the navy pension fund, he was entitled to arrears of pension from the date of his injury received in the naval service. And my opinion is asked, whether his arrears of pension, not being received by him in his lifetime, shall revert to the navy pension fund, or be paid to his legal representatives?
The second section of the act referred to declares “ that the pensions which may have been granted to officers, seamen, and marines, in the naval service, disabled by wounds or injuries received while in the line of